Sept 11 Preliminary Observations on the Law

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Sept 11 Preliminary Observations on the Law Powered By Docstoc
					Public Law I: September 23/05
• Court visit assignment
• Topics for today:
– – – – – – – Complete British Legal Tradition in Canada Canadian court structure Garth Stevenson article Highlights of the Canadian constitution Court reform in Ontario Constitutional Amendment Cases you need to start reviewing for Skeleton Outline – Quebec legal system

Canadian Court Structure
• federal appointments and administration ____________________________ | Supreme Court of Canada | | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 22 js | | 39 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|


Use this instead of chart on p. 20 of Course Kit, which did not reproduce properly.

Interesting facts
• • • • circuit judges: “assizes.” Why don’t judges have to retire until 70 or 75? County and District courts now merged with superior courts judicial independence: purpose is to promote judicial impartiality
– Valente decision (1981 - 85)
• security of tenure • financial security • judicial control over adjudicative matters

• Trial Courts:
• Improvisors (~10%)
– no single process, but for most outcomes would be the same


Strict Formalists (~ 20%)
– particular process followed, and always leads to the same conclusion.


Pragmatic formalists (~45%)
– particular process followed (check list, shifting balance, water rising), but judges might decide differently.


judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. – Hryciuk, suspended from Ont Ct of Justice after judicial inquiry)


Intuitivists (~25%)
– “gut feeling”

Courts and Constitution
• Appeal courts:
– Panel process different from single judges in trial courts • • Canada’s constitution: 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.

• Supreme Court of Canada
– Primarily a public law court (~100 cases / year; few pte) – leave to appeal (~600 apps)

• Problems with justice system
– for some litigants and lawyers, a game – delay in client’s interest (about half of trial lawyers) – judges limited by adversary system re control of caseflow Role of courts: dispute resolution, prevent abuse of power, official const. philosophers, pawns in other peoples’ battles


Garth Stevenson: “Origins and Objectives of Canadian Confederation”
• An analysis of the motives behind the 1978 confederation from a political economy perspective • Sheds some light on the political compromises behind the division of powers in Ss 91, 92, 93 & 95 of the CA, 1867 • Strategic and economic motives • Opponents of confederation • Terms of union • Shortcomings of the written constitution from Stevenson’s perspective

See “highlights on the Canadian Constitution” on
• • • • Memorize bolded parts of this document CONSTITUTION ACT, 1867 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 them. • 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.

CA, 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 provices can provide adequate services.

Canadian Constitutional Amendment
• In Canada, there are 5 amending formulas for the constitution:
– Unanimity formula (Queen, GG, LGs, composition of SCC, senate floor rule, federal language rights, amending formulas – “some but not all” (eg. language within province, denominational school rights, change in prov. borders) – Provinces can amend own constitutions – Fed gov’t can amend its internal constitution – General amending formula (seven-fifty): the rest of the constitution (incl div of powers & Charter) can be amended with Parliament, 7 out of 10 provinces representing 50% of pop. Dissenting provinces may opt out, and get reasonable compensation if amendment affects culture or 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.

U.S. & Canada: Comparison of Constitutional amendment process


U.S.: Congress proposes amendments (2/3 of both houses) Proposals have to be ratified by ¾ of state legislatures, or ¾ of state constitutional conventions Comparison:
– U.S. constitution amended 17 times in 21 decades (rate .08/year) – Canadian constitution amended 32 times in 13 decades (.23 to 1982, and 9 after) (rate .24/year) – Canada’s constitution is more flexible


Major Can. amendments:
– 1940: unempl ins – 1951: old age pensions – 1964: old age pensions broadened to include supplementary, survivors, disability (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) • U.S.: 6 amendments proposed by Congress but not ratified by states, including ERA (equal treatment of women in all legislation) Impact of court decisions:
– 1940, 1951 amendments in Canada a reaction to court decisions – Civil war amendments in U.S. a reaction to court decisions – 1918: SCUS decision led to amendment to prohibit child labour. 1938: Roosevelt threatened to “pack” court. Court overruled 1918 decision.


– Meech Lake & Charlottetown Accords (discussed later)

Informal constitutional amendment
• United States
– Washington: cabinet advisory & responsible to president – Jefferson: declared that U.S. could purchase new territory; never challenged in court – Political parties developed without constitutional amendment – Congress assumed vast powers over economy in 1930s and 1940s • • Canada
– 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 750 without support of Quebec, Ont, B.C., 2/3 prairie provinces, 2/4 Atlantic; Quebec recognized as distinct society – Clarity Act (2000)

Was Dicey right that in the U.S., judges are supreme because they declare the constitution? Does Dicey’s analysis apply to Canada?

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)

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 – Preliminary hearings in notorious cases – to permit fair jury selection – Is closing the court justified in these situations?

• Does open court concept impact presumption of innocence? • Dignity and decorum
– Gowns, address to judge – Dress codes

• Television • Adversary system • ADR (alternate dispute resolution)

Reforms in Ontario
• Zuber report (1987)
– Create administrative regions – Give judges, lawyers, and public more input into court administration • Provincial Court renamed Ontario Court of Justice, with criminal & family divisions • Eventually, Scott wanted to merge the Ontario Court and the Superior Court into one trial court. Give all provincial court judges S. 96 appointments. • Unified trial court idea abandoned by NDP and Conservatives. Will it be revived by AG Michael Bryant?

• AG Ian Scott (1989)
– Created 7 regions to administer superior and inferior courts – Merged High Court and County/District Courts to form Superior Court of Ontario

Cases from course for mock trial
(summaries on

• Meaning of “Peace, Order and Good Government (POGG) (some refer to federal criminal power):
– Russell v. the Queen – Local Prohibition Case – Re Board of Commerce Act – Snider

– Employment and Social Insurance Act Reference (1937) – A.G. Ont. v. Canada Temperance Federation (1946) – Johannesson v. West St. Paul (1952) – Reference re Offshore Mineral Rights (1967) – Ref re Anti-Inflation Act (1976) – Queen v. Crown Zellerbach (1988)

Property & Civil Rights vs. Trade and Commerce
• Parsons • Proprietary Articles Trade Assoc. Reference • Natural Products Marketing Reference • Ontario Farm Products Marketing Act Reference • Chicken and Egg Reference • Labatt

Treaty-making cases
• -Aeronautics Case (1932) Canada was
implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office.

• Labour Conventions Case (1937)
– Matters that fall under S. 92 can only be 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.

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

• 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

Deductive Reasoning Inquisitorial System (not in Quebec) Code, la doctrine, precedent