Sept. 11 Preliminary Observations on the Law

Report as inappropriate Your report has been received

Shared by: wuzhenguang

Tags

Stats

views:: 0
posted:: 10/6/2012
language:: English
pages:: 31

Public Domain

Document Sample

• Unified (integrated) hierarchical court system as opposed to dual court system such as found in the U.S.
Adjudication

• Adjudication involves an independent,
impartial and qualified judge authoritatively
settling a dispute, according to law, with
reasons. Usually, decisions can be
appealed.
• Other forms of dispute resolution: combat,
negotiation, mediation, arbitration. (ADR
refers to alternatives to the courts –
especially mediation and arbitration.)
The role of courts in Canada
• Why do we have “open” courts?
• There are some exceptions to open courts
– Young offenders
– Application to a judge for a closed hearing
– Sexual assault trials
– National security cases
– Preliminary hearings in notorious cases – to permit
fair jury selection
– Is closing the court justified in these situations?
The role of courts in Canada
continued….
• Does open court concept impact presumption of
innocence?
• Dignity and decorum
– Gowns, address to judge
– Dress codes
• Television
• Adversary system
• ADR (alternate dispute resolution)
Role of courts continued…
• Role of courts: dispute resolution, prevent
abuse of power, official const. philosophers.
• Problems with justice system
– for some litigants and lawyers, a game
– delay in client’s interest
– judges limited by adversary system re control
of caseflow
Judicial Independence and Accountability
• judicial independence: • For provincially-appointed
purpose is to promote judges: complaints can
judicial impartiality be sent to the Provincial
– Valente decision (1981 - Judicial Council (usually
85) composed of the Chief
• security of tenure Judges and Justices in
• financial security the province)
• judicial control over
adjudicative matters • For federally-appointed
• judicial discipline: judges: the Canadian
Canadian Jud Council & Judicial Council
prov. Jud. Councils ) investigates complaints
Types of Offences in Criminal Law
• Summary conviction Offences (minor offences under
Criminal Code with penalties including fines of up to
$2000 and/or 6 months imprisonment. Eg. communicate
for the purposes of obtaining the services of a prostitute,
causing a disturbance.
• Indictable Offences (more serious offences with more
serious penalties—entitles you to a trial by jury for most
offences.)
• Hybrid Offences—Crimes for which the charge can be
either summary or indictable depending on the decision
of the Crown Attorney, eg. Impaired driving, theft under
$5,000
Appeal Courts
• Minor appeals heard by a single judge in a higher court
(summary conviction appeals)
• Major appeals heard by the provincial Court of Appeal
• Ontario has about 18 Court of Appeal judges; usually
they sit in panels of 3 (sometimes 5)
• The Federal Court (Appeal Division) has about a dozen
judges; hear cases in panels of 3.
• Supreme Court (9 judges) most often hears cases in
panels of 7; sometimes panels of 5 or 9.
• Appeal by right; leave to appeal
Appeal Courts continued…
– Panel process different from single
judges in trial courts
• Supreme Court of Canada
– Primarily a public law court (~100 cases
/ year)
– leave to appeal (~600 apps)
• per curiam (or per coram) vs. seriatim decisions
Quebec and Civil Law Approach
• Codification of laws
– Coutume de Paris (1580)
– Confusion after 1759
– Royal Proclamation (1763)
– Quebec Act 1774
– Codification: 1866: CCLC
– 1994: CCQ
Deductive Reasoning
Inquisitorial System (not in Quebec)
Code, la doctrine, precedent
• Quebec courts:
– Court of Appeal (s.96)
– Superior Court (s.96)
– Court of Quebec (provincial)
– 1994 CCQ: ten books
– Civil and common law approaches coming closer together
Canadian Constitution
•
• . Canada’s constitution:
go to http://laws.justice.gc.ca/en/const/index.html
• 1. Written parts
a) Canada Act, 1982 (British statute that makes CA, 1982 law
and declares that no British statute will in future extend to
Canada)
b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule
to the Schedule to the Const. Act, 1982, most importantly the
Constitution Act, 1867 (formerly called the BNA Act; contains
division of powers), and the Constitution Act, 1982 (contains
the Charter and the five amending formulas)
- Others: statutes & orders established new provinces, or
amended the BNA Act.
Some causes of Confederation

• Political Motives:
– British move to free trade policies and re-evaluation of benefits of empire
– Breakdown in political accord between English and French in colony of the
United province of Canada and subsequent search for a new viable political
structure.

• Strategic Motives:
– Problem of defense of separate British North American colonies in face of Fenian
raids and anticipated American aggression following Civil War.

• Economic Motives
– Fear of loss of British markets because of British Free Trade sentiments and
American markets because of ill will resulting from civil war.
– Easier to gain credit form British lenders with larger country.
– Prospects of absorbing remaining British territory in central and western part of
continent to create a vast “commercial empire.”
Some Political Compromises in the
Canadian Confederation
• Unitary vs federal state
• Appointed Senate
• Limited bilingualism in Ottawa and Quebec
• Leaving control over property laws and
other civil laws to the provinces
• Provinces retain control over education
The Constitution Act (1867)
• The CONSTITUTION ACT, 1867 created Canada as a federal country.
• Some of the more important features in the “division of powers” that
make up Canada’s federal system of government:
• Ss. 56, 57 & 90: reservation and disallowance
• 91. the "preamble" to S.91 is the "POGG" clause (peace, order and
good government): It shall be lawful for [Parliament] to make laws for
the peace, order and good government of Canada, in relation to all
matters NOT coming within the subject-matters assigned exclusively
to the Provinces in S. 92. For greater certainty, Parliament may make
laws with regard to matters covered by the following list. However,
this list merely provides examples, and these examples are not to be
interpreted by courts as limiting Parliament's power.
• 2. Trade and Commerce
2A. Unemployment insurance (added in 1940)
3. Unlimited taxing powers (direct and indirect)
14. Currency & coinage
15. Banking
24. Indians, and lands reserved for Indians
27. The Criminal Law
92. The provincial legislatures have exclusive power to
make laws regarding the following:

• 92 - 2. Direct taxation
10. Local works and undertakings EXCEPT
a) interprovincial railways & telegraphs
b) international shipping
c) any works that Parliament has declared are
within federal jurisdiction. (“declaratory power”): eg. Grain
elevators, local railways, canals, bridges, some mines, some factories. Used
470 times, but not since 1961.
13. Property and civil rights (meaning private law)
14. The administration of justice in the province, including
the establishment of all courts except the Supreme
Court of Canada and the Federal Court, and prosecution of criminal
cases.
16. All matters of a merely local or private nature.
92A (added in 1982). The provinces can regulate non-renewable natural
resources, including forestry and electrical energy, and can even regulate
exports. However, the federal government can also regulate exports in this
area, and federal laws are paramount.
Education and concurrent powers
• 93. The provinces control education, except
that the feds can intervene to protect Roman
Catholic schools in Ontario and separate
schools in any province that existed at the time
the province entered Confederation.
• 95. Agriculture and Immigration are
concurrent powers (both the feds and the
provinces can legislate). If there is a conflict, the
federal legislation is paramount.
Judiciary provisions
• 96. The federal cabinet has the power to appoint all superior
court judges in the provinces.
• 99. Superior court judges cannot be removed except by joint
address of the Senate and House of Commons. Superior court
judges hold office "during good behaviour" to the retirement age of
75 (to protect judicial independence).
• 100. The salaries of superior court judges are set by
Parliament, not by the cabinet (to protect judicial independence).
• 101. Parliament may establish a Supreme Court of Canada (which
it did in 1875) and other courts to adjudicate federal laws other than
the Criminal Code (eg. the Federal Court, which hears federal
administrative law cases, and the Tax Court.)
Other important provisions in CA, 1867

• 109. The provinces own the natural resources within their
borders (although initially this ownership right was not extended to
the new provinces of Sask and Alta.)
• 121. There shall be no customs duties or restrictions of trade
between provinces.
• 132. Parliament can make any law to implement British Empire
treaties, even if the law invades provincial jurisdiction. However,
after 1931 the courts interpreted this section to mean that provincial
approval is required for any non-British Empire treaty which affects
matters under provincial control.
• 133. English and French can be used in Parliament, and Canada's
laws must be in both languages. Likewise, English or French may
be used in Quebec's National Assembly, and Quebec's laws must
be in both languages. Either language may be used in the courts of
Quebec, the Supreme Court of Canada, the Federal Court and the
Tax Court.
Constitution Act, 1982

• Ss 1-34: The Charter of Rights (you
don’t need to know the content of the
Charter until January – April course)
• S. 35: Aboriginal rights (don’t need to
know until January – April)
• S. 36: commitment to equalization
payments, so that poorer provinces can
provide adequate services.
Canadian Constitutional Amendment
• In Canada, there are 5 – Fed gov’t can amend its
amending formulas for the internal constitution
constitution: – General amending formula
– Unanimity formula (Queen, (seven-fifty): the rest of the
GG, LGs, composition of constitution (incl div of powers
SCC, senate floor rule, federal & Charter) can be amended
language rights, amending with Parliament, 7 out of 10
formulas
provinces representing 50% of
– “some but not all” (eg. pop. Dissenting provinces
language within province,
denominational school rights, may opt out, and get
change in prov. borders) reasonable compensation if
– Provinces can amend own amendment affects culture or
constitutions education.
AMENDING FORMULAS (more detail)

• 38-40 & 42. The 7-50 formula. Most of the narrow constitution,
including the Charter of Rights and the division of powers in ss. 91
and 92 of the C.A., 1867, can be amended with the agreement of seven
provinces representing 50% of Canada's population and
Parliament. (That is, either Ontario or Quebec must be included.) Up
to 3 provinces could opt out of such an amendment. If they opt out of
an amendment which transfers educational or cultural matters to
Ottawa, these provinces shall be compensated financially by Ottawa
(Ottawa must give to the opting-out provinces what they are spending,
per capita, on the opting-in provinces).

• There is a 3-year time limit which begins with the first resolution for
amendment (which could be in any provincial legislature or
Parliament). No amendment may take effect according to this
procedure until at least one year after the first resolution has passed
(unless all governments have passed resolutions).
7-50 formula continued
• No province can opt out of an
amendment affecting:
• a) proportionate representation of the
provinces in
the House of Commons
b & c) the Senate
d) the Supreme Court of Canada
e) the extension of existing provinces
north
f) establishment of new provinces
Amending forumlas (cont’d)
• 41. The unanimity formula. Unanimous agreement of all
provincial legislatures and Parliament is required for
amendments affecting:
• a) the Queen, Governor General and Lieutenant-Governors
b) the "Senate floor rule" (no province can have fewer MPs
than Senators).
c) the use of English or French in S. 133 or the Charter
d) the composition of the Supreme Court, and
e) changes to the amending formulas.

• 43. The "some but not all" forumla: Amendments which affect
some but not all provinces need by approved only by the
provincial legislatures affected and Parliament.
• 44. Parliament may amend parts of the constitution that affect
only Parliament.
• 45. Legislatures may amend parts of their constitutions that
affect only them.
Canada: Constitutional
Amendments
• Major Can. amendments:
– 1940: unempl ins
– 1951: old age pensions
– 1964: old age pensions broadened to include
supplementary, survivors, disability as part of
contributory CPP
– 1982: Charter and amending formulas
– 1983: S. 35.1: must be a constitutional conf
including native peoples before native rights amended
– 1987-1998: 3 amendments to den. school rts in Nfld
– 1997: den. school rts Quebec
– 1993: equality of Fr & Eng in New Brunswick
Amendment failures
• Canada
– 1927-1982: six failed
attempts to find a domestic
amending formula
• 1971 – Victoria charter
came close
• 1982: success achieved
after SCC decision
(discussed later in course)
– Meech Lake &
Charlottetown Accords
(discussed later)
Informal constitutional amendment

– Feds assume they have power to do
something under POGG, or provinces
assume they have power to do something
under 92(13)
– After 1995, fed legislation passed to prevent
cabinet ministers from proposing
amendments under 7-50 without support of
Quebec, Ont, B.C., 2/3 prairie provinces, 2/4
Atlantic; Quebec recognized as distinct
society
– Clarity Act (2000)
Unwritten parts of the constitution
1. Constitutional conventions
-Rule of law
-Judicial independence
-Responsible government
-cabinet responsible to the legislature
-Ministerial accountability
-Cabinet solidarity
-Gov Gen and Lieut Gov’s must act according to the advice of
the first minister, unless that advice is unconstitutional
-The leader of the group in H of C or prov leg that can
command the support of the majority of members becomes first
minister and chooses cabinet. First minister tells GG or LG when to
call election, unless another group can form gov’t

2. The ratio in the judicial decisions about the meaning of the
constitution (eg. the ratio in the cases we’ll be studying in this
course)
Some of the Cases to be read
– Employment and Social
• Meaning of “Peace, Insurance Act Reference
Order and Good (1937)
Government (POGG) – A.G. Ont. v. Canada
Temperance Federation
(some refer to federal (1946)
criminal power): – Johannesson v. West St.
Paul (1952)
– Russell v. the Queen – Reference re Offshore
– Local Prohibition Case Mineral Rights (1967)
– Ref re Anti-Inflation Act
– Re Board of (1976)
Commerce Act – Queen v. Crown Zellerbach
– Snider (1988)
Property & Civil Rights vs. Trade and
Commerce
• Parsons • Ontario Farm
• Proprietary Articles Products Marketing
Trade Assoc. Act Reference
Reference • Chicken and Egg
• Natural Products Reference
Marketing Reference • Labatt
Treaty-making cases
• -Aeronautics Case • Labour Conventions
(1932) Canada was Case (1937)
implementing a British Empire Treaty,
but federal gov't has the power to – Matters that fall under
implement a treaty on aeronautics S. 92 can only be
under several heads of S. 91, such as
defence, post office. implemented by the
provinces.
• -Radio Case (1932)
Section 132 is now obsolete.
Therefore, the treaty-making and
treaty-implementation powers are new,
and fall under POGG.