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Canadian Constitutional Administrative Law


									          March 2, 2009
       Prof. Nergis Canefe
(this class taught by Ian Greene)
 Schedule for tonight:
 Brief Introductions
 Course expectations
 Electronic resources
 Discussion about readings assigned for this evening
 Seminar Presentations
 Commentary on Canadian Legal System
 Case analysis
 Major Essay
 Seminar participation
 Avoid Plagiarism
 Name
 How does your work (current or past) relate to
 constitutional and administrative law?
 access to many course
  readings and powerpoint presentations . (There will be
  some handouts.)
 “Adjudication” is the dispute-                  What are "legal persons?“
    resolution system used in courts.                People, corporations, and
    Characteristics?                                  governments
    Law applied to facts
    Judge makes final decision                   What's the difference between
                                                   negative and positive law?
    Reasons presented for judgment
 How is adjudication different from
                                                     Negative law: prohibited from
    arbitration and mediation?                        certain behaviours (crim. law)
    Arbitration: standards agreed to by             Positive law: positive incentive
    disputing parties applied, but not usually        to change behaviour (tax
    the whole body of law                             deductions for donations to
    Mediation: assistance in listening,              political parties)
    understanding, and resolving (contract)
 Main sources of law:                    ratio decidendi; obiter dicta
    statute law (laws created by         common = general
     legislatures)                        common law judges "find" the
    case law (created by judges)          law
 Other (informal) sources: Ten           Parliamentary sovereignty or
  Commandments, Magna Carta                legislative supremacy. Aggregate
  (1215), canon law, writings of legal     legislature can do anything.
  scholars (eg. Coke ~ 1630, and           Seven-fifty-formula; unanimity
  Blackstone ~ 1770), community            formula; some-but-not-all
  standards (eg. obscenity cases),         formula; provinces alone; feds
  Hogg's Constitutional Law of             alone.
                                          Constitutional convention
 primary and subordinate
 Reception: All English statutes            Federal gov't: date depends on
    enacted prior to reception are law in       when federal laws were inherited
    Canada, unless changed in Canada.           from former colonies. Eg. Quebec,
     NB & NS: 1758                             1763; Ont. 1792.
                                               Imperial statutes remained in force
     Quebec: 1759: French civil                until Statute of Westminster, 1931.
    law. 1763: English public law
                                               Development of common law courts
     PEI: 1763                                 and courts of equity.
     Ontario: 1792                            Preamble to BNA Act: implied Bill
     Newfoundland: 1832                        of Rights
     BC: 1858                                 Barristers and Solicitors
                                               Judicial Committee of the Privy
     Man, Alta., Sask: 1870.
                                                Council (JCPC); 1949.
                                               per curiam vs. seriatim
                                               England: specialized appeal j's;
                                                Canada: generalist appeal j's.
                                                        ____________________________
    federal appointments                                |    Supreme Court of Canada           |
     and administration                                 |                9 judges              |
                                         _____________________|                          |
                                ____|___ ____|____              ________________|________
                        federal |           | |           |     |                                 | federal
                 appointments | Tax | | Federal |                | 10 provincial & 3 territorial | appointments,
                     & admin. | Court | | Court           |       |       courts of appeal         | provincial
                                  | 27 js | | 47 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                 |
 common law
    stare decisis
    adversary system
 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 to promote judicial impartiality
    Valente decision (1985)
       security of tenure
       financial security
       judicial control over adjudicative matters
 judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. -
 Trial Courts:                          Appeal courts:
                                            Panel process different
 Improvisors (~10%)
    no single process, but for most     Supreme Court of Canada
     outcomes would be the same             a public law court (~100)
 Strict Formalists (~ 20%)                 leave to appeal (~600 apps)
    particular process followed, and    Problems with justice system
     always leads to the same               for some litigants and lawyers, a
     conclusion.                             game
                                            delay in client’s interest (about half
 Pragmatic formalists (~45%)                of trial lawyers)
    particular process followed            judges limited by adversary system re
     (check list, shifting balance,          control of caseflow
     water rising), but judges might
                                         Role of courts: dispute resolution,
     decide differently.
                                          prevent abuse of power, official const.
 Intuitivists (~25%)                     philosophers, pawns in other peoples’
    “gut feeling”                        battles
 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.
 per curiam (or per coram) vs. seriatim decisions
 Chapter 1 of Boyd – The role of law: competing
 perspectives on legal order
 Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart)
    The only law that exists is the written (positive) law
    Good judges can generally nterpret the positive law correctly
    Based on principle of legislative (parliamentary) supremacy as described by A.V.
    Social contract theory: democratic elections are the will of the people; the social
     contract binds judges to enforce laws created by elected legislatures
    Positivist theorists like Austin and Hart agree that valid law must have a moral
     content, but disagree about the tipping point about when a law is no longer valid
     because is it immoral or undemocratic.
 Natural law (John Locke, John Rawls, Ronald Dworkin)
    There are “higher” laws that positive law ought to emulate. These higher laws might
     be created by religion, logic, or ethical principles. Natural law theorists include
     Plato, Socrates, Aristotle, Hobbes, Spinoza and Rousseau, as well as Locke, Rawls and
    Locke and Rawls base their natural law theories on contract theory; Dworkin basis
     his on logical reasoning.
    Boyd states that “the U.S. Constitution and the Canadian Charter of Rights and
     Freedoms are statements of natural law ideals” (11), eg. freedom from cruel and
     unusual punishment, and freedom of conscience and religion.
    Dworkin and Rawls are often cited by Canadian Supreme Court justices
 Marxist theory:
   Marxist theory has evolved considerably since Marx
   “dialectical materialism”: in capitalist societies there is always
     economic exploitation of the most vulnerable, and so the overthrow
     of the capitalist classes is inevitable
 Critical Legal Theory
   a branch of “critical theory,” which examines institutions from the
     perspective of class analysis. One of most persuasive: Michael
     Mandel. Claims such as “rule of law” often ridiculed.
 Judicial realism (Karl Llewellyn)
    Even if judges try to be impartial, the law can never be perfectly clear. What makes
     judges decide the way they do?
    Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.

 Feminist Legal Theory
    No single feminist theory of law; all analyse the law and legal
     institutions from the perspective of the impact of male and female
 Stare decisis: a rigid form       Hierarchy of courts
  of doctrine of precedent           determining application
 Ways around stare decisis:         of stare decisis
   Distinguish
                                    SCC can choose not to
   Ratio is really obiter
   Per incuriam
                                     follow precedent. Ont
   Emphasize different majority
                                     CA: policy: follow
    opinion                         What if conflicting
   ignore
•    Legislation:
     –   primary legislation (enacted by a sovereign legislature, i.e. Parliament or provincial
     –   subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations)
     –   Both are law; subordinate must be cleary authorized by primary
•    Manner and form requirements for judges to recognize a law

• 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.
 Presentation by Frank Belluardo
 You need to know the bolded parts of the web document for career
   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 - 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
    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.
 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.
 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.)
• 109. The provinces own the natural resources within
• 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.
 Ss 1-34: The Charter of Rights
 S. 35: Aboriginal rights
 S. 36: commitment to equalization payments, so
 that poorer provices can provide adequate
 1867: Canada independent re its internal affairs
 Balfour Declaration (1926) and Statute of Westminster
  (1931): Canada recognized as an independent state re
  foreign relations
 BNA Act (1867) was an imperial statute, therefore could
  only be amended by British Parliament. 1926-1981: many
  failed constitutional conferences.
 Victoria Charter nearly successful (1971): Amending
  formula would include Parliament, Ontario, Quebec, 2/4
  Western provinces, 2/4 Atlantic provinces. Failed when a
  new gov’t elected in Alberta, and Quebec premier couldn’t
  get cabinet to agree.
 Alberta suggested an alternative: Parliament, and 2/3 of
  provinces representing 50% of Canadian population.
 In Canada, there are 5 amending        Fed gov’t can amend its internal
  formulas for the constitution:          constitution
    Unanimity formula (Queen, GG,       General amending formula
     LGs, composition of SCC, senate      (seven-fifty): the rest of the
     floor rule, federal language         constitution (incl div of powers
     rights, amending formulas            & Charter) can be amended with
    “some but not all” (eg. language
                                          Parliament, 7 out of 10 provinces
     within province,
                                          representing 50% of pop.
     denominational school rights,
     change in prov. borders)             Dissenting provinces may opt
    Provinces can amend own
                                          out, and get reasonable
     constitutions                        compensation if amendment
                                          affects culture or education.
 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).
 No province can opt out of an amendment
 a) proportionate representation of the provinces
    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
 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
  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.: Congress proposes                     Major Can. amendments:
  amendments (2/3 of both houses)               1940: unempl ins
 Proposals have to be ratified by ¾ of         1951: old age pensions
  state legislatures, or ¾ of state             1964: old age pensions broadened to
  constitutional conventions                      include supplementary, survivors,
                                                  disability (CPP)
 Comparison:                                   1982: Charter and amending
    U.S. constitution amended 17 times           formulas
     in 21 decades (rate .08/year)              1983: S. 35.1: must be a
    Canadian constitution amended 32             constitutional conf including native
     times in 13 decades (.23 to 1982, and        peoples before native rights
     9 after) (rate .24/year)                     amended
    Canada’s constitution is more              1987-1998: 3 amendments to den
     flexible                                     school rts in Nfld
                                                1997: den school rts Quebec
                                                1993: equality of Fr & Eng in New
 Canada                                 U.S.: 6 amendments proposed by
    1927-1982: six failed attempts       Congress but not ratified by states,
                                          including ERA (equal treatment of
     to find a domestic amending
                                          women in all legislation)
                                         Impact of court decisions:
        1971 – Victoria charter came
         close                              1940, 1951 amendments in Canada a
                                             reaction to court decisions
        1982: success achieved after
                                            Civil war amendments in U.S. a
         SCC decision (discussed             reaction to court decisions
         later in course)                   1918: SCUS decision led to
    Meech Lake & Charlottetown              amendment to prohibit child labour.
     Accords (discussed later)               1938: Roosevelt threatened to “pack”
                                             court. Court overruled 1918
 United States                         Canada
    Washington: cabinet advisory &        Feds assume they have power to do
     responsible to president               something under POGG, or
                                            provinces assume they have power to
    Jefferson: declared that U.S.          do something under 92(13)
     could purchase new territory;         After 1995, fed legislation passed to
     never challenged in court              prevent cabinet ministers from
    Political parties developed            proposing amendments under 7-50
     without constitutional                 without support of Quebec, Ont,
     amendment                              B.C., 2/3 prairie provinces, 2/4
                                            Atlantic; Quebec recognized as
    Congress assumed vast powers           distinct society
     over economy in 1930s and 1940s       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?
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)
• Codification of laws                   Quebec courts:
  – Coutume de Paris (1580)
  – Confusion after 1759                   Court of Appeal (s.96)
  – Royal Proclamation (1763)              Superior Court (s.96)
  – Quebec Act 1774
  – Codification: 1866: Civil Code of      Court of Quebec
    Lower Canada (CCLC)
  – 1994: Civil Code of Quebec (CCQ)
                                            (provincial – s. 92(14))
  Deductive Reasoning                      Civil and common law
  Inquisitorial System (not                 approaches coming
    in Quebec)                              closer together
  Code, la doctrine,
 Stare decisis: a rigid form       Hierarchy of courts
  of doctrine of precedent           determining application
 Ways around stare decisis:         of stare decisis
   Distinguish
                                    SCC can choose not to
   Ratio is really obiter
   Per incuriam
                                     follow precedent. Ont
   Emphasize different majority
                                     CA: policy: follow
    opinion                         What if conflicting
   ignore
Natural Justice & Fairness
   Natural Justice                 Judicial review
    – Nemo judex in sua              – Jurisdictional
      causa                          – Abuse of power
    – Audi alteram partem            – Natural justice
   Functions of Admin.                  • Jud or quasi-jud
    Agencies:                        – Doctrine of fairness
    –   Legislative                 Privative clauses
    –   Administrative               – Can’t hide behind priv
    –   Executive                      clause if const issue, or
    –   Judicial or quasi-jud.         patently unreasonable
Rules of Statutory Interpretation (1)
   Why are rules                  Specific words help
    needed?                         explain general ones
   Intent of legislature           nearby
                                   Express inclusion of some
   “reasonable person”
                                    items implies exclusion of
                                    items not mentioned
   1.Plain meaning rule           Aids:
   2.“golden rule”: avoid          – Interpretation statutes
    absurdity & inconsistency
                                    – Definition sections of
   3.What was the                    statutes
    mischief & remedy?
Rules of Statutory Interpretation (2)
   More Aids:                     International
     – Context in statute           conventions & treaties
     – Other similar statutes       (sometimes)
     – Legislative history         Preamble (but not
         • Minimal weight. Why?     marginal notes)
   Books on rules of              Headings (except in
    interpretation, & legal
    dictionaries                    Ontario – excluded by
   French & English text           statute)
   Criminal law: in favour of      Against ousting
    accused                          jurisdiction of courts
   Taxation law: in favour of      For crown immunity (now
                                     mostly replaced by statutes
    taxpayer                         allowing suits against crown)
   Against alteration of           Every word is deliberate
    common law                      Specific given precedence
   Mens rea (guilty mind),          over general
    unless express absolute         More recent > older
    liability                       Leg. did not intend
   Against retroactivity            drafting error (cts can

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