January 8, 2008

Ian Greene & Richard Haigh

Course expectationsIntroductionsElectronic resourcesIntroduction to public law and the Canadian

legal system

Seminar Presentations Analysis of Federalism AssignmentCase analysisMajor EssaySeminar participationPlagiarism

NameHow did you get interested in public

administration?How does your work (current or past) relate

to constitutional and administrative law?

www.yorku.ca/igreene: access to most course readings and powerpoint presentations . (There will be some handouts.)

Links to videostreamed lectures will be mounted on the MPPAL (QuickPlace) web site a few days after the lecture

Excerpts from Greene’s The Charter of Rights will be posted on www.yorku.ca/igreene.

“Adjudication” is the dispute-resolution system used in courts. Characteristics?

Law applied to facts

Judge makes final decision

Reasons presented for judgment

How is adjudication different from arbitration and mediation?

Arbitration: standards agreed to by disputing parties applied, but not usually the whole body of law

Mediation: assistance in listening, understanding, and resolving (contract)

What are "legal persons?“ People, corporations, and

governments

What's the difference between negative and positive law?

Negative law: prohibited from certain behaviours (crim. law)

Positive law: positive incentive to change behaviour (tax deductions for donations to political parties)

Main sources of law: statute law (laws created by

legislatures) case law (created by judges)

Other (informal) sources: Ten Commandments, Magna Carta, canon law, writings of legal scholars (eg. Coke ~ 1630, and Blackstone ~ 1770), community standards (eg. obscenity cases), Hogg's text.

primary and subordinate legislation

ratio decidendi; obiter dicta

common = general common law judges "find"

the law Parliamentary sovereignty

or legislative supremacy. Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone.

Constitutional convention

Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada.

NB & NS: 1758 Quebec: 1759: French

civil law. 1763: English public law

PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: 1870.

Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792.

Imperial statutes remained in force until Statute of Westminster, 1931.

Development of common law courts and courts of equity.

Preamble to BNA Act: implied Bill of Rights

Barristers and Solicitors Judicial Committee of the Privy

Council (JCPC); 1949. per curiam vs. seriatim England: specialized appeal j's;

Canada: generalist appeal j's.

____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 27 js | | 47 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

common law stare decisis adversary system

circuit judges: “assizes.” Why don’t judges have to retire until 70 or 75? County and District courts now merged with superior

courts judicial independence: purpose to promote judicial

impartiality Valente decision (1985)

security of tenure financial security judicial control over adjudicative matters

judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. - Hryciuk)

Trial Courts:Improvisors (~10%)

no single process, but for most outcomes would be the same

Strict Formalists (~ 20%) particular process followed,

and always leads to the same conclusion.

Pragmatic formalists (~45%) particular process followed

(check list, shifting balance, water rising), but judges might decide differently.

Intuitivists (~25%) “gut feeling”

Appeal courts: Panel process different

Supreme Court of Canada a public law court (~100) leave to appeal (~600 apps)

Problems with justice system for some litigants and lawyers,

a game delay in client’s interest (about

half of trial lawyers) judges limited by adversary

system re control of caseflow Role of courts: dispute

resolution, prevent abuse of power, official const. philosophers, pawns in other peoples’ battles

Minor appeals heard by a single judge in a higher court (summary conviction appeals)

Major appeals heard by the provincial Court of Appeal

Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5)

The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3.

Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9.

per curiam (or per coram) vs. seriatim decisions

1867: Canada independent re its internal affairs Balfour Declaration (1926) and Statute of Westminster

(1931): Canada recognized as an independent state re foreign relations

BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament. 1926-1981: many failed constitutional conferences.

Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Alberta, and Quebec premier couldn’t get cabinet to agree.

Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.