Canadian Constitutional Administrative Law by jib24063


									Canadian Constitutional &
   Administrative Law
                          April 1, 2008
Administrative Law, Principles of Natural Justice, & Standards
                          of Review
                          Ian Greene
               Don’t forget
• On-line course evaluations:
                  Schedule for tonight
• Questions; class end get-together?
• Papers; Bonus assignment
• Administrative Law
    – Theory
    – Major issues
• Natural Justice & Standards of Judicial Review
• Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998]
• Baker v. Canada (Minister of Citizenship and Immigration)
    – Presentation by Dennis Governor
• Greene (Chapter 6):
    – Presentations by Genevieve Thompson & Christina Richardson
• Morton/Knopff vs. Mandel and other interesting debates
                       A.V. Dicey
• Albert Venn Dicey - British jurist (1835-1922)
• Oxford graduate & later professor & Oxford &
  London School of Economics
• Introduction to the Study of the Law of the
  Constitution – 1885
• Refined idea of “unwritten constitution”
   – Constitutional conventions (generally recognized
     as mandatory practices – monarch should dismiss
     a government that clearly breaches a convention)
      • Responsible government: cabinet responsible to
        legislature, cabinet solidarity, ministerial accountability
        Basic principles of British constitution:
• Parliamentary (legislative) Sovereignty
   – Distinct from U.S. system of separation of powers
• The rule of law (law applies equally to everyone unless
  exceptions written into the law)
   – No need for a British bill of rights: judges who apply the
     rule of law properly safeguard human rights far better than
     having to apply a rigid bill of rights
• Judicial independence
   – Parliamentary supremacy means that the legislature
     determines the jurisdiction & organization of courts, but
     once appointed, judges are independent as protected by
     the Act of Settlement, 1701
        British system vs. French
• Common law system ensures that all courts and
  administrative tribunals are supervised by superior
  court judges, who ensure liberty through properly
  applying the rule of law.
• The French and other civil law jurisdictions have
  separate administrative law courts. This can lead to
  abuse of power.
• Common law system is infinitely superior to civil law
  systems, and the British common law system is
  infinitely superior to the American common law
   Development of Administrative
• 1920s to 1940s: federal and provincial governments
  establish labour relations boards/tribunals
   – Superior court judges (S. 96 judges) were not
     doing a good job of adjudicating labour relations
   – Tribunals normally had 1 member with a labour
     background, 1 from industry, and 1 neutral
• Many early administrative law court decisions
  represented judicial review of labour relations board
                The s. 96 issue
• Do the administrative tribunals represent an erosion
  of powers of s. 96 judges? Are labour relations
  tribunals s. 96 courts?
• Prof. Bora Laskin: s. 96 courts should show
  deference to labour relations tribunals. The tribunals
  are better equipped to make good decisions.
  Standard of review should usually be “patently
• Justice Bora Laskin: sometimes standard of review
  should be “correctness.”
              Privative clauses
• In order to prevent appeals from tribunals to
  courts, governments often inserted “privative
  clauses” into tribunal legislation. “The
  decision of the tribunal is final; there shall be
  no appeal to any court.”
• S. 96 courts are skilled at getting around
  privative clauses:
  – Judicial review on jurisdictional grounds (acting
    outside legal jurisdiction, including division of
      Avoiding privative clauses
• Standard of “correctness”
  – The “correctness” standard has variations
     • Strict: minute misinterpretations of the law by
       tribunals must be corrected by the courts
     • More deferential: only tribunal decisions that are
       “patently unreasonable” need to be corrected by the
     • Legislatures have never intended administrative
       tribunals to make decisions that are “patently
  – Strictness of courts depends on perceived
    expertise of tribunal
   Judicial review of admistrative
          tribunal decisions
• Can occur regarding jurisdiction
  – Division of powers
  – Charter of Rights
  – Limits of the statute of the tribunal in question
  – Prodecure: violation of natural justice
     • Nemo judex in sua causa (impartiality)
     • Audi alteram partem (hear both sides)
        – Due process
           Doctrine of Fairness
• Those aspects of natural justice that should
  reasonably apply to government agencies (eg.
  Canadian Radio Television and
  Telecommunications Commission)
  – Decision of cabinet overruling CRTC judicially
    reviewed for violation of due process
     Decisions of public servants
• Judicial review of decisions of public servants
  can occur
  – Alleged violation of natural justice in quasi-judicial
  – Alleged violations of “doctrine of fairness” in other
    situations (extent to which principles of natural
    justice should reasonably apply)
  – Abuse of power (acting outside the law)
  Pushpanathan v. Canada [1998]
• Pushpanathan claimed refugee status in
  Canada in 1985 (under UN Convention
  Relating to the Status of Refugees)
• Claim never adjudicated – allowed to stay
  under another program
• Later P was convicted of possession of heroin;
  sentenced to 8 years
• P renewed his claim for refugee status while
  on parole
            Pushpanathan (2)
• Convention Refugee Determination Division
  decided P not a refugee because “guilty of
  acts contrary to the purposes and principles of
  the UN” (Art. 1F(c) of Convention)
• SCC: CRDD’s interpretation of 1F(c) is legally
  wrong. Standard of review: correctness.
  CRDD not made up of individuals skilled in
  legal interpretation. Privative clause in
  Immigration Act not strong.
         Baker v. Canada [1999]
• Mavis Baker in Canada illegally; had Canadian-born
  children. Ordered deported
• Applied for exemption on H & C grounds
• Senior immigration officer turned her down. Notes
  were biased. No consideration of impact on
• SCC: ordered application for exemption re-
  considered, taking into account impact on children,
  and avoiding prejudice
• Presentation: Dennis Governor
           Greene: Final Appeal
• Presentations: Genevieve Thompson &
  Christina Richardson
  – Court decisions have always had an impact on
    public policy.
     • To what extent have these decisions promoted democratic values
       of inclusiveness & participation?
     • Are courts representative of diversity of Can society?
     • To what extent do they facilitiate appropriate participation?
     • Are courts responsive to public demand for fair, impartial,
       expeditious dispute-resolution services?
• Montesquieu’s description of separation of
  powers too simplistic.
  – Judges need appropriate control over court administration or
    executive could interfere with judicial impartiality
  – Courts need to be accountable for the quality of work they do – if
    accountabily means “ability to demonstrate publicly the quality of
    one’s work”
  – Often, critics of “judicial activism” are critical only when a court makes
    a decision they disagree with. Harper is critical of activist judges, even
    though he used the courts to strike down Elections Act prohibition of
    3rd pty adv
  – When the law is not clear, judges are necessarily “activist”
  – Judges are to resolve disputes fairly, impartially, expeditiously. They
    need to be able to demonstrate they are doing so.
• The courts exist to provide a public service; therefore lay
  persons need more effective input into judicial selection and
  court administration
• Effective public participation is hampered by unnecessary
  delays and adjournments
• Perhaps we could learn something from other jurisdictions,
  including civil law jurisdictions
• If jury system is to survive, it needs reform to prevent abuse
• Use of social science evidence in court open to abuse (eg
  court’s misuse of evidence in Askov & Morin)
• Law profession becoming more representative
  of Canadian diversity, but more work to be
  done. Similarly, judiciary and court support
  staff becoming more representative.
• Lack of access to legal representation a major
  – Should all lawyers be required to represent 100
    cases a year pro bono? Should community legal
    clinics be expanded (and an effective public
    defender model implemented)?
     Institutional Responsiveness
• Most Canadians satisfied with quality of judicial
• System of justices of the peace is problematic
• Some administrative tribunals problematic (lack of
  independence and expertise)
• Too much room for patronage in federal superior
  court appointments, & fed ct & SCC
• Complaint avenues re judges not widely known
• Lawyers should be prohibited from using delay as a
  tactical weapon in codes of ethics
   Judicial decision-making responsiveness
• Courts perform an essential function by adjudicating disputes about basic
  democratic values, such as those in the Charter.
• Charter decisions have resulted in greater inclusion of visible minorities,
  mentally & physically handicapped, gays & lesbians, and Aboriginals in
  Canadian society.
• Overall, SCC’s decisions since 1982 have advanced democracy
• Our constitution allows legislatures to counterbalance judicial decisions –
  s. 33, re-enacting legislation, amendment
• “To limit the judicial role in democracy would be to limit democracy itself.”
     Overall evaluation of courts
• Courts doing well in some areas of advanced
  – Contribution to understanding of independence &
    impartiality, interpretation of Charter
• Areas for improvement
  – Public participation in court admin & jud selection
  – Tackling unnecessary delay
  – Support for unrepresented litigants
  – Respectful treatment of juries, witnesses &
    litigants. Disrectful treatment is really abuse of
                 Knopff & Morton

• Charter Politics

     Ted Morton, MLA, Alberta (formerly Political Science Professor, University of
              Michael Mandel
• The Charter of rights and the Legalization of
  Politics in Canada

           » Michael Mandel, York University

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