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					The Judiciary
    “Today I would like to talk to you about the
    role of the courts - in particular the court on
     which I sit - the Supreme Court of Canada.
      I can already see you turning off. We all
       know what courts do, you're saying to
      yourself. They hear cases. They decide
      whether people accused of offences are
        guilty or not. And they settle disputes
                   between citizens.”

   Remarks of the Right Honourable Beverley McLachlin,
                 Chief Justice of Canada
              Wednesday, November 6, 2002
                   UWO Faculty of Law
 “…But they do much more. And
   it's important that we, as
Canadians, understand what they

         Quotation cont’d
                                Rule of Law

• A cornerstone of civilized life
• Laws: institutionalized rules
   – Discourage arbitrary use of power
• second role of the judiciary in a democracy - to
  maintain constitutional governance. Court
  System: extension of rule of law
• Adjudicate disputes
   “In the Reference Re Succession of
 Quebec, [1998] 2 S.C.R. 217, para. 70,
 the Supreme Court of Canada said this
            about the rule of law:
 "[a]t its most basic level, the rule of law
vouchsafes to the citizens and residents
 of the country a stable, predictable and
ordered society in which to conduct their
affairs. It provides a shield for individuals
       against arbitrary state action".
     Remarks of the Right Honourable Beverley McLachlin,
                   Chief Justice of Canada
                Wednesday, November 6, 2002
                     UWO Faculty of Law
   “there can be no rule of law
     without a judiciary that is
independent of the legislative and
 executive branches of the state.”
              Rule of law
• Governments can only exercise powers
  given to them from a sovereign legislative
  body—a legislature
• All laws must be adhered to
• Laws themselves must conform to
  procedures and substantive provisions
  found in them
• All decision-making of G must be
  consistent with the law
 Canadian Administrative Law
  -legal dimensions of public policy and
        government decision-making
 -whether the exercise and application of
state power in particular policy fields has
          been accomplished in a
       legally proper and just manner
-delineates entitlements, protections, and
      obligations indivs., groups, and
 corporations affected by administrative
               arm of the state.
    -establishes rights and obligations
     Legal framework
   for decision-making

…of all government d-mkg…
Courts play pivotal role in
administrative law process
       Comparative Analysis
• No single model for a system of courts
  – British: all judges apptd by Crown on
    advice PM
     • House of Lords-highest court of
  – United States
     • Dual system of courts
Canadian System
• Fundamentally united
• Supreme Court of Canada
  – PM personally selects members
• Federal Court of Canada
  – Deal with specialized matters of federal
    admin. Law
  – Minister of Justice appts.
• Provincially-organized courts
  – Small claims; minor criminal offences
• Superior Courts
  – Apptd by GG on advice of Cabinet
Principles and Problems

  • Independence
  • Efficiency
  • Consistency
  • Cost
     “Judicial independence is
expressly or impliedly guaranteed
 by the constitutions of virtually
      every country. It is also
    recognised in international
      instruments expressing
   fundamental human rights.”
      Michael Kirby, Speech to YALE LAW SCHOOL
                  16 SEPTEMBER 2000
     U.S. Analysis on Packing the Courts
•   -2-

• Pres. are highly likely to appoint members of their own
  party to the courts: 94.3 percent of all federal court
  appointees belong to the same party as the appointing
  president, and cross-party appointments, where the
  president appoints a member of the other major party
  to a judgeship, are exceedingly rare.
• Pres. seek to appoint judges who have similar policy
  preferences because judicial decisions are affected by
  a judge’s partisanship and ideology.
• Extent to which presidents can appoint judges with
  harmonious policy preferences depends on the
  willingness of the Senate to approve the president’s
• # of appts during a single presidential term has varied
  dramatically across presidential administrations.
     Politics and the Judiciary
• Canada: strictly neutral in partisan politics
• Leg output; policy output; C’l amendment
• A source of law just as if a statute were
  passes or amended!
• Manitoba: abolishing manditory retirement
• Persons Case of 1929 (Sec. 24 BNA Act)
• Judicial Review (pre-1982; post-Charter)
  – US: NAACP (Brown v Board of Education,
  – Manitoba, Forest v The Queen (parking
    ticket!...bilingual statutes)
  Consistency…or lack thereof
• Contentious federal and Supreme Court
  rulings in 2002 sent conflicting messages
  about the separation of church and state in
  the United States.
• June 2002: The U.S. Supreme Court ruled 5-4
  that with using public funds to pay for students to
  attend religious schools posed no constitutional
• Sacramento, California, day earlier: a three-
  judge panel of the 9th U.S. Circuit Court of
  Appeals ruled the phrase "under God" makes
  the Pledge of Allegiance unconstitutional.
     Basic Steps of Strategic Litigation
       Canadian Advisory Council on the Status of Women
• Defining a goal in terms of the desired principle of law to
  be established
• Plotting how the principle of law can be established from
  case to case in incremental, logical and clear steps
• Selecting winnable cases suitable for each stage taken to
  achieve the goal
• Consolidating wins of each stage by bringing similar cases
  to create a cluster of cases in support of the principle

• Legal Education and Action Fund (LEAF)
   – Abortion; employment opportunities; protection against
   – Sponsored
   – Intervened
 Alexis de Tocqueville, in his classic
      nineteenth-century study
"Democracy in America," argued for
  allowing judges to moderate the
legislative excesses of a democratic
majority through the "antidemocratic"
       means of judicial review
            Administrative Law
• More than 200 federal and prov. Regulatory
    – Federal Public Service Staff Relations Board
    – Quebec Human Rights Tribunal
    – Federal Immigration and Refugee Determination
    – Ontario Environmental Assessment Board
•   Provincial superior courts and courts of appeal
•   Federal Court
•   Federal Court of Appeal
•   Supreme Court of Canada
                            Judicial Activism
• Willingness of judges to overturn legislation
  or executive action
• U.S.A.
  – Democracy and Judicial Activism:
  – Serve for Life?
  – Senate Hearings
     • 1987 Bork: ‘too conservative’
     • Clarence Thomas: ‘character’
• Canada
  – Section 33 (Quebec, ‘inside;outside sign issue)
  – Peter Hogg: ‘legislative review of judicial review’
• most American judges, at the state and local
  levels, are directly elected by vote of the
  majority and must run for re-election at the
  end of their terms.

• requirement that Supreme Court judges must
  have their appointments confirmed by a
  favourable vote from the political party that
  has control of the Senate.

• routine phenomenon of politicians, and
  members of the media, attacking judicial
  decisions on blatantly political grounds.
   “This highly politicized culture in which the
American judiciary operates has generally been
   absent in Canada. None of our judges are
elected, or must run for re-election. None of our
  judges have their appointments subjected to
   confirmation votes by a majority of elected
 politicians. And political attacks on judges and
          their courts, by politicians or by
the media, are generally regarded as improper
       attempts to influence the process of
               impartial adjudication.”
                                    Michael Code,
           Political and media bias about the Supreme Court of Canada:
               Dispelling the big lie that the court is “soft on crime”
Bertha Wilson, the first woman to be
            appointed to the
     Supreme Court of Canada,
    stated in a 1985 speech that
the new role of judges following the
  adoption of the Charter entailed
  "a fundamental reordering of the
     political balance of power."
  “…unaccountable judiciary may be
 encroaching upon the mandate held
 by democratically elected legislative
bodies, with judges wielding the power
  to brand laws which run counter to
 their legally embellished ideological
convictions as unconstitutional and to
            overturn them.”

     “Canada En Route to Judicial Rule?
        “Christian Jaekl , NZZ Online
• Charter of Rights and Freedoms (1982)
• To advance the rule of law in a liberal
   – Prevent governments, no matter how
     strong their majority support, from
     trampling on rights of minorities or
   – Extensive transfer of decision-making
     power from legislatures to the courts
• Ultra vires
       Courts and the Charter
• The Charter incorporated a new set of
  constitutional limitations on the legislative
  and executive branches of government.
• Citizens could now go to court to
  challenge laws and government acts not
  only on the ground that they exceeded the
  grants of power, but also on the ground
  that they violated fundamental rights.
• Swamped
              Broad language
• 10. Everyone has the right on arrest or
  detention…(b) to retain and instruct counsel
  without delay and to be informed of that right.
• Therens case, 1985: “detention”
   – Moose Jaw, Saskatchewan
   – Come to station for breathalyzer test
   – Counsel moved for dismissal
• ?N: Where is decision-making power vested
   – Parliament hadn’t explicitly stated that those
     requested to “breathe into the box” should
     be informed of their right to retain counsel.
        central problem

interpreting a Charter which is of
     necessity very vaguely

         social context
                     Charterland cont’d
• First Years: Criminal Law (DUV/Sale Drugs)
• Then: April 17, 1985: proclamation of
  Section 15(1), equality rights
• “Every individual is equal before and under
  the law and has the right to the equal
  protection and equal benefit of the law
  without discrimination and, in particular,
  without discrimination based on race,
  national or ethnic origin, colour, religion, sex,
  age, or mental or physical ability.
• Government statute books: differential treat’t
 Charter of Rights and Admin Law
• Section 7: Everyone has the right to life, liberty
  and security of the person…
• Section 8: Everyone has the right to be secure
  against unreasonable search and seizure
• Section 9: Everyone has the right not to be
  arbitrarily detained or imprisoned
• Seciton 15.1: Every indiv. Is equal before and
  under the law and has the right to the equal
  protection and equal benefit of the law without
  discrimination and, in particular, without
  discrimination based on race, national or ethnic
  origin, colour, religion, sex, age or mental or
  physical disability.
Singh v. Minister of Employment
    and Immigration (1995)
            --right to oral hearing—
    Section 7 rights under Charter violated
      -radically transformed admin law…
    -gave Canada one of most progressive
         refugee systems in the world
                Major Remedies
• Certiorari: quash
• Prohibition/injunction: prob. Making decision
• Writ of Mandamus: court order commanding or
  mandating the dept or agency actually make a
  decision required by admin law, but that for some
  invalid reason, dept or agency unwilling to make
• Habeas corpus: derived f. crim law; esp. applied
  imm/ref/penal law (wrongful detention; improper
  application of discipline) courts affirm or alter dec’n
• Damages: related to the above (token to
  substantial $)
   Administrative Law
Grounds for Judicial Review

 •   Procedural Impropriety
 •   Illegality
 •   Unreasonableness
 •   Unconstitutionality
    G decision making must be
  undertaken in a manner that is:
• Procedurally just
• Within the decision-maker possessing
  proper legal jurisdiction to render the
• With the final decision being one that can
  be reasonably derived from the language
  of the given Act and the facts of the case;
• With the final decision also being in
  conformity with all other constitutional
  provisions, especially from the Charter
  Governing Actors and Due Process
    Natural Justice and Fairness
• If/when an admin action affects the rights,
  duties, and interests of an indiv, gp, or corp.
  that party generally has the right to:
  – A gov’t hearing on the matter PRIOR to d made
  – Notification of such a hearing
  – Legal rep at hearing
  – Exam and cross-exam of any/all evid./argu’t intro
  – Speak directly to d-mkrs in regards to case merits
  – Reasonable adjournments
  – Hearing conducted by fair, impartial adjudicator
  – Written reasons explaining final decision
     Nat J and Fairness cannot and
    should not be applied to EVERY
          decision made by G
           Beach the Ship of State

  -broadly and evenly across entire country
-generally and equally applying to all affected
           persons, grps, businesses
  -threshold crossed when relates to rights,
 duties, interests of PARTICULAR indiv, gps,
           businesses in distinct circs
   -grey area (inmates? Non-Canadians?)
• Sea Shepherd Conservation Society v. British
  Columbia (1984) (killing of wolves)
• Bezaire v Windsor Roman Catholic Separate
  School Board (1992) (9 schools closed)
• Does the environment receive less legal
  protection than local schools simply because the
  environment is more removed from our daily
• Demaria v. Canada (1987) (moved med to max
  security) right to hearing? Right to cross
• Fair and Just decision? Problematic!
   The courts discharging their constitutional role do not
    function as secondary legislatures. Judges are not
  politicians. They are not principal players in the game.
     They are not even like a head referee or umpire,
    directing traffic and passing moral judgment on the
  playing field. They are more like linesmen in a football
game, measuring the play and calling in or out, enforcing
  the boundaries of democratic governance. To properly
     perform this function, they must be impartial and
 objective. They cannot be beholden to one team or the
 other, one segment of the electorate or the other. Their
 role is to mediate the divergent interests, not to vote for
                  one side or the other.
              Right Honourable Beverley McLachlin,
             Chief Justice of Canada, November 2002
 “Judges in the contemporary world must
   rest their decisions on reason, not on
   force, fear or the deployment of state
 power. Thus, the ultimate foundation for
    judicial independence lies not in the
   words of international instruments nor
 even of domestic constitutions. It lies in
the manifest integrity of the judiciary itself
     and the general acceptance of that
  integrity by the communities whom the
                judges serve.”
         Michael Kirby, Speech to YALE LAW SCHOOL
                     16 SEPTEMBER 2000
           Political theorist Joseph Heath:
       those on the left and those on the right
         ignore the importance institutions in
 fostering political unity and identity. In particular,
    the cultural nationalists mistakenly assume
    pluralistic societies such as Canada require
  shared values to avoid falling apart. They fail to
 understand that our pluralism reveals intractable
conflicts on basic values, and what ultimately hold
 societies together is the institutions - Parliament,
     the courts and the Charter of Rights - that
               mediate those conflicts.”
                Ottawa Citizen, Nov. 3, 2002, A5

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