VIEWS: 5 PAGES: 93 POSTED ON: 7/4/2012
SOURCES OF LAW Hierarchy of law in our system: - Constitution (highest) - Statutes: legislature is the main law making body (speaks on behalf of the people, so it should prevail over regulations etc.) - Regulations: subordinate laws passed by other bodies to whom the legislature delegates law making power (these have to comply with the statutes that give them this law-making power, they fill in the details of the legislative scheme since legislature does not have the capacity to make laws of all details – i.e.: administrative bodies, tribunals, ministers, cabinets, etc. like Ontario Human Rights Commission). - Common law (lowest) - Subordinate laws that don’t comply with laws above them will be challenged in court to be of no force and effect. If court rules them invalid, Parliament can still reenact them with s.33 Notwithstanding Clause of the Charter (notwithstanding clause is a power that may be invoked by Parliament or any of the provincial legislatures) (so courts don’t have the last word) but s.33 only allows Parliament to override s. 2 and ss. 7-15 of the Charter (not all of the Constitution). Since s.33 is part of the Constitution, it is consistent with notion of Constitutional supremacy/rule of law. 1) CONSTITUTION: The Constitution of Canada includes: 4 original provinces that formed Canada in 1867: Ontario, Quebec, New Brunswick, and Nova Scotia. - a) The 1982 Constitution Act (Charter is part 1, ss. 1-34, of the 1982 Constitution Act) o Also includes Aboriginal Rights Act (Aboriginal and Treaty rights contained in s. 35(1), which is part 2 of the Constitution), Procedures of Amending Constitution of Canada, which is part 5 of the act). - b) The acts and orders referred to in the schedule under s. 52(2): o Lists the 1867 Constitution Act (a.k.a. BNA – British North American Act before 1982). - c) Any amendment to any Act or order referred to in (a) or (b). - Note, s. 52(2) says Constitution “includes” these things (not an exhaustive list). But no court rulings have thus far added to this list of documents yet. But courts have added some unwritten constitutional principles that can have a binding force in some circumstances (i.e.: rule of law) o So Constitution includes written texts specific specified in s. 52(2) and unwritten fundamental principles. See Edwards Persons case for judicial interpretation of constitutional text. Unwritten Principles Underlying our Constitutional Identified by SCC – can impose binding legal obligations on government – but written constitution trumps unwritten principles. SCC says these principles can: - 1) Help guide judicial interpretation of constitutional texts: o Normal approach for judges to try to identify underlying values, purposes etc. of a text in order to interpret the text = not controversial use of unwritten constitutional principles (Secession Reference court did this). - 2) More controversially, SCC. says the unwritten fundamental principles can fill in the gaps of the express terms of the constitution and place binding legal constraints on governments (paras. 53-54 of Secession Reference) – i.e.: nothing in Constitution about impact of referendum vote, or the process of secession, so SCC used unwritten principles to fill in this gap. o This is controversial, it may be argued that filling in the gaps of the Constitution text should be up to the people (should go through the Process of Amending the Constitution, found in part 5 of the Constitution,), not something for judges to do. o But most commentators argue that SCC has used this power wisely and have placed constraints on government with unwritten fundamental principles in a way that shows skill and diplomacy. o Examples of how SCC has used unwritten fundamental principles to fill in the gaps of the Constitution to give rise to new legal binding obligations on the government (these principles prevail over statutes etc.): 1) SCC said unwritten principles of federalism and democracy impose a duty/obligation on governments to negotiate secession in good faith following a clear majority vote on a clear question: (Secession Reference 1998, cb131, at para.88). SCC also found that unilateral secession would violate the principles of democracy, the rule of law, federalism and minority rights (Secession Reference). 2) In the Provincial Judges Reference, SCC. said the unwritten principle of judicial independence requires the creation of independent Judicial Compensation Commissions (Judicial Compensation and Benefits Commission)(JCCs) to make recommendations to government regarding judges’ salaries (even though nothing in the Constitution explicitly imposes this obligation (Provincial Judges Reference 1997, cb332, 359) – see La Forest’s dissent below regarding this. 3) Used it in Manitoba Reference too (see notes on this case, and see 2006 exam) o This methodology also seen in provinces: Ontario Court of appeal said unwritten principle of Protection of Minorities made it unconstitutional to close a hospital that provided comprehensive services in French, even though nothing in the Constitution speaks directly to the issue (nothing says that health services have to be in French in Canada) (Lalonde v. Ontario 2001 Ont CA (regarding the Montfort Hospital). - But interestingly, while SCC used unwritten constitutional principles to fill in the gaps in the above cases, they would not in Christie, saying that doing so would be rewriting the Charter and that such changes should be undertaken by the people through the process of constitutional amendment. SCC said it is not for courts to invent right to access to legal services and impose it on the government. o Opens SCC up to criticism (SCC used unwritten principles to fill in gaps in other cases above = being inconsistent). Maybe SCC didn’t use unwritten principles to impose legal obligations in Christie because they did not want to get involved with dictating legal aid programs (political matter). This may also be why SCC said Rule of Law could not work in favour for Tobacco companies in Imperial Tobacco. o Indeed, La Forest J. in Provincial Judges Reference said, “the express provisions of the constitution ... are the constitution. To assert otherwise is to subvert the democratic foundation of judicial review.” (page 413). 1) Rule of Law/Constitutional Supremacy (theses are connected in our system) – also codified in s. 52(1) of the 1982 Constitution Act (page 90 of casebook) – “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This is the Constitutional Supremacy Principle that the Constitution is the supreme law (a.k.a. The rule of law). o Hierarchy of law in our system: Constitution (highest) Statutes: legislature is the main law making body (speaks on behalf of the people, so it should prevail over regulations etc.) Regulations: subordinate laws passed by other bodies to whom the legislature delegates law making power (these have to comply with the statutes that give them this law-making power, just fill in the details of the legislative scheme since legislature does not have the capacity to make laws of all details – i.e.: administrative bodies, tribunals, ministers, cabinets, etc. like Ontario Human Rights Commission). Common law (lowest) o Subordinate laws that don’t comply with laws above them will be challenged in court to be of no force and effect. If court rules them invalid, Parliament can still reenact them with s. 33 Notwithstanding Clause of the Charter (notwithstanding clause is a power that may be invoked by Parliament or any of the provincial legislatures) (so courts don’t have the last word). s. 33 only allows Parliament to override s. 2 and ss. 7-15 of the Charter (not all of the Constitution). Since s. 33 is part of the Constitution, it is consistent with notion of Constitutional supremacy/rule of law. - 3 Elements of Rule of Law: o 1) The law is supreme - No one is above the law, regardless of who you are, all actions have to have their sources in legal authority (Roncarelli and Manitoba Language Rights Reference) Cannot have complete discretion (Roncarelli) – no law can, without express language, be taken to give unlimited arbitrary power for any purpose (Roncarelli). o 2) Rule of Law means that an actual normative order of positive law must exist (Manitoba Language Rights Reference). i.e.: Bush bringing a system of law to areas where is chaos. i.e: Manitoba Reference 1985 – pg 393 casebook. When Manitoba joined the confederation in 1870, s. 23 of the Manitoba Act entrenched in the Constitution that laws would be passed in English and French (had approximately equal Anglo and Franco population, so Manitoba was guaranteed that rights/legislature would be passed down and written in both English and French), but later more Anglo than Franco = Manitoba stopped passing laws in both languages even though it was still constitutionally required to do so (simply passed the Official Languages Act 20 years later, which said laws could be passed only in English – but inconsistent statutes cannot prevail over Constitution). SO bilingual activists took case to the courts in 1970. Tension between constitutionalism and the Rule of law o Constitutionalism (s. 52 of 1867 Act) and Rule of Law would say that all the laws made only in English are of no force and effect (against constitutional requirement that the laws be passed in English and French), but striking down whole order of laws (90 years worth) would result in chaos and would go against the Rule of law principle that an order of laws must exist. So court gave them time to translate the laws. Manitoba should’ve used s. 43 bilateral procedure instead to change the Constitution. o So courts gave remedy to preserve the rule of law and follow the constitution by giving Manitoba government a couple of years to translate laws. – see protection of minorities. Sensible SCC approach – hard to imagine a better solution – court did its best to affirm constitutional supremacy (s. 51(2)) and had creative remedy to preserve legal order to affirm rule of law (common for courts to issue suspended declaration of invalidity now). o 3) The relationship between state and individual must be regulated by law, so all exercise of state public power has to have a source in a legal rule (common law prerogative powers, or more commonly in a statute) (Roncarelli, also discussed in Manitoba Language Rights Reference, confirmed in Judicial Judges Reference). State actors (executive and judicial branch etc.) have no powers except for those that are conferred in law (has to be found in a statute) (Roncarelli). Except executive can also get powers from Royal Prerogative. These statutory powers must be limited to what the implied purpose of the statute is (i.e.: Liquor Act purpose has nothing to do with racial discrimination, so Roncarelli using these powers for racial discrimination is illegal) (Roncarelli). Would have been different for Roncarelli pre-Charter if statute explicitly said Roncarelli could cancel licences of holders he was satisfied were engaging in activities contrary to public interest but, now if the statute explicitly allows violation of fundamental rights and freedoms it can be challenged with the Charter – now would argue that Roncarelli’s actions went against s. 2(a) (protects freedom of conscience and religions) and s. 15 (protects equality). If no legal basis for state member’s (executive, judicial etc.) actions, then they are illegal. o But rule of law does not constrain (federal and provincial) legislature’s law-making so long as it doesn’t violate the Constitution (legislature is supreme and can pass any law it likes so long as it doesn’t violate the constitution) - Bacon 1999 (and Authorson). Court in Imperial Tobacco and Bacon said the remedy for a statute that doesn’t violate the constitution is at the ballot box. Sask CA (pg 187) – shows also that parliamentary supremacy (legislature as a whole) is still strong in our system (see section). See parliamentary Authorson etc. cases for more. See Parliamentary Law-Making for more on parliamentary supremacy. Also see constitutional supremacy for more (rule of law means counter-majoritarianism, which means no unbridled parliamentary supremacy). - Judicial independence from legislative and executive branches required to give effect to the rule of law ideal that we live in a society governed by law rather than by particular individuals or partisan outlooks (also means that state actors’ actions must always be open to judicial oversight). o Also means judicial appointments should be done by independent body (see judicial appointments etc.) – argue that judicial appointments should also be independent due to judicial independence principle. See Constitutional Supremacy implications for more. - * Direct elections (especially direct partisan elections) (type of judicial appointment process) are bizarre according to the rule of law, because this means that judges can be politically influenced. Have to campaign and raise money (see judicial appointments etc.) * Rule of law also discussed in Secession Reference. What the Rule of Law doesn’t mean: o 1) Cannot use rule of law to challenge substantive content of legislation (it only limits the actions of the executive and judicial branches of government). Rule of Law is necessary for a just society (curtails arbitrary government action etc.), but it is not sufficient for a just society (the context of a law could be unjust and it would not be inconsistent with the rule of law) (Imperial Tobacco at para.60). o 2) Rule of Law does mean that general access to legal services is a constitutional right (Christie at para.21). o 3) Rule of Law does not require that legislation be prospective or that it be general in character. Rule of law does not require that legislation cannot confer special privileges on the government, rule of law does not ensure a fair civil trial (Imperial Tobacco at paras.63- 64). SCC says in response to Imperial Tobacco’s claims that none of these things have Constitutional Protection. Possible policy argument: may show SCC doesn’t want to include too much into Rule of Law (may render it less powerful if it covers everything). Implications of Constitutional Supremacy (which connects to Rule of Law in our system) (not from cases except specified) - 1) Hierarchy of Law: Constitution is supreme law (top of hierarchy) so any laws inconsistent with it will be invalidated (see hierarchy of laws). - 2) Adjudication: o Constitution has basic principles of our political state (sets our values / main architectural government principles) that is supposed to last for generations, but it is not self- executing/has sparse language and abstract ideals like liberty, equality etc. So need independent judiciary to interpret and apply constitution as objectively as possible (without political influence): i.e.: Reference questions. i.e.: Adjudicates inconsistencies between Constitution and Common Law and declares inconsistent ordinary laws invalid. o But lots of tension/criticism that the “supreme” Constitution is what judges say it is = lots of debate/accusations about judges acting undemocratically and enforcing their own values against those of the elected governments. Judges’ response is that political actors explicitly included power to interpret/enforce Constitution in the written Constitution and this means having to declare limits on political powers sometimes. - 3) Counter-Majoritarianism: Canada adopted written supreme Constitution to make certain matters beyond the reach of the legislative majority so that there is no unbridled Parliamentary supremacy (current and future governments will have to protect these matters in the Constitution, which can only be amended through extraordinary process in part V, not through ordinary legislative process). o S.C.C. gives 3 main reasons for constitutional supremacy (have to put 3 things beyond the reach of legislative majorities) Secession Reference (page 109) 1) Protection of fundamental rights and freedoms: SO current and future governments have to protect basic fundamental rights and freedoms even during crises. 2) Protection of minorities: SO vulnerable minority groups can maintain / promote their identities against majority assimilative pressures. i.e.: Constitution guarantees language rights (heavy 19th century Catholic church influence insisted on denominational school rights being protected = written into Constitution Act SO Catholic schools are fully funded now). 3) Protection of federalism division of power between two or more levels of government (government levels have to be equal and autonomous in their own spheres, not in a hierarchical relationship): Rules about which subjects each government level can legislate are in the Constitution SO that one government level CAN’T just unilaterally alter power in its favour. - 4) Amendment by Super-Majority: Need a super majority (Federal AND provincial legislatures) to amend the Constitution (have to go through part 5 procedures). o Extraordinary process to amend Constitution turns largely on federalism Corollaries of the Rule of Law: - Judicial independence. - Police and prosecutorial independence (for certain decisions – see police in executive section for more). Have to have balance with police/prosecutorial accountability to the government, which is also crucial to the rule of law. See implications of the Rule of Law in independent administrative agencies (executive) for more. 2) Federalism - also supported by rule of law (counter-majoritarianism and amendment by super- majority – see constitutional supremacy) – also related to 1982 Constitutional Amendment Procedures. Judicial Independence is also a corollary of Federalism (see judicial independence). - In our Federal state (state that has 2 or more government levels that are coordinate/equal in status and are autonomous within own spheres, meaning they cannot interfere with each others’ jurisdiction), political power is shared by federal and provincial governments. The courts “control the limits of” these respective sovereignties. o This division of powers found in ss. 91 and 92 of the Constitution Act, 1867 (sets out subject matters/areas of regulatory or legislative concern for Federal Parliament and for Provincial Legislatures). – so division of powers is written/ s. 91: gives residual law-making powers to Federal Parliament to make laws for the Peace, Order, and good Government. s. 92: gives law-making powers to Provincial Legislature. o But 1982 Charter has placed limits on what laws can be enacted by Parliament AND by the Provincial legislatures. - SCC said unwritten principles of federalism and democracy impose a duty/obligation on governments to negotiate secession in good faith following a clear majority vote on a clear question: (Secession Reference 1998, cb131, at para.88). - Why did Canada adopt a federal form? – related to democracy and protection of minorities. o Canada was the first to adopt federal state for purpose of protecting group based cultural diversity (this tradition influenced Canada’s evolution a lot) – related to senate function. o When forming the new state, there was tension between wanting unity and wanting to protect regional diversity (different regions wanted to come together but insisted on protecting their linguistic, cultural, and regional differences) - Did the 1867 Act create a truly federal state? o No, even though Canada adopted the federal form more than anywhere else in the world and is theoretically a federal state, it is not in practice. Provinces are legally subordinate and are not autonomous in many ways: i.e: Federal power of disallowance (a.k.a. “power of reservation”) means that provinces don’t have autonomous law making capacity = shouldn’t be a federal state feature (but legally and conventionally unconstitutional). - Do municipal, territorial and Aboriginal governments have a federal relationship to the other levels of government? see notes on municipal growing up (analogy to adolescence). o No – municipal, territorial, and Aboriginal governments do not have federal relationships with the provincial/federal government levels – they are not coordinate/equal with these other levels and do not have guaranteed autonomy. o These governments exist only through federal statute, and can be repealed by federal statute at any time. o i.e.: municipal governments are within the provincial jurisdiction under s. 92 of Constitution, so municipal powers are delegated to them by provinces. This is one of the ridiculous aspects of our Constitution (that municipalities don’t have constitutional protection and can be abolished at Provincial government’s whim). o i.e.: Aboriginal governments: There has been significant evolution from a federal state based on two levels of government to one including this third level (changing mostly through treaties between the federal/provincial governments and the aboriginal nations). When these treaties are concluded, Aboriginal governments will be protected. Parliamentary Supremacy – (idea that Federal parliament is supreme/has unbridled power to make whatever law it wants – unity, not a federal state) - not an unwritten constitutional principle. - Preamble to the 1867 Constitution Act indicates that Canada wanted a constitution similar in principle to that of the United Kingdom (which has parliamentary supremacy), but Canada still wanted federalism. So the 1867 Constitution is a mix of a federal state with a written constitution (from the U.S. tradition) and parliamentary supremacy, conventions, and monarchy as head of state (from the British tradition). o ss. 91 and 92 of 1867 Constitution Act = Federal and Provincial legislatures are the sole sovereign holders of state authority. - But 1982 Charter placed limits on what laws legislatures can enact (i.e.: freedom of expression etc.) (this combined with existing ss. 91-92 from 1867 Constitution indicates that the Constitution is now the supreme source of law making authority in Canada and thus, some say Canada moved from a Parliamentary supremacy to Constitutional supremacy (more like U.S. system)). o BUT if something is not competent to provinces, it must be to federal parliament, due to the principle of exhaustive powers so Parliamentary supremacy is still strongly influences our constitution (alongside Constitutional supremacy): i.e.: s.33 “Notwithstanding” Clause reasserts some Parliamentary sovereignty. Court can still find that Parliamentary sovereignty decides an issue. (i.e.: Babcok v. Canada (Attorney General)  3 SCR 3.) i.e.: Legislative and Executive branches are fused even though they have separate functions (not strong separatation of powers like U.S. system). o So cannot lose sight of how important parliamentary supremacy still is in our government system (federal parliament is still supreme as it can pass any law it likes, subject to constraints of Charter and Constitution). - See Parliamentary Law-Making for more on parliamentary supremacy. Also see constitutional supremacy for more (rule of law means counter-majoritarianism, which means no unbridled parliamentary supremacy). 3) Protection of Minorities - also supported by counter-majoritarianism in rule of law, see Constitutional Supremacy (mentioned in Secession Reference and in Lalonde v. Ontario) - Ontario Court of appeal said unwritten principle of Protection of Minorities made it unconstitutional to close a hospital that provided comprehensive services in French, even though nothing in the Constitution speaks directly to the issue (nothing says that health services have to be in French in Canada) (Lalonde v. Ontario 2001 Ont CA (re Montfort Hospital) – court used unwritten fundamental principles to fill in the gaps of the Constitution to give rise to new legal binding obligations on the government. o Could also be shown in Manitoba Reference 1985 – pg 393 casebook (also illustrates Rule of Law principle that an actual normative order of positive law must exist) When Manitoba joined the confederation in 1870, it has approximately equal Anglo and Franco population, so Manitoba was guaranteed that rights/legislature would be passed down and written in both English and French, but later more Anglo than Franco = Manitoba legislation stopped passing laws in both languages even though it was still constitutionally required to do so. SO bilingual activists took case to the courts in 1970. But, problem was that almost a century of statues were passed only in English, and it would be difficult to strike down almost a century of statutes (entire legal order) to have no force and effect. So courts gave remedy to preserve the rule of law and follow the constitution by giving Manitoba government a couple of years to translate laws - SCC also found that unilateral secession would violate the principles of democracy, the rule of law, federalism and minority rights (Secession Reference). 4) Judicial Independence (pg 330) – closely tied to the separation of powers (which theoretically depoliticizes the relationship between the judiciary and the other two government branches). - Supreme Court said judicial independence was like the “lifeblood of constitutionalism in democratic societies” (Beauregard v. Canada,  2 SCR 56). Why must judges be independent of the other branches of government? - Separation of powers not so much between executive and legislature (they are actually fused in our parliamentary system). But strong separation of powers between the judiciary, which is articulated through our principle of judicial independence, and the other two branches of government due to: o i) Judicial independence is a corollary of the Rule of law (unwritten constitutional principle): a) We live in a society/system built on the rule of law, and a corollary of the rule of law is that we need adjudication and interpretation of the law to be by a neutral/independent/objective decision maker (because the law is not self-enforcing and needs to be interpreted – relates to counter-majoritarianism) so there is a level playing field when enforcing the law (executive controlling the judiciary would make it unfair). – another thing that makes law level playing field relates to elections (s.3). b) We also need judicial independence because populations’ confidence in the judicial system is essential in our democratic society that is founded on the rule of law. People have to be satisfied that judges are impartial or their confidence in the system will be undermined. – so relates to democracy o ii) Also a corollary of federalism principle (unwritten constitutional principle): (mentioned in Secession Reference along with the Rule of Law principle). Need neutral umpire to adjudicate disputes between the different levels of government or else our commitment to the federalism principle can be compromised (federalism is where 2 or more levels of government are equal/autonomous in the sphere). Without judicial independence/neutral umpire, this equality can be threatened. Have to look at judicial independence along 2 dimensions: see directly below security of tenure - i) Institutional - Have to know that, institutionally, courts as a whole are free from interference from other branches of government. - ii) Personal – Have to know that the mind of the independent judge is impartial. 3 Core Characteristics/Components of Judicial Independence in the Canadian System: 1) Security of Tenure – judges insulated from political threats (appointed for long term and not easily removed – see process to remove, have to be both houses etc.) Constitutionally protected security of tenure has an individual and institutional dimension: - (individual: judges cannot be dismissed by the executive before the age of retirement except for misconduct or disability. So a judge can only be removed from office for a reason relating to his or her capacity to perform his or her judicial duties. This means that arbitrary removal is prohibited – Mackin ) - (institutionally: before a judge can be removed for cause, there has to be a judicial inquiry to establish that this cause exists, where the judge affected must be given the opportunity to be heard.” – Re Therrien ). Role and composition of CJC – established through the Judges Act, RSC 1985, c. J-1 (CJC is the body responsible for investigating complaints about the conduct of federally appointed judges (superior, federal, and SCC). If the council concludes that removal of a judge is warranted, it makes a report to the Minister of Justice, who can introduce a motion before Parliament. Authority to recommend removal of a judge from office is found in s. 69(3) of the Judges Act. But in practice, every judge facing convincing allegations of misconduct has resigned at some stage of the council’s proceedings instead of going before Parliament for an ultimate determination. Process for removal – CJC’s (Canadian Judicial Council) complaints process (pgs 342-343) - For federally appointed judges (SCC, superior, and federal), have to have both houses of parliament agree to remove a judge, can only be removed by legislation, removal can only be for violation of judicial standards of good behaviour, which is determined by a set of judges themselves who receive complaints and investigate ones they deem to be well founded, hold inquiries, and make recommendations to the Minister of Justice). 2) Financial Security – so other government branches cannot interfere for partisan purposes. Provincial Judges Reference 1997 SCC (359) - Lamer J., based on s.11(d) of the Charter ruled that provinces had to go through a process involving an independent body when setting salaries for provincial judges. - * But, obiter shows that implications of Provincial Judges Reference are the same for other courts: Lamer J., said holding in Provincial Judges Reference is based in s. 11(d) of the Charter, but obiter looked at unwritten principle of judicial independence as grounded in 1867 Constitution preamble, which SCC said is a constitutional binding principle to all courts (Federal, superior, SCC etc.), but can make argument that for lower inferior courts, going through this process would be too much (may be ok as long as legislature sets it, don’t need whole process of independent committee etc.) - SCC. said the unwritten principle of judicial independence requires the creation of independent Judicial Compensation Commissions (Judicial Compensation and Benefits Commission) (JCCs) to make recommendations to government regarding judges’ salaries (even though nothing in the Constitution explicitly imposes this obligation (Provincial Judges Reference 1997, cb332, 359) – said have to insulate judiciary from partisan influences as much as possible too – power from executive to legislation (like 1701 Act of Settlement that we followed for judicial salaries/tenure) is not enough, so need JCCs. - This protects judges from being punished if they interpret the Constitution in a way that conflicts with political preferences. o Also means that judges should be reserved about publicly speaking out on public policy issues that are subject to political debate, which do not relate to the proper administration of justice – Provincial Judges Reference, (1997) 3 SCR 3. – Why Rothstein questions couldn’t look at this. - But note La Forest J. dissent in the Provincial Judges Reference 1997 SCC (page 409): o Majority used preamble to say Canadian constitution is similar to the UK, so at most, Canada can only import judicial independence for superior court judges cause that’s all UK had (and we already had this in judicature sections of 1867 Act anyway). So cannot rely on preamble to purport judicial independence for all courts when UK doesn’t even have this legal guarantee for all courts themselves. – Ryder says this is a strong argument. Also disagrees wth Majority methodology: says if there is a gap in the text, it is not for the judiciary to rewrite the text, but for the people to initiate constitutional amendment (says it should be left up to the legislature) – relates to democracy. People have given power to the courts to constrain the other branches of government, but filling in Constitutional gaps with preamble is not acting with legitimacy (said this is engaging in a power- grab, says it’s judicial activism/illegitimate judicial decision making). - 3 elements of financial security (page 359): o 1) As a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. But these changes have to be made with a process that is independent, objective, and effective (which are the 3 components of JCCs – see below). o 2) Judiciary cannot negotiate over salary with executive or legislature (has to be done through independent body – like JCC). o 3) Any reductions in judicial salary cannot take the salaries below a basic minimum level of remuneration that is required for the office of a judge (public confidence in the independence of the judiciary would be undermined if judges were paid such a low rate that they could be perceived as susceptible to political pressure). Features and role of JCCs: - So Principle of Judicial independence requires all provinces to implement a Judicial Compensation Commission (JCC) process (independent body has to analyze judicial salaries, and at least make initial recommendations to parliament regarding judicial salaries), to insulate judiciary from other 2 government branches. JCC (independent commission) operates as a buffer to filter out partisan influences. So this means that judges cannot negotiate their salaries directly with the other branches of government. o This caused much difficulty in the provincial courts, so SCC suspended the effect of their decision to give the provincial courts time to adjust to the requirement (familiar technique courts use especially for Charter rights – issuing a suspending declaration of validity to give legislature a chance to fix the problem/temporarily suspend operation of the remedy – also happened in Manitoba Language Rights Reference). - Provinces could work out the details, but the basic components of JCCs are (whole point of Provincial Judges Reference is SCC saying that legislature as opposed to executive paying judicial salaries is good, but still not enough, still need JCC to depoliticize salary setting, which is the objective of these 3 basic components of JCC’s): o 1) Independence: cannot be controlled by any other branch of government, so have to have fixed terms so they are not removable at the pleasure of the executive/security of tenure allows for independent thinking, and the members of the commission should not be dominated by any one branch of government – should be drawn or chosen from representatives of each branch of the government (i.e.: from the executive, judicial, and legislature). o 2) Objectivity – criteria JCC uses to make recommendations about judicial salaries have to be rational, objective (such as keeping up with inflation, comparing salaries of other judges in other jurisdictions etc.), and publicly available, and the reasons the commission has for making recommendations should be publicly available and should be made based on this criteria. o 3) Effectiveness: Not so effective that JCC’s recommendations are binding, but legislature cannot set judicial salaries until they receive JCC’s recommendations, and if they do not want to follow JCC recommendations, they have to reject the recommendations publicly and offer reasons for the rejection that are related to the same criteria that guide JCC’s decisions (cannot just give reason like “we disagree”). Whether the reasons legislature gives to reject JCC recommendations are reasonable depends on: 1) Is there a legitimate reason that has been articulated? 2) Is there a reasonable factual foundation for the rejection? (i.e.: inflation hasn’t been that high, other public employees haven’t had that much of a salary increase etc. – point is to treat judges the same as other public employees). Provincial Judges’ Association 2005 SCC (364) - Idea of JCC is to depoliticize the process and make it hard for the government to ignore JCC recommendations, but legislation makes the decision in the end (JCC recommendations are not binding), and legislature is controlled by the executive in our government system. So legislature has to offer rational reasons for departing from JCC recommendations. o In 2005, Quebec rejected JCC recommendation, but didn’t give reasons why and so this was seen as unconstitutional, but other provinces did give reasons so their rejection was upheld as valid. * Can make an argument that this Provincial Judges Reference reasoning applies to the judicial appointment process too: - we need judicial independence (all 3 aspects and for judicial appointment process too since it is also a necessary corollary of the Rule of Law) – see Rule of Law. * Reasoning is also relevant to other areas (i.e.: may argue that it needs to be put in place, that s. 7’s commitment to fundamental justice requires that this process be put in place, and can argue that reasoning should also be applied to judicial appointment process). - And similar process used for riding boundaries (which is also closely related to democratic process – idea is to limit capacity of government to manipulate political boundaries for partisan purposes). Unlike in the U.S., where there is a lot of partisan influence in setting riding boundaries, our model has an independent commission established by legislation (the electoral boundary commissions), which is headed by a judge in most provinces and at the federal level too. The Commission applies objective criteria like geography etc., and makes recommendations to the legislature that can be departed from but not easily (Ryder says it works reasonably well). - Can argue that judicial appointment process also affects judicial independence - Should insulate judiciary from partisan influences as much as possible too, so we should not allow executive control over judicial appointment process either. Should take the power from executive and give it to legislation (like the 1701 Act of Settlement that we followed for judicial salaries/tenure). And then we can try to argue that like Provincial Judges Reference, this still is not enough, but the judicial appointment process should be filtered through independent bodies too. Can argue that judicial independence is not just a crucial constitutional guarantee that applies after judges are appointed (tenure/salary security) but should also apply before in the appointment process. o Argument to broaden our idea of judicial independence to include judicial appointment process too (may be presented to court one day/might be persuasive argument). Now there are 3 elements of judicial independence: i) Security of tenure ii) Financial security iii) Administrative independence (should add security of independent appointment process too). Can argue that JCC or similar should be used to insulate judicial appointment process from partisan influences due to the basic principles of procedural fairness in our system where there is incentive for the government to act in a self-perpetuating way (our government stays in power as long as they have the support of the majority of the House of Commons, pursuant to fixed election dates) – so have to insulate government influence from these sorts of processes. o Can back argument up with evidence of partisan influence in judicial appointment process (like 60% of federal appointees made donations to party in power etc.), that this interferes with judicial independence. - Executive will try to hang onto the powers to control SCC judicial appointment process, but if the Ontario model influences the superior and federal judicial appointment processes, it may get to a point where executive solely controlling SCC judicial appointment process would look anomalous both internationally and within Canada (this would be an embarrassment). Peter H. Russell (cite lecture) says Canada is still one of the only democracies that leaves the judicial appointment process of a top court/SCC solely in the hands of the executive (PM) in a legally unconstrained way. But it is changing, even though it’s slow and out of sync with the other top courts of the world (have to change things as a matter of principle continually, see Rothstein etc. for more). - 3) Administrative Independence - Inappropriate for other branches of government to interfere with autonomy of the courts in controlling the administration of justice. In a general sense, governments are responsible for maintaining courts but cannot interfere with matters that are directly related to the adjudicative process. o Courts must have control over administrative decisions affecting judicial functions – judges have to be autonomous collectively (Chief Justice of Court should determine who sits on what case, when cases will be heard etc., other levels of government should not interfere with this) – sort of like prosecutorial and police independence for certain decisions. - Tobiass 1997 SCC (365) - Case is example of violation of administrative independence. o Why was judicial independence compromised in this case? - yes o Federal government was unhappy with the court’s slow consideration of claims against people alleged to have engaged in war crimes. So the Department of Justice Deputy Minister of the Canadian government (executive) met with the Associate Chief Justice of the Federal Court and expressed this upset about the cases moving slowly. The Associate Chief Justice responded by quickly accelerating a hearing, but SCC said this was a gross mistake (both by the Deputy Minister, and the Associate Chief Justice – said it was wrong to meet without opposing council because it created an appearance of government interference in judicial administration, and this appearance can invalidate the proceedings). o Here the principle of administrative independence was violated in a way that gave reasonable apprehension of bias that required a remedy in terms of how the litigation progressed. o What should the Deputy have done to express its concerns about the slow pace of the litigation? Should not have arranged to speak privately with Associate Chief Justice – should have done it with opposing counsel present. o What remedy did the court order? SCC required that the proceedings be conducted by a trial division judge who was not tainted by the improper communications between the court and the Department of Justice Deputy Minister. Written Constitutional Sources of Judicial Independence (pg. 331). Canadian constitutional source of judicial independence is complicated. - 1) ss. 96, 99-100 of 1867 Constitution Act “Judicature sections” only deal with Superior Court independence. o Sections reproduce the British Act of Settlement of 1701. Federal executive can appoint superior court judges pursuant to s. 96 and s. 99 gives judges tenure security (see section for process of removing superior court judge) / s. 100 gives judges salary security (salary provided by Parliament of Canada). s. 96 (GG will appoint judges to superior courts) is like staffing power, but it’s part of the constitutional protection (alongside ss. 99-100) of judicial independence because courts have interpreted it to secure superior courts’ jurisdiction – will only allow their jurisdiction to be diminished/given to other tribunals if legislature has a very good reason to do so (good reason usually has to be grounded in policy concerns, like Labour Board issue). If legislature does not have a good reason, superior court will strike down the legislation that seeks to diminish their jurisdiction. To allow legislature to subtract from their jurisdiction easily can mean allowing legislature to turn superior courts into empty shells, which would undermine ss. 99 and 100. o Independence of other courts not explicitly guaranteed in 1867 Constitution like this. - 2) s. 11(d) of Charter (for courts trying criminal offences) o Guarantees right to trial before an impartial tribunal for people charged with an offence/not relevant to civil proceedings = constitutional guarantee of judicial independence when courts are trying criminal matters. Provincial Judges Reference also decided this. - These in-text constitutional guarantees are imperfect because there are gaps in it (does not include all courts) and provisions that do address judicial independence (above) are not strong enough. SO SCC in Provincial Judges Reference relied on an unwritten principle of judicial independence, affirmed in 1867 Constitution Preamble to make it stronger. So: o Unwritten principle, recognized and affirmed by preamble to the 1867 Constitution Act Preamble by SCC in the Provincial Judges Reference 1997 SCC (pg 332) (means that under this, all courts have constitutionally guaranteed judicial independence). NOTE: Court using same language in Secession Reference 2 years later – use fundamental unwritten constitutional principles (democracy, federalism, protection of minorities, and rule of law) to fill in the gaps of the constitution. SCC here says unwritten principle of judicial independence can do the same thing (so 5 unwritten constitutional principles can fill in constitutional gaps). These unwritten constitutional principles prevail over statutes etc. o Here, Lamer J. says the explicit mention of federalism in 1867 Constitution preamble recognizes/reaffirms this unwritten principle of judicial independence. NOTE that preamble mention of having a constitution similar to that of the UK seen through importation of the British Act of Settlement in ss. 96, 99-100 of the 1867 Constitution. o This was obiter in Provincial Judges References (ratio of case was s. 11(d) interpretation above), but later courts have confirmed this as law (i.e.: Ell v. Alberta 2003 SCC (pg 338)). - Method was controversial/radical (rewriting the text/filling in the gaps) courts’ legitimacy could be questioned for making a self-interested law like this. o Preambles to Constitution Act and statutes not seen as part of the law it introduces (usually meant to give contextual information about the political objectives of enacting the law, to help with interpretation of the text). So according legal weight to preamble as an interpretive aid is normal/accepted practice, but controversial to say that the text is imperfect (gaps, and provisions that do discuss judicial independence are not strong enough), and use the preamble to make it stronger. o And unwritten principles prevail over legislation = controversial for court to do this, filling in gaps/changes usually done through constitutional amendment. o But there is general consensus that this is worked out well (see above under rule of law) - SO Provincial Judges Reference articulates idea that judicial independence is a necessary corollary of the rule of law. So have to depoliticize the relationship between the judiciary and the other two branches of government. - The British had 1701 Act of Settlement took executive’s power to set judicial salaries and to remove judges away, and gave this power to the legislature/parliament (so the process would be more open). We followed this Act of Settlement and it was important in our 1867 Constitution Act (1701 Act of Settlement essentially reproduced in our 1867 Constitution Judicature ss. 96, 99-100). o But the court in 1997 Provincial Judges Reference SCC said this is still not good enough. Legislature could still use these powers for political manipulation/could pass legislation that sets judicial salaries and remove judges in a way that is politically manipulative (executive normally controls parliament on our system anyway, especially if we have a majority government). So SCC said need intermediate/independent/objective intermediary between the other two levels of government and the judiciary (there is a constitutional requirement for this SCC says since judicial independence is a constitutional guarantee) – see above NOTE: Act of Settlement is not listed in s. 52(2) of the Constitution as a document that is part of the Constitution, but O’Donoghue court (talked about Succession to the throne) said the act had constitutional status (said s.9 of the 1867 Constitution said monarch is the head of state so rules about succession has to come with the constitutional status of the queen (which includes the Act of Settlement)). And act has been imported to Judicature sections anyway, so adding it as a document of Constitution would not make much of a difference. Legal Guarantees of Judicial Independence (add unwritten principles, rule of law, judicial independence principles etc) – KNOW for exam (especially Ocean Port) – cases hyperlinked. (see legal guarantees of courts for more) for judges/courts, there is a constitutional guarantee of judicial independence (written or unwritten) – more complicated for tribunals though. - 1) Administrative quasi-judicial tribunals (complicated situation for them): o Ocean Port 2001 SCC (pg 236) - liquor board situation – SCC said no constitutional guarantee of judicial independence for decision makers on administrative tribunals. Their independence depends on what the statute says (if statute is silent on question of judicial independence, courts can use common law principles of procedural fairness to impose obligation on executive to make sure decision makers have some security of tenure etc.). But here, SCC said common law rules of procedural fairness are excluded from legislation/statute made it clear the decision makers on this tribunal had low independence so common law could not be used to read more independence in. So common law procedural fairness principles can fill in gaps of legislation, but cannot override it, since statutes trump common law. SO don’t have to be independent/can be influenced by political fray = that’s why judicial review of their decisions is a necessary corollary to the Rule of Law (see judicial review notes for more) o Bell Canada 2003 SCC (pg 235) - SCC said same thing here - common law rules of procedural fairness can give rise to more independence. Here, SCC found that Canadian Human Rights Tribunal has to have high degree of independence (may be guaranteed by Canadian Bill of Rights – a federal statute that prevails over other federal statutes). - 2) Provincial court judges: o s.11(d) of the Charter (“right [when charged with an offence] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” – can try to use s.7 to say person not charged with criminal offence has right to hearing before impartial body (see Ocean Port for more). o Preamble; Provincial Judges Reference 1997 SCC (pgs 332, 339) - 3) Justices of the peace: o Preamble; Ell v. Alberta 2003 SCC (pg 338) – said Justices of peace have guarantee of judicial independence (followed reasoning in Provincial Judges Reference – see above). - 4) Superior court judges: o ss.96-100 of the Constitution Act 1867 - 5) Federal Court judges: o Federal Courts Act - s.8 – Gives federal judges security of tenure (cannot be removed unless it goes through 2 houses etc.). o Judges Act - s.10 – sets out federal court judge salaries. o Preamble - 6) SCC judges: o Supreme Court Act - s.9 – gives SCC judges security of tenure. o Judges Act - s.9 – sets out SCC judge salaries. o Preamble - Federal courts/SCC are creatures of federal legislation made pursuant to s. 101 of 1867 Constitution (nothing in Constitution mentions them so these statutory provisions above (Supreme court act etc.) can be repealed at any time/but cannot be changed by executive alone, only parliament can amend these acts – issue for SCC debated though/Peter Hogg debate): Friday, November 9th, 10:40-12:30, room 107: Judicial Independence – pp.330-343, 358-368 – ss.96-100 of the Constitution Act, 1867 – s.11(d) of the Charter of Rights and Freedoms - judicial independence as an unwritten constitutional principle - Provincial Judges Reference 1997 SCC (332) – dimensions of judicial independence – security of tenure – the Canadian Judicial Council - financial security – judicial compensation commissions (JCCs) - Provincial Judges Reference 1997 SCC (359) – administrative independence – Canada v. Tobiass 1997 SCC (365) - In the Provincial Judges Reference, what two reasons did Chief Justice Lamer give for rejecting the view that the written provisions of the Constitution comprise and exhaustive code for the protection of judicial independence? Where did the Chief Justice locate the “constitutional home of judicial independence”? (preamble) What legal effects did the Chief Justice attribute to the preamble of the Constitution Act, 1867? (Jenna Colle) – reaffirmed/recognized judicial independence unwritten principle. Do the following decision-makers have legal guarantees of judicial independence? If they do, what is its source? (i.e., for each, identify the relevant constitutional provisions, constitutional principles, statutes and court rulings) i) members of administrative quasi-judicial bodies ii) provincial court judges iii) justices of the peace iv) superior court judges v) Federal Court judges vi) Supreme Court of Canada judges On what grounds and according to what procedures can federally-appointed judges be removed from office? Should the body charged with making recommendations to Parliament about whether a judge should be removed from office be composed entirely of judges? What is the purpose of providing judges with financial security? What are the three components of financial security described by Chief Justice Lamer in the Provincial Judges Reference? Why does judicial independence require the establishment of independent judicial compensation commissions (JCCs)? According to Lamer C.J., what features must JCCs have to comply with constitutional requirements? Is it difficult for government to depart from the recommendations of JCCs? (Jeffrey McLaughlin) In the Tobiass case, why did the Supreme Court find that the actions of the Mr. Thompson and Chief Justice Isaac seriously compromised the appearance of judicial independence? In what manner should the Department of Justice have communicated its concerns to the Chief Justice without giving rise to an air of impropriety? What remedy did the Court order? KNOW Provincial and Secession References FOR EXAM (impact and articulation of principles). - Provincial Judges Reference: Judicial independence is a necessary corollary of the rule of law (see rule of law). So have to depoliticize the relationship between the judiciary and the other two branches of government. - The British had 1701 Act of Settlement which took executive’s power to set judicial salaries and to remove judges away, and gave this power to the legislature/parliament (so the process would be more open). We followed this Act of Settlement and it was important in our 1867 Constitution Act (1701 Act of Settlement essentially reproduced in our 1867 Constitution Judicature ss. 96, 99-100). o But the court in 1997 Provincial Judges Reference SCC said this is still not good enough. Legislature could still use these powers for political manipulation/could pass legislation that sets judicial salaries and remove judges in a way that is politically manipulative (executive normally controls parliament on our system anyway, especially if we have a majority government). So SCC said need intermediate/independent/objective intermediary between the other two levels of government and the judiciary (there is a constitutional requirement for this SCC says since judicial independence is a constitutional guarantee). - Can make an argument that this Provincial Judges Reference reasoning applies to the judicial appointment process too: - Can argue that judicial appointment process also affects judicial independence (so should insulate judiciary from partisan influences as much as possible too). So we should not allow executive control over judicial appointment process either. Should take the power from executive and give it to legislation (like the 1701 Act of Settlement that we followed for judicial salaries/tenure). And then we can try to argue that like Provincial Judges Reference, this is still not enough (and say that judicial appointment process should be filtered through independent bodies too). Can argue that judicial independence is not just a crucial constitutional guarantee that applies after judges are appointed (tenure/salary security) but should also apply before in the appointment process. o Argument to broaden our idea of judicial independence to include judicial appointment process too (may be presented to court one day/might be persuasive argument). Now there are 3 elements of judicial independence: i) Security of tenure ii) Financial security iii) Administrative independence. o Can back argument up with evidence of partisan influence in judicial appointment process (like 60% of federal appointees made donations to party in power etc that this interferes with judicial independence. - Executive will try to hang onto the powers to control SCC judicial appointment process, but if the Ontario model influences the superior and federal judicial appointment processes, it may get to a point where executive solely controlling SCC judicial appointment process would look anomalous both internationally and within Canada (this would be an embarrassment). Peter H. Russell (cite lecture) says Canada is still one of the only democracies that leaves the judicial appointment process of a top court/SCC solely in the hands of the executive in a legally unconstrained way. But it is changing, even though it’s slow and out of sync with the other top courts of the world (have to change things as a matter of principle continually, see Rothstein etc. for more) 5) Democracy - SCC said unwritten principles of federalism and democracy impose a duty/obligation on governments to negotiate secession in good faith following a clear majority vote on a clear question: (Secession Reference 1998, cb131, at para.88). SCC also found that unilateral secession would violate the principles of democracy, the rule of law, federalism and minority rights (Secession Reference). o Brown (1999) tried to use Secession Reference argument (Alberta population had clear vote on clear question of who they wanted to be Senator on senate, so democracy meant that government had a legal obligation to appoint senators that were chosen). SCC rejected this (said used democracy principle in Secession Reference to fill in the gaps of the Constitution, but cannot use it to rewrite the Constitution like they would be if they allowed Brown’s argument – Constitution gives GG power to appoint senator on advice of PM, and unwritten democracy principle cannot go against this written power). - s.3 of 1982 Constitution (Charter) says “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” o Unwritten principle of democracy means that s. 3 is more than just dropping a ballot in the box – it’s a right to for every citizen to meaningfully participate in the electoral process – Figueroa v. Canada. o s. 3 is about i) the right to effectively and meaningfully participate in the electoral process (so government has to maintain a level playing field so the political marketplace can operate effectively and hear all voices), ii) the right to rough parity of voting power (which controls the governments power to set riding boundaries – we tolerate that urban ridings are typically bigger than rural ones, but there can’t be a huge disparity between the ridings) – look at riding committee for more iii) the right to a genuine opportunity to take part in the governance of the country. - Figueroa v. Canada. s. 3 doesn’t give non-citizens the right to vote (government can extend the right, but not constitutionally required because s.3 only applies to citizens). Some other Charter rights are not so restrictive and can apply to anyone on Canadian soil (SCC looks at s. 3 in Figueroa v. Canada). Since s. 3 doesn’t say anything about age, denying people under 18 the right to vote violates Charter, but so far, charter challenges on this basis have failed because the violation can be justified under s. 1 of the Charter. This limit can be demonstrably justified in a free and democratic society because people younger than 18 are not ready to vote due to their limited knowledge etc. Ryder says this is highly debated and will likely change in the future (SCC looks at s. 3 in Figueroa v. Canada). s. 3 isn’t about the right to have the candidate or government you want elected, it’s about the right to effectively participate in the electoral process and this vote is meaningful regardless of the result due to the mere fact of being able to express the vote – so long as there’s a level playing field etc, stated directly above (SCC looks at s. 3 in Figueroa v. Canada). - Normal rule that parliament’s statutes prevail over inconsistent regulations made by the executive branch is also required for democracy (parliamentary legislative process is more open/has more democratic legitimacy than cabinet’s order making process – so changes to statutes should be made by legislature, not cabinet). See statutory delegation, under executive powers for exceptions to normal rule and more. - Some judges (like Iacobucci J) disagree with how L’Heureux-Dube J. used the unimplemented Convention of the Rights of Child to support idea that minister should look at best interest of the child in Baker (see Baker case) o Gave argument based on principle of democracy (treaty making and ratification is an executive responsibility, so allowing an unimplemented treaty, which means Parliament has not passed legislation to implement it, is allowing the executive to make laws through the treaty process). This is inappropriate in our system of parliamentary supremacy. o BUT Ryder says what L’Heureux-Dube J. did was fine (just like other courts/judges, she used other sources to interpret legislation, she was not using it to override legislation). And in some sense, executive is more accountable to the people than scholars etc. that courts use to interpret legislation. So fine to use unimplemented international law to interpret our legislation. NOTE L’Heureux-Dube J. also used international law to interpret municipal powers in the Spraytech case. Sending messages that these treaties can be given some weight. But other judges are against using unimplemented treaties/international customary law to do this. 2) STATUTES – see all statutes. - Also includes implemented international treaties (ones that have only been ratified are not statutes in our dualist system). - Human Rights Code is technically a statute but has quasi-constitutional status so it hovers between Statutes and Constitutional status (overrides any inconsistent statutes). 3) REGULATIONS – see all. 4) COMMON LAW - see all cases, also includes Customary International Law (automatically becomes binding on all courts). - Includes Royal Prerogative Common Law Powers (See executive for more – statutes made in the same area trump these!) A) International Law (pgs 67-72) - Our legal system is getting more international/increasing interdependence between jurisdictions. Have to look at significance of this, look extent to which we can cite decisions in other jurisdictions. 2 Distinct types of international law (have to look at 3 government branches to see how international law interacts with domestic law) 1) Customary International Law – generally binding on all states (except those who showed sufficient persistence before it became a binding norm) - automatically becomes part of common law binding on all levels of courts. - Similar origins to constitutional conventions, - formed by consistent general and universal state practice due to a sense of legal obligation (when this state practice and sense of legal obligation become sufficiently widespread among the states of the world (not clear what this threshold is though), the practice becomes legally binding to all nations as customary international law). o i.e.: Universal Declaration of Human Rights (strong consensus that we should follow this = became a legally binding norm). - Does not become legally binding to nations who sufficiently persisted in rejecting if before it became a binding norm though. o i.e.: Declaration of Rights of Indigenous Peoples – White political state actors refused to sign this and put their opposition to the Declaration on record. So even if it becomes an international customary law in the future, it won’t be binding on our legal system, and this may actually lessen the chance that it can evolve into a conventional international law treaty too. - Canada is a monist state for customary international law (once a practice becomes customary international law, it automatically becomes part of the common law, and is binding on all courts, even SCC). But, legislature can make laws contrary to customary international law that will prevail (due to common law being at bottom of hierarchy). o Nevertheless, courts will always presume that the legislature didn’t mean to legislate against the customary international law, and will try their best to harmonize the two. 2) Conventional International Law (like treaties) – binding on states that are parties to them (like contracts between states) – implemented conventional international laws are statutes - Content of treaty discerned from its text. - Treaties are negotiated and ratified by states (form an international contract between the states, a.k.a. -conventions, protocols etc.). States that ratify them are bound by them as a matter of international law (i.e.: Convention against torture, Convention on Rights of the Child, Kyoto Protocol etc.). - There are thousands of conventional internal law treaties that we are bound to as a matter of international law. How are Conventional International Law Treaties formed? see 2006 exam 1) Signing/Negotiating/Forming Agreement (national executive government branch has the power to enter into treaties). - Canada was still a UK colony/not an independent sovereign state in 1867. The 1867 Constitution said nothing about Canada’s ability to act independently in the international sphere. Nothing in our Constitution on Canada’s ability to enter treaties on our own behalf, on procedures to follow to bind ourselves to international law treaties, and on the obligations that international law treaties have on Canadian domestic law. The understanding at the time was that the British executive would continue to enter into international treaties that would be binding to UK and its colonies (which included Canada). - BUT after the Treaty of Versailles, which ended WW1, Canada entered into sovereign status in the international sphere and entered into treaties on our own – the national executive assumed power/responsibility from the British government to enter international law treaties due to the Royal Prerogative (powers that flow from common law, so this can be changed through legislation or by constitutional amendment). So, federal executive has been responsible for negotiating treaties (signing) (and directly see below - ratifying them) on our behalf since the 1920’s. - But Federal government doesn’t recognize provincial power to enter international law treaties (provinces can enter agreements that are not part of the international law treaty process though). o France is the only country that sometimes lets its provinces enter into international law treaties. 2) Ratifying Agreement (also done by national executive due to Royal Prerogative) – this step makes the treaty binding at international law. - Executive (cabinet, ministers, PM – executive is part of parliament, but it’s not the whole parliament) does and should involve (whole) parliament in this step (like it did with the Kyoto Protocol) – used to routinely involve parliament for the first 40 years of us acting as a sovereign nation, but fell off in mid-1960’s. Should include parliament because parliament is supposed to be the dominant law making body/while executive branch is accountable to parliament, it is not as openly accountable to the public and the public needs a more direct form of accountability when binding ourselves to international law (see legislative process- more open than executive order making). But executive not required to obtain Parliamentary approval prior to ratification. o So lots of people argue that the current international law treaty making process is a democratic deficit (relates to democracy principle) and that it goes against federalism because provinces don’t have a legal role before we are bound to treaties. But Ryder says federal executive usually won’t commit to treaties that affect the provinces without strong provincial support (but it does happen sometimes anyway). o Ryder says it would be best if we had a system like South Africa’s (where it is a legal/constitutional requirement that the legislative bodies that will have to implement treaties approve of them before they are ratified). – see 2006 exam. This would be better so there are no embarrassing gaps between executive ratified laws and domestic legislation (cause Parliament would be required to approve of the ratification and implementation). o But our Constitution is out of date. One of the oddities of our legal system is that even some Aboriginal nations have more rights regarding treaties than provinces do. i.e.: s. 35(1) of the 1982 Constitution = gives Aboriginal nations the right to be consulted before the federal executive agrees to treaties that impacts Aboriginals. So it would make sense to always require impacted provinces’ and parliamentary approval. Another oddity of our constitution: lower superior courts have constitutionally protected status (ss. 96-100 “Judicature” sections of the 1867 Constitution act deal with/entrench superior courts in the Constitution). And Aboriginal governments - there has been significant evolution from a federal state based on two levels of government to one including this third level (changing mostly through treaties between the federal/provincial governments and the aboriginal nations). When these treaties are concluded, Aboriginal governments will be protected (provinces are changing too, but seems like Aboriginal governments have more equality to provinces and federal government than municipalities and territories). – this is not in Constitution though (this government level still exists due to statute like municipalities and territories). o i.e.: Executive made sure Parliament agreed to the Kyoto Protocol but it would have been a good idea to get provinces’ approval too (some provinces were not happy with this protocol). o There is a gap in time between signing/negotiating/forming and ratifying the agreement, which allows the executive to return home to see if politicians are on side (have to see if the country is willing to take steps to implement and meet the treaty). If yes, then ratify, if no internal agreement within the sovereign state that the treaty is worth committing to, then don’t ratify or else state may violate its international obligations. o i.e.: Knew that Kyoto Protocol was controversial after signing at stage one, so the full parliament debated on the issue, and voted in favour of it = ratified/committed selves to the international law treaty and its obligations but we haven’t complied with it (not on the path to meet Kyoto targets so it was signed and ratified but not implemented). Indeed, PM’s October 16, 2007 throne speech said that Canada won’t meet the goals of the Kyoto Protocol. o Ryder says this is embarrassing because international law and treaties are very important now. 3) Implementing Agreement (implemented treaties are statute – but unimplemented treaties are not statutes) – this is process of international obligations/treaties being transformed into domestic legal systems – for international obligations to be binding on Canadian domestic law, Parliament has to pass legislation allowing for this because we are a dualist state. - In Monist States conventional international law and domestic law are harmonized into a single legal system (So as soon as the international law treaty is ratified, it automatically becomes legally binding as well) - But Canada (inherited from the British Parliamentary tradition), and other Parliamentary systems like the UK are Dualist States, where international conventional law and domestic law operate in separate spheres (So treaties are not automatically binding in domestic law – have to be passed through legislation first). - Executive can’t make treaties legally effective on its own – parliamentary supremacy in our tradition = federal parliament has all the law making powers (and executive supposed to derive its law making powers from parliament so executive can’t make laws that are binding to Canada simply by entering into treaties). o So which legislative assembly has power to pass treaties? 1867 Constitution divides the power over legislative responsibility – only s. 132 looks at treaty obligations (said the national parliament in Ottawa could implement Empire Treaties (the treaties UK entered on our behalf), but when we entered our own in 1920, the court was asked whether parliament could pass legislation to implement Canada treaties). i.e.: Treaty of Versailles had a series of issues – one of the issues that arose was whether national parliament could pass labour standards on our own behalf due to this treaty. The Privy Council in the 1930’s Labour Convention case said no, parliament cannot implement Canadian treaties. Court said “ship of state may sale on larger waters (referring to Canada now acting on its own in the international sphere) but it retains the water tight compartments of its original design (so parliament has jurisdiction to pass legislation for national jurisdiction, and provinces can implement legislation for provincial legislation)”. So jurisdiction to pass laws implementing treaties is divided between Parliament and the provincial legislatures depending on the subject matter of the treaty – good for federalism principle. Also, due to federalism, treaty implementation is divided depending on who has jurisdiction over the subject matter, which makes it harder to implement our international obligations in Canada (i.e.: Kyoto has federal and provincial jurisdiction matters, so at least 11 jurisdictions have to pass legislation to comply with these international legal obligations). So Canada = dualist and federal state = hard to maintain standing as a good international actor (being faithful to federalism = compromising our ability to comply with our international obligations). NO clear rules in our dualist system for when a treaty has been implemented BUT when it is clear, implemented and non-implemented treaties have different legal effects on our domestic legal system: 1) Implemented treaties (passed in statute) = binding in the domestic sphere. So both statute and the treaty text can determine the rights and obligations created in our legal system by the treaty. 2) Non-implemented treaties (not passed in statute) = shouldn’t be binding to courts since we are a dualist state. But courts say since unimplemented treaties still bind us to international law once they have been ratified, they can influence the interpretation of domestic law (the principle is to harmonize domestic and international law obligations where possible). - i.e.: Baker v. Canada [ 2 SCR 817] – unimplemented “Convention on the Rights of the Child” was used to interpret ministers’ use of discretion in deporting illegal immigrants (court used convention to say that the minister has to consider the children born in Canada before deporting their mothers). – Good case to look at impact of international law treaties on domestic law. SO non-implemented treaties CANNOT override statutes, BUT they can be used to interpret statutes, other Canadian laws, and the discretion of political actors. B) Constitutional Conventions not legally binding/NOT law (court cannot force GG to give royal assent to bill that has passed 2 houses of parliament, but politically binding because withholding her consent would create a political crisis). - Conventions exist due to 3 factors: o 1) A practice or agreement has been developed by political action; o 2) Political actors recognize that they are bound to follow the convention/have a sense of obligation to; o 3) Exists due to an articulated normative reason/purpose (pg 101). - Customary International Law has similar origins to this. - Conventions (not law) are still crucial to the operation of the parliamentary government. o 1) PM not mentioned in 1867 Constitution, but it is a constitutional convention that GG should summon a leader of the party to be PM to command the government (can’t be legally enforced though). But when it’s not clear who PM should be, GG has power (reserve power) to determine who should be invited to form a government that can attempt to govern with the support of the house. o 2) A minority government party needs the support of at least one opposition party after its throne speech, or they will be deemed to have lost confidence of the majority of the House of Commons, and PM by convention has to either resign and ask someone else in House of Commons to command government or, ask GG to dissolve Parliament and call another election (can’t be legally enforced but violating this would result in the gravest political crisis). o 3) British rules are conventional (not legally binding on us, but have powerful political consequences). o 4) Convention that Federal Disallowance power should not be used (Constitution says Federal government can disallow any provincial law within a year of it being passed, but hasn’t been used since WW2). But also legally not allowed to use this due to unwritten principle of Federalism (Federal government cannot disallow provincial laws because provinces are considered sovereign and of equal status – provincial and federal levels have coordinate status and occupy horizontal spheres, not hierarchical). - Conventions are not enforceable by courts (not legally binding/no formal legal sanction if they are breached), but courts can still recognize them: o i.e.: Patriation Reference 1981 SCC (pg 102) (SCC said constitutional conventions are not legally binding) - SCC said no legal/Constitutional requirement for Federal government to obtain provincial consent before asking UK Parliament to patriate and make Constitutional changes (which resulted in 1982 Constitution Act), but SCC said there is a convention that the federal government should obtain substantial provincial consent before proposing Constitutional changes to the British that would affect the provinces since political actors have followed a consistent practice of doing this throughout history due to the unwritten constitutional principle of federalism (which goes against proceeding unilaterally with significant changes without provincial consent). So not legally binding, but Trudeau had to follow this convention or he would be acting unconstitutionally in a conventional sense, which would result in a political crisis. So Trudeau negotiated with the provinces (which resulted in provinces securing s. 33 to override the Charter). o Critics and SCC dissent in Patriation Reference said SCC, should not have answered this political question. Supreme Court Act says Reference procedure enlists SCC (or appeal courts) to give opinions on law, not politics. Dissent said answering political questions can compromise unwritten constitutional principle of judicial independence. Quebec consent not required for this “substantial consent” – Quebec Veto Reference (1982 SCC). o Patriation Reference and Quebec Veto Reference show us that 1982 amendment of the Constitution was both legally and conventionally constitutional (following unwritten principle of federalism, and followed constitutional convention). Sections in Hogg book to back up that conventions are not legally binding – page 1.9. - Other examples of Conventions o Constitutional convention that executive members also have to be legislature members – so mostly only House of Common members are appointed to executive, but if they aren’t already House of Commons members, they have to become one soon. o If Bill C-43 is passed (there will be senate consultations), and if GG appoints senates who win these consultations on advice of PM due to sense of obligation, GG only appointing people who win these consultations could become a constitutional convention. - Examples where courts ruled there was no convention o Brown and Samson tried to argue that there was a constitutional convention for GG to only appoint senators (on advice of PM) who has been elected by people pursuant to the Senatorial Act because Stan Waters was appointed this way. But court rejects this because something happening only once does not constitute a convention. – see below for exact court reasoning and Brown and Samson’s arguments. But now, we have two (Stan Waters and Brown from Brown) senators who were elected under Alberta’s Senatorial Selection Act before being appointed by GG on the advice of PM. So if PM appointed senators who had been elected pursuant to the act, due to feeling obligated by the democratic principle (3 elements of convention), so that such a convention has arisen courts may recognize it. But courts could respond with the Patriation Reference ruling that a convention is not legally binding. To make this legally binding, have to use Constitutional Amendment Process or unwritten principles. 3 Levels of Government (3 basic institutions of Canadian government) – have different responsibilities/relationships to the law: 1) Legislative branch (primary law making body, but not exclusive to legislative as judges also interpret laws etc.): - Divided into Federal and Provincial legislatures due to Federalism (Constitution gives both levels powers to make laws). o Legislature delegates powers to other law making bodies (elected municipal board etc.), which do not otherwise have sovereign status under the Constitution. Parliamentary Law-Making/regarding Parliamentary Supremacy – see Parliamentary supremacy (under Federalism) for more. Notion that we went from Parliamentary to Constitutional supremacy since 1867 Constitution isn’t good if it makes us lose sight of how important parliamentary supremacy (as a whole – federal and provincial put together) still is in our government system. - Legislatures (provincial and federal) are still supreme – can pass any law they want subject to constraints set out in our Constitution or and Charter (such as division of powers, and constitutional rights etc.) But Parliamentary Supremacy has been constrained by the 1867 Constitution and we can no longer say that Canadian Federal Parliament is supreme in the sense that: - 1) Adopted federalism with 1867 Constitution (divided law making powers between federal and provincial legislatures like each having half of a pie, thus, federal parliament and provincial legislatures are horizontal, and legislatures as a whole in Canada are supreme, but neither federal nor provincial legislature is supreme over the other). - 2) Legislatures powers are curtailed by Constitutional rights - from 1982 Constitution, ss. 2-23 of the Charter, and the Aboriginal rights in s. 35 from 1867 Constitution Act, as well as Language rights in other parts of our Constitution like the right to use English and French, and Denominational School rights (Catholics guaranteed in s. 93(1) of 1867 Constitution a right to public funding). – so can’t make laws that go against these. 1867 Constitution evolved from 19th Century UK tradition of Parliamentary supremacy, but UK parliament itself isn’t totally supreme anymore now either: UK situation has become complicated due to: - 1) Europe complications - 2) UK is now becoming a de facto federal state (federalism isn’t written for them like it is in our Constitution/no written division of powers between Westminster Parliament and other legislatures, but Westminster has given significant law making powers to other legislatures). Not a true federal relationship (powers are from statutes that can be repealed at anytime, not written in a Constitution like ours) – more like the relationship between Canada’s provinces and municipalities and between Canadian federal government and territories. - 3) Judges can now look at whether UK legislation complies with the Human Rights Act. If UK statutes don’t comply with the Human Rights Act, courts can issue a declaration to that effect that UK Parliament will have to respond to (not a declaration of invalidity like when Canadian legislation doesn’t comply with the Constitution), but this still complicates UK situation. So parliamentary supremacy as a whole (federal and provincial parliament) is still very important/powerful in Canada.– federal and provincial legislative powers can only be constrained by Constitutional constraints. - See Parliamentary Law-Making for more on parliamentary supremacy. Also see constitutional supremacy for more (rule of law means counter-majoritarianism, which means no unbridled parliamentary supremacy). - Bacon, Turner, Wells, and Authorson show us that even where people are treated horribly because of terrible exercises of law making power, only claims against legislatures’ law making powers that are supported by constitutional constraints can succeed. Can’t argue that a law passed by federal/provincial legislatures is unfair and thus shouldn’t be valid. o 1) Rule of law constrains state actors (executive and judiciary) discretion, but it does not constrain legislature (it is supreme and can pass any law it likes so long as it doesn’t violate the constitution). Bacon court echoed what was said in Imperial Tobacco case – the remedy for a statute that doesn’t violate the constitution is at the ballot box. - Bacon 1999 Sask CA (pg 187). (so legislature can take farmer’s rights pursuant to Crop Insurance Saskatchewan Legislation away as long as it doesn’t violate the constitution). o 2) Parliament is supreme with the types of law it can enact and in governing its own procedures (arguments about due process/fair treatment etc. when dealing with judicial and quasi-judicial bodies like tribunals and when dealing with the executive can be made – but it is not for the courts to meddle with legislature’s internal procedures, unless it violates constitution). - Turner 1992 Fed CA (pg 190). o 3) SCC says legislature is supreme and can take jobs away (legislature can even explicitly state in the legislation that wrongfully dismissed employees cannot claim damages for breached employment contracts). - Wells 1999 SCC (pg 192) Government initially tried to defend wrongful dismissal with the “doctrine of frustration” (that they breached the employment contract due to conditions out of their control – said legislature passed the law that eliminated job, so government could not pay employee). SCC rejects this as disingenuous – especially in majority government, legislature and executive branches are fused (executive usually controls the legislature), so government cannot argue that they had nothing to do with the job cut. - Wells 1999 SCC (pg 192) o 4) SCC affirmed Imperial Tobacco and Bacon ruling regarding the Rule of Law in Aurthorson. Authorson also argued with Bill of Rights (s. 1(a) right to the “enjoyment of property” - though this section is similar to s. 7 of the Charter, s. 7 of Charter doesn’t have “enjoyment of property” text) and said parliament took this s. 1(a) right away “without due process of law” (clause in s. 1(a) that is similar to s. 7 Charter clause “in accordance with the principles of fundamental justice.”). But SCC said Bill of Rights is a federal statute (not part of the Constitution, so doesn’t constrain legislature). S.C.C. also said there nothing in the Bill of Rights that explicitly protects against parliament taking property away through the legislative process so it is not a strong protection for the property right. – Aurthorson. - NOTE, while Bill of Rights is supposed to prevail over other inconsistent federal statutes, courts have taken an ambivalent approach to its interpretation (not always comfortable using it to supersede other federal legislation even though it can). But still an important tool, use it with Charter. See Lecture 9 Notes for Facts/Actual Arguments from Cases: 1. What argument did the appellants (Bacon et al) make to challenge the legality of the Saskatchewan legislation at issue in Bacon (187)? On what basis did the Court reject this argument? How did the Court distinguish Roncarelli v. Duplessis? 2. Relying on the court decisions in Bacon, PSAC (noted at the top of p.190), and Imperial Tobacco (p.94, especially at paras. 57-68), how would you summarize the principle of Parliamentary supremacy, how it is limited in the Canadian constitutional context, and how it interacts with the rule of law principle? 3. What arguments did the appellants make against the validity of the legislation at issue in Turner (190)? On what basis did the Court reject their arguments? 4. On what basis did Wells recover damages from the government of Newfoundland in Wells (192)? Does the Constitution provide protection against expropriation by the government of contractual or property rights? 5. What are the procedural requirements that a legislature must comply with to enact valid legislation? Can the Charter of Rights or the Canadian Bill of Rights impose additional procedural requirements on the legislature? In Authorson (196), why did the disabled veterans base their claim on the Canadian Bill of Rights rather than the Charter? 6. What are the functions of the executive branch of government? How would you describe the various components of the executive branch? 7. On what basis did the SCC in Fraser v. Canada (229) uphold the dismissal of Mr. Fraser from his employment with the federal government? Would the result have been different if the Charter of Rights and Freedoms was in force at the time that Fraser was fired (Feb. 1982)? Legislation process At federal Level – bicameral (need approval from majority of both houses of Parliament and GG Royal assent to become law). - Most laws start as government public bills. Government bills usually start with a debate between the ministers in the cabinet. Ministries present policy ideas to cabinet, to decide which ones will be put to the department of justice etc. 1. When the government thinks it’s ready for the 1st reading = the bill is introduced to one of the houses of parliament. - Bills can be introduced in either house of Parliament (Senate, except for money bills, or House of Commons – but usually first introduced in House of Commons). “S” = senate bills/introduced in senate. i.e.: Bill S-4 (about term limits) and Bill S-3 (about senator tenure) “C” = House of Commons bills/introduced in House of Commons. i.e.: Bill C-43 (now different bill number - Senate consultations/senate reform) - (pg S10) – was reintroduced in 2nd session of 39th Parliament. 2. 2nd Reading continues in the same house (more detailed debate than the first reading). 3. Committee Stage: If the bill passes the 2nd reading, it is referred to a series of standing committees that study the bills in depth and hold public hearings (public can appear and voice their opinions/suggestions etc.). Committees normally call on witnesses to speak to the proposed legislation and suggest improvements etc. (most intense debates happen at this committee stage). This stage is televised, open to public, transcripts are available online etc. 4. Then, the committee reports back to the House of Commons (or wherever the bill started) and any additional amendments are voted on. 5. Then the bill goes to the 3rd reading and debate and the House of Commons (or whichever house it is in) debates and votes on the bill as amended. 6. If passed the bill then goes to the other house of parliament (i.e.: senate) and goes through 1st, 2nd, 3rd readings, then committee etc. - Once it’s passed both houses, bill given to GG for royal assent (constitutional convention that she/he give consent) and it becomes law. REMEMBER: Aurthorson etc. cases show that there are no legal requirements regarding parliament’s procedures/procedural fairness though (strong political conventions support legislative process, but it’s not a legal requirement). At provincial Level: (need majority of House of Commons and GG royal assent to become law). - Provincial legislature is unicameral = same process but for only one house (since senate abolished), then goes directly to GG. Some Bills proposed by Parliament: - Bill C3: Case in Supplement Volume 2 said this violated s. 7 of Charter and declared it invalid, but gave government 12 months to fix it. So government proposing a new one now (will take a while to go through legislative process of 3 readings in each house and getting GG assent), so that they meet the 12 month deadline. - Public Government Bills: More likely to become law. - Private Bills: No government support for these bills, they are for individual/corporation exemption from law (for private interests) – not as likely to become law. - Senate Bills: i.e.: senate reform bill. - Senate Public Bills: Also no government support for these bills, but deals with broader public interests than private bills, but not as likely to become law as public government bills. - C6: would make people uncover faces when voting (could argue this goes against right to vote s. 3, use the Figueroa v. Canada case), and that it goes against freedom of religion etc. Charter provisions. - C19 (about senate tenure) and C20 (about senate consolations, to put these in place) were from last parliament sessions (had different bill numbers before). – these are current numbers. o There is a debate about whether these changes to the Constitution can be made through s. 44 or whether they require provincial consent – see amendment notes. - C22: Controversy in Ontario (about changing the number of seats each province will have in the House of Commons, if passed, then all provinces will have at least enough seats in the House of Commons to correspond to their share of the population, except for Ontario (will have a lot less). o Doesn’t have to be passed through 7/50 formula even though changing seats in the House of Commons applies to all provinces, because it falls within s. 44 (it is a change that has routinely been made by Parliament alone under s. 44) – see amendment notes. When judges says that a change is better left to legislature to make = saying that the legislative process has capacity to produce a more thorough public debate/study etc. = presumably better law making than judges can at the time (process of going through 2 houses is open to public/more transparent). - Legislative law making is almost always prospective (applies to things in the future after law made), UNLESS legislature decides to make it retrospective, which is rare. - WHEREAS judicial law making is retroactive (idea that state of the law is as it always was). Federal parliament in Ottawa and Provincial legislatures: NOTE: “Parliament” typically refers to the national parliament in Ottawa/ “Legislature” typically refers to the provincial legislatures. - Provincial legislature is a unicameral legislature (only one house of parliament due to senate being abolished). Provincial Parliament consists of the Lieutenant Governor and the legislative assembly. National Parliament in Ottawa is a bicameral legislature (2 houses of Parliament – House of Commons and Senate) o Federal Parliament includes (pursuant to s.17, Constitution Act 1867), the elected House of Commons, the appointed Senate, and the Queen - 1) Head of state, Monarch (represented by Governor General) - GG (pgs 165-174) see GG notes under Executive for more o Queen is the head of state (pursuant to s. 9 of 1867 Constitution) but all Queen’s/Monarch’s power is delegated to the GG due to the Letters Patent (1947) (a formal letter, which is a legal instrument, issued by the Monarch, speaking on our behalf). i.e.: governor general gives royal assent to complete the legislative process at the federal level (on behalf of the Queen). o GG Royal Prerogatives include summoning, proroguing, and dissolving parliament: (pgs 165-172). Summoning Parliament: s. 38 of 1867 Constitution gives GG power to summon and call together the House of Commons. But this is now constrained by constitutional convention (GG calls Parliament to session on advice of PM – this convention has been codified in the Writ of Election, as schedule 1 of the Canada Elections Act), and in the Charter. Proroguing Parliament: Called by GG on advice of PM. Prorogation ends a session, but doesn’t dissolve Parliament (PM etc. all remain in office and members of the House retain their rights and privileges). Dissolving Parliament: Called by GG usually on advice of PM (when PM still has confidence of the house, the timing is good for his ruling party, and when he thinks that the populous won’t rebel). So parliament will be dissolved and another election will be called, because GG can’t second guess PM when he/she has the confidence of the house. s. 5 of the 1867 Constitution Act and s. 4(1) of the Charter say that Parliament must be dissolved and elections must happen at least every 5 years (page 169) except in times of war or insurrection. Within these 5 years, PM usually chooses when to dissolve Parliament (so parliamentary session usually doesn’t last for 5 years anyway), if there is a “no confidence” vote by the house, however, PM is forced by constitutional convention to ask GG for dissolution or has to resign from government. o BUT GG has personal prerogatives/reserve powers (real power) that she/he can exercise against the advice or without advice of PM: o In reality, GG is only a figure head that generally does what she’s told by her “political masters”/politically accountable members of the executive (PM and the cabinet). o But GG has important reserve/personal powers that are sometimes crucial to the operation of our Parliamentary System, where we need an independent body that is removed from the political fray to make crucial decisions for the nation’s best interests at no one’s discretion. On these crucial occasions, GG can make own decisions about what is best for Canada without direction from her “political master (see Hogg for more reserve powers of GG) 1) GG has discretionary power to determine when parliament should be dissolved and an election should be held: GG can refuse PM’s request to dissolve parliament/has personal discretion about when and who should form a new government, and when the current government should cease to govern. Our system has no fixed term and one governs as long as one has the confidence of the house. If PM could always choose when to dissolve parliament, PM would determine transitions between governments and act in a self-perpetuating way where he/she would always be the PM (elections do have to be every 5 years, but if PM can act in self-perpetuating way, PM can govern as long as he/she has the confidence of the house). i.e.: King-Bing Affair: 1926 McKenzie King tried to govern with a minority government. When he knew he was about to lose a crucial Parliament vote and lose the confidence of the house, he went to GG Bing and asked that Parliament be dissolved and a new election be called, which would hopefully create a more stable parliament so he could govern with the confidence of the house. But GG said it wasn’t in the nation’s best interest to have another election so soon and asked the opposition to try to form a government that would have the confidence of the house. When the opposition failed, GG say that no one could govern with confidence of the majority of the House and called another election. 2) GG can select PM (person who would be in the best position to receive the support of the majority of the House): Usually as a matter of convention, PM is the head of the party that wins the most seats after an election. But, when it’s not clear, GG has power to determine who should be invited to form a government that can attempt to govern with the support of the house. i.e.: if no party has a clear majority, GG can say that no one is in position to command the majority of the house, and appoint someone who can try to receive the support of the majority of the House. But if PM sick, GG wouldn’t use reserve powers, would just follow advice of the party to put someone else in the position temporarily. o 3) GG can also refuse to give royal assent to a bill: She usually signs by convention, but is not legally bound to do so – cite Hogg – see Hogg for more GG reserve powers. - Rules of Succession (O’Donohue – case to cite for all rules below) o Act of Settlement (1701) set up many basic constitutional principles (such as judicial independence) after long religious struggles and struggles between Parliament and the Crown in Great Britain. This was an important part in the evolution of parliamentary supremacy over the monarchy power in Great Britain and also dealt with the rules of succession. Act of Settlement legally bars anyone who “should be reconciled to or shall hold Communion with the See or Church of Rome or should profess the Popish Religion or marry a Papist” (basically a papist or someone who is married to a papist/Catholics) from becoming the Monarchy (Canada’s head of state). This act is still legally effective, O’Donohue raised argument that it is offensive to human rights and freedoms to say that a particular religious denomination cannot be the head of state (due to s. 15(1) of the Charter – “Equality Rights”). This would be a good argument, but SCC struck the argument down. o O’Donohue’s claim was struck down because the rules of succession are part of the Constitution (and there is no hierarchy between different parts of the Constitution, all provisions are equally supreme law according to the Rule of Law and Constitutional Supremacy so cannot use one part to strike down another). Can only use Constitution to knock down inconsistent subordinate laws. 1) Court refers to the Preamble to the 1867 Constitution, which says Uniting Colonies decided to form a federal state that operates in a manner that is similar in principle to the UK constitution, so Canada was established as a Constitutional Monarchy. Act of Settlement is an integral part of the rules of succession that govern the selection of the monarch in Great Britain. Due to our constitutional structure, Canada is united under the Crown of Great Britain, so the same rules of succession that apply to the Head of State in Britain must apply to the head of state of Canada. So the rules of succession are a necessary part of the constitution, and are not subject to Charter scrutiny. 2) While the Act of Settlement 1701 is not part of the Constitution (not listed in s. 52(2) of the 1982 Constitution) the Statute of Westminster is (so any alterations to rules of succession would no longer be imposed by Great Britain), But Court says it doesn’t make sense to have different succession rules for the commonwealth members (all 15 members similarly have the queen as their head of state). SCC says commonwealth realm consensus required to change succession rules. In Canada, this change would affect the monarchy, which would require the s. 41 unanimity procedure. But Ryder says Act of Settlement is a British Statute, and UK parliament could change British succession despite SCC’s judgment that consensus of the commonwealth realm is required. Ryder says if UK did do this, we probably wouldn’t even need to go through the unanimity procedure o So we are stuck with the rules of Succession of the British Monarch. The British parliament still has control over the rules of who our head of state is, which means Canada did not have complete patriation of our constitution. To really get rid of these ties, we have to have our own rules about our head of state. On what basis did O'Donohue argue that the rules of succession of the British monarch are unconstitutional and of no force and effect? On what basis did the court conclude that O'Donohue's argument had no merit? According to the Court's reasoning, how can the rules of succession of the British monarch be changed? o SO can’t use one part of the constitution to strike down another (O’Donohue) This is why we still have Catholic school funding (Courts agree it’s discriminatory, but the Constitution guarantees the right to fund denomination schools and can’t use constitution parts like “religious freedom” etc. against it). General principle that senates are to be appointed to life until age 75 also written into the Constitution = can’t try to strike is down with Charter by claiming it’s age discrimination. - 2) Senate (“upper house of Parliament”) Senate theoretically has equal powers to the House of Commons in our constitution. Both the Senate and House of Commons have to approve of bills before they become law (bills can originate in either house, so senate is theoretically an equal partner in the legislative process, except that money bills cannot originate in the Senate). But practically not an equal partner in the legislative process (Canadian Senate is appointed, so it has less democratic legitimacy than the democratically elected House of Commons. So House of Commons is the dominant house in Parliament for passing bills. If the Senate disagrees with the democratically elected House of Commons and rejects or fundamentally changes a bill that has passed through House of Commons, they will thus be operating on thin ice. So Senate rarely interferes with House of Commons decisions (relates to principle of democracy) But Senate does occasionally block passage of bills that have passed the Housed of Commons and thus sometimes does disagree with the House of Commons (i.e.: abortion bill in 1990 etc.) o Senators being appointed by GG on advice of PM (pursuant to s. 24 of 1867 Constitution) is a fatal flaw in the senate design. But Canada still appointed this “upper house” in our legislature in 1867 due to: 1) To protect class interests (in mid-19th century, when white people controlled political processes, the Fathers of Confederation were afraid of even this level of democratization. So the senate was made (only property owners could be members) to ensure that the property classes would not be overthrown and to ensure that the House of Commons wouldn’t be captured by popular interest). But Ryder says it makes sense to repeal this purpose now (purposes 2 and 3 are more relevant today). 2) To protect regional interests (it is common for federal states to have a bicameral legislature – relates to federalism): in the lower house (House of Commons), elected representatives and seats are allocated based on population so it is dominated by the more populous areas of Canada (B.C., Ontario etc.). But, the federal state wants to protect other regions too, so the high house (Senate) is supposed to have more regional representation (i.e.: Atlantic provinces etc.) to balance the populous interest in the lower house. But senators are appointed by GG on the advice of the PM (not elected) (s.24 Constitution Act 1867, pgs152-3). So it is still dominated by partisan interests (namely, the interests of the party that appointed them) and it is not an effective regional voice as a result. Now, the senate is mostly made of liberals (senates are to serve until the age of 75 pursuant to s. 29 of 1867 Act, so the senate will likely be comprised of liberals for a while). – see Edwards case (women can now be appointed to senate – can be considered “persons” under s. 24). 3) To be a sober second thought – upper house provides opportunity for further reflection about a bill’s evaluation and policy matters (Ryder says senate has performed this function well – given good constructive suggestions). – but could be compromised due to the fact that senate rarely disagrees with House of Commons (see directly above). o * Ryder says bottom line is that it’s ridiculous that we have an equal partner in bicameral legislature that is appointed, instead of elected. So we either have to abolish the senate or change the constitution so that senators are elected. But hard to get enough agreement to meet the high threshold of the Constitutional amendment required to make this change (s. 42 covers Senate selection process, so it would be subject to s. 38 procedure with the statutory overlay, which makes it 7/90 procedure) - Other procedures apply for different senate matters though. o Is there a Legal or Conventional (political) requirement that people elected under Senatorial Selection Act in Alberta should be appointed by GG on advice of PM to senate? (no). Brown and Samson argued that there was a conventional and legal requirement for GG to only appoint senators who has been nominated pursuant to Alberta’s Senatorial Selection Act. Both cases have similar arguments, Samson applied for an interlocutory injunction to ban appointing senators who were not first elected under the Senatorial Selection Act, until the Brown decision had been made. Arguments rejected by court on similar grounds: 1) Constitutional Conventional Requirement: GG appointed Stan Waters, who was elected under the Senatorial Selection Act, as senator on the advice of PM. So Brown and Samson say this is now a constitutional convention that needs to be followed. But court rejects this because something happening only once does not constitute a convention (need 3 requirements). But now, we have two (Stan Waters and Brown from Brown) senators who were elected under Alberta’s Senatorial Selection Act before being appointed by GG on the advice of PM. So if PM appointed senators who had been elected pursuant to the act, due to feeling obligated by the democratic principle (3 elements giving rise to a convention), so that such a convention has arisen courts may recognize it. But courts could respond with the Patriation Reference ruling that a convention is not legally binding. To make this legally binding, would have to use Constitutional Amendment Process or unwritten principles. 2) Legal requirement: Brown (1999) and Samson tried to use Secession Reference argument (Alberta population had clear vote on clear question of who they wanted to be Senator pursuant to Alberta’s Senatorial Selection Act, so democracy meant that government had a legal obligation to appoint one of these chosen senators). But courts said ss. 24 and 32 of the Constitution deal with Senatorial appointment and expressly confer on the GG the unfettered discretion to appoint senators based on PM’s advice (text does not specify any procedural limits). So there is no gap in the Constitutional text like there was in the Secession Reference for an unwritten constitutional principle to fill. Cannot use unwritten principles to go against this written power or to rewrite this written power (written Constitution trumps unwritten Constitutional principles). o Court also says unwritten principle of democracy cannot be used to fill in gaps about how to exercise this authority (said there was truly a gap in Secession Reference as there was nothing in the Constitution about the impact of a referendum vote or the process of secession). Here the Constitution directly addresses the issue, so the only way it can be changed is through the section V Amendment Procedures. o Was Court Ruling Persuasive? o Ryder says if we say executive can only appoint senators that have been elected, we SHOULD do it through Constitutional Amendment – either the unanimity or 7/50 formula. o Bill C-43 (different number in new session now): says there will be senate consultations (doesn’t say that PM will be bound to appoint only those who win the consultations). PM said he was committed to senator reform through what he could do on his own without formal 7/50 procedure, and introduced idea of senate consultations under Bill C43. Senate consultations look a lot like the Elections Act, but PM said it was not. Bill was introduced in the House of Commons in earlier Parliament session but Parliament was prorogued by GG on advice of PM and the bill died before it could get to the Senate. Reintroduced as Bill C-43 and again now (different number). Ryder says there’s a good chance this legislation will reemerge and pass. But some argue that federal Parliament can’t pass C-43 unilaterally with s. 44 because it affects senator appointment selection, which requires the 7/50 formula (but PM says it’s not changing the fact that senators are appointed by GG on advice of PM, but C-43 will allow PM to take into account what the people have to say about the senate process – could argue that this is supported by democracy principle). o Legal implications if C-43 passes? The only difference between C-43 and the Alberta Senatorial Selection Act is that C-43 is federal, not provincial. Ryder says it won’t make any legal difference, but Federal Parliament having such elections would have more political effect than a province having them - harder for PM to ignore federal Parliament’s will. Overtime, this may result in a constitutional convention that PM should only appoint senators who first win consultation votes (but still wouldn’t be legally enforceable). Even with Bill C-43, and after Brown and Samson rulings senatorial selection could still be the same (Bill C-43 only says there will be elections, not that GG has to appoint winner on PM’s advice, and even if Brown and Walters and others who win elections are appointed, and this became a constitutional convention, conventions are not legally binding anyway). Provinces may challenge C43 and say it won’t be legally binding if the government tries to pass it unilaterally under s. 44 of the Constitution, saying that it falls under s 42(1)(b) of the constitution because it affects the powers of senate and the method of selecting senators and thus can only be made under the s. 38 7/50 formula with the statutory overlay. Ryder says C43 has to be passed through s. 38 because it does fall under s. 42(1)(b). Government says, in form, C-43 would just broaden the things PM can look at to suggest senators to PM, but the functional consequences are like an elected senate. This would result in senate democratic legitimacy and they would actually practice equal powers to the House of Commons in the legislative process, so the regional representation of the senate would be more important and it is thus a great concern to provinces (affects federalism). But the statutory overlay on s. 38 makes it too difficult to evoke 7/50 formula right now. If parliament were to open C-43 up to all those required to consent under 7/50 (with the statutory overlay), they would have to negotiate with the provinces too much. This is why government wants C-43 as a way to move forward with senate reform. It’s what the government may be able to do on its own, as stated in the preamble of Bill C-43 (that before we can have more comprehensible senate reform, Bill C43 is what we can do now). But the debate of whether Bill C-43 falls under s. 44 or s. 38 amending procedures of the Constitution continues. Best for parliament to refer this question to SCC to see which amending procedure Bill C-43 can fall under. - 3) House of Commons (lower house of Parliament) – 308 members (more or less represented by populous). o Elections: October 10th Electoral Reform/Referendum (pg S14): Which electoral system should Ontario use to elect members to the provincial legislature? 1) The existing electoral system (First-Past-the-Post): One with the most votes wins Elected through the FPTP on a constituency basis. Ryder says it is impossible to make a case that FPTP truly represents all individual rights to effectively participate in the electoral process. o But, FPTP does gives expression to s. 3 rights, so courts unlikely, legally and in principle to say that FPTP violates s. 3 based on Figueroa v. Canada. And, not practical for courts to say this, as it would be too radical to overturn the electoral system of Canada. 2) The alternative electoral system proposed by the Citizens’ Assembly (Mixed Member Proportional)” – did not pass. FPTP doesn’t reflect wishes of provinces as a whole, so wanted to increase the number of legislature members. Will maintain FPTP for 90 members, who win by vote, and 39 members will be elected from lists (to be complied by parties before the election). So there will be 2 ballots (one for a local candidate and one for a party). So if party gets 25% of the vote, it wins about 25% of the seats in legislature – in Ontario’s current Single Member Plurality system (a.k.a. FPTP), a party can win many votes, but end up having only a few or no seats at all. o Constitution: election sections ss. 3-5 of the 1982 Constitution looks at voting/electoral process (i.e.: s. 4(1) says parliament can’t last for more than 5 years, s. 5 says there has to be a sitting of Parliament at least once a year.) s.3 of 1982 Constitution says “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” Unwritten principle of democracy means that s. 3 is more than just dropping a ballot in the box – it’s a right for every citizen to meaningfully participate in the electoral process – Figueroa v. Canada. So SCC said ss. 24(2), 24(3) and 28(2) of the Federal Elections Act (which state that only parties with at least 50 candidates riding nationally can issue tax receipts for donations made to the party, transfer unspent money after the campaign to their party, and have their party affiliation listed on the ballot), violates s. 3 because it further tilts an already skewed political marketplace (smaller parties already have trouble getting heard). Since democracy is better when all voices are heard, the government has to be neutral. SCC ruled ss. 24(2), 24(3) and 28(2) of the Elections Act unconstitutional, because it allowed the government to intervene in the political marketplace, which distorts s. 3 right to effectively participate in the electoral process (Figueroa v. Canada). s. 3 is about i) the right to effectively and meaningfully participate in the electoral process (so government has to maintain a level playing field so the political marketplace can operate effectively and hear all voices), ii) the right to rough parity of voting power (which controls the governments power to set riding boundaries – we tolerate that urban ridings are typically bigger than rural ones, but there can’t be a huge disparity between the ridings – see Judicial independence for procedure on riding boundaries), iii) the right to a genuine opportunity to take part in the governance of the country. - Figueroa v. Canada. s. 3 doesn’t give non-citizens the right to vote (government can extend the right, but not constitutionally required because s.3 only applies to citizens). Some other Charter rights are not so restrictive and can apply to anyone on Canadian soil (SCC looks at s. 3 in Figueroa v. Canada). Since s. 3 doesn’t say anything about age, denying people under 18 the right to vote violates Charter, but so far, Charter challenges on this basis have failed because the violation can be justified under s. 1 of the Charter. This limit can be demonstrably justified in a free and democratic society because people younger than 18 are not ready to vote due to their limited knowledge etc. Ryder says this is highly debated and will likely change in the future (SCC looks at s. 3 in Figueroa v. Canada). s. 3 isn’t about the right to elect your candidate, or to contribute to election of government, it’s about the right to effectively participate in the electoral process and this vote is meaningful regardless of the result due to the mere fact of being able to express the vote (SCC looks at s. 3 in Figueroa v. Canada). FPTP does gives expression to s. 3 rights, so courts unlikely, legally and in principle to say that FPTP violates s. 3 based on Figueroa v. Canada. And, not practical for courts to say this, as it would be too radical to overturn the electoral system of Canada. But Ryder says it is impossible to make a case that FPTP truly represents all individual rights to effectively participate in the electoral process. o Fixed Election Dates - (S17) Election date reform, unlike MMP electoral report, has succeeded in many areas. Now, we have legislation that sets up fixed default election dates for Federal elections and Provincial elections (for 5 provinces, including Ontario). o Every 5 years for federal elections (parliament has to be dissolved every 5 years). o Fixed elections dates for federal and provincial elections are to be held in October in the fourth calendar year following polling day in the most recent general election. * Fixed election law still subject to the power of GG or lieutenant-governor. o Purpose of passing fixed election dates: wanted to take power away from PM or premier to determine the timing of elections in a self-perpetuating way. o But our parliamentary system can’t truly have “fixed” elections dates due to: 1) Fundamental principle that government can rule so long as it has the confidence of the house. If it loses this confidence, it has to either resign and make way for someone else to try and do it, or ask GG to dissolve parliament and call another election (by constitutional convention) before the fixed election date. and 2) Nothing to stop PM going to GG or Premier going to Lieutenant-governor to ask for an earlier election date even if they still have the confidence of the house. o BUT fixed election law still good to accomplish its purpose: No legal constraints on PM or premier asking GG or lieutenant-governor to dissolve parliament and have another election when the still have the confidence of the house but would result in a political outcry. o The only way to have an election earlier than fixed date with legitimacy is to blame it on the opposition parties not supporting the ruling party program (to say that they don’t have the confidence of the house anymore): i.e.: What PM Harper was doing. Still had confidence of the house, so couldn’t go to GG to ask for an earlier election because there would be a political outcry (though legally he can). So he claimed that every piece of legislation would be a confidence vote (and if opposition did not vote for it, then Harper would be deemed to have lost the confidence of the house). McGrath Report 1985 studied the issue of what a “confidence vote” is: it changes over time, from parliament to parliament so there’s lots of debate. There are clear votes that are confidence votes, and clear votes that are not and a huge grey area in between. Clear Confidence Votes are: a vote on the speech from the Throne (where government lays out major plans), budget and significant supply measure votes (Parliament denying money/supply for government is a confidence vote), votes on government’s major planks/pillars (i.e.: 5 pillars of legislative program from earlier session of parliament, where accountability wasn’t approved by opposition), and a motion that is explicitly phrased as a confidence motion. Harper went further than these clearly established notions of a confidence vote. He wanted opposition to either agree with his legislation (which he knows they are already not happy about) or not vote for it, which would mean loss of confidence and thus dissolution of parliament and an election at a time that is not good for the opposition parties (Harper tried to engineer his own defeat). But he was taking a lot of risks: o Opposition could come together and say that a certain legislation they vote against isn’t a confidence matter and introduce a motion to make it clear what a confidence matter is. It’s for the elected House that acts on behalf of the people to decide whether a vote is a loss of confidence or not. o GG could use reserve power to refuse his request for dissolution and embarrass him: Could say that we just had an election 2 years ago, and elections should only be called on serious conditions (where government has clearly lost confidence of the majority of the house, and where there are serious issues that the people need to have a say about). This reserve power is crucial in our parliamentary system (GG has to be able to act independently in the best interest of the country), GG. has to be able to discipline PM with these reserve powers or else PM could call elections at whim to perpetuates themselves in office. o Harper could lose popularity/be embarrassed among the voting public: Manipulation/engineering defeat of his own government could result in lost popularity among the people (and could make them question his legitimacy – as he would be acting in self- perpetuating way). 2) Executive Implements/enforces laws - consists of the queen as formal head of state (which is really GG due to Letters Patent – see above), PM and cabinet, and all the various governmental departments/ministries). 1) The Crown (pg 225) - includes queen as the formal head of state (but GG explicitly given powers through our Constitution to exercise this formal executive power because the British Monarch delegated its powers to our GG through Letters Patent ). - Conventions of responsible/parliamentary government: In exercising her powers as the de facto head of state, GG has to act under the advice (really under the direction) of PM. - GG Responsibilities: o 1) Most significant power of GG = Selecting/appointing PM - identifies leader of the party that has the most seats: the person who is most likely to govern with the majority support from the other parties. So PM isn’t elected. o 2) Dismissing PM o 3) Summoning , proroguing, and dissolving parliament. 2) The PM and Cabinet (pg 226) - Once PM appointed, his responsibilities/prerogatives include: o 1) Selecting/appointing ministers (most significant power of PM) o 2) Shuffling cabinet (moving the ministers around) o 3) Dismissing ministers Cabinet (made of PM and ministers) - Most important point about executive is that by convention, cabinet members have to be drawn from and be accountable to the legislature (either the House of Commons or Senate) –idea of responsible government (see Hogg for more). Usually, but not by convention, members are drawn from the House of Commons and from the governing party – but this doesn’t always have to be the case. - The cabinet is in most regards the supreme executive authority that exercises most executive powers. o Cabinet formulates/carries out the executive branch of the government policies like the right to the throne speech, determines the legislature agenda of government, determines the timing/content of government bills to be introduced in the House of Commons or the Senate, and the ministers administer the different departments and ministries that form the government. Cabinet composition changes depend on PM (cabinet lasts as long as PM keeps it there). - 1) PM shuffles it (moves weak ministers out of cabinet/moves ministers to different positions within cabinet etc.). - 2) Cabinet can change depending on election results (election can be called due to fixed election date or due to GG dissolving parliament at request of PM – but note GG has reserve power to not do it at PM’s request). o If government remains in power, PM can decide to appoint the same ministers at the beginning of Parliament, shuffle them around, or appoint some/all new ministers. o If government is defeated in the election, PM has to resign and make way for a new PM to be appointed by GG, who appoints new ministers for a new cabinet composition. - 3) If GG dismisses PM due to thinking he/she doesn’t have the support of the house (then new PM will appoint new ministers). Our Constitution doesn’t specifically refer to the PM or Cabinet: - Ministers’ powers and the cabinet functioning as our supreme executive authority are due to conventional rules. o Constitution refers to the “privy council”, which includes a lot of people including all people who have been ministers. This body rarely meets. But part of the privy council that functions is the existing cabinet (i.e.: s. 13 of 1867 Act) o Our Constitution and Statutes only refer to “decisions made by GG in council”. But, references to “council” are really references to “cabinet”. o So “decisions made by GG in council” means the cabinet has the power to make the decision of the kind that is being referenced (i.e.: s. 13 of 1867 Act). GG doesn’t attend these deliberations. PM attends deliberations and identifies/announces cabinet decisions (usually not taken by a vote, but rather a consensus identified by PM, but PM can announce a decision even if the majority of the cabinet opposes). So when “GG in Council” makes a decision, it’s really the PM making a decision (deliberation results in formal order being drawn up and delivered to GG to sign). GG will sign by convention. o Cabinet meetings/deliberations are secret (process of making these decisions isn’t open to public participation like legislature deliberations. All documents presented to the cabinet are protected by confidentiality). BUT REMEMBER: Aurthorson etc. cases show that there are no legal requirements regarding parliament’s procedures/procedural fairness though (strong political conventions support legislative process, but it’s not a legal requirement). SO PM has enormous power in our parliamentary system due to: - 1) Cabinet is the supreme executive authority with lots of legal powers but the PM presides and dominates the cabinet (partly because PM has power to decide who’s in the cabinet – can decide to get rid of you and appoint another minister who’ll be more cooperative). - 2) Executive and Legislative government branches are fused in our system so the PM controls the legislative agenda as well (unlike U.S. republican system). 3) The public/civil service (pg 228) – (executive continued). - Unlike PM and cabinet (who determine government policies in a highly partisan way), department/ministry employees are supposed to be politically neutral, impartial, and loyal to the government, but not necessarily to any particular party. o Their composition doesn’t necessarily change from election to election/party to party. Once a new party is in power, the civil service usually stays the same - common for deputy ministers (heads of departments) to serve a series of different governments led by different parties. SCC upheld federal government dismissal of civil service employee (who publicly opposed the federal government policies), as lawful even though this would normally be considered a serious violation of freedom of expression to be fired for expressing an opinion, because civil service employees haveto be politically neutral, impartial, and loyal to the government. - Fraser v. Canada  (pg 229) Civil service employees can express opinions and have rights of equal participation and political expression but can’t compromise their public service duty that is to be politically neutral, impartial, and loyal to the government - Fraser v. Canada Fraser v. Canada decision was written in 1985 but the facts occurred in the 1970’s before the Charter was enforced. Ryder says if the case happened now with the Charter, the balance between the 2 important principles of civil servant political neutrality and of freedom of political expression could shift because we now have a constitutional commitment (Charter) that didn’t exist when the facts in Fraser happened. Now our Constitution has the Charter that protects freedom of expression and political expression, and the government would have to show that any restrictions to this right can be justified under s. 1 of the Charter to be valid. o Past Canadian governments had serious restrictions on when civil servants could actively participate in elections by running for office or campaigning to support those who are running in office due to the commitment to public service employees being committed to political neutrality, impartiality, and loyalty to the government. But S.C.C. struck down federal law provisions that put a blanket prohibition on Federal civil servants participating in elections Osborne v. Canada  (pg 232). SCC said can have some restrictions on civil servant political participation to preserve the 3 duties to be politically neutral, impartial, and loyal to the government, but this law was too blunt/didn’t distinguish between the need for political neutrality within the different levels of the civil service hierarchy. i.e.: deputy minister needs to have more political neutrality/needs stricter restrictions than someone cutting the grass around the Parliament building - Osborne v. Canada S.C.C. recognizes that a reasonable balance must be drawn between the 2 important principles of civil servant political neutrality and of freedom of political expression - Osborne v. Canada. So now our statutes regarding these matters try to draw a distinction between the levels of the civil service employee hierarchy, and restrict those higher in the hierarchy more. 4) Independent administrative agencies (pg 232) – operate at arm’s length from government (Executive continued). - Administrative law (a branch of public law) is a huge body of law that is mainly concerned with the legal principles that define/limit the powers of independent administrative agencies. o i.e.: Roncarelli is the leading decision in administrative law due to the principle that executive members (i.e.: liquor commission, which is an independent administrative agency established to administer the government’s liquor license policies) had to find a source of all their actions in a legal rule (rule of law). - Established by parliament by legislation to carry out executive functions (administer/enforce the law), but these agencies are hybrids as they can also be given the power to make law (legislative-like function) (a.k.a. subordinate/delegated legislation), and sometimes consists of tribunals that adjudicate disputes too (judicial-like functions). - Especially over the past ½ century, the government has established many independent administrative agencies – this growth is a relatively new phenomenon. o Parliament established the two independent administrative agencies – the Human Rights Commission and the Human Rights Tribunal to administer the Canadian Human Rights Act statute (pg 232) i..e: a private actor will file federal jurisdiction discrimination complaints (like an airline) with the Canadian Human Rights Commission, who will direct what they deem to be well-founded complaints to the tribunal (not to court) – see Seneca College The commission has the power to issue directives about the interpretation of the Canada Human Rights Act, and has the power to make law in the form of directives that are binding to the tribunal. The tribunal adjudicates in a quasi-judicial manner (like a court), with panel members (not official judges) who hear evidence and arguments. The tribunal rules and issues written decisions, which can be subject to appeal to a court (which is required by the Rule of Law). NOTE: Legislature made Canadian Human Rights Commission and tribunal because courts at the time weren’t responding sensitively to these issues. But the commission and tribunal have judicial oversight, like all executive powers because these powers can only come from statutes (so always need judicial oversight to make sure they are working within the bounds of their legal authority – this rule of law idea was articulated in Roncarelli). - Other Examples of independent administrative agencies: o Telecommunications commission (regulates radio/television broadcasting, like who gets broadcasting licenses and what the conditions of the licenses are etc.). o Ontario Municipal Board o Worker’s Compensation Board (administers compensation funds for injured workers). o Immigration and Refugee Board o Child Protection Services Executive government branch independent administrative agencies include a lot of different bodies (not necessarily crown corporations or government branches, but can often be private agencies that have government functions due to powers being delegated to them by provincial statutes). So it’s fair to say that in some regards that Child Protection Services is also an independent administrative agency even though it’s not solely a creation of legislation like other independent administrative agencies. o Ontario Securities Commission – Ontario legislature delegated power to commission so that it can make legally binding laws. i.e.: The legislature will pass legislation of security acts, for example (basic rules that govern trading of securities and the regulation of people in the business of trading securities). But lots of issues can arise that require expertise to quickly pass new rules to resolve the issues. SO the government establishes the Securities Commission independent administrative agency to make these laws. Rationale for legislature to establish independent administrative agencies with this range of powers (to make law, enforce/administer law, and adjudicate disputes – have some of the functions of all 3 branches of government): 1) Specialization/Expertise: More equipped to make decisions regarding the area. 2) Concern for economy and sufficiency of dispute adjudication (related to adjudication accessibility/informality): allows for complaints to be processed more efficiently/quickly than if the dispute went to court. The idea is that courts are already overwhelmed and have a more costly adjudication process due to more formalities. So instead of working to reform the judicial system, maybe a better strategy is to establish this new adjudicative body. Problem: how independent do members of independent adjudicative administrave tribunals have to be? - One main principle of the judicial branch of government is judicial independence from legislative and executive branches to give effect to the rule of law ideal that we live in a society governed by law rather than by particular individuals or partisan outlooks (so judges have security of tenure -appointed for life subject to good behaviour/can only be removed through an extraordinary process-, have financial security, and have institutional and administrative independence from other two government branches). o But in taking disputes away from the judiciary and assigning them to independent administrative agencies, it must be ensured, according to the Rule of Law, that tribunal members have enough independence to administer the law impartially/not just implementing the partisan desires of their political masters. So Basic Principles/implications of the Rule of Law - 1) Constitutional principle that independent administrative agencies tribunals are open to judicial review (a way to secure the rule of law/a necessary corollary of the rule of law) - 2) Judicial independence is a necessary corollary of the rule of law (need independent, objective body to interpret/apply the law ultimately). Judicial independence is now constitutionally guaranteed (can’t be taken away by the other 2 government branches). o So government cannot just gut the core jurisdiction of courts/turn them into hollow shells by transferring all disputes to independent administrative agencies as this could threaten the rule of law. - 3) Legislatures have to be limited in their ability to take jurisdiction away from the courts (when government wants to transfer matters that are historically part of courts’ core jurisdiction to independent administrative agencies, they face significant hurdles). Legislature has to show very good reasons to take jurisdiction away from courts for such legislation to be constitutionally valid. (like specialization/high volume of court disputes etc. listed above). o But will be declared unconstitutional if courts think government is just arbitrarily reducing the core jurisdiction of courts – (see question that have to be asked for taking superior court jurisdiction away and giving it to executive tribunals: “labour issues”/ given to tribunals for the same reason human rights issues were given to Human Rights Commission – courts were insensitive to the issues) - SCC says rule of law requires judicial independence, but doesn’t require that independent administrative agencies are independent from executive government since they are part of the executive government – Ocean Port Hotel Ltd. v. British Columbia  (pg 236). o But constitutional guarantee of judicial review can ensure that independent administrative agencies are abiding by the law/acting within the scope of their jurisdiction/being impartial If government tries to insulate independent administrative agencies from judicial review (say there is no appeal right/that independent administrative agency decisions are final this is unconstitutional) - Ocean Port Hotel. This is a necessary corollary of the rule of law. SO how independent do adjudicative administrative tribunal members have to be? - Ocean Port claimant unsuccessful because SCC said independent administrative agency independence is determined by the legislation that gives the agency the power, and the legislature in this case decided that members of the liquor board hold their position at the pleasure of the executive (s. 30(2)(a) of the Act), so there is no independence (doesn’t go against rule of law cause legislature is supreme). o This can only be challenged successfully if a constitutional principle guarantees the administration’s independence (but there isn’t one in Ocean Port circumstances). But sometimes there may be: - Possible arguments that there is a constitutional guarantee of an administration’s independence: o 1) s. 7 of the Charter: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” – can argue this to include right to have ones rights determined by a fair/impartial process and decision maker. But s. 7 doesn’t include all our rights (liberty has been interpreted only as protecting our liberty to make decisions of fundamental importance and protecting physical liberty against things like detention but doesn’t include economic rights/ right to have a liquor licence). So Ocean Port situation can’t give rise to s. 7, so claimants didn’t’ even raise this. o 2) s. 11(d) of the Charter - Right when charged to have accusations dealt with impartially: “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Ocean Port situation can’t give rise to s. 11(d), so claimants didn’t’ even raise this. Claimants were arguing about negative decisions regarding their liquor licence (they weren’t criminally charged). o 3) s. 2 (e) if the Canadian Bills of Rights: Provides the right to “a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations”. – might be able to use this (but remember the limits of the Canadian Bill of Rights – see below) – BUT not a constitutional guarantee. o 4) Judicial Independence is an unwritten constitutional principle that should also apply to independent administrative agencies: SCC rejected this in Ocean Port because independent administrative agencies are part of the executive government and the principle of judicial independence applies to courts/judges, not to independent administrative agencies even when they exercise adjudicative responsibilities. SO don’t have to be independent = that’s why judicial review of their decisions is a necessary corollary to the Rule of Law (see judicial review notes for more) 5) Crown Corporations (pg 240) - Government owned corporations that operate independent/at arm’s length from the government, which have autonomy due to the rationale behind making crown corporations that they should pursue long term considerations instead of shifting policy according to political whims. o i.e.: ViaRail, CBC, Bank of Canada etc. - What is/isn’t a crown corporation is always changing (i.e.: Petro Canada used to be a crown corporation but has been privatized) 6) Municipalities (pg 241) – provincial legislature can give municipalities powers to pass by-laws. - Municipalities are under provincial jurisdiction under s. 92(8) of the 1867 Act (creatures of provincial legislation, and can be restructured and abolished by provincial legislature at any time). - Municipality Power Limits/problems: o Municipal powers can only be exercised for municipal purposes. o Creatures of provincial statutes, so they only have powers that are clearly identified in the statute that makes them. o Their statutory powers have been interpreted restrictively, so if municipal regulation is required for new issues, and it’s not explicitly identified in the provincial statute, municipalities have to go to the province to make sure it can have this power = Paternalistic relationship (happened up until the mid-1990’s). o Unless explicitly identified as a power, municipalities can’t single out/discriminate particular actors/businesses when regulated businesses. Ryder gives the example of: can city prohibit McDonald’s drive thru lanes, or would this be discriminating fast food actors according to this limit. - Municipalities are restricted/considered a junior level of government that is constitutionally insecure. But we’re in the midst of significant change: o 1) Wave of legislation over the past decade in various provinces seeking to expand municipal powers. i.e.: the City of Toronto Act. o 2) SCC/other courts have indicated taking a more generous approach when interpreting municipal powers. - Municipalities are a significant part of the government in our system, but its existence is not constitutionally guaranteed. Ryder says if we remade the Constitution, we would change this (country was 80% rural/ 20% in cities when 1867 Constitution enacted, but now it’s vice versa). - Current movement across the country to get a new deal for cities, including establishing a more secure foundation for municipalities. For many years, cities have been fighting a restrictive and insecure legal situation. - Dominant metaphor is that municipalities are going from adolescence to adulthood: growing up and not going to be treated like children by the provinces anymore. They are getting more powers/autonomy. But still creatures of provincial statute/don’t have secure constitutional status. - i.e.: Shell Canada 1994 SCC (pg 242) o 5-4 SCC decision rules that Vancouver municipality council’s decision to not do business with Shell (because Shell continued dealing with the South African racist Apartheid Regime) was illegal: Due to long standing principle that municipal powers can only be exercised for proper local municipal purposes. SCC majority said Shell decision dealt with areas far away from Canada, not with the local residence so it wasn’t a municipal purpose, and Due to the decision being discriminatory. o McLachlin J. dissent (which captures current SCC majority view on municipal powers). Said municipal governments have a lot of democratic legitimacy and so should interfere only with great caution and interpret their powers broadly. Said Shell decision was the municipal government’s ethical obligation and was a matter of local concern, and thus a legitimate decision. City council shouldn’t be deprived of powers to decide on an ethical basis who it wants to do business with (Ryder says “duh” – bizarre if municipality can’t even decide who they can deal with.). * Since 1994, series of SCC decisions on municipal powers have quoted her opinion with approval – (pg 242) there is “an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those municipal councils.” - Spraytech 2001 SCC (pg 245) one main sign of the court’s new approach - SCC upheld by-law regulating the use of pesticides in the municipality (even though federal and provincial law allowed the pesticides) - Ryder says it’s a duh proposition that they should be able to do this. o Similar to the Ontario Court of Appeal dealing with Crop Life – court upheld similar bylaw passed by city council. - SCC took a more expansive approach to interpreting municipal powers: o 1) SCC borrows the Principle of Subsidiarity from European jurisprudence that decisions should be made by the level of government that is closest to the people who are affected by the issue it concerns. So local concerns about health effects of pesticide use for aesthetic purposes on properties means that this is an issue that should be addressed by the municipal government. Not sure where SCC will go with the Principle of Subsidiarity, but using it shows a different attitude from the past. o 2) S.C.C. quotes McLachlin J.’s dissenting view in Shell Canada to enlist Principle of Democracy that greater life has to be given to the scope of municipal powers. o 3) Looks at environmental regulations – connects International Law to municipal law powers. Customary International Law has given rise to the Precautionary Principle (idea that caution should be exercised in relation to threats of environmental degradation so exercise environmental jurisdiction before negative consequences can happen). So SCC says Canadian statutes, including statutes giving municipal powers, should be interpreted in a manner that is consistent with Canada’s international law obligations. - If new deal for the New Cities Campaign continues strongly, maybe municipal powers will be constitutionally guaranteed, and then municipalities won’t be subject to the whim of provincial legislatures anymore. o * If cities were to have constitutionally entrenched powers, this would involve the creation of a new order of government and a corresponding diminution of the legislative powers of the other levels of government set out in ss 91 and 92 of the Constitution Act, 1867. Legislation passed by a provincial legislature pursuant to s.45 can also be repealed by a provincial legislature pursuant to s.45, so this would not be a way to create constitutionally entrenched powers for cities. Section 43 could be used if the change was desired in only one province - in the same way that s.93A , altering educational powers and rights in Quebec, was added to the CA1867 through a bilateral amendment with Ottawa. If, however, we wanted to give cities constitutionally secure status throughout the country, the s.38, 7/50 procedure would have to be followed. Questions from Ryder: In what ways is the independence of the Canadian Human Rights Commission and Tribunal secured by the provisions of the Canadian Human Rights Act? Why does the Canadian Bill of Rights ensure that some aspects of the independence guarantees are not eroded by the passage of legislation by Parliament? Is the answer that s. 2(e) of the Canadian Bill of Rights provides the right to “a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations” and as a result, independent administrative decisions must be open to judicial review (which is also supported by the constitutional principle that courts must be able review the decisions of independent administrative agencies as a necessary corollary to the rule of law)? So, in addition to ss. 7 and 11(d) of the Charter, s. 2(e) of the Canadian Bill of Rights is a potential argument that there is a guarantee of an administration’s independence (but not constitutional argument). Email response from Ryder: Your answer to the first question is absolutely right. My apologies for neglecting to address this point in class on Friday. The Bell Canada case (referenced at p.235 of the casebook) dealt with an issue of administrative independence similar to the one raised in Ocean Port. At issue was the independence of the members of the Canadian Human Rights Tribunal. One argument made by Bell Canada was that s.2(e) of the Canadian Bill of Rights required greater independence for Tribunal members. In that case, the Court said that the content of the procedural rights protected by s.2(e) was the same as those rights provided at common law. Since the Court concluded that the degree of independence possessed by the Tribunal was consistent with common law principles, it also found no violation of the Canadian Bill of Rights. However, if Parliament were to pass legislation reducing Tribunal members' independence below common law standards (eg, if the statute stipulated that Tribunal members could be removed from their positions "at the pleasure" of the federal executive), then s.2(e) of the CBR would be violated. The conflict between the CBR and such a provision would likely be resolved in favour of the CBR. The opening language of s.2 of the CBR says that "every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared...". There is judicial authority for the proposition that the CBR can be used to declare other federal statutes inoperative to the extent they conflict with the CBR. For example, in Singh (1985 SCC), Justice Beetz used s.2(e) to conclude that refugees had a right to a hearing and inconsistent provisions of the Immigration Act were inoperative. … Then why s. 2(e) of the Canadian Bill of Rights Act was not raised in Ocean Port. According to your response below, s. 2(e) of the CBR would be violated and such a conflict would likely be resolved in favour of s. 2(e). Did the court not consider it because it is not a constitutional reason to guarantee the independence of independent administrative tribunals? (as it seems the court was concentrating on such guarantees) Or does s. 2(e) not apply to Ocean Port? On what basis did the SCC conclude in Ocean Port (242) that the members of the B.C. Liquor Control Board did not have to have a higher degree of independence? Why did Ocean Port not rely on the Canadian Bill of Rights or the Charter of Rights and Freedoms? What constitutional argument did Ocean Port advance? Why did the Court reject it? In a 5-4 decision, the majority of the Supreme Court of Canada in Shell Canada (242) quashed the resolutions made by the Vancouver City Council on the grounds that they did not relate to municipal purposes but to matters external to the interests of the citizens of the municipality. McLachlin J., in dissent, took a broader view of the legitimate scope of municipal powers. Which position to you find more persuasive? On the basis of the discussion in Campbell (246) and the Ipperwash Report, how would you describe the balance between police independence and police accountability? 7) Police and Prosecutors (around pg 255) (part of executive, but needs some independence from executive for certain decisions). - Rule of law says that police decisions to investigate crime (who to investigate, whether they have enough evidence to prove convictions beyond a reasonable doubt etc.) and prosecutor decisions to prosecute crime (i.e.: whether to prosecute, who to prosecute, whether to drop charges etc. - crown can make these decisions anytime) have to be independent from the rest of the government (especially the rest of the executive). Political influence of these decisions would violate the rule of law. o Can’t be influenced by politicians etc., or could be used to persecute political opponents (like in Zimbabwe where rule of law isn’t strongly established like it is in Canada). - Police independence: Core idea of police independence is that they have to be independent when conducting criminal investigations. (Campbell 1999 SCC (pg 252)) o i.e.: RCMP have to be separate from rest of government for investigatory decisions (especially the executive, which includes the crown). SCC would not allow crown’s immunity from Controlled Drugs and Substances Act to be transferred to RCMP to protect their investigatory decision to do a reverse sting operation (crown argued that the immunity should be transferred to the RCMP, saying the police made the investigatory decision on crown’s behalf to catch suspected drug traffickers). (Campbell) So SCC sent case back to the trial judge to consider whether to stay the proceedings due to police illegality – couldn’t have crown immunity because such an investigatory decision should be made by police independently (Campbell). Note, Controlled Drugs and Substances Act gives police immunity from drug possession prosecution, but not for trafficking. Tort law exception: police investigatory actions can be assessed by judiciary to see if they lived up to their required standard of care/investigated negligently (ruled in Hill v. Hamilton-Wentworth). - Prosecutor independence: Crown prosecutors have to be independent when it comes to conducting criminal prosecutions (Krieger 2002 SCC (pg 255)) - * But principle of prosecutorial independence only protects such prosecutorial decisions from review if they are good-faith prosecutorial decisions (Krieger). o Krieger went against professional ethical/legal obligations, and didn’t disclose materials to the defence, who has a constitutional right to full disclosure. SCC said this bad-faith prosecutorial decision could be investigated by Alberta Law Society (no protection from principle of prosecutorial independence). Tort Law: can’t sue prosecutors for negligent prosecution but can sue for malicious/bad-faith prosecution (i.e.: went against public interest). But high standard required to prove this bad-faith prosecution, so prosecution has more independence than police in tort law now. - But Justice Linden of the Ipperwash Inquiry (articulates same ideas as Justice O’Connor in the Arar Report) says it is misleading to say that Campbell and Krieger indicate police and prosecutor independence at large (Ryder agrees). Principle of police independence is restricted to investigatory acts (core of police independence is police operational responsibility), and principle of prosecutorial independence is restricted to prosecutorial acts. These principles of independence are crucial to the rule of law, but the principle of police/prosecutorial accountability to government is also crucial to the rule of law (government has to exercise ministerial policy responsibility for general policies/operations). Need accountability and free flow of information between police/prosecutor and other government branches and to the public too, so have to figure out the right balance. Having this problem now with RCMP and provincial police forces. o So in regards to aboriginal Dudley George being killed during the 1995 aboriginal protest, the Ipperwash inquiry due to some evidence that the executive, (premier and some cabinet ministers), directed OPP actions, found that the government acted in an improper way by directing police action with respect to a particular event (Ryder says government should not have done this). Police operations and policies generally have to be accountable to the government so police can’t have independence on how to police aboriginal protests (with policing the Caledonia Protests, the government has to help form a general approach to police aboriginal protests) but cannot dictate police response to any particular event. o Hard to find the right balance though. Ipperwash doesn’t give us a clear line of when police independence stops and when police accountability to government begins. There are shades of grey. Sources of Executive Power - Roncarelli shows us the powerful principle in our government system that the executive has to find the source of its powers in statutes generally, or from common law Royal Prerogative powers (based on the Rule of Law). 1) Prerogative Powers (pg 258) - Prerogative powers are decreasing because statutes made in the same area of law will trump the prerogative power. But some still exist: power to declare war, make military decisions, enter treaties, issue passports, and to confer honours (dealt with in Black v. Chretien) etc. o Common law prerogative powers are reviewable in court just like legislation is (it is not the source of power that determines whether court can review government decisions, but rather the nature of the decision). Court can review a decision (regardless of its source of power) if it goes against constitutional rights or an expectation that gives rise to rights - (Black v. Chretien 2001 Ont CA (pg 252)) Decision about whether to confer honours isn’t reviewable in court (doesn’t violate rights or any legitimate expectation of rights). So court dismissed Black’s challenge against Chretien’s refusal to confer honours so that he could be recommended to the House of Lords. If decision violated constitutional rights or legitimate expectation of rights, then Black might have been able to use a procedural rights argument) - Black v. Chretien. o SCC confirmed that common law prerogative powers are reviewable in court (not the source of the decision that determines whether court can review it, but the nature of the decision) - (Operation Dismantle 1985 SCC (pg 373)). Here, court reviewed and concluded that military decision to test missiles in Canada did not violate s. 7 of the Charter as claimant argued. 2) Statutory Delegation (pg 258) - Most of executive’s powers are delegated to them in statute by the legislature (can confer subordinate law/regulation-making powers to executive) (i.e.: independent administrative agencies don’t have any inherent powers, but legislative statute can give them powers – i.e.:Canadian Human Rights Commission). It is a legal requirement that legislature can make statutes that delegates can fill in with subordinate laws. - Ordinarily parliament’s statutes prevail over executive’s regulations that are inconsistent with it, and regulations can’t overturn statutes unless Parliament expressly empowers the subordinate law maker to pass orders that can prevail over the statute, or due to emergency/war circumstances - (Re Gray 1918 SCC (pg 259)). o 1917 Military Services Act statute included express provision that cabinet could make changes pursuant to War Measures Act that would prevail over the statute (so Parliament anticipated the need for cabinet to pass orders pursuant to the War Measures Act that would alter the legislative exemption to conscription). So can argue that there actually isn’t a conflict between the statute and the regulation here. o Court also reads War Measures Act statute as empowering cabinet to make orders that could prevail over statutes due to extraordinary circumstances of war/emergency, even in the absence of this express provision. Facts: Gray got statutory certificate of exemption pursuant to Military Services Act statute, but cabinet order conscripting him prevailed. In 1918, Borden Government needed more soldiers, and instead of going through parliamentary process of amending the Military Service Act (would require 3 readings in each house, some of which is open to the public, and GG royal assent), government passed a cabinet order pursuant to the War Measures Act (cabinet orders happen behind closed doors, PM defines consensus of decision = less democratic legitimacy) – Government said it was a national emergency so had to use cabinet’s extraordinary powers to change the law and conscript farmers who got statutory exemption in 1917 (Re Gray 1918 SCC (pg 259)). - Otherwise, court follows normal rule that regulations cannot counter legislation – (Canadian Wheat Board 2007 FCTD (pg S 36)). o Minority government here tried to make changes to legislation through cabinet because they did not control Parliament as a minority government (but court said they had to go through Parliamentary process to make any changes to the legislation) – (Canadian Wheat Board). - Another exception to the normal rule that legislation will trump inconsistent regulations: King Henry VIII Clause: Clause can be included in parliament’s statutes (that delegate subordinate law-making powers to delegates, like cabinet) which will allow regulations to be made to fill in the statute’s gaps and to prevail over the statute if inconsistent. – discussed in Ontario Public School Boards 1997 Ont Ct Gen Div. (pg S37) obiter. - Justice Campbell says the clause is constitutionally suspect, because it is arbitrary - executive doesn’t have to have a good reason to use it to override legislation, they can use it simply if they want to bypass the legislature while changing the law). o Justice Campbell in Ontario Public School Boards says the clause is constitutionally suspect because it is arbitrary. In our system, executive controls the legislature greatly, so it is the one making the laws and executive does not have to have a good reason to use it to override legislation (can add the clause as a backdoor to make legislative changes without going through the legislative process, which has more democratic legitimacy than going through cabinet. o We now have 10 King Henry 8th clauses in Ontario legislation, even though general sense over the years is that it should be avoided. o So what would the court say if in the future, King Henry Clause in a statute said its regulations could prevail over the statute, and the argument was raised that since the regulations conflict with the legislation, it should be of no force and effect, and if King Henry Clause allows this, then it too is unconstitutional? Would be too much of a stretch to use principle of democracy as it was applied in the Secession Reference, where it was used to say that on a clear vote on a clear question, other provinces must negotiate in good faith. Future court can say clause goes against democracy principle (important in our constitution) if executive uses it just to bypass legislature. But unlikely that courts will say clause is totally problematic, because it can be useful in some situations to give executive power to override legislation (i.e.: in a situation like in Re Gray, where there is an emergency). 1. Most people are glad the Wars Measures Act has been repealed and replaced by Emergencies Act anyway. One of the good things about Emergencies Act is that it requires quick Parliamentary involvement (allows executive to take emergency actions, but executive still has to go to Parliament in doing so – so executive doesn’t have total control). Court can reject argument that King Henry VIII clause goes against democracy principle because the legislature itself, the primary law making body with democratic legitimacy, passed the clause in a statute and is thus happy to be overridden by the executive. Counter argument to this: principle of democracy requires commitment to certain democratic procedures (such as having the legislative process open to public etc.) that even legislature cannot take away unless they have good reason to do so. BUT REMEMBER: Aurthorson etc. cases show that there are no legal requirements regarding parliament’s procedures/procedural fairness though (strong political conventions support legislative process, but it’s not a legal requirement). So Justice Campbell started an interesting debate, but courts haven’t addressed this question yet. Questions from Ryder The Re Gray case, like the Canadian Wheat Board case, dealt with a conflict between a Cabinet order and a right conferred through a statutory procedure. How would you explain why the Cabinet order prevailed in Re Gray but not in Canadian Wheat Board? Do you think the majority in Re Gray might have reached a different result in a context other than the use of executive powers during a perceived national war emergency? (Chad Travis) What is a “King Henry VIII clause”? Why did Campbell J. consider a King Henry VIII clause to be “constitutionally suspect” in the Ontario Public School Bds case? Could the principle of democracy, as articulated in the Secession Reference, now be used to bolster the argument that King Henry VIII clauses are unconstitutional? (Anna Rolbin) Nature and function of powers delegated to Executive (continued from “Statutory Delegation” – under Executive Powers) - 1) Rule-making (delegated/subordinate legislation – most important aspect of delegated executive functions) (pgs 266-7): - Legislature can delegate subordinate rule-making to executive (cabinet, individual ministers etc.) o But executive controls legislation in our government system anyway (especially in a majority government situation), and executive regulations, which already outweigh legislation in quantity are increasing. So there’s a danger that we are drifting into an all powerful executive situation, where the legislation is becoming less significant (so less royal prerogative powers due to legislation on those areas trumping them, not a big deal – in our system of government – see royal prerogative powers) o Reasons for growth of delegated law-making powers and democratic deficit (pgs 266- 7) 1) Benign or good practical reasons for this increase: legislature doesn’t have time to enact laws with full details through the more cumbersome legislative process (would be unrealistic with the volume of our society’s regulatory needs). 2) But, troubling reason for this increase: Can be a reflection of the desire for the consolidation and expansion of executive power. Some argue that this can result in serious democratic deficit (Justice Campbell in Ontario Public Schools Board draws on this in relation to the King Henry VIII Clause – see above). Some ways to address this democratic deficit issue (can dress up executive subordinate law making with democratic requirements etc): 1) Notice/Hearing requirement (most promising way to address democratic deficit) where the executive body can only make legally binding regulations, after it issues notice of it’s intentions to the public/gives public the opportunity to make submissions at hearings, take different perspectives of what the law should be into account etc., before passing the regulation. o This kind of hearing requirement is a good administrative practice that is increasingly becoming a popular legal requirement for delegated law making. But this won’t resolve democratic concerns (only interested people, not entire public, pay attention to them – but still better than nothing) - i.e.: Ontario Securities Act - a notice/hearing procedure must occur before a binding order, pursuant to the Act, is issued. 2) Parliamentary oversight to review passed regulations and ensure they comply with the letter/spirit of the legislation (Canada has some oversight committees, but Ryder says public doesn’t pay much attention to them = don’t’ have much power in reality). 3) Judicial Review (not really democratic accountability, but it’s a form of public scrutiny that can help) – i.e.: allows the regulation to be challenged/ can be argued that it is illegal/beyond jurisdictions of the acting body (a Roncarelli/Rule of Law-like argument). - 2) Dispute resolution (pg 276) o Legislature can make independent administrative agencies, which include a tribunal that adjudicates disputes. - 3) Benefit or obligation determination (pg 277) o Legislature can also grant power to a body to make determinations about rights/obligations. - 4) Enforcement decisions (pg 278) Example of these delegated functions: Law Society of Upper Canada: if allegation of professional misconduct is brought to them, they have a screening committee that decides whether to authorize an investigation and require you to disclose records etc. (enforcement decision), has the power to forward the complaint to a tribunal/disciplinary committee (power to hold hearing/adjudicate), and the tribunal will decide whether the complaint is well founded (dispute resolution), and has power to make rules too. Limits on the exercise of delegated authority - Executive/Tribunal decisions usually not final due to Rule of Law as articulated in Roncarelli (statutes gives people right to 2 forms of scrutiny: appeal decision to court or right to judicial review): o Appeal to Court: Same as when trial decisions are appealed to appeal court: see if tribunal got the law right, and made a reasonable decision on the evidence that they had (usually won’t disturb findings of fact though). o Judicial Review: More complicated- doesn’t involve full reconsideration of the merits of the decision, but looks at procedural errors (duty to be fair), looks at substantive errors (ensures board was working within their jurisdiction and not acting patently unreasonable - so acting within the boundaries of the statutory grant, or else the decision will have been made without legal authority and thus be unlawful). Judicial Review can be somewhat seemingly restrained depending on what is written in the statute about the right to judicial review in the statute. Statute can include a “privative clause” (i.e.: in Baker case), which can indicate that the tribunal’s decision is final and thus not subject to judicial review (which means no right to appeal either). Clause may be included to prevent the court from meddling with the legislature’s choice to give this adjudicative function to an expert body (a “keep out judges” red flag). The privative clause can be drafted with varying degrees of impermeability. But not always followed because judicial review of tribunal decisions by superior courts is constitutionally necessary to ensure the rule of law, as articulated in Roncarelli (independent administrative agencies are not necessarily independent from the government/can be politically influenced, so need independent/objective judicial oversight. So privative clauses do not function literally, judicial review for these decisions will still ensure patently unreasonable decisions aren’t being made, and that boards are acting within their jurisdiction (so no substantive ultra vires), i.e.: ensure Labour Board isn’t performing marriages. But privative clause means judges give the tribunal more discretion in terms of how to interpret statutes because they are experts in the area. Privative clauses are common (most labour boards have these). o So Judicial review judges will be more deferential if the statute has a privative clause: o (Different Standards of Review to see whether there is substantive ultra-vires – see below): More deferential = apply “Patent reasonableness” standard (lower review standard) (court will only interfere if executive’s decision was a patently unreasonable interpretation of the law – a.k.a. if the decision was outrageous). i.e.: Court will use the lower review standard of patent reasonableness when reviewing various Labour Boards’ decisions (both because most labour boards are protected by privative clauses and because courts may not feel as well-placed to make these decisions). Less deferential = apply “Correctness standard” (will apply this high standard of review if court feels the executive body does not have special expertise to make the decisions delegated to them). i.e.: Court will use higher review of correctness standard when reviewing Human Rights Commission Tribunal Decisions because judges feel they are just as well-placed to make decisions on these issues as the tribunal is. Baker court used factors to determine where on the spectrum their review standard should fall (see below). 1) Procedural errors (procedural ultra vires – about duty to be fair) “Ultra vires” means done outside the boundaries of the statutory grant = without legal authority/unlawful (pg 279). * s. 7 of Charter includes notions of procedural fairness/fundamental justice/due process. - SCC shows that the common law notion of s. 7 procedural fairness includes: the right to a hearing before an independent decision-maker on the basis of the facts and the law, the right to be informed of the case against you, and the right to be heard (these were all articulated in Knight v. Indian Head School Division (see below), Baker v. Canada (see below), and Charkaoui v. Canada 2007. o S.C.C. in Charkaoui (pg S182 at para.29) ruled that a security certificate issued under the Immigration Act (indicating that a non-citizen is a security threat), violated s. 7 procedural fairness because of “secret” evidence the judge didn’t have, so the accused individuals (him and others) didn’t know the case against them and didn’t have opportunity to respond. So now, a bill before Parliament is seeking to address this procedural fairness problem by having a special advocate with access to this secret evidence who can make submissions regarding it. - Sometimes statutes specify procedures to be followed, but common law procedural fairness can step in if there are gaps or if no procedures are specified – (Knight v. Indian Head School Division 1990 SCC (pg 288)) (see below) – Baker also looked at these common law procedural fairness rules. o Knight employed/fired at pleasure of school board (didn’t have adequate opportunity to know case against him and to make submissions). But statute was silent on whether he had procedural rights. But since school board is a public actor, he can make public law argument of procedural fairness obligations. But would only be able to make argument for procedural rights/fairness based on the employment contract and statute for a private law employer. o SCC ruled Knight had procedural fairness rights, but only at a very low level since he was employed at pleasure of employer = should’ve let him know why they were terminating him and let him respond, but that’s it. Court looked at what’s practical in the circumstances and looked at the statute as a whole etc. to determine what common law requires of the decision maker here. 2) Jurisdictional errors (substantive ultra vires – about scope of legal powers). “Ultra vires” means done outside the boundaries of the statutory grant = without legal authority/unlawful (pg 279) Baker case shows judicial review of procedural errors (if errors = procedural ultra vires) and jurisdictional errors (if errors = substantive ultra vires). Baker v. Canada 1999 SCC (pg 285) – good example of how to apply procedural fairness and substantive judicial reviews of decision making (know about rules of procedural fairness and the different standards of review, and the different factors that can push the court in either direction of high/low standards). - Illegal in Canada but her kids are Canadian citizens, government wants to deport her so she brings application for humanitarian and compassionate exemption (that minister has the discretion to grant, but doesn’t have to), on the grounds that her deportation would negatively affect her 4 children. o Note that executive powers must always be based in statute (Rule of Law), so if legislature delegates a decision making power to the executive, the executive cannot sub delegate it to a lower executive member unless the statute allows it to. This statute did, so it is fine that the minister delegated the decision to a lower member. Result of Baker decision: - Minister’s denial of her request for exemption on humanitarian and compassionate grounds is of no force and effect due to 1) reasonable apprehension of bias (violated common law rules of procedural fairness = procedural ultra vires), and due to 2) minister’s interpretation of his own legal mandate being unreasonable and beyond jurisdiction (substantive ultra vires). - So Baker had the right to make a new “agency” application and have it heard by a different decision maker (who decided to let her remain in Canada with her kids). 1) Violation of the common law rules of procedural fairness (procedural ultra vires argument): - If statute is silent on whether procedural fairness rules apply, common law can superimpose procedural fairness rules (Knight also showed this). Baker has procedural fairness rules of participatory rights (to hear case against her and to make written submissions regarding it), and to receive reasons for the decision. These were not violated (Baker wanted oral face-to-face hearing, but SCC said she only had procedural right to a meaningful opportunity to represent her case fairly, and her written hearing was enough for this). However, the reasons for the decision that were given to her, show reasonable apprehension of bias, which means that her procedural fairness right to have her decision made by an independent/impartial decision maker was violated = Procedural fairness ultra vires = decision to reject her request ruled to have no force and effect. o The notes were appalling and didn’t grapple with her claim regarding the negative consequences of her being deported on her children - just said that the case was a catastrophe, that Baker had mental illness etc., notes full of sexism, racism etc. = evidence of bias in notes. - Procedural fairness is a continuum, lowest level like what Knight got (right to be informed of case against you and to make some written submissions), and at the highest level, can have full judicial trial with all its protections – independent judge, lawyer representation, calling witnesses, oral submissions etc. - Baker court looked at 5 key factors to determine what level of procedural fairness on the continuum is required: o 1) Nature of the decision being made and the process followed to make it/How much it resembles a judicial or administrative decision. If case is more like an administrative decision (like Baker was) = lower level of procedural fairness required, or if a case is more like a judicial decision = higher level of procedural fairness required. o 2) Nature of Statutory Scheme and the terms of the statute which the body operates pursuant to. i.e.: if statute has an appeal right, then a lower standard of judicial review is required because it can be appealed to court later on anyway. o 3) The importance of the decision to the individual or the individuals affected. o 4) The legitimate expectations of the person challenging the decision. i.e.: if in the past, the minister gave the opportunity to be heard, or held hearings on this kind of decision, or one of the ministers told you would have this opportunity etc., you would have a legitimate expectation of one yourself. o 5) Have to take into account and respect the choices of procedure made by the agency itself (especially when the statute allows the decision-maker to choose its own procedures and when the agency has expertise to determine appropriate procedures for the circumstances). Agency itself is most familiar with the demands on its time/resources = can’t ignore agency’s own choice of what’s practical. - 5 factors led Baker court to conclude that low level of procedural fairness was required (no right to oral hearing, had opportunity to make submissions, knew case against her, right to reasons of decision also satisfied as she was given the notes made by subordinate official regarding the decision to reject her request). o So reasons for decision don’t have to be long/involved like judicial reasons, can be informally written/delivered. 2) Substantive review (substantive ultra vires argument): - Baker decision also ruled to be substantive ultra vires (did not make decision considering the best interest of the children). - (same as above notes explaining different Judicial Review standards) Judicial review judges will be more deferential if the statute has a privative clause (legislature’s clear signal that executive’s decision is final). But will still have judicial review, which is constitutionally required due to the rule of law. - More deferential = apply “Patent reasonableness” standard (lower review standard) (court will only interfere if executive’s decision was a patently unreasonable interpretation of the law – a.k.a. if the decision was outrageous). o i.e.: Court will use lower review standard of patent reasonableness when reviewing various Labour Boards’ decisions (both because most labour boards are protected by privative clauses and because courts may not feel as well-placed to make these decisions). - Less deferential = apply “Correctness standard” (will apply this high standard of review if court feels the executive body does not have special expertise to make the decisions delegated to them). o i.e.: Court will use higher review of correctness standard when reviewing Human Rights Tribunal Decisions because judges feel they are just as well-placed to make decisions on these issues as the tribunal is. - Judicial review will range from Correctness Standard (highest standard) to the Patent Reasonableness Standard (lowest standard). Baker court used factors to determine where on the spectrum their review standard should fall (page 298): o 1) Tribunal Degree of expertise (significant factor to look at) – i.e.: will usually be more deferential to Labour Board decisions than Humans Rights Tribunal decisions. o 2) The nature of the decision: i) What kind of decision is being made - more like judicial decision that deals with the rights of a particular individual based on specific facts/fact based adjudication, that doesn’t usually have huge policy implications = court more likely to intervene/less deferential/higher standard of review OR more like polycentric decision that impacts wide policy concerns, is more political, and affects many different individuals = court less likely to intervene/more deferential/lower standard of review, since it’s not in the court’s area of expertise. i.e.: for Ontario Municipal Board decisions – deciding whether someone can build something on a plot of land seems like a judicial decision, but it is also a polycentric since it affects land use policy decisions, and impacts the city and every one in the community. So have to see which one it is more like. o Baker decision was fact-specific/individual = not as deferential as “patent unreasonableness”/higher standard of review/more likely to intervene. o But Baker decision was also a discretionary political decision (asking to be exempted from the Act at the Minister’s discretion) = lower standard of review/more deferential. and ii) the interest at stake: Higher interest at stake = higher standard or review/more likely to intervene and vice versa. o Baker decision had significant interest at stake (may have negative impact on her kids etc.) So SCC says need something more than a minimum review. o 3) Language of the provision/what’s in the legislation (here, the decision is an exception = lower standard of review, but no privative clause = higher judicial review is available). o 4) Who the decision maker was (here it is the Minister = give considerable deference/less likely to intervene) o 5) Process taken to make the decision - Different factors point to different directions = middle of spectrum, something more than minimum Patent Reasonableness Standard level review but less than the highest Correctness Standard level review, so SCC chose “Reasonableness” standard. But Minister’s decision did not meet this standard because it didn’t consider the “best interests of the children.” o L’Heureux-Dube J. looks at three things to support the idea that the Minister should have looked at the “best interests of the children” 1) The objective of the act - includes reuniting families (if this is Parliament’s objective, then have to keep family together). 2) International Law (the treaty: Convention of the Rights of Child) – ratified (so binding at international law), but not implemented (so not binding at domestic law) – but Convention places importance on protecting children etc. so we should consider this. 3) Ministerial Guidelines – ministers are supposed to consider humanitarian values like looking at hardships on the person and their family members. Guidelines are not law themselves (statute does not give them binding force). But can be used by courts to see if minister used reasonable discretion. o i.e.: Human Rights Act gives Human Rights Commission the power to make guidelines that are legally binding on tribunals (but not in this case). o Statute does not say that minister has to give significant weight to best interest of kids, when assessing an applicant under s. 114(2) (“best of sea …” issues), but it obvious that it should be one of the considerations due to common sense and the above 3 reasons. - Other judges (like Iacobucci J) did not like how L’Heureux-Dube J. used the unimplemented Convention of the Rights of Child to support idea that minister should look at best interest of the child: o Gave argument against her decision based on principle of democracy (treaty making and ratification is an executive responsibility, so allowing an unimplemented treaty, which means Parliament has not passed legislation to implement it, is allowing the executive to make laws through the treaty process. This is inappropriate in our parliamentary system. o BUT Ryder says what L’Heureux-Dube J. did was fine (just like other courts/judges, she used other sources to interpret legislation, she was not using it to override legislation). And in some sense, executive is more accountable to the people than scholars etc that courts use to interpret legislation. So fine to use international law to interpret our legislation. NOTE L’Heureux-Dube J. also used international law to interpret municipal powers in the Spraytech case. Sending messages that these treaties can be given some weight. BUT other judges are against using unimplemented treaties/international customary law to do this. Does the decision in Baker mean that visitors who remain in Canada illegally for years, and have children during their stay, will always be able to successfully fight deportation orders on humanitarian and compassionate grounds? - NO: this was a reasonableness standard of review, not a correctness standard. SCC simply saying that the decision has to be made in an impartial way and the decision maker has to give significant weight to the best interests of the kids (if the decision maker does this, he/she can still decide to deport the individual if, for instance, the important interest to protect the Immigration and Refugee Act¸ from such violations as what Baker committed outweigh interests of the kids). Courts usually will not overturn the exercise of ministerial discretion pursuant to the Act like this (the reasonable standard applied is not hard to meet – Baker was an extreme case where the Minister did not meet it). NOTE: s. 6 of Charter gives all Canadian citizens right to remain in Canada. So Canadian government cannot deport Canadian citizens. Friday, October 26th, 10:40-12:30, room 107: The executive – pp.265-7, 276-9, 279-304, 296-302, S40-2 - the nature and function of delegated powers - limits on the exercise of delegated authority - controlling jurisdiction: substantive ultra vires – duty of fairness (procedural ultra vires) – Knight v. Indian Head School Division 1990 SCC (282) – Baker v. Canada 1999 SCC (285, re procedural fairness; 297 re reasonableness of exercise of discretion; S40 re relevance of unimplemented treaties to statutory interpretation) Procedural fairness in Baker (285): what factors did L’Heureux-Dubé J. consider in determining the content of the duty of procedural fairness in H&C decisions? How did she define the content of the duty of fairness in this context? Was an oral hearing necessary? Were the participatory rights of Ms Baker and her children violated? Was the duty to provide reasons violated? On what basis did Justice L’Heureux-Dubé conclude that a reasonable apprehension of bias existed? (Fiona Giffen) Substantive review of the exercise of the Minister’s discretion in Baker (297): what factors led L’Heureux-Dubé J. to adopt “reasonableness” as the standard of judicial review of the Minister’s decision? why would a more deferential standard of judicial review (such as “patent unreasonableness”) or a less deferential standard (such as “correctness”) be inappropriate in this context? on what basis did L’Heureux-Dubé J. conclude that the Minister’s decision was not reasonable? what sources did she rely on in her analysis? (Stephanie Jeronimo) On what basis did Iacobucci J. object to L’Heureux-Dubé J.’s use of international law in Baker? Do you agree with Iacobucci J. that L’Heureux-Dubé J.’s approach runs counter to democratic principles? (David Levine) What was the result of the Baker decision? Did the Court’s ruling give Mavis Baker a right to remain in Canada? Does the decision in Baker mean that visitors who remain in Canada illegally for years, and have children during their stay, will always be able to successfully fight deportation orders on humanitarian and compassionate grounds? 3) Judiciary - Interprets/applies laws (pg 123) Judges have guaranteed jurisdiction to enforce legal limits on the powers of the other branches of government (see judicial review directly above) o ss.96-101 of 1867 Constitution contain provisions on Judicature: s. 96 – Federal executive has to appoint justices for the country’s superior, county, and district courts SO superior courts often referred to as “s. 96 courts”. s. 92(14) - Provinces have authority over the “administration of justice” to establish Provincial Civil and Criminal Courts, including the procedure in Civil matters in these courts. s. 101. Parliament can create courts for the “better administration of the laws of Canada” (a.k.a. laws passed by Parliament itself) = Parliament made the Federal Court of Canada and the Federal Court of Appeal under the Federal Courts Act. These courts only have statutory jurisdiction and power. ALSO gives Parliament power to make general court of appeal for Canada = made Supreme Court of Canada under the Supreme Court Act – also only has statutory jurisdiction and power. 4 levels of courts) Which level of government is responsible for creation and organization? - Provincial courts: (a.k.a. “inferior courts”/ “provincial and territorial inferior courts”) - hear most criminal matters, a lot of family matters, and small civil matters - i.e.: Small Claims Court. - Created by provincial legislatures. o s.92 (14) of 1867 Constitution gives provinces jurisdiction over the administration of justice in the province (can pass legislation to make courts and administrative bodies that have jurisdiction over certain disputes). - Superior courts: (also provincial and territorial superior courts) a.k.a. s. 96 courts – where most significant civil litigation and most serious crimes end up. (i.e.: Ontario Superior Court of Justice) - Created, maintained, and organized by provinces. o Also administered by provinces according to s.92 (14) of 1867 Constitution gives provinces jurisdiction over administration of justice pursuant to s. 96 (“GG shall appoint the Judges of the Superior, District, and County Courts, in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick.”). Note that District and County Courts do not exist anymore. So superior courts are a hybrid of Federal (responsible for judge appointments and salaries) and Provincial involvement (makes, creates and maintains them)). o Not made by statute, already existed in confederating provinces (follows British Constitution tradition that gives them inherent/general jurisdiction over all disputes in the province, except now some matters have been taken away and transferred to other bodies by statute) – but legislature has to have good reasons to do this. - Federal courts a.k.a. s 101 courts (i.e.: Federal Court of Canada) - Created and organized by Federal government pursuant to s. 101 (creatures of ordinary statutes) – but executive alone cannot repeal them (need parliament too) o Look at Federal Court Act for federal court’s jurisdiction. Deals with federal law areas (immigration, pensions, Maritime law, patents, tax courts for tax issues, military courts for military issues etc.) o s. 101 of 1867 Constitution gave parliament power to create federal courts for the better administration of the laws of Canada (a.k.a. the laws passed by federal parliament). Even though superior courts had inherent/general jurisdiction, confederation fathers thought specialized courts might be needed to deal with federal areas of law. So Parliament created the Exchequer Court in 1975 (which is the precursor to today’s Federal Court of Canada). o Judges appointed by federal government. - SCC – created and organized by Federal government (creature of ordinary statute). o s. 101 of 1867 Constitution also gave parliament power to pass statute to create General Court of Appeal for Canada. 1867 Privy Council was the final court of appeal, but confederation fathers made Canada’s own court of appeal/SCC in 1875 with the Supreme Court Act. So the source of constitutional authority for federal government to create Federal courts and SCC is s 101 of 1867 Constitution Act (does not mention Federal, SCC, or specialized federal courts, like military or tax courts, but all made with s. 101). Who pays/appoints etc. the judges? Info from Ryder: The federal executive does not set the pay of SCC, Federal Court or other federally-appointed judges: Parliament sets their salaries after receiving advice from a JCC in accordance with the Provincial Judges Reference. The salaries of SCC, Federal Court judges, other federally-appointed judges and superior court judge are all set out in the Judges Act. See: http://www.canlii.org///ca/sta/j-1/sec9.html The result of the Provincial Judges Reference is to interpose an independent JCC between the legislature and the judiciary when it comes to setting the judges' salaries. In response to the SCC's opinion in the Provincial Judges Reference, Parliament amended the Judges Act to put in effect a new process for setting salaries involving a Judicial Compensation and Benefits Commission. See, again, the Judges Act: http://www.canlii.org///ca/sta/j- 1/sec26.html The process followed in the most recent setting of the salaries of federal judges is described at: http://www.justice.gc.ca/en/dept/pub/jcbc/p1.html See also the legislative summary (and other information available on Legisinfo) on Bill C-17 (passed in the last session of Parliament) that amended the judicial salaries set by the Judges Act: http://www.parl.gc.ca/39/1/parlbus/chambus/house/bills/summaries/c17-e.pdf So sum-up of 4 levels of judges and courts. Provincial Judges and Courts - created, maintained, selected, and paid by Provincial Legislature. Superior Judges and Courts - Covered under ss. 96, 99-100 of the 1867 Constitution (Federal executive/GG appoints superior court judges pursuant to s. 96 of 1867 Constitution on the advice of the PM, even though s.92(14) of 1867 Constitution gives the provincial legislature jurisdiction to create and maintain these courts. Pursuant to s. 100 of the 1867 Act, the Federal Parliament pays these judges (s. 99 allows GG to remove these judges, but only on address of the Senate and House of Commons, which means the legislature has the power to remove these judges rather than the executive). – salary set out Judges Act. Federal Judges and Courts - Federal executive/GG appoints these judges pursuant to the Federal Court Act (or Tax Court Act etc., depending on which federal court it is), on the advice of federal cabinet. These courts are created by the Federal Parliament pursuant to s. 101 of the 1867 Constitution. Parliament sets their salaries after receiving advice from JCC’s pursuant to Provincial Judges Reference SCC Judges and Court - The Federal executive/GG appoints these judges pursuant to the Supreme Court Act on advice of federal cabinet. But this court was created by the Federal Parliament pursuant to s. 101 of the 1867Constitution. Parliament sets their salaries after receiving advice from JCC’s pursuant to Provincial Judges Reference * The salaries of SCC, Federal Court judges, other federally-appointed judges and superior court judge are all set out in the Judges Act. See: http://www.canlii.org///ca/sta/j-1/sec9.html - Provincial courts- provincial government - Superior courts – Parliament pursuant to s. 100 of 1867 Constitution. (but s. 96 says they are appointed by federal executive). - Federal courts- Parliament sets their salaries after receiving advice from JCC’s pursuant to Provincial Judges Reference SCC – Parliament sets their salaries after receiving advice from JCC’s pursuant to Provincial Judges Reference Legal source and scope of jurisdiction - Provincial courts - jurisdiction determined by their statutes (i.e.: Small Claims Act tells you what Small Claims courts have jurisdiction over). Varies between provinces. - Superior courts – have general/inherent jurisdiction over all provincial matters except what has been taken from them through statutes. - Federal courts - jurisdiction listed in Federal Court Act (have exclusive jurisdiction over some federal law matters, but have concurrent jurisdiction with Superior Courts over some other matters). - SCC - General court of appeal has jurisdiction over appeals on all matters of Canadian law (set out in Supreme Court Act). o Can control own docket (generally have to seek leave to appeal for SCC/no right to appeal). Supreme Court act says that SCC can decide whether to grant leave to appeal depending on whether the questions raised are ones of national importance. Just saying that the lower court decision was wrong won’t persuade SCC to grant leave: have to raise arguments that other appeal courts and other jurisdictions took a different approach so need uniformity in Canada on the issue, or that the issues are so important because they affect many people etc. There are only a few circumstances where there is an automatic right to appeal to SCC: When court of appeal overturns an acquittal and enters a conviction in criminal case, or if court of appeal has dissent on how law should be interpreted in a criminal law case. o But SCC cannot fully control its own docket: Supreme Court Act provides that SCC has an obligation to answer legal questions referred to them by the Federal government through the reference procedure. If they are legal questions, but are also political hot potatoes, they still have an obligation to answer them. BUT SCC can refuse to answer reference questions due to: i) common reason is that the question is political and not legal (only obligated to answer legal questions), ii) the question is too vague so that SCC can’t provide a clear answer iii) SCC thinks it won’t matter what they say so don’t bother giving an answer – i.e.: SCC didn’t answer Federal government’s reference question of whether then- current marriage definition violated the Charter’s equality rights, because they said the government already passed a bill to make same-sex marriage lawful, so no point for SCC to answer it. So ultimately SCC decides if question is legal or not, or if they will answer it, but they have to be careful in how they sidestep legal obligation to answer legal reference questions cause it can call their legitimacy into question (see glossary “reference” for more) – relates to judicial legitimacy just like constitutional interpretation etc. does Jurisdiction constitutionally guaranteed? (look at judicial independence constitutional guarantee for more) – also look at unwritten principles of judicial independence and rule of law etc. - Provincial courts- no. - Superior courts - constitutionally protected due to mentioned and entrenched in ss. 96-100 “Judicature” sections of 1867 Constitution (section VII) o s. 96 says superior courts judges are appointed by federal executive. o ss. 97-98 look at superior court judge selection/appointment. o Security of superior courts: s. 99 – provides tenure security for superior court judges: judges appointed to life, only GG can remove them for seriously violating appropriate judicial conduct – extraordinary process to remove judges – involves joint address of House of Commons and Senate: senators and MP’s have to get together and approve removal of a judge. No superior court judge has been removed through this. s. 100 – provides financial security for superior court judges. Salaries are determined by parliament (more public/open process), so the executive cannot manipulate salaries to reward/punish judges for their decisions. o SO since superior courts and superior court judge independence is explicitly constitutionally guaranteed, government cannot turn these courts into empty shells by taking away their jurisdiction. o So superior court jurisdiction isn’t absolutely guaranteed but government has to have a very good reason for taking away their matters and transferring them to other bodies. So when the provincial legislature or federal parliament pass statutes that subtracts from superior courts’ jurisdiction, have to ask 3 things: i) Is the matter something superior courts have adjudicated historically? ii) If so, is the matter one that is resolved through a judicial process? iii) If so, looking at the institutional context as a whole, can we say that the subject matter has been transformed in a significant way that justifies giving a part of superior court jurisdiction to another body? i.e.: Employment matters/Union rights etc. were under superior court jurisdiction before, but mid-20th Century courts showed that they were biased in class terms, insensitive to labour issues, and didn’t manage industrial conflicts well (same reason why Human Rights Commission was made – courts insensitive to the issue). So strong need to move this subject matter to a specialized expert tribunal body that had powers similar to judicial powers (like adjudication of disputes), and powers dissimilar to judicial powers (could order investigations etc.). So courts looked at whether provinces could take this matter away from superior court jurisdiction and give it to tribunals: i) Is labour law something superior courts have dealt with historically? – yes ii) are these judicial disputes? – yes iii) is institutional context of how labour board operates different from how courts operate? yes – so court said ok, provinces had a good reason for taking this matter away from superior court jurisdiction and putting it into a different institutional context = courts have upheld jurisdiction of labour boards, other independent administrative agencies, and other specialized courts with this process. o * Judicature provisions don’t expressly say anything about superior court jurisdiction, but these courts have used them in a self-serving manner to limit when the legislature can subtract from their jurisdiction – can only do it for a very good reason. So legislature cannot lightly take jurisdiction away from constitutionally protected superior courts (but federal courts don’t have this, and SCC is being debated – Hogg debate regarding SCC mention in Amending Procedures – see notes). - Federal courts - no: they are creatures of federal statutes made pursuant to s. 101 (no doubt that Parliament can legally decide to abolish them as they are not explicitly mentioned in 1867 Constitution). Can send either jurisdiction that is exclusive to federal courts or shared with superior courts back to superior courts of the provinces who have inherent jurisdiction - SCC – SCC is creature of federal statute/not in 1867 Constitution just like Federal Courts. But, SCC does appear in 1982 Constitution Act in the Amending Procedures (refer to SCC composition in s. 41, and SCC issues other than composition in s. 42). NOTE that s. 42 matters can only be amended with s. 38(1) (the extraordinary 7/50, really the 7/90 procedure). So this suggests that SCC composition matters can only be amended through s. 41 “unanimity procedure” and that any other SCC matter, other than composition, can only be amended through s. 38(1). o But SCC constitutional status is not clear: Some say that it being mentioned in the amending procedures was meant to entrench SCC in Constitution. Others, like Hogg (Ryder agrees with him), say these amendment procedures on SCC will only be of force and effect when provisions relating to SCC are added to the Constitution (until then SCC only exists by virtue of federal statute, which can be repealed/amended in any way at any time – and will therefore exist only as long as Parliament continues to let it exist). Parliament could pass a statute to abolish the Supreme Court Act - would be wildly politically controversial to abolish SCC (SCC not legally secured against this, but ultimately SCC would have final word on whether such a statute would be constitutional or not) – just like superior courts can decide whether legislation that gives some of their jurisdiction to executive tribunals is valid (see above for 3 things to ask) SCC could argue that drafters mentioned SCC in 1982 Constitutional Amending Procedures to entrench is constitutionally and put it beyond reach of ordinary Parliament majority tampering with it. NOTE: Oddity of our constitution: lower superior courts have constitutionally protected status (ss. 96-100 “Judicature” sections of the 1867 Constitution act deal with/entrench superior courts in the Constitution). And Aboriginal governments - there has been significant evolution from a federal state based on two levels of government to one including this third level (changing mostly through treaties between the federal/provincial governments and the aboriginal nations). When these treaties are concluded, Aboriginal governments will be protected (provinces are changing too, but seems like Aboriginal governments have more equality to provinces and federal government than municipalities and territories) – this is not in Constitution though (this government level still exists due to statute like municipalities and territories). NOTE: if wanted to constitutionally entrench SCC, this would be under s. 42 (other SCC matters, other than composition), so it would have to follow s. 38(1) – 7/50, (7/90) procedure. Who Appoints the Judges? (see above and below for more detail) - Provincial courts – Provincial executive branch (provincial cabinet) - Superior courts- Federal executive: GG appoints pursuant to s. 96 of 1867 Constitution on the advice of federal cabinet (which means PM) (even though s.92(14) of 1867 Constitution gives provinces jurisdiction over administration of justice). o So superior courts are a hybrid of Federal (responsible for judge appointments and salaries – Parliament pays them pursuant to s. 100 of 1867 Act) and Provincial involvement (makes, creates and maintains them)). - Federal courts – Federal executive: GG appoints pursuant to the Federal Court Act (or Tax Court Act etc., depending on which federal court it is), on advice of federal cabinet. - SCC- Federal executive: GG appoints pursuant to the Supreme Court Act on advice of federal cabinet. * Federal courts and SCC not mentioned in Constitution (federal executives’ (GG) power to appoint federal judges set out in Federal Court Act, and power to appoint SCC judges set out in Supreme Court Act). Parliament pays Superior, Federal, and SCC judges after receiving advice from JCC pursuant to the Provincial Judges Reference – salaries are listed in Judges Act (which was amended after Provincial Judges Reference to include new process for setting salaries to include the Judicial Compensation and Benefits Commission). Judicial Appointments - important issue/obvious corollary of rule of law is that decisions about law/dispute adjudication has to be done through an impartial/independent body. So important that judicial appointment is insulated from partisan/political influences as much as possible. Judges should be appointed due to merit/having judicial characteristics like being fair, independent, open-minded, committed to law and the Constitution etc. - Judicial Appointment Processes have been heavily tainted by partisan influence – only recently moving away from this. Canadian situation now: provincial/inferior court judicial appointment process is more merit based than the superior and federal courts and SCC. But good improvement with SCC especially due to recent Justice Rothstein appointment (another oddity, but not really a Constitutional oddity). - Won’t be able to make judicial appointment process that removes all political considerations, but have to make process that insulates judicial appointment from partisan influence as much as possible. Different Judicial Appointment Process models (not exclusive list/some are combined etc.): - 1) Pure executive appointment - We had this for many years due to the British tradition of pure executive appointment (behind closed doors, most open to partisan influence). So we have a long history of strong partisan influence. Fortunately, 1960’s reform moved us away from this. - 2) Confirmation hearings (US federal appointments) - Past U.S. problem of king appointing/dismissing judges at his whim was one of the grievances in the Declaration of Independence. So the current Federal U.S. judge appointments are done by the executive but only at the advice of the senate, who holds confirmation hearings before the judicial committee – so there is a legislative body that represents the people involved in the process. No elections here (see below at end of “different models” section) - 3) Advisory committees (Canadian federal appointments) - One way to control pure executive appointment is to have advisory committees (we have these in Canadian federal courts), who screen applications and advise executive (but executive can still legally do whatever they want, but hard politically to ignore advisory committee’s advice). o Can include public interviews of candidates (public or private) – listed below as no.5. - 4) Nominating committees (Canadian provincial appointments) - Screen candidates/make recommendations like advising committees, but executives have to choose a candidate from a short list provided by the nominating committee = stronger constraint on executive power (but executive having to bind itself to this list can still be voluntary or legally required, depending on the model adopted). – so as mentioned above, Canadian provincial appointments are more insulated than Canadian federal appointments (odd that lower court judicial appointments are more insulated from political influence that higher courts). o Can include (5) public interviews of candidates (public or private). - 5) Public interviews of candidates (South African Constitutional Court appointments) - Can be part of pure executive appointment, nominating, or advisory committees (models listed above). These interviews can be public or private. Inferior court judges are interviewed privately, but strong argument for public interviews for upper courts due to their huge law making responsibility (they interpret the Constitution and have final say on common law/statute interpretation (minus s.33 notwithstanding clause) (notwithstanding clause is a power that may be invoked by Parliament or any of the provincial legislatures). Public interviews used in South African Constitutional Court Appointments and used last year for SCC appointment of Justice Rothstein (was successful = likely that SCC will continue to have public interviews – see below for process used for Rothstein). - 6) Direct elections (partisan or non-partisan) - In a democracy where judges have significant law making power (as they have to interpret the vague “supreme” constitution) in addition to adjudicating disputes, the populous cannot easily escape the consequences of their decisions since the Constitution can only be changed through extraordinary amending procedures or through use of the “notwithstanding clause”. So arguments made that judges should be elected. o This was an influential argument in U.S. in 19th Century. Note that U.S. states can adopt whatever judge appointment process they want – Georgia in 1812 first adopted direct elections (persuaded by populous/anti-elite opposed to judges who favoured the elite). So by the Civil war, 22/34 states had some form of direct election – remains the case for about 30 states (can be partisan or not – state can chose to allow judge to run under party affiliations or not, so lawyers will then campaign against each other). * Direct elections (especially direct partisan elections) are bizarre according to the rule of law, because this means that judges can be politically influenced. Have to campaign/raise funds. o Strong populous support for direct elections in the mid-19th Century, but lots of criticism regarding it in the mid-20th Century. To repeal direct elections, have to change the Constitution (which requires a referendum or Constitutional reform), but most states that have tried to do this have been opposed by the populous who wants to hang on to right to vote for judges = persistence of direct elections even though most academics say it is questionable for the rule of law/judicial independence (retention elections below not as bad as direct elections) – so question of democracy vs. rule of law. - 7) Retention elections: - Less troubling than direct elections (common in about 12 states). A.k.a. “Missouri Plan” in U.S. due to first being adopted by Missouri in 1940. Strong populous support for direct elections in the mid-19th Century, but lots of criticism regarding it in the mid-20th Century. To repeal direct elections, have to change the Constitution (which requires a referendum or Constitutional reform), but most states that have tried to do this have been opposed by populous who want to hang on to right to vote for judges = persistence of direct elections even though most academics say it is questionable for the rule of law/judicial independence. – so question of democracy vs. rule of law. o Retention elections aren’t so bad due to appointed through merit based processed (executive appointment based on nominating committee short list). Nominating committee screens/recommends applicants to Governor of State, who choose from their short list. Then after 1-2 years, when the appointee has a record, they stand for an election “Do you think Judge “X” should continue on the bench?” (need majority vote to stay on bench). If voted to stay, they won’t have to go through another vote for about 12 years. But strong arguments against retention elections still: i) makes judge appointments like a popularity contest (but still better than direct elections cause judges don’t have to campaign/raise funds – they’re not up against other judges when they face retention election). But they can campaign/raise funds if they want to though. ii) low public voting/awareness = most judges are approved anyway. But some judges are controversial (i.e.: one who wants to avoid imposing the death penalty can result in populous revolting and not confirming judge in retention election if the populous wants the death penalty = vacancy, and process will start all over again). NOTE: there are no judicial elections for U.S. Federal court (framers of U.S. Constitution thought it was important to move away from pure executive appointment where judges hold their position at the executive’s whim, so federal level judicial independence secured by president and senate having to agree on appointments, and judicial appointments are secured for life). But elections are common-place for most U.S. state courts (and about ½ of these are partisan elections). Appointment of Provincial Court Judges in Canada (pg 314, S44) – nominating committees (see directly above definition of procedures for more) - More than 1,000 judges - Canadian judges are selected by executive from a short list provided by an independent nominating committee. But varies in many provinces as set out in statutes. - Ontario appointment process is seen as best practice internationally (adopted in late 1980’s – established the independent Judicial Appointment Advisory Committee JAAC). JAAC was created by s. 43 of the Ontario Judges Act (S45). Process on pg 314-315 – see book for more detail on values they want etc. – different from federal and superior court appointment committees that do not have a statutory footing (see below). o JAAC: 13 members, most of whom are lay people (not legal professionals), so committee made of 2 judges, 3 lawyers, 1 member of the judicial council, and 7 lay persons chosen by Attorney-General. The 6 legal professionals are chosen by professional associations. JAAC encourages applications especially from underrepresented constituencies due to their mandate to promote diversity of the judiciary to reflect the population. Have written criteria of assessment on their website: (http://www.ontariocourts.on.ca/judicial_appointments/index.htm) Mostly take applications and vet them according to their criteria of merit (see pg 314-315 in book for these – “Community Awareness” and “Demographics’ etc.) Hold interviews with leading candidates and present a short list to AG of at least 2 names per vacancy. Key element: is s. 43(11) of the Ontario Judges Act – AG (executive) legally has to choose a candidate recommended by the independent JAAC (but s. 43(12) provides that AG can ask JAAC to make new list if they want) = still good to insulate process against partisan influence. Most AG’s haven’t asked for new lists, but happened a few times with Harris government in mid-1990’s, when the executive at the time wanted more “law and order” judges. - Ontario process seen as a model, but how can it be changed to make it even better? o Instead of AG (executive) choosing the 7 lay people, Parliament could do it (has a more open process – see 1st reading etc. for more). Legislative members are elected and represent the populous (also good if opposition parties could choose some JAAC members too so that the committee would represent the populous even more). o No public hearing/interview process for Ontario (and other provincial, and inferior/provincial courts). But these lower courts have such a modest law making impact (compared to SCC) that it would be overkill to insist on this. Tuesday, October 30th, 10:40-11:30, room 102: The Judiciary – pp.303- 311 - the Structure of the Canadian Court System – constitutional framework – provincial courts – superior (s.96) courts – federal (s.101) courts – the Supreme Court of Canada For each of the provincial courts, the superior courts, the federal courts and the Supreme Court of Canada, describe (citing any relevant statutory or constitutional provisions): i) the legal source of their jurisdiction; ii) which level of government is responsible for their creation and organization; iii) the scope of their jurisdiction; iv) whether their existence or their jurisdiction is constitutionally guaranteed; v) who appoints the judges of the courts; and vi) who pays the judges’ salaries. Friday, November 2nd, 10:40-12:30, room 107: Judicial Appointments – pp.311-330, S43-52 – range of models (311) - provincial judicial appointment process (314, S) – federal judicial appointment process (316) - recent changes to the federal judicial appointment process (S43) – Supreme Court of Canada appointment process (326) - recent changes to the SCC appointment process (S47) Describe the process by which Ontario provincial court judges are appointed. Is this judicial appointment process adequately insulated from partisan political influences? How could it be improved? Describe the process by which superior court and Federal Court judges are appointed. Is this judicial appointment process adequately insulated from partisan political influences? How could it be improved? Describe the process by which the most recent Supreme Court of Canada judge was appointed. Is this judicial appointment process adequately insulated from partisan political influences? How could it be improved? Appointment of Superior Court AND Federal Court Judges (pgs 316-326, S43-46) (Advisory committees – see above. Done by federal executive). - Superior court judges (approximately 950) appointed by the GG pursuant to s.96 of the Constitution Act 1867 - Federal court judges (approximately 50) appointed by GG pursuant to s.5.2 of the Federal Courts Act - Superior and Federal court judges appointed by federal executives (The Minister of Justice appoints them on the advice of different judicial advisory committees (JAC) across the country – Ontario and Quebec have 3-4 each for instance). - Each JAC now has 8 members (4 chosen by the Minister of Justice, 4 chosen by Chief of justice or an independent body) (318; S43): o Nominee of the provincial or territorial law society o Nominee of the provincial or territorial branch of the Canadian Bar Association o A Judge nominated by the Chief Justice or the senior judge of the province or territory – will only vote if there is a tie (but since there are 7 other voters, usually won’t be at tie unless someone is absent). So judge usually doesn’t vote. o Nominee of the provincial AG or territorial Minister of Justice o 3 nominees of the Federal Minister of Justice o Police representative (a new addition) - JAC’s are different from Ontario JAAC: o JAC doesn’t have statutory/constitutional footing like Ontario JAAC does (constitution and statutes silent on this federal/superior court judge appointment process). o Not as proactive in seeking out candidates (JAC just waits for applications to come in, screens them like JAAC, but doesn’t do interviews like JAAC, so it only has a paper evaluation process). o JAC’s written criteria are now publicly available (similar criteria to JAAC). o JAC makes recommendations to the Minister of Justice based on all the lawyer applications they get (whereas Ontario JAAC just puts forward a short list for the AG to choose from). JAC just stamps recommended or not recommended and the Minister of Justice can choose from the entire pool. The Minister of Justice (like Justice Rock did) can choose to commit to selecting candidates that are only highly recommended or recommended but is under no legal requirement to do this. But the Minister choosing from a huge pool of candidates means more opportunity for partisan influences (not narrowed down to a short list by an independent committee that the Minister has to choose from) (this is bad when we want merit based process). Scholars see that an inordinate number of federal judicial appointees have ties to the governing party – Schmitz’s survey reveals that 60% of 93 lawyers who received federal judicial appointments in Ontario, Alberta, and Saskatchewan since 2000 actually donated money to the governing liberal party before being appointed. o There is thus an argument that Ottawa is abusing federal judicial appointment and is simply appointing their supporters. But this has always been a process used for partisan purposes (see above for when process was highly influenced by political fray/that it has gotten better) the Conservative government is just continuing this and changed the process to make it more open to partisan influence. Improvements in the federal process? - Everyone agrees that this process is an embarrassment, but hard to convince federal government to relinquish its control over the federal judicial appointment process. Ryder says federal process should adopt Ontario process (not perfect and can be improved itself, but a good model) (list out Ontario process in answer). - Need to have a committee that is truly independent so most members should not be appointed by executive, should have broad representation, should be grounded in statute, should look at what particular characteristics etc. are needed for a good judge instead of what political party they support. Appointment of SCC Judges (pgs 326-330, S47-52) Appointed by the Governor in Council (which means PM – see above for what “Governor in council” means) pursuant to s.4(2) of the Supreme Court Act. Constitution and statutes silent on the appointments process (just like federal and superior judicial appointment process). - Right now, Supreme Court Act says SCC judges will be appointed by GG on advice of cabinet (so it’s really PM who decides – combination of the PM and Minister of Justice who control the process). - Process followed for Rothstein appointment in 2005-6 (S48): short list provided by advisory committee, nominee chosen by PM and Minister of Justice, hearing before Parliamentary committee to interview nominee prior to appointment. o General parliamentary satisfaction with how well the Rothstein appointment went, but general sense that the SCC judicial appointment process is still a work in progress. No imminent retirements now, so no sense of urgency regarding this yet (next scheduled retirement in 2012). o One thing is for sure though – SCC Judicial Appointment Process will continue to be open and not behind closed doors – good for judicial independence (and democracy too). - How Rothstein appointment process began: Former Justice Minister Irwin Cotler made a good contribution to improving the SCC and other courts’ judicial appointments process by opening it up. He started an individual advisory committee with the Rothstein appointment (the committee had to prepare a short list and submit it to the Minister of Justice). o Fortunately, when this liberal minority government was defeated in the House of Commons, and the Conservatives were elected, and there was an SCC vacancy, they followed the process that was already put in motion by the previous government. They took the shortlist provided and included a hearing before a parliamentary committee. SO these 2 federal governments made 2 ad hoc committees (liberals made advisory committee to give short list to Minister of Justice and conservatives made an ad hoc parliamentary committee to conduct a hearing/interview of the nominee chosen from the short list by the PM). o Hearing committee was only made of MPs (drawn from all the parties of the House of Commons). February 2006, Rothstein appeared before the committee (televised hearing), where the MPs were invited to ask him questions. Peter Hogg presided over the hearing and spoke to MPs before the hearing to address what inappropriate/appropriate questions were. Questions about specific legal or political controversies inappropriate – judge has to keep open-mind/cannot pre-judge on issues, has to decide based on facts of each particular situation (shown in Patriation Reference dissent – that judges shouldn’t answer political questions – brings their judicial independence into question). - Government very happy about this process, and legal commentator worries that this public interview process would make the process like a partisan circus like it sometimes does for the U.S. senate were overblown. Public interview was not a threat to the independence of the judiciary/judicial independence. Improvements in the SCC appointments process? - Entire Rothstein process was ad hoc, invented as they went along, but Ryder says it worked well. o Committee just gave advice to PM, so PM still has control. But process still improves accountability (due to more open process). o Good to have advisory committee, good that advisory committee made short list that PM had to draw a name from (constrains executive discretion) and good that nominee had to appear before committee in public (so we all have opportunity to learn about the nominee/look at their qualifications/whether they have good “judge” characteristics etc.). But, Rothstein screening committee was controlled by Minister of Justice, and interviewing/hearing committee was made only of MP’s and their powers were not clear. So need more independent committees with clearer powers. Committee should not be a parliamentary advisory committee made only of MPs (or else maybe only party supporters would be nominated = there would be political influence). Should be independent committee with some parliamentary representation (elected MP’s are in a good position to express public concerns about judiciary) and this parliamentary representation should reflect all House of Commons parties, but parliamentary representation should only make up minority of the committee. Should be made mostly of independent members (nominated by Bar Association etc.). And should have provincial politician representation too since federal and SCC court decisions affect provinces too – good for federalism And should have significant number of lay people to represent diverse population too – good for protection of minorities (but maybe not people with extensive criminal records etc.). And Supreme Court Act says need 3 judges from Quebec, and there is a convention that requires a certain number of judges from other jurisdictions too, so if there is a Quebec vacancy for example, there should be members from Quebec on the screening and interviewing committee. And, in the future, look at whether the interviewing committee should have a veto so PM doesn’t control the process (either way though, if committee were to tell PM that the nominee was not suitable to be appointed as an SCC judge for life, PM would face serious political costs in overriding their advice – but may want to make this a legal requirement in the future). o Everyone agrees that this was educative for the public (to hear judge’s life/thoughts) and it demystified the judicial appointment process = one powerful reason why we should continue it – good for democracy and judicial independence. o SCC judicial appointment studies show things are more open now/Rothstein process seen publicly as good, could still improve but not dire situation/no urgency. But we’ve made a lot of progress (largely due to pressure from public and legal scholars), and we have to continue to make progress as a matter of principle (even if it’s not urgent – no good to wait until it’s urgent to make last minute changes/progress etc.) Can make an argument that this Provincial Judges Reference reasoning applies to the judicial appointment process too: - we need judicial independence (tenure, financial, administrative and need independence for judicial appointment process as a necessary corollary of the Rule of Law) – see Rule of Law. - Provincial Judges Reference: Judicial independence is a necessary corollary of the rule of law. So have to depoliticize the relationship between the judiciary and the other two branches of government as much as possible. - The British had 1701 Act of Settlement which took executive’s power to set judicial salaries and to remove judges away, and gave this power to the legislature/parliament (so the process would be more open). We followed this Act of Settlement and it was important in our 1867 Constitution Act (1701 Act of Settlement essentially reproduced in our 1867 Constitution Judicature ss. 96, 99-100). o But the court in 1997 Provincial Judges Reference SCC said this is still not good enough. Legislature could still use these powers for political manipulation/could pass legislation that sets judicial salaries and remove judges in a way that is politically manipulative (executive normally controls parliament on our system anyway, especially if we have a majority government). So SCC said need intermediate/independent/objective intermediary between the other two levels of government and the judiciary = made JCC’s (there is a constitutional requirement for this SCC says since judicial independence is a constitutional guarantee) - *Can argue that judicial appointment process also affects judicial independence (so should insulate judiciary from partisan influences as much as possible too). So we should not allow executive control over judicial appointment process either. Should take the power from executive and give it to legislation (like the 1701 Act of Settlement that we followed for judicial salaries/tenure). And then we can try to argue that like Provincial Judges Reference, that this is still not enough (and say that judicial appointment process should be filtered through independent bodies too). Can argue that judicial independence is not just a crucial constitutional guarantee that applies after judges are appointed (tenure/salary security) but should also apply before they are appointed in the appointment process. o Argument to broaden our idea of judicial independence to include judicial appointment process too (may be presented to court one day/might be persuasive argument). Now there are 3 elements of judicial independence: i) Security of tenure ii) Financial security iii) Administrative independence. o Can back argument up with evidence of partisan influence in judicial appointment process (like 60% of federal appointees made donations to party in power etc.), that this interferes with judicial independence. – see judicial independence (constitutional principles) for more. - Executive will try to hang onto the powers to control SCC judicial appointment process, but if the Ontario model influences the superior and federal judicial appointment processes, it may get to a point where executive solely controlling SCC judicial appointment process would look anomalous both internationally and within Canada (this would be an embarrassment – just like gap between ratified and implemented international laws is an embarrassment). Peter H. Russell says Canada is still one of the only democracies that leaves the judicial appointment process of a top court/SCC solely in the hands of the executive (PM) in a legally unconstrained way (cite lecture). No good, especially due to SCC’s important law making powers. But it is changing, even though it’s slow and out of sync with the other top courts of the world (have to change things as a matter of principle continually. * See judicial independence (unwritten constitutional principles) for more. Tuesday, November 6th, 10:40-11:30, room 102: No new readings. We will discuss the appointment process for justices of the Supreme Court of Canada and for other federally-appointed judges. Describe the process by which superior court and Federal Court judges are appointed. Is this judicial appointment process adequately insulated from partisan political influences? How could it be improved? Describe the process by which Justice Rothstein was appointed to the Supreme Court of Canada. Is this judicial appointment process adequately insulated from partisan political influences? The federal government has indicated that the process followed for Justice Rothstein’s appointment is a work in progress. What changes would you recommend? In an ideal world, would you maintain or change the current law (s.4(2) of the Supreme Court Act) that provides for executive appointment of Supreme Court judges? Assuming the GG (on the advice of the PM and cabinet) continues to have the legal power of appointment, should an independent nominating committee continue to compile a short list of candidates? If so, how should such a committee be composed and who should select its members? Should the PM be obliged to nominate or appoint a candidate from that list? Should there be a public interview component to the appointment process? If so, who should be on the interviewing committee, and what powers should the interviewing committee have? Should the PM commit to recommending for appointment only those candidates who have been approved by the interviewing committee after a public interview? Should the appointments process be placed on a legislative or a constitutional footing? Pre-Charter Examples of Debates About the Respective Roles of Courts and Legislatures in Developing the Law Relating to Human Rights Rights, legislatures and courts - Have to look at the legitimacy of law-making by the judiciary o Prominent theme in debates about judicial decision making is what the appropriate division of responsibility between courts and legislatures is (i.e.: for issues such as protecting and recognizing minority rights). i.e.: for cases below, debate about the appropriate division of responsibility when developing rules about property in relation to issues such as racially restrictive covenants. Should judges have an important role to play like the majority ruling in Drummond did, or would this be considered an illegitimate use of judicial power (like Noble majority said it was)? Look at respective roles of executive, legislature and judiciary in development, interpretation and application of the law. - Implications of separation of powers for common law reasoning (Drummond and Noble look at this), statutory interpretation and its implication on common law (Bhadauria looks at this), and constitutional interpretation (Edwards – the “persons” case looks at this). o How we think about the appropriate division of responsibility between government branches when interpreting and making law changes from context to context (weight of such considerations as protection of minority rights or following the democracy principle are different when looking at different types of law). - Relationships between common law, statutes, the constitution and public policy o What do we mean by “policy”? Cases below show that sometimes “policy” refers to values, sometimes refers to “objectives” (especially “legislative objectives”), and sometimes people use it to speak more broadly about public good like MacKay J., and Schroeder J., in Drummond and Nobel. Either way, Ryder says law is hugely connected to policy. o Drummond and Noble look at what is meant by “policy”. While this word is used in much case law and conversations, while some people say they are different, Ryder says law and policy are hugely interconnected. - What do we mean by “judicial activism”? o Commonly used to refer to judicial decision making that is illegitimate (that judges are making too much law without a clear enough mandate from the people, which is inconsistent with democracy. This is used especially regarding judicial decision making when interpreting the Charter). o This criticism is also directed at judges when interpreting common law (like Drummond majority court was criticized). o What is considered judicial activism changes though – Drummond decision at the time was controversial. In hindsight we say it was progressive and it was the Noble decision that was reactionary, and that we ought to be proud of the progress that occurred in Drummond. But also have to look at the methodology the judges used to make these decisions (in terms of how they viewed the appropriate division of responsibility between courts and legislature when it comes to law reform), and have to realize that back then, the appropriate division of responsibility between the government branches were different than it is now. Controversial exercises of judicial power: pre-Charter illustrations Re Drummond Wren 1945 Ont H Ct (4) and Re Noble and Wolf 1948 Ont H Ct (8) - Validity of racially restrictive covenants: are they void at common law on public policy grounds? - What use did Mackay J. make of public policy in Drummond Wren? - What sources did he rely on to identify public policy? - What use did Schroeder J. make of public policy in Re Noble and Wolf? - What reasons did he give for disagreeing with Mackay J.? - What is the law in Ontario now on the validity of racially restrictive covenants? - Re Drummond Wren 1945 Ont H Ct (4) – shows vigorous judicial advancement of the law. o Employee association wanted to raffle off residential property, but there was a racially restrictive covenant relating to the property that said it could not be sold to Jewish people and other people of (what was referred to as) objectionable nationalities. Majority invalidated the covenant. No neighbours etc. contested the courts’ decision, everyone was content with it and the house was raffled off. o s. 1 of the Racial Discrimination Act (limited piece of legislation passed in 1944 by Ontario legislature) prohibited public signs announcing an intent to discriminate on narrow grounds of basic race or creed (such signs were allowed before this act) = first baby step to establish such statutory prohibition against discrimination in the province. Then in early 1960’s, template was put in place for today’s Ontario Human Rights Code that prohibits things like discrimination in employment etc. The debate here was whether the racially restrictive covenant attached to a deed of land (on paper) is the same as a public sign showing intent to discriminate. Majority said it doesn’t matter, and instead used a method of using the policy underlying the act, to say that the covenant could be held void on public policy grounds (in doing MacKay J. was building a common law rule). Mackay J. also used international law developments as evidence of changing norms, drew on statements of world leaders, and used the Racial Discrimination Act as evidence of new policy against discrimination to hold the covenant invalid = added to the body of common law through a creative methodology (used a range of sources – while it was already common to refer to statutes as a source of policy, it was relatively unusual at the time to refer to international documents to develop common law – it is more common now though, but still relatively rare – controversial like using unwritten principles and living tree metaphor to interpret Constitution). o Was MacKay J.’s use of these sources to develop common law legitimate? Were all the sources reliable? Court was motivated by events at the end of the war: it was horrified by the full disclosure of the holocaust and tried to latch on to a normative commitment that was growing internationally to try to take legal steps to prevent this from happening again. But critics ask who gave MacKay the right to say what the norm is. Indeed MacKay’s method was out of sync with what judges did at that time. He was working within a conservative judicial tradition that was both hierarchical and cautious (where courts followed whatever the House of Lords and Privy Council said). So critics say MacKay should not have taken anything more than a small incremental step in developing the common law: critics said it should be legislature’s role to make bigger advancements in the law, not the judiciary. Criticism also that the court jumped the gun (Ontario government enacted the Racial Discrimination Act as a limited measure to prohibit only public signs of discrimination, and if government wanted to go further, they would’ve done so instead of only enacting a limited act – so it may be inappropriate for judiciary to use common law to take the next steps to broaden the act that legislature expressly limited) Ryder agrees that his relying on statements of world leaders was and still is controversial. But drawing on underlying policy of Racial Discrimination Act, and drawing on conventions that Canada had signed to point to changes in normative shifts in legal and political commitments is sound methodology. On the other hand, argument can be that legislature has the primary law making responsibility, and that if judiciary has a law making role, it should be constrained as the primary judiciary responsibility is adjudicating disputes (especially when legislature itself limited the statute). o Can also argue that this would be a significant change that would impact the social landscape so it should be fully debated through the legislative process (problem with common law decisions is that it can change legal decisions retroactively: once courts discover a law, there is the notion that it has always been there, and things even from 10 years before that discovery will change, whereas statutes are prospective unless its text expressly says it is retroactive). Also, here there was a mix of evolving public norms used to influence the interpretation of private law, which may be controversial as well. o Drummond helped to inspire Shelley v. Kraemer in 1948, which also dealt with the issue of a racially restrictive covenant (prohibited sale of property to certain races). Here, SCC relied on Drummond and various other arguments to rule the covenant invalid. However, Kraemer was a constitutional decision, while Drummond was only a common law decision. Common law is judge made law at the bottom of the hierarchy of laws (legislature can overturn it at anytime), whereas constitutional decisions would likely have to be changed through constitutional amendment procedures. o MacKay J.’s decision represents the beginning of a new paradigm on these issues – it’s inspiring how he talks about Canada as being committed to protecting minorities – start of a new vision that we are still trying to accomplish (protection of minorities). - Re Noble and Wolf 1948 Ont H Ct (8) – shows judicial restraint. o But here, summer cottage development has racially restrictive covenant (prohibited land from being sold/transferred to certain races). Purchaser applied to have covenant rendered invalid, but neighbours made submission to uphold the covenant, which the majority here found convincing. Majority upheld the covenant. o Schroeder J. said MacKay J. in Drummond improperly found and used public policy as a source for his decision to invalidate the covenant in that case. Schroeder J. said judges should be restrained when using public policy. Criticizes MacKay J.’s methodology and finds his decision non-persuasive (which he is allowed to do as they are on equal levels of the judicial hierarchy). Schroeder J. thus said there is no common law rule prohibiting racially restrictive covenants on public policy grounds and that such a change should be left to the legislature. Disagrees with MacKay J. in 2 ways: 1) Different understanding of the judicial role: sees a more restrained role of the judiciary – says judicial role should be strongly limited by precedent. He also says that at most judges should take incremental steps in forming common law (shouldn’t take sharp breaks from the past like MacKay did). He is speaking from within in conservative judicial philosophy, which was dominant in Canada until such things as the Charter changed this. Said MacKay used public policy in the wrong manner. Said MacKay showed illegitimate use of judicial power. 2) Disagrees with MacKay in a normative sense – MacKay believed equality to own property should trump freedom of association (can associate with whoever you want), Schroeder J., says in a close knit residential community like the one at issue, it shouldn’t. o NOTE: now with Charter, public norms of equality may weigh more heavily than freedom of association. o Defence of Schroeder J.’s point of view that rule prohibiting racially restrictive covenants should be left to the legislature: legislature did look at this issue afterwards with a full legislative process and came up with s. 22 of the Conveyancing and Law of Property Act (legislature came up with a compromise and said new racially restrictive covenants are not allowed, but those that already exist may remain). Can either see this as legislation being able to protect minority rights (judges don’t have to step in to try and do it), or see it as a half-assed move by legislature which shows why we need stronger judicial position in law making to act for such issues as the benefit and protection of the minorities. And can argue that the legislature cannot look at all issues, so before judges like Schroeder simply say that certain issues should be left to the legislature, have to think about whether legislature will be able to look at the issue and whether they really are better able to deal with it etc. o Regardless of whether we have vigorous judicial approach to advancing common law or judicial restraint, there will always be a partnership between judiciary and legislature, and executive does a lot of law making too. - Current law on racially restrictive covenants: o It was a big issue in late 1940’s, and 1950 it was the focus of legislative attention. Now have s. 22 of the Constitution that basically reads more or less same as s. 22 of the Conveyancing and Law of Property Act (not much change). o But Constitution only attaches to government actors anyway, and racially restrictive covenants are provisions of private contracts = hard to use Constitution to attack them, especially since our freedom of association is very important. But can use the Human Rights Code (prohibits discrimination in housing, so can use this for property that has a house on it, discrimination in employment, in access to contracts, so can argue that this is like a contract, and discrimination to public services, which is anything open to the public, so can argue that public services includes property). So Human Rights Codes would attach somewhere. And Human Rights Code provision says if there is a conflict between this statute and any other, the Human Rights Code statute will prevail. So Human Rights Code is a formally a normal statute, but has a special place between Constitutional and statute status, which is why court refers to is as “quasi-constitutional” Can also use Charter to say racially restrictive covenants are illegal (if it is set for government/public actor). And, what MacKay J. did in Drummond would no longer be controversial today (except to put a lot of weight on the statements of world leaders, or to put a lot of weigh on inchoate/unratified international agreements – done in Spraytech and Baker – but controversial). But ok now for sure to use general approach of looking at fundamental norms evolving in international sphere and among nations, and using the basic normative commitments under our legal system as a source of law to develop the common law. Now, when judges simply say that something should be left to the legislature, we see this as a lack of self-evaluation and critical awareness (simply that they are saying they don’t have to get into any profound public policy debate when they say this) – or could be that legislative process is more open (see legislative process). o i.e.: Canada Trust v. Ontario Human Rights 1990 – Ontario Court of Appeal used Charter and Human Rights Code to say that racist provisions in the Leonard scholarship had to be removed. So method in Drummond of relying on fundamental constitutional principle of protection of minorities and commitment to overcoming discrimination as a way to advance common law is not so controversial anymore (even though MacKay doesn’t explicitly say he is drawing on this as an unwritten constitutional principle, this is what he did). Edwards v. Canada 1930 PC (13) (the “Persons Case) – foundational case in the method court used to interpret Constitution. - Whether women were “persons” eligible for appointment to the Senate pursuant to s.24 of the CA, 1867 - What principles of interpretation did Lord Sankey rely on? – privy council - What weight did he accord to social context? social policy? o Case about whether women could be appointed to the senate in the late 1920’s. Again, have to look at method court used to make the decision. o Court interpreted 1867 Constitution as a living tree (pg 15 –most quoted passage in Constitutional Law) – object of 1867 Constitution was to grant constitution to Canada. Sir Robert Borden says it is subject to development through usage and convention. Court says there is a living tree notion, and the Constitution must be given a large and liberal interpretation. Court said these principles allow changing social and legal values to be taken into account when reading the Constitutional text. o SCC said women could not be appointed to the Senate or recommended to GG to be appointed to the senate because “persons” when the Constitution was drafted meant “men” (so if Constitution is to be interpreted in accordance with the framers of the Constitution, “persons” means “men” - in the 1860’s women did not have political citizenship and the fathers of confederation drafted the Constitution to hold the political culture together). o But Privy Council here allows appeal. Interpreting the constitution within its historical understanding is good for principle of democracy (that judges are empowered by what people intended to give them the power to decide). If we take Constitutional interpretation away from historical understanding (which is what Edwards did), and make it into a living tree, since the text has few words that are ambiguous and vague, critics may wonder where the source of interpretation can come from (this creates a lot of uncertainty, and can bring judicial legitimacy into question). i.e.: words like “freedom” not defined in Constitution, so then critics can say judges may not be neutral/relying on valid sources etc. to interpret these words. But once we have this living tree notion, can bring in policy arguments about underlying values that guide the constitution and look at more sources to interpret the test (look at advances in common law, changes in social understanding etc.) – not limited to interpretation thinking only about what the framers of the Constitution wanted. - So Privy Council ruling consolidated move towards women’s equal citizenship in our Constitutional jurisprudence and established a principle of dynamic interpretation of the constitution (a.k.a. progressive interpretation), embodied in the living tree metaphor (constitution is a living tree and can grow and adapt to changing social conditions). o So interpretation of the Constitutional text not tied to historical understanding (what the text meant when it was drafted/adopted by our elected representatives). o This method of interpretation still applies – used to interpret Charter (1982 Act), and 1867 Act. - Different from other Constitutions where historical meanings of the text are given more weight (i.e.: big debate in U.S. about how much history should be determinative of Constitutional interpretation). - Privy Council’s methodology was radical, but has allowed for many more recent changes/progressive (just like decision in Drummond has been): - Big significance of the living tree principle is that it removes some of the pressure that would otherwise exist from the amending procedures – living tree metaphor allows judges to change the meaning of the Constitution over time = can respond to changing social value and conditions without having to always turn to evoke the amending procedures: o i.e: adjusted meaning of constitutional text: “persons”, “unemployment insurance” (unemployment insurance power given to Parliament in 1940 and Quebec argued that in 1940 it did not mean Parliament could include maternity and paternal benefits, unemployment meant losing jobs involuntarily, but court said constitution is a living tree = “unemployment” meaning could change over time to include these things), and also changed definition for “marriage”. - Seems obvious that this sparse document that is supposed to last for generations that is difficult to amend should be seen as a living tree – part of the Rule of Law too then (just like adjudication is). - But raises issue of judicial legitimacy – idea that the courts are defining new social conditions etc. Bhadauria v. Seneca College Ont CA 1979 (38, 73) and SCC 1981 (41, 75) - Whether B could bring a common law action in superior court based on the tort of discrimination - On what basis did Wilson J. find that public policy favoured the recognition of a tort of discrimination? - On what basis did Laskin CJC disagree? - Do you think the courts might now overrule Bhadauria and recognize a common law tort of discrimination? - Not a Constitutional case, but raises issues about common law, statute and constitution. - 25 years ago, disagreement between Wilson of lower court and Laskin of SCC (even though Laskin was involved in racially restrictive covenants etc., and struggled for equal rights, and human rights, and legal prohibitions against discrimination, he said Wilson was wrong in saying there is a common law tort of discrimination). - Bhadauria didn’t want to file discrimination complaint with Human Rights Commission (maybe didn’t trust them to handle it, or because people lose control over their cases when they go through the Human Rights Commission process) so wanted to go directly to court. o Pre-Charter, maybe if case happened now and Seneca (who discrimination claim was against) might be part of government = subject to Charter (could challenge based on s. 15 of Charter). o No common law tort of discrimination, so Bhadauria goes to court to say it’s time to recognize one because common law is judge made law and should evolve just like Constitutional interpretation under the living tree metaphor. Wilson relies on Drummond partly and accepts Bhadauria’s argument that common law should change and reflect the changes in social values and cites the preamble to the Human Rights Codes (which says equality and non-discrimination are fundamental principles in Ontario) = Wilson agrees that it should be recognized in tort so people can either go to court or file discrimination complaints with Human Rights Commission. o SCC disagrees, Laskin said Wilson was wrong – have to look at Noble case too, not just one part of common law (says this even though he was against the decision in Noble). Says Human Rights Code statute suggests a legislative preference to have discrimination claims managed by Human Rights Commission (expert administrative body), so bringing claim directly to court would undermine this preference and would undermine the development of the Human Rights Commission – relates to idea about judicial and legislative division of responsibility (see directly above). May have different decision now, due to Charter, and because the Human Rights Commission is having problems with dealing effectively with complaints, they are understaffed/under funded etc. (and Canadian courts can deal with these issues much better, after having ¼ of a century of experience in dealing with the Charter – so initially given to Human Rights Commission cause courts were insensitive to these issues etc (see above), but not the case anymore). Tuesday, November 20th, 10:40-11:30, room 102: Rights, Legislatures and Courts – pre-Charter examples – pp.4-11, 13-16, 38-43, 73-76 – Re Drummond Wren 1945 Ont HC (4) – Re Noble and Wolf 1948 Ont HC (8) – Edwards v. AG Canada 1930 PC (13) – Bhadauria v. Board of Governors of Seneca College 1979 Ont CA (38, 73), 1981 SCC (41, 75) Judicial Review: Pre-Charter Examples of Debates About the Respective Roles of Courts and Legislatures in Developing the Law Relating to Human Rights What sources did Mackay J. rely upon in concluding that the restrictive covenant at issue in Re Drummond Wren was contrary to public policy and therefore of no legal effect? Do you agree that public policy should influence the development of the common law? Is the judiciary well-placed to make determinations of public policy? (Treasa O’Loghlin) On what basis did Schroeder J. conclude that public policy could not be relied upon to invalidate the restrictive covenant in Re Noble and Wolf? Does he rely upon public policy in affirming the validity of the restrictive covenant? Is it possible for judges to make decisions without considering public policy? (Matthew Way) In Edwards, on what basis did Lord Sankey conclude that women were “persons” eligible for appointment to the Senate pursuant to s.24 of the BNA Act, 1867? What legal sources and principles of interpretation did he rely on? Did he undertake a consideration of social context or social policy? (Claudia Schmeing) In Bhadauria at the Ontario Court of Appeal (38, 73), why did Wilson J.A. conclude that public policy in Ontario favoured the recognition of a common law tort of discrimination? What lessons did she draw from the legislature’s passage of the Ontario Human Rights Code? Does it make sense to give people a choice of seeking a remedy before an administrative body (the Human Rights Commission and Tribunal) or a court (pursuant to the common law)? On what basis did Laskin CJC (41, 75) disagree with Wilson J.’s conclusion in Bhadauria? What lessons did he draw from the passage of the Ontario Human Rights Code? Does it make sense to require persons to file a claim with the Human Rights Commission, and deny them the choice of a common law action, when they are seeking to challenge private discrimination? The Bhadauria case arose prior to the coming into force of the Charter of Rights and Freedoms. Do you think the issue would be decided differently now, after the coming into force of the Charter? Separation of Powers Doctrine in Canada (page 113) - Is there a separation of powers between the legislative and executive branches of government in Canada? - NO - We have a parliamentary supremacy system, so the legislative and executive branches are fused even though they have separate functions (not strong separation like in U.S.): o Executive is subordinate to Legislative branch – apart from Royal Prerogative power, all executive legal authority must be found in a legislative statute (i.e.: prime minister/premier only has powers given to it by legislature – Roncarelli) o Executive members are drawn from the legislature and need legislature confidence to govern (This is constitutional convention that executive members also have to be legislature members – so mostly only House of Common members are appointed to executive, but if they aren’t already House of Commons members, they have to become one soon). o BUT executive also controls legislative agenda. o Government in Wells tried to defend wrongful dismissal with “doctrine of frustration”. SCC rejected this as disingenuous because court recognized that legislature and executive branches are fused in our system (executive usually controls the legislature), so government could not claim that they had nothing to do with the job cut - Wells 1999 SCC (pg 192) - Is there a separation of powers between the judiciary and the other two branches of government? - YES - Need judicial independence due to constitutional supremacy (rule of law) o Judges are appointed by legislative/executive branches but are not drawn from them. o Still have to work on judicial independence though (lots of ways where it is imperfect in protecting judicial independence) – i.e.: judicial appointment process. Constitutional Ammendment Prior to 1982 - 1867 Constitution Act was a UK statute (didn’t have any amendment provisions as we were controlled by UK Parliament because Canada was seen as a colony of the United Kingdom). - Colonial Laws Validity Act 1865 - Protected imperial statutes from being altered. Important constitutional documents were supreme imperial (UK) statutes, which prevailed over inconsistent colonial laws. - Statute of Westminster 1931 - Enacted to limit Imperial Parliament’s power over the dominions. But, statute did not destroy Imperial Parliament’s power to enact statutes applying to the dominions, it recognizes/preserves that power and only defines how the power is to be exercised – Professor Hogg. o s. 7(1) of the Westminster Statute ensured that Canadian Parliament and Legislatures would not be able to alter the B.N.A. act/1867 Constitution by ordinary statute. - Canada Act 1982 (last imperial statute): o We weren’t independent so had to patriate the Constitution in 1982 (Canada Act 1982) to take over our constitutional amendment. o Patriation brought Constitution home to Canada (1867 Constitution was not a Canadian act). But we still recognize Queen as the ceremonial head of state (and we still have to follow the same rules of succession as the British Monarch – O’Donohue, which means we haven’t completely patriated – if we were, we would have our rules about head of state to patriate – O’Donohue.) Included the Constitution act, 1982 Repealed s. 7(1) of the Statute of Westminster. But s. 52(1) enacts a similar doctrine of repugnancy that was in the Colonial Laws Validity Act – idea that Canadian Constitution is superior to all other laws and any laws inconsistent with it will be considered of no force and effect. o But 1982 Constitution Act still has problems (i.e.: no rule for referendum, which would allow Canadian’s to have a more direct say) – relates to democracy o Now have section V Amending Procedures for Constitutional Amendments. After to 1982 Part V, Constitution Act Amending Procedures: - see Constitution for matters covered in each section. New amendment procedures turn largely on federalism (see Constitutional Supremacy, and Federalism sections). - Whoever has control over amending procedures has final sovereign control of constitution. - Difficult amending procedures protect the federal nature of our state and our rights. But this makes it difficult to amend the Constitution to keep up with changing social realities. Though out courts insist on interpreting the Constitution as a “living tree” (changes/adapts over time), there are still limits to what this interpretation can accomplish due to difficult to evoke amending procedures. - s. 46(1): Either house of parliament (Senate or House of Commons) or the provincial legislatures can initiate procedures for amendment under ss. 38, 41, 42, and 43. Courts decide when each procedure should apply (pg 131). – Look at 4 procedures other than s.38 first, if issue doesn’t fit into any procedure, then use s. 38 default procedure. - 1) General 7/50 procedure (s.38) – covers all Charter changes among other things. o “Default/Residual Procedure” applies to any amendments not covered by other 4 procedures = most significant. o Also applies to matters listed in s.42 even though these deal with Federal Institutions. o Need approval from both houses of parliament and at least 7 provincial legislatures (at least 50% of the provinces) Theoretically, no province has a veto (as long as 7 provinces agree, no other province can veto the amendment). But, Federal Parliament felt pressure to meet Quebec’s demands for a veto (they didn’t change the Constitution to deliver a veto or “distinct society clause” but passed Constitutional Amendments Act instead (which is a statutory overlay that parliament can repeal at any time – not constitutionally binding to Federal government though). The act affects the general procedure (which is already hard to meet) and makes it a 7/90 requirement (need both houses of parliament and need approval of B.C., Ontario, Quebec, and 2 prairie provinces that make up 50% of the prairie population, which means Alberta’s approval is required – so in practice they all have statutory vetoes for s. 38 procedure). Ryder says this is ridiculous = high level of consent needed so governments are wary of amending the Charter or making other changes that fall under s. 38 (will have to negotiate with the provinces that are part of the 7/90 requirement) – perhaps why government wants to use s. 44 for senate consultations instead of s. 38. - 2) Unanimity: s.41 - Need unanimous consent for matters that are fundamental to our Constitution (Need approval from both house of parliament and all 10 provinces): o Applies only to five matters: 1) Monarchy 2) Minimum # of seats per province in House of Commons (“Senate floor”) Ryder says this is imp. - # of seats in House of Commons can never fall below the # of seats in the Senate (would especially be an important change for smaller provinces). 3) Use of English and French (bilingualism important part of our history). ie: 1867 act, s. 133 guarantees bilingualism (can’t be changed without unanimous consent). Also guaranteed in ss. 16- 23 “Official Languages of Canada” and “Minority Language Education Rights” of the Charter, but use of English or the French language issues only fall under s. 41 subject to s. 43, so only follows s. 41 if it is not applicable to s. 43. 4) Composition of SCC 5) Changes to Part V (amending procedures). The unanimity procedure applies to the five matters listed in s.41 only. The requirement of unanimity has its exclusive origins in the text of s.41and is thus confined to the matters listed in the section. The "affects the entire country" possibility you've mentioned is an invention of your mind; it has no legal basis. The courts are very unlikely to add matters to s.41 that are not explicitly listed there. To do so would be to create new and very high barriers to future constitutional change. Section 38 is the general procedure. Everything, including many amendments that affect the entire country, falls within the s.38 7/50 procedure unless it is explicitly subtracted from s.38 by one of the other procedures. - 3) “Some-but-not-all provinces”(s.43)/a.k.a. “bilateral formula” if it only affects one province) – applies if amendment relates to one/some but not all provinces. o Need approval from both houses of parliament and legislatures of the provinces that the provision applies to. o More flexible than the other procedures (especially ss.38 and 41 procedures). Our constitution is hard to change, but s. 43 has successfully been used to make a lot of changes (successfully invoked 7 times - ie: no more denominational school rights in some provinces). This is likely where significant Constitutional change will happen in the short term future. - 4) Federal Unilateral: s.44 - only applies if amendment only affects federal institutions (don’t need provinces’ consent). o Gives federal legislatures power to make amendments unilaterally through ordinary legislative process. Section 42 is necessary because s.44 gives to Parliament the power to amend the constitution on its own (i.e., unilaterally, by passing legislation through the usual process) "in relation to the executive government of Canada or the Senate and House of Commons". Some aspects of the federal executive and federal legislative branch are of concern not just to the country as a whole (represented by the federal Parliament), but have special importance to the provinces (and thus, the drafters decided, provincial consent should be required before they are changed). Therefore, these matters were removed from the ambit of s.44 by s.42, and made subject to the s.38 general procedure. - 5) Provincial Unilateral: s.45 - only applies if amendment only affects that province’s institutions (don’t need federal government or other provinces’ consent) - Gives provincial legislatures power to amend unilaterally through ordinary legislative process. o i.e.: If Ontario government wants to change the # of seats in the Ontario legislature, it would be ridiculous to require the Federal government and other provinces to approve of it. Part of the Constitution subject to ss.44 and 45 are not “entrenched” supreme parts of Constitution since they can be changed with ordinary legislation. But Ryder says there is not much jurisprudence on these two procedures yet. Which amending procedure in Part V of the Constitution Act, 1982 needs to be followed? (have to look at actual act to see which matters are covered) - Answer really depends on our interpretation of the sections – argue for which procedure you think it falls into. Some of these questions have obviously correct answers, others are arguable of course since we do not have SCC or other authoritative court rulings addressing the questions (if two sided/answer not clear, say question of which procedure to use should be referred to SCC by Federal Parliament etc.). To enact eight year term limits for Senators, as proposed by Bill S-4 in the last session of Parliament (see supp. p.10, note 1)? - Can argue that this would go under s. 44 (if senate tenure were to fall under ss. 41 or 42, then why would constitution has senate issue in s. 44?). Most constitutional experts believe that this change can be made unilaterally by Parliament pursuant to s.44 and the government, of course, by introducing Bill S-4 in the last session of Parliament, and reintroducing it a couple of days ago as Bill C-19 (see www.parl.gc.ca/legisinfo), shares this view. If you go to Legisinfo, and click on Bill C-19, you'll find under "departmental information", "background information", a defence of the view that this is a matter that falls under s.44 for the reason you've stated. The contrary argument is that reducing Senators' terms from the current lifetime appointments (to age 75) to 8 years will have a significant indirect impact on "the powers of the Senate" thus bringing the change within s.42(1)(b) and requiring compliance with the s.38 formula. The argument in favour of this position is that Senators' life appointments secure their ability to act independently from the government (and thus from the House of Commons, since the House is normally controlled by the government in power). Term limits decreases the likelihood that Senators will exercise their powers independently of the views of the PM and the government that appoints them. Bill C-19 responds to this concern by removing the possibility of Senators being appointed for renewable 8 year terms (this was a possibility not explicitly ruled out by Bill S-4 last session; Senators would be even more likely to curry favour with the government of the day if the government had the power to reappoint them or not). Thus, the argument that Bill C-19 indirectly affects the powers of the Senate is weaker than it was for Bill S-4. Info from Legisinfo: Term Limits for Senators Currently, under section 23 of the Constitution Act, 1867, Senators “shall be of the full age of Thirty Years”, and according to section 29 (2), a Senator shall “hold his place in the Senate until he attains the age of seventy-five years”. Thus, a Senator could serve a term as long as 45 years. Originally Senators were appointed to the Senate “for Life”. In 1965, that was changed when the Pearson government introduced an amendment to section 29 of the Constitution Act, 1867 to create the mandatory retirement age of 75 years for Senators. This amendment was unilaterally (s.41) passed by Parliament as it did not require the consent of the provinces. Pursuant to section 44 of the Constitution Act, 1982, Parliament alone may make laws amending the Constitution of Canada in relation to the executive government of Canada, or the Senate and the House of Commons. The Senate tenure bill uses section 44 to amend section 29 to provide that, “… a person summoned to the Senate shall hold a place in that House for one term of eight years.” This new eight year term would only apply to new Senators appointed after the bill becomes law and therefore all current Senators’ terms would continue until they reach the age of 75 years. – shows that it’s prospective. Section 42 of the Constitution Act, 1867 sets out the amendments to the Senate which require provincial consent. They are amendments which change: the powers of the Senate; the method of selecting Senators; the number of members by which a province is entitled to be represented in the Senate; and the residence qualifications of Senators. These amendments are subject to the general amending formula, which requires the consent of Parliament and the legislative assemblies of seven provinces having 50 per cent of the population (but really 7/90 with statutory overlay). Since the terms of Senators is not one of the amendments specified in section 42, which would require provincial consent, it can therefore be accomplished by Parliament acting alone, as was the case with the 1965 amendment which also limited (albeit modestly) Senate terms. To enact Senate consultations, as proposed by Bill C-43 (now reintroduced as Bill C-20) (see supp. p.11, note 3)? - Would be like an election, but just calling it a “consultation” and saying that the governor general would still appoint senate members on advice or prime minister. - BUT this is changing the method of selecting senators = s. 42 procedure. Provinces may challenge C43 and say it won’t be legally binding if the government tries to pass it unilaterally under s. 44 of the Constitution, saying that it falls under s 42(1)(b) of the constitution because it affects the powers of senate and the method of selecting senators and thus can only be made under the s. 38 7/50 formula with the statutory overlay. Ryder says C43 has to be passed through s. 38 because it does fall under s. 42(1)(b). Government says, in form, C-43 would just broaden the things PM can look at to suggest senators to PM, but the functional consequences are like an elected senate. This would result in senate democratic legitimacy and they would actually practice equal powers to the House of Commons in the legislative process, so the regional representation of the senate would be more important and it is thus a great concern to provinces (affects federalism). But the statutory overlay on s. 38 makes it too difficult to evoke 7/50 formula right now. If parliament were to open C-43 up to all those required to consent under 7/50 (with the statutory overlay), they would have to negotiate with the provinces too much. This is why government wants C-43 as a way to move forward with senate reform. It’s what the government may be able to do on its own, as stated in the preamble of Bill C-43 (that before we can have more comprehensible senate reform, Bill C43 is what we can do now). But the debate of whether Bill C-43 falls under s. 44 or s. 38 amending procedures of the Constitution continues. Best for parliament to refer this question to SCC to see which amending procedure Bill C-43 can fall under. RYDER: I think the argument about Bill C-43 (now reintroduced as Bill C-20 - see the description and background info on legisinfo) is straightforward. The key question, as you've indicated is whether it affects "the method of selecting Senators". I would expect you to engage with this question by considering the arguments that can be made on each side. You've articulated above why the government sees it as a matter that does not affect the method of selecting Senators and thus the Bill can be validly enacted by Parliament alone pursuant to s.44. You have not articulated the contrary argument that sees the Bill as being in relation to the method of selecting Senators, thus within s.42(1)(b) and capable of being validly enacted only if the requirements of the s.38 amending procedure are followed. Constitutional experts are divided on this question. It ought to be resolved by sending the question to the SCC on a reference. See last year's Public Law exam and answer outline where this question was raised. At the moment, Senators are appointed by GG (s. 24 of 1867 Constitution Act), on advice of PM. If elections were to replace PM’s appointment power, a constitutional amendment would be required. This can only be done pursuant to s. 44 of the matter falls within the section (so that Federal Parliament could do it themselves). But “the method of selecting senators” is withdrawn from s. 44 by s. 42(1)(b). If this is considered a change to the method of selecting senators, then it would require s. 38 (with statutory overlay) amending procedure. But Federal government believes it can make the change without s. 38 by introducing the bill for non-binding “advisory” elections (now reintroduced as Bill C-20 – the Senate Appointments Consultation Act), which they say will thus not alter the current practice of GG appointing Senators pursuant to PM’s advice (so it wouldn’t be a change to the method of selecting senators). It would just help PM and give him/her more to work with when advising GG. But democratically/politically this would change the method of selecting senators (not legally though), because PM would find it difficult to override will of the people that would be expressed through a voting process/election (this could even bring PM’s legitimacy into question – notion that he/she might have such motives as self-perpetuating etc. motives in choosing senators, i.e.: choose ones that will support the bills he passes). In this sense, it might change the method and could thus be subject to s. 38 procedure. But only a reference to SCC can settle this question. LegisInfo: Senate Appointment Consultations Act In the October 2007 Speech from the Throne, the Government committed to reintroduce its Senate reform bills from the previous session. Accordingly, the Government has reintroduced the Senate Appointment Consultations Act in the House of Commons. The Act would establish a national process through which Canadians could be consulted on their choice of candidates for appointment to the Senate. General framework The Senate Appointment Consultations Act would permit the federal Cabinet to provide that the electors of a province or territory be consulted about potential Senate appointments for that province or territory. For reasons of efficiency and convenience, consultations will coincide with a federal or provincial general election thereby allowing electors to vote for nominees for Senate appointment from their province at the same time they vote to elect Members for the House of Commons (or provincial legislature) – good for democracy and maybe protection of minorities (to have their voices heard as well as majority views). The choices expressed by voters would inform the Prime Minister in recommending appointments to the Senate. The federal Cabinet would determine in which provinces or territories a consultation would be held, and how many places in the Senate would be subject to consultation (which could be more than the number of vacant Senate seats at the time at provide for future vacancies). The bill proposes no constitutional changes and does not provide for the direct election of senators. The appointment process and method of selection established in the Constitution Act, 1867 are unchanged by this legislation. Appointments would continue to be made by the Governor General, on the recommendation of the Prime Minister, and the constitutionally-defined qualifications for senators would continue to apply at the time of appointment, as they do now. In addition to creating the consultation mechanism, the bill proposes strict rules of accountability for Senate nominees, creates a framework for the actions of political parties and spending by third parties, establishes rules for voting and counting votes using the single transferable vote, and defines the roles and responsibilities of the Chief Electoral Officer of Canada, who will be responsible for administering the consultation. Nominees Nominees would have to be Canadian citizens and be 30 years of age, consistent with constitutional qualifications for Senators. A successful nominee would still need to meet all other requirements set out in the Constitution (e.g., residence and property qualifications) before being summoned to the Senate by the Governor General. Prospective nominees would register with the Chief Electoral Officer. They would need to submit nomination papers, including 100 signatures of electors resident in the province for which the person is submitting a nomination, a deposit of $1000, and the endorsement of their party, if they wish to participate as a party-endorsed nominee. Campaign financing Once a nomination is confirmed by the Chief Electoral Officer, nominees would be able to accept contributions and incur expenses related to their campaign, within the accountability rules established under the Act, which are consistent with the new accountability regime established by the Federal Accountability Act. Only individuals would be able to make contributions to Senate nominees, and there would be a maximum of $1000 per year (indexed for inflation); this limit will apply to both party- endorsed and independent nominees. Unions and corporations would not be eligible as contributors. Because nominees will need to finance province-wide campaigns, no overall spending limit would apply to campaigns. There would be no per-vote allowance or reimbursement of campaign expenses from public funds. The same reporting rules would apply to Senate nominees as those that apply to candidates for election to the House of Commons under the Canada Elections Act. In accordance with the traditional independent nature of the Senate, political parties would have a limited role in financing Senate nominees. Parties would not be allowed to transfer funds to their endorsed candidates, although they would be permitted to share some goods and services, such as common office space or membership lists. To conduct advertising in relation to a Senate consultation, a party would have to register as a third party would be subject to province-wide limits similar to those that exist for third parties in a House of Commons election. The Act would not create a new party regime for the Senate. Only registered parties under the Canada Elections Act would be able to endorse nominees, that is, parties who contest seats for the House of Commons. A person could be a nominee in only one province or territory at a time. If the federal government were to seek to change the powers of the Senate, or to create a Senate with more equal representation from the provinces? - These are matters that fall within s.42 and are thus subject to the s.38 procedure (s.42 is not a separate procedure). In your legal analyses, you should always refer to the relevant provisions and the key words in them. The powers of the Senate and the number of Senators to which each Senate is entitled are matters listed in s.42(1)(b) and (c), and therefore changes to them "may be made only in accordance with subsection 38(1)". If Canada were to abolish the monarchy and become a republic, with an appointed rather than a hereditary head of state? - s 41 - the "office of the Queen" is one of the matters listed in s.41(a) and thus can be changed only with the consent of both Houses of Parliament and all ten provincial legislative assemblies. If Ontario were to become officially bilingual in the constitutional sense (by entrenching the rights of English and French speakers in the constitution, as is the case in Quebec, Manitoba and New Brunswick)? - Constitutional requirement to operate bilingually = use s. 43 (NOT s. 41 cause doesn’t apply to all provinces). This would happen easily – Federal government would allow any province to become officially bilingual. If Ontario were to repeal the rights of Catholic denominational schools, currently guaranteed by s.93 of the Constitution Act, 1867? – but this has been done through s. 38 for some provinces (see s. 38 successfully evoked 7 times) - s. 43 (only affects Ontario) = do it through bilateral procedure. - * s. 93 of Constitution says provinces have jurisdiction over provinces SO check Constitution sections to see which procedures should apply. But s. 93 doesn’t apply in Quebec anymore. If Canadian governments were to repeal the "notwithstanding clause" in s.33 of the Charter of Rights and Freedoms? - s. 38, 7/50 (7/90) - MOST of the Charter falls under s. 38 (7/50), BUT not all of the Charter (i.e.: some parts only pertain to New Brunswick, so such changes would be bilateral changes). * GOOD REASONING: The Charter is not explicitly mentioned in any of the amending procedures. That rules out the unanimity procedure in s.41 since that procedure only applies to the 5 matters listed in s.41. The Charter is not a subject matter of concern only to the federal government, or only to the provincial governments, and therefore the unilateral procedures in sections 44 and 45 are ruled out. That leaves two possibilities: the general s.38 procedure and the some-but-not-all provinces procedure in s.43. Since the s.33 notwithstanding clause is a power that may be invoked by Parliament or any of the provincial legislatures (i.e. it applies to all of the provinces, not just some), it cannot be repealed using s.43. The general amending procedure applies. If, however, one province, say Ontario, wanted to amend s.33 to provide that it could not be invoked by the Ontario legislature, that is a change that could be enacted through the s.43 procedure. If new deal for the New Cities Campaign continues strongly, maybe municipal powers will be Constitutionally Guaranteed, and then municipalities won’t be subject to the whim of provincial legislatures anymore. - * If cities were to have constitutionally entrenched powers, this would involve the creation of a new order of government and a corresponding diminution of the legislative powers of the other levels of government set out in ss 91 and 92 of the Constitution Act, 1867. Legislation passed by a provincial legislature pursuant to s.45 can also be repealed by a provincial legislature pursuant to s.45, so this would not be a way to create constitutionally entrenched powers for cities. Section 43 could be used if the change was desired in only one province - in the same way that s.93A , altering educational powers and rights in Quebec, was added to the CA1867 through a bilateral amendment with Ottawa. If, however, we wanted to give cities constitutionally secure status throughout the country, the s.38, 7/50 procedure would have to be followed. If Canadian governments wanted to change the division of legislative powers in the Constitution Act, 1867, which amending procedure would have to be followed? s. 38, 7/50 (7/90) What if we want to give government power to make changes to post-secondary education? - s. 93 of 1867 Constitution says provinces have jurisdiction over education, so would be s. 43 for each province to change their own education. - But to give federal government power to do this would be making a change to the division of powers, would likely be s. 38 (7/50) (7/90) procedure. To abolish the federal senate:- would affect federalism. Would at the very least require s. 38 amending procedure (power of senate/method to select senators mentioned in s. 42 “subject to s. 38”). But this is debatable. Can argue abolishing the senate will affect the senate floor provision under s. 41 (provinces’ # of seats in House of Commons can’t be less than the # of seats in the senate). If wanted to constitutionally entrench SCC, this would be under s. 42 (other SCC matters, other than composition), so it would have to follow s. 38(1) – 7/50, (7/90) procedure. Bill C22: Controversy in Ontario (about changing the number of seats each province will have in House of Commons, if passed, then all provinces will have at least enough seats in House of Commons to correspond to their share of the population, except for Ontario (will have a lot less). - Doesn’t have to be passed through 7/50 formula even though changing seats in House of Commons applies to all provinces, because it falls within s. 44 (it is a change that has routinely been made by Parliament alone under s. 44). - s. 51 of 1867 Constitution Act, tried to give expression to the idea of representation by proportion. Parliament could change the formula anytime alone. But 1982 Constitution amending procedures put issue of proportion under s. 42(a) (and thus under the general 7/50 formula with the statutory overlay). Bu tin 1985, Parliament changed the formula again without obtaining prior agreement of the required provinces (as would be through the s. 38 procedure). A modification was put in place that implemented a floor that the number of seats could not go under. In 1988, B.C. court of appeal majority said Parliament was allowed to due this alone. Dissent (2 to 1 ruling) said Parliament could not make such changes alone due to such issues being under s. 42(a) of the Amending Procedures in the 1982 Constitution Act. Dissent is a strong argument. So now, conservative government has the precedent saying what happened in 1985 was all right, and wants to follow this so that it may enact Bill C22 alone without going through s. 38. Saying also that as long as they don’t change the proportionality principle or go against it in any major way, then Parliament should be able to make this decision alone (saying that bill C22 would just be reinforcing the principle of proportionality so is it something they can do alone). But Liberal government insists that this issue is under s. 42(1)(a) and thus must fall under s. 38 procedure as opposed to s. 44. S.C.C. has power to overrule B.C. court of appeal’s decision in 1988 saying Parliament could do this alone. So best to refer the question of which procedure this change should fall under to S.C.C. (federal government should), but if S.C.C. said 1988 ruling was invalid, then that means that over 20 years of parliament was invalid and S.C.C. may indeed shy away from agreeing with the Campbell dissent for this very reason. Or may do what they did in the Manitoba Reference and give parliament time to adjust to what remedy they will propose if they decide to agree with Campbell dissenting judgment (common for courts to issue suspended declaration of invalidity now). GLOSSARY The Constitution of Canada includes: - a) The 1982 Constitution Act (Charter is part 1 of this) o Also includes Aboriginal Rights Act, Procedure of Amending Constitution of Canada (Part 5 of act). - b) The acts and orders referred to in the schedule under s. 52(2): o Lists the 1867 Constitution Act (a.k.a. BNA – British North American Act in Pre-1982 decisions). - c) any amendment to any Act or order referred to in (a) or (b). - Note, s. 52(2) says Constitution “includes” these things (not an exhaustive list). But no court rulings has thus far added to this list of documents yet. But courts have added some unwritten constitutional principles that can have a binding force in some circumstances (i.e.: rule of law) o So Constitution includes written texts specific specified in s. 52(2) and unwritten fundamental principles. Reference Decisions - In theory, references are not law, only an opinion/advice but in practice, they are treated like law and are just as authoritative as binding precedents. i.e.: Secession Reference, Patriation Reference etc. - Supreme Court Act (statute) gives Federal executive the power to refer questions to SCC for their opinion (usually asking for their opinion about the constitutionality of a bill they are considering). Mostly for constitutional issues, but can refer questions about other issues too. Federal government can also initiate a reference procedure to SCC to find out whether a constitutional change is legally or conventionally unconstitutionally before seeing which amending procedure it can fall under. - Reference Procedure is distinct to the Canadian Constitution. - BUT Reference Procedure is an oddity: it is almost like the Federal government is enlisting SCC to give legal advice. o But this isn’t seen as a violation of the separation of powers, so it is not unconstitutional, like it would be in U.S. In Canada, each government branch has a distinct role – legislature makes laws, executive implements/enforces laws, and judiciary adjudicates and interprets laws when there is a dispute over a law, but for reference procedures, the judiciary is doing the executive function of giving legal advice to the government.. - Only federal government can initiate reference procedure and refer questions to the SCC Provincial legislatures can refer questions to their own courts of appeal: o i.e.: Patriation Reference started when provincial legislatures of such provinces as Manitoba, Quebec, and Newfoundland initiated references to their own provincial courts of appeal about whether it was legal for the Federal government to try and change the Constitution unilaterally/without their consent. See Lecture 4 for listed differences between Constitutional Conventions and Unwritten Constitutional Principles. Constitutional Conventions – Powerful political traditions: Like underlying constitutional principles (are another kind of unwritten norm) BUT are different in their: Origin: o Constitutional Principles: Comes from judicial interpretation of our constitutional structure and documents at large to identify underlying constitutional principles, NOT necessarily looking at political practice. o Constitutional Conventions: Comes from what political practice (what elected politicians have consistently done in the past). Legal status: o Constitutional Principles: LAW = can be legally binding. o Constitutional Conventions: NOT LAW. Enforcement? o Constitutional Principles (Legally binding): Can give rise to legal obligations that can be enforced against governments. i.e.: Succession Reference court looked at 4 such underlying constitutional principles that can rise to legal obligation. i.e.: Unwritten constitutional principle of Protection of Minorities made closure of French service hospital unconstitutional (EVEN though nothing in Constitution speaks directly to say that health services have to be provided in French) - Lalonde v. Ontario 2001 Ont CA (re Montfort Hospital) o Constitutional Conventions (Politically binding): NO LEGAL REMEDY/ court cannot order government to follow them BUT POLITICAL REMEDY = will be a political crisis if conventions are not followed. i.e.: Can’t take governor general to court to force her to give royal assent to bills passed by two houses of Parliament, but if she withheld her assent, this would create a political crisis. Conventions essential for smooth Parliamentary government operation: 1) NO mention of prime minister in the BNA act (a.k.a the 1867 Constitution), BUT it is constitutional convention that the governor general should summon a leader of the party to be prime minister to command the government = CAN’T be legally enforced if this doesn’t happen. 2) If part doesn’t get support of at least one opposition party after throne speech (= loss of confidence vote), then by convention Prime Minister has to either resigned and ask someone else in House of Commons to command government support OR ask Governor General to dissolve Parliament to call another election = CAN’T be legally enforced if this doesn’t happen BUT violating this convention would result in the gravest political crisis. Federal Disallowance power should never be exercised (our Constitution says that Ottawa can disallow any provincial law within a year of it being passed, but this hasn’t been exercised since WW2) o Wrong for Federal government to disallow provincial laws because provinces are considered sovereign and of equal status (though they are subordinate legally), BUT over time, the underlying principle of Federalism has also made the Federal Disallowance power legally unconstitutional (says both government levels had coordinate status and occupy horizontal spheres NOT hierarchical). SO there are both legal and political binding forces against its use). Canadian Bill of Rights: - Charter is a Bill of Rights, but was preceded by the Canadian Bill of Rights. - 1867 Constitution didn’t have a Bill of Rights. So PC government secured enactment of the Canadian Bill of Rights in 1960. o But it was only enacted as an ordinary statute of the federal parliament so it wasn’t constitutionally valid. So it only applied to federal laws and could be repealed by the federal Parliament at any time. Provincial violations of civil liberties weren’t covered by it. - Canadian Bill of Rights lost most of its importance in 1982 when the Charter of Rights was enacted. Most of the rights/freedoms guaranteed by the bill are now guaranteed by the Charter. But the Charter IS constitutionally valid = can only be amended through constitutional amendment procedures and applies to federal and provincial government. - But Charter didn’t repeal the Canadian Bill of Rights, so it’s still in force. 2 Provisions of the Canadian Bill of Rights not duplicated by the Charter: - 1) The Bill’s “due process clause (s. 1(a)), which extends to the protection if property. - 2) The Bill’s guarantee of a fair hearing whenever a person’s rights and obligations are to be determined (s. 2(e)). Both these provisions go beyond Charter guarantees, so they’re still operative restraints on federal (but not provincial) activity – Peter Hogg.
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