Constitutional and Public Law PDF

Week 2, Lecture 1: Theoretical Foundations ○ Public Law Principles 1-2 (of 6) ○ Legal Positivism The “Command Theory of Law” John Austin (1790-1859) Law is the command of the sovereign Law...

Week 2, Lecture 1: Theoretical Foundations ○ Public Law Principles 1-2 (of 6) ○ Legal Positivism The “Command Theory of Law” John Austin (1790-1859) Law is the command of the sovereign Law is what the sovereign said it is A rule can only be valid, if the sovereign said so, and if backed by the threat of consequence Social Contract (John Locke) The legitimacy of the sovereign comes predominantly from an agreement by the people to be governed. Built on the notion of a tradoff of protection of our natural rights (rights to private property) Sovereigns can be overthrown if they fail to meet their end By agreeing to this you give the sovereign the right to rule as you have entered a binding contract  Legal postivism is the theory that laws are to be understood as social rules, which are valid, because they are enacted by the sovereign, or derived logically from existing decisions ○ Exam Question (Short Answer) ○ Similarities between Legal Positivism and Natural Law: ○ Both aim to establish order through the enactment of rules. ○ Both require legitimate authorities to pass laws. ○ Both agree that citizens must recognize the legitimacy of legislators. ○ Differences: ○ Legitimacy: ○ Positive Law Theory: Legitimacy depends on the sovereign (social contract theory). ○ Natural Law: Legitimacy is tied to the pursuit of justice. ○ Flaws: Too many pluralistic rules in society. ○ Validity of Law 1. Body of rules 2. Enacted and applied by public officials 3. Formulated by legitimate means  4. Backed by state force What type of law would best represent these rules? Criminal Law Potential Exam Question Problem that could arise is unjust use of these rules Things such as the holocaust could be justified using the validity of laws, as they would be legitimate laws at the time Similar with issues such as slavery According to legal positivism these Wicked Legal Systems would all be fine ○ Natural Law Higher Law Rooted in the idea of a higher order St. Augustine ○ “The validity of law, must be based on the moral permissablity or justice” ○ In order for rules to be laws, they must be just - St. Augustine  ○ Lex Iniusta Non Est Lex ( an unjust law is not a law at all) Potential Exam Question Thomas Aquinas Manmade laws do not have to be followed ○ Validity of Law Laws are created to advance common good The maker of threse laws are legit decision maker All laws must be considered equal and must be applied equal to everyone ○ Laws are based on values, morals, principles, but mostly justice ○ Rules are considered laws, are when they are nested within conceptions of what is found to be morally good Similiarties between these theories: Both attempt to create order, through the enactment of rules Both also require legitimate decision makers  Finally both agree that citizens must recognize the laws created by the decision maker Main difference What makes decision makers legitimate P Law would be the sovereign ○ We agreed to see it this way (social contract theory) N Law would be the individual/entity that pursues justice (Potential short answer question) ○ Problem with natural law in canadian environment is that there are way too many opinions for a “good” to be decided on ○ Natural Law In the Canadian legal system, N law is not driven by religion, it is driven by fairness, and the right to due process (procedural protection) Procedural Protection: ○ Nemo judex in causa sua(no one should be the judge in their own case) ○ Audi alteram partem (listen to the other side)  Singh v. Canada During this time a lot of south asian people fleed there countries and ended up in Canada Claimed refugee status The question the supreme court had to answer, was is oral hearings were necessary for these cases? The panel unanimously agreed for this Three judges based their decisions on the Charter, section 7 (Dickson, Lamer, Wilson) By not having a hearing would impede that The other three based their decisions of the bill or rights (Beetz, Estey, Mcintyre) Lon Fuller (exam fill in the blank remember this ) 1. Failure to create clear rules, resulting in ad hoc decisions  2. Failure to publicize rules 3. Abuse of retroactive legislation, which undermines the stability of laws 4. Failure to make rules understandable 5. Enactment of contradictory rules 6. Rules requiring actions beyond the capabilities of those governed by the them 7. Frequent rule changes that prevent people from adapting their behaviour accordingly 8. Discrepancy between the announced rules and their actual enforcement Week 2, Lecture 2: Canadian Laws are structured on a hierarchical system Four sources of law in Canada ○ Kosoian v. STM (Montreal Transport Society) Context (Quebec Civil Law) Police may be found civilly liable for injury they cause if they deviate from rules (Article 1457) Police do not have any public law immunity  They can be sued in the same way someone could sue other corporations Facts 2009, Ms. Kasoian was at a subway station in Labelle Sign said people should take care and use the handrail as a precaution Ms. Kasoian was not holding Cst. Camacho saw this and yelled at her to hold the handrail, in which Ms. K did not obey instructions She was told to follow Camacho into a holding room, which she did not listen to She was arrested, handcuffed and told to sit down, and had her bag searched The cops believed they were following this law: ○ STM by-law: “no one shall…. Ignore a guideline or pictogram by STM Got her tickets and fines overturned Sued the city of Labelle, the police department and STM Issue: Did Cst. Camacho incur civil liability for acting as he did?  Was the action by the police officer unlawful Two judges ruled against Ms. Kasoian ○ Civil Liability Case (potential multiple choice exam question) The supreme court of canada ruled in favor of Ms. Kasoian Decision (Unanimous) Yes, but so did STM (50/50) ○ Legal Reasoning The supreme court of Canada, looked at the wording of the sign and how it said warning and caution, hence not being a law Also looked at the color of the sign and how that would also indicate a caution instead of a hard rule Through this they believed that STM was also liable “There must always be a legal basis for the actions taken by police” (SCC, para 38) Police action was not lawful because the pictogram was not law ○ Civil liability and a language technicality  The english word ignore does not habve the same meaning as the french word desobeir, hence the english version of the by law not being official Primacy of Legal Instruments ○ Chain of authority Bylaws “There must always be a legal basis for the actions taken by police” (SCC para 38) Bylaws are rules established by organizations or municipalities which are meant to regulate their communities Provinvial Law Provincial laws give authority too organizations and insitites to implement bylaws ○ Act Respecting Public Transit Authorities To regulate safety of the provincial residents ○ Quebec Police Act Established the coercive powers the police may hold Constitution  Gives the Province of Quebec power The constitution gives everything under it power to exist in a way ○ British North America Act, 1867 The validity of law demonstrated in the chain of authority in the Kosoian case is best represented by which legal theory? ○ Potential exam question Legal Positivism Follows the rules of validity of law for legal positivism Law is discretionary ○ Bueraucratic Actors Landlord and Tennant board Immigration Determination Refugee Determination ○ Administrative Actors ○ Criminal Law Actors Hierarchy of Authority: Constitutional Supremacy 1. Constituion (1867 British North America Act, 1982 Constitution Act) a. Is the supreme law of Canada  b. Any law that is inconsistent with the constitution is considered of no force or effect 2. Statutues/Legislation a. Acts of parliament/ legislative assemblies b. Outcome of the federal process c. Not all laws are passed 3. Regulations a. Do not need to be passed by the legislature b. Laws made under a delegation of authority, by statute to another body or office c. AKA subordinate legislation d. Potential issues with regulations: i. Highly discretionary ii. Potential overregulation e. Radio and Television in Canada f. Canadian Radio-TV and Communications Act & Canadian Broadcasting Act i. S.10 (1): 1. The commision may make regulations prescribing canadian programs  2. Respecting the character of advertising and the amount of time that may be devoted to advertising 3. The proportion of time that may be devoted to broadcasting a. They are capable of regulating what is seen on tv and heard on radio b. They can determine what is classified as Canadian media i. 25% of what is heard on radio has to be Canadian content on the week ii. 35% of music between 6am-6pm must be Canadian 4. Case Law a. Associated with judge made law/common law b. Less authoritative than the above rungs c. Might not always be the case, especially considering the rule of law Week 2, Lecture 3: Defining the Rule of Law ○ Canada is a country governed by the rule of law  ○ Albert Venn Dicey (A.V. Dicey) Rule of law has to have three requirements 1. Supremacy of regular laws over all powers, especially arbitrary powers 2. Equality before the law a. Law applied equally to everyone 3. The constitution is meant to be a product of common law a. Judges become the top of the hierarchy Dicey was criticized Regular law is the law that comes out of judicial decisions ○ John Willis Disagrees with Dicey Judges should not be favored over other officials Believes the rule of law is meaningless rhetoric ○ Constitution Act, 1982 (Preamble) “Whereas Canada is founded upon principles that recognize the supremacy of god and the rule of law” Roncarelli v. Deplessis (1959) ○ Premier Maurice Deplessis Quebec, 1940s  Social services delivered by Catholic Church Under Premier Duplessis, Quebec was known for fighting with the federal government over the jurisdiction of Quebec. These fights were about keeping the Federal Government out of the business of Quebec so that the Catholic Church could keep being #1 ○ Mr. Frank Roncarelli Jehovah’s Witness Restaraunt owner Concerned with keeping the Catholic church on top, Quebec through a bunch of Jehovahs Witnesses into jail Although Mr. Roncarelli, wasn’t directly involved with the spreading of the faith, he did pay for a bunch of peoples bail ○ Facts, Issue, Decision Mr. Roncarelli had his liquor license terminated, completely randomly His restaurant had to close down, lost his living Pursued litigation, against the governemnt of Quebec, for an abuse of state power for improper purposes  He was successful in convincing a judge of this, however the decision was overturned by Quebec Took this too the supreme court, won All six judges agreed with him, unlawful=no legal justification (potential multiple choice question) ○ Legal Test to see if their is legal justification There must be known and enacted laws Everyone including the government is subject to the law Government action must be authorized by law ○ If any of these are not present, it is not just? ○ In the above case, the last stage of this test was failed, as there was nothing in the liquor law of quebec that would enable his license to be terminated ○ The actions of Premier Duplesssi, were arbitrary and unauthorized, and were found to be motivated by an improper purpose Reference re: Manitoba Language Rights (1985) ○ The validity of all the laws of Manitoba ○ The Manitoba Act was an act that allowed Manitoba to join the confederation of Canada  ○ Act stated all of the laws of Manitoba must be written in French and English ○ Official Language Act, 1890: laws enacted only in English ○ Manitoba attempted to pass the above law in which their laws would only be passed in english ○ They did not have the authority to enact such a law, as the law was in the constitution ○ Supreme Court declared the laws of Manitoba as invalid This does not work as all laws written in english only would be invalid, which would make manitoba lawless Declaration of Invalidity Suspended ○ Was the rule of law necessary to make this decision? ROL can never be the only basis for a decision…. but surely useful to invoke as a support for the application of the constitutional requirement (p.722) Can use this case to justify the reasoning for the first step in the rule of law test Wells v. Newfoundland (1999) ○ Employment Law/ Gov’t breaking contract with public employees  ○ Govt of Newfoundland got rid of a public policy board, which resulted in Mr. Wells took the case to the supreme court of canada, in which they ruled it was unlawful to do so, as it was not written in simple terms ○ SCC: “In a nation governed by the rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to. In the absence of a clear express intnet to abrogate rights and obligations - rights of the highest importance to the individual - those rights remain in force. To argue the opposite is to say that the government is bound only by its whim, not its word. In Canada this is unacceptable and does not accord with the nation’s ubderstabding of the relationship between the state and its citizens” - Para 46 Can use this case to justify the reasoning for the second step in the rule of law test Reference Re: Secession of Province of Quebec (1998) ○ Can Quebec unilaterally secede from Canada? ○ No where in the constitution of Canada, do they allow for the succession of a province, nor does it say in Quebec law that they can unilaterally leave the confederation of Canada.  Can use this case to justify the reasoning for the third step in the rule of law test Government are not able to act, unless they have been given the ability to do so Must be a legal basis for a govt to act ○ Rule of Law meaning expanded Excercise of all public power must be based on a legal rule ○ Constitutionalism vs. Rule of Law Con. Principle: all gov’t action must comply with the Constitutions ROL Principle: all gov’t action must comply with the law, including the Constitution ○ Was the ROL necessary for this decision? See Page 724. Example: Royal Trust v. University of Western Ontario (2016) * Testators Intent  Testamentary freedom refers to the principle that a testator’s intent should be honored, allowing individuals to dispose of their property however they wish, without state interference. In this case, Professor Will’s bequest was denied by the University of Western Ontario. Cy-près doctrine allows judges to modify a will if the original intentions cannot be fulfilled. ○ This is an example of the political influences underlying a legal test. ○ The case exemplifies how judges can shape the development of laws, particularly when no specific statute provides guidance. ○ Parliament, unhappy with the judges' decision, can pass laws to override or clarify judicial rulings. Week 3, Lecture 1: Assignment #1 ○ Objective: Write a judicial decision that determines whether the rule of law was violated ○ Format: Facts (Summary of all relevant facts)  Issues (The legal question you are asked to answer) Law (Identify and explain the necessary legal authorities/precedents you will rely on) Analysis (The application of the law to the facts of the case) Conclusion (Your judicial decision and outcome) Hypothetical: R. v. Noway. (Mayan Flower Case) ○ Facts RN tried to bring an unapproved agricultural product back into Canada RN acted sus at the border while attempting to re-enter RN’s vehicle was searched by CBSA Customs officials found the vine on his person and in the vehicle RN was charged under the Customs Act ○ Issue: Did the gov officials fail to comply with the ROL ○ Law: Roncarelli vs. Duplessis There must be known and enacted laws  Everyone including the government is subject to the law Government action must be authorized by law ○ Analysis Are there known and enacted laws? Yes there are (sections 12 and 98 of the Customs Act) Is everyone bound by the law? Yes, nothing in the facts or the statute seems to suggest there is an unequal application of the law Was the action authorized by law? Qualified “yes” / Did reasonable grounds exist? Week 3, Lecture 2: Parliament and Legislative Authority ○ Seperation of Powers and Responsible government Revisng John Locke: Prevention against Tyranny Why seperate powers? ○ For the prevention of tyranny  ○ Power is ususlally divided into three groups of government Important Distincitions in a Constitutional Democracy Accountability ○ Legislative, Executive, Judicial. The Canadian government limits the powers of each form of government We also require the executive branch to answer to the legislative branch making them accountable By limiting the power of the executive through the power of law This whole thing falls under the notion of Responsible Government The executive must always be answerable to the people through the legislature Governments can only be in power as long as they remain in confidence of the House of Commons It is the House of Commons that recognizes the official government  Legislative Branch is the supreme force of our Government Not everyone who sits in the House of Commons is part of the Government ○ Legislative Branch Elements and purpose House of Commons (elected reps), Senate, Governor General ○ Chosen by representation by population of Provinces (338 Seats) ○ Big Province has more seats than small ○ Senate consists of 105 seats, who are appointed by the Governor General, by suggestion of the PM ○ Governor General is appointed by the Monarch through the advice of the PM ○ They enforce the legislative powers, and hold the executives responsible  ○ Have a duty to advance the peoples views on how the government should be using their powers Representation, Approval and Legitimizing Laws ○ The second responsibility of the legislative branch is to approve laws ○ They approve laws through voting ○ Approving laws and legitimizing them is not the same ○ Legislative branch legitmoizes the laws after they have been passed Parliamentary Supremacy ○ Limits to Parliamentary Supremacy 1. Constitutional Limits ○ Reasonable limits Clause and Federalism 2. Amending Formulae ○ Re: Senate Reference (2014) ○ Serve as a limit of what the government can do  ○ You need 7/10 of provinces and 50% of the population to agree to enact any constitutional change 3. Extra Territoriality ○ R v. Bakker 1997 (BCSC) ○ Whether Canada can extend its laws that would effect Canadians outside of Canada i. British Columbia Supreme Court 1. Not the highest level of court in BC (British Columbia Court of Appeal) ii. Mr. Bakker was doing a lot of travelling iii. Taking advantage of loose sex work laws in South East Asia iv. Engaged in relations with minors, was not being criminally charged within those countries v. The Canadian government went after him, in which he said they could not go after Canadians outside of Canada  vi. Ultimately pleaded guilty after long trial, went to jail for 10 years ○ Limitations: i. Laws of provincial legislature can not be used outside of said province 4. Indigenous Rights ○ Haida Nation v. BC (2004) ○ Canadian government (both forms), and how they must recognize Indigenous rights i. In this decision, the SCC acknowledged, before provincial governments can act in whatever policy space, they must consult and accommodate wherever possible for the Indigenous populations ii. In this case BC granted timber licences to forestry companies, on Haida Nation land iii. In terms of land, treaties, and inherent rights of Indigenous people, they must fulfill the duty to consult and accommodate whenever possible  5. Self-Imposed limitations ○ Re: Canada Assistance Plan (1991) i. Considered an internal constraint ii. A way to constrain future governments iii. Balance Budget Act, Taxpayers Protection Act iv. Both these acts dealt with the government trying to constrain future ones v. Legislatures cant really bind the hands of future gov, however in order for an previous decision to be changed a current legislature had to vote on repealing that law Week 3, Lecture 3: The notion of parliamentary supremacy entails that: ○ The legislature reigns supreme because it hold the power to limit the authority of other branches of government. The Executive and Delegated Authority ○ The King, the Governor General and Confidence Principle  Confidence Principle: The PM and Cabinet must have the confidence of the majority House of Commons King-Byng Affair (1926) Harper-Jean Affair (2008) GG Lord Byng, refused the request to dissolve parliament Once this was refused PM. King resigned and an election was held, in which he became PM once more Both of those affairs showcase the power of the Governor General ○ The Prime Minister Perogative Powers Recalls the fact that we inherited all of our processes from the UK British common law shaped our laws in 1607 Prerogative powers is what the judges say they are It is the common law that dictates what the prerogative powers are. Black v. Chretien, ONCA (2001)  Peter Hoggs def: Prerogative powers are the powers and privileges accorded by the common law to the crown For A.V. Dicey, it is discretionary powers given to the crown The Cabinet: ○ Ministerial Responsibility Is the requirement that ministers must be personally accountable to the house of commons ○ Collective Cabinet Responsibility Collective ministerial responsibility are collectively responsible for carrying out the actions of the government Ministers are expected to work together Delegated Authority and Judicial Review A limitation on parliaments power (6th limit on power) Limits what powers the legislature can delegate to the executive branch Has to do with the exercise of decision making powers Can assign actors to make decisions on their behalf  ○ Transferring State Powers (decision-making) ○ Action needs to be authorized by law In order for a state actor to act within a certain policy space, it must be allowed to do so by law ○ Constitutional compliance Legislature can not delegate powers to an executive body, must comply with the constitution ○ Subject to judicial review All of these powers can be reviewed Hodge v. The Queen (JCPC, 1883) ○ Is a case that can be used as an example of the issues with delagative authority Week 4, Lecture 1: Canadian Judicial System ○ Features and Strucutres: 1. Division of government authority Section 92 Courts ○ Referring to courts that are purely provincial  ○ Courts under section 92, are provincially selected, they are picked by the provincial government and paid by them ○ Courts are also created, administered, and organized by the province Section 96 Courts ○ Refer to them as mixed courts ○ Judges are appointed/paid by the federal government ○ The organization, creation and administration, as well as everything else, is handled by the provincial government Section 101 Courts ○ Purely federal courts ○ Federally appointed, paid by the federal government  ○ Courts are also created, administered, and organized by the federal government Variety and hierarchy of functions ○ Trial Courts Purely based off facts Courts follow procedures for trial ○ Appellate Courts Not concerned with determining facts Hear appeals from trial courts Judges do not really retry the facts Primarily concerned with whether lower courts applied the laws correctly Arbitration and Mediation Mediation: voluntary process that allows for respectful dialogue between two parties Results in an agreement that can be made Done through a third party  Arbitration: done outside the courts, potentially anonymously Typically done in tribunals Things such as union issues, or labor issues Multiple legal systems ○ Public Law (Ciminal, Administrative, Constitutional) ○ Private Law (Torts, Contracts, Employment, Real Estate) Highly Specialized Field ○ Front end gate keeping Extremely difficult to get into law school Highly Regulated field Practice of law is regulated by law societies within provinces In order to become a lawyer you not only have to go to law school, you have to article for 10 months, than you have to take the BAR, and then you can become a lawyer Representing various interests Court Territorial Jurisdiction Hierarchical Jurisdiction Subject Matter Jurisdiction s. 92 Provincial Original Jurisdicition Concurrent Jurisdiction Restricted to Trial Courts Family Law, Civil Law province Provincial Offences Judges appointed Federal Offences by Provincial Government s.96 Provincial* Original and Appellate Exclusive Jurisdiction Restricted to Jurisdiction Civil cases (large sums province Trial and Appeal $$$) Judges appointed Courts Serious indictable by Federal offences (murders) Government Reviewing decisions of tribunals Hears appeals from s.92 on less serious offences (summary offences) s.101 Federal Original OR Appellate Exclusive Jurisdiction Unrestricted Jurisditction Citizenship & Judges appointed FCC: Original Immigration National  by Federal FCA: Appellate Security Government Indigenous matters Tax Matters Week 4, Lecture 2: Judicial Hierarchy  The Supreme Court of Canada ○ Section 101 Court, created by a federal statute and a constitutionalized one, called the Supreme Court Act ○ Because of this the supreme court cannot be changed, without the amending formulas ○ Unlimited/unrestricted jurisdiction ○ Appellate court, can hear anything it wants to, providing it grants leave to appeal ○ Appeal as of right, means they do not need permission to be heard, they have an automatic right to be heard ○ If there is a criminal law matter where there is a dissenting judge on the point of law, the supreme court of Canada must hear it ○ Supreme Court was founded in 1875, wasnt the final court of appeal, it was JCPC (Judicial Commitee of Privy Council) ○ Not till 1933, until the SCC had final say on criminal matters ○ Became the final court of appeals in 1949 ○ 9 Judges Ontario (3) Western Canada (2)  Atlantic Canada (1) Quebec (3) ○ Based on the constitutional convention, called regional representation ○ Divides how many judges should come from different provinces ○ Cheif Justice is the administrator of the court, on top of having the other responsibilities that the other judge have ○ Make sure everyone is working collegially ○ Traditionally the chief justice will rotate between english and french speaking ○ Politicized nature of the appointment of these judges ○ Whether factors like race, gender, background matter when appointing judges. ○ Not until recently, did the first judge of color be selected Mahmud Jamal appointed in October 2021 ○ Not until even more recently, did the first Indigenous judge be selected Michele Ohwansohwin appointed in November 2022 ○ Judge can sit on the bench until they are 75 Week 4, Lecture 3: Judicial Indepence (4th Public Law Principle) ○ Purpose: Freedom from influence Positive vs. Negative Influence Positive: Bribes, gifts, any incentive that could sway a judge Negative: Sanctions and punishments, judges should not be punished for the rulings they make Why separate power? To prevent tyranny, we establish a system fo three branches of government Judges interpret and apply the law in context of the constitution and other law through statutes  They also define and clarify the limits of state action In order to be able do that, constrain the power of the state, they must be free from any sort of influence ○ Reasonable Apprehension of Bias Test (reasonable person test): would a reasonable person, aware of all the circumstances believe that a judge was free to render any decision in the case before them? ○ Re: Remuneration of Judges of the Provincial Court of PEI (1977) ○ It was the leading legal authority for this legal test ○ PEI, Manitoba and Alberta were defunding government employees Argued that section 92 courts, did not have the same constitutional protections as section 101 courts ○ Tenure Provinical judges must have security of tenure  Can not lose their jobs for the decisions they make The constitution said that judges can hold their positions in periods of good behaviour, which means they still can be removed Removal Process ○ Independent Council ○ HOC and Senate ○ Governor General ○ Financial Security Judges must have financial security, the legislative branch should not play around with the finances Fixed compensation (no compensation or punishment for their decisions) Protection from Executive branch ○ Administrative Independence  Judges are responsible for organizing their court in ways they feel necessary Selecting judges, selecting cases, managing case loads “Judge Shopping” Stops governments from selecting certain judges hear certain cases to get the results they want Non-financial sanctions ○ Immunity from Prosecution Can not sue a judge civilly or the judgements they make Judges are NOT immune from criminal prosecution Judicial Accountability ○ “They're always independent, but who holds them accountable?” — Doug Ford ○ How should we navigate this tension between accountability and independence?  Judicial Review: ○ Obtaining Judicial Oversight Directly affected by government action Legal issues raised during ongoing proceedings Standing/intervenor Status/Amicus Curiae Intervenors are those representing those involved, but the case does not have an impact on them Amicus Curiae = Friend of the Court Those invited by the court to give their input on matters involving the case Reference from government Granting leave Week 5, Lecture 1: Intro of the Canadian Constitution ○ The Written Constitution Canada is a liberal democratic society Constitution not being a device to empower the government, but it clarifies and identifies the powers that the government has  Provides safeguards for our liberties, in which it provides a framework for limiting government power ○ Where do we locate the constitution/what is the constitution Most states have written constitutions The UK is a primary example of a place that has an unwritten constitution In the UK, the constitutionis developed with time and culturally Our canadian CONT, is both written and unwritten Why does Candada have both? Going back to 1867, John A. Macdonald, the provinces that were were not original members, agreed to join the confederation, if the constitution was similar to that of the UK (Nova Scotia, and New Brunswick) British North America ACt, 1867 ○ Essentially states that Canada will have a similar CONT, to that of the UK Constitution Act, 1982  ○ Pierre Truedeau went to Margaret Thatcher and had power formally transferred Canada ○ Up until 1982 Canada was technically a colony of the British ○ The power was that of Canada being able to change their own laws, without the need for the UK to approve them ○ 52. (1) The Constituion of Canada is the supreme law of Canada, and if any law is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect ○ (2) The constitution of Canada includes A. the Canada Act 1982, including this Act; B. the Acts and orders referred to in the schedule; and C. any amendment to any Act or order referred to in paragraph (a) or (b) ○ Written Sources  Constitution Act, 1867 (formerly known as the British North America Act) II. Union s.5 (Ontario, Quebec, Nova Scotia and New Brunswick) III. Executive Power, IV. Legislative Power VI. Distribution of Legislative Powers (Section 91 and 92) Constitution Act, 1982 Sections 1-34 — The Charter of Rights and Freedoms Imperial Statues Statute of Westminster (1931) Canadian Statutes Week 5, Lecture 2: Inclusion of Unwritten Sources Problems with both written and unwritten, and there not being one singular text ○ Figuring out and identifying the constitution is very complex  ○ Requires highly skilled individuals in the practice of law to figure out the constitution ○ Those people are judges, which puts them at a higher status Due to this the constitution essentially becomes what the judges say it is Living Tree Metaphor: Constitution evolves organically like a living tree ○ Principles of itten Constitution There exists fundamental norms of justice, that are so basic, they just form part of our legal system These norms must be upheld by the courts Judges will have a legimitmate authority to interpret the constitution, Sources of Unwritten Constitutional Principles Customary Usage These are unwritten principles that have been identified in previous cases within Canadas history, that have developed some sort of constitutional norm, that has been accepted by the forms of government (Judicial, Legislative, Executive.)  Inferences drawn from written text of the constitution Judges will say what the unwritten constitution, by drawing constitutional norms from the written constitution Captures the broader “vibe” (ethos) of the Country International Legal Instruments (International Law) These are customary, and are accepted as legitimate and as part of the common law They are based on both usage and a sense of Obligation ○ Re: Secession Reference of Quebec, 1998 Nothing was in any form of the constitution that would allow a province to leave To rule on this the SCC, turned to three things in relation to Canada Unwritten const principles can be defined as norms that are important to, values, history, identify, and legal institution. Values History  Identity What it found from the written text, were four important constitutional principles: Democracy ○ The SCC recognized that democracy is Canadas political practice ○ They also said for Democracy to work, it would have to be in conjunction with three other values Federalism ○ Not just institutional role that provides framework for our governments ○ But a belief that a majority in one province is no more important that anyone else The Rule of Law ○ The court said it would be necessary for all other parties, who were part of the negotiation process of Canada, all of the provinces involved in the original  negotiation had to be involved in the secession of Quebec Protection of Minorities ○ One of the four principles looked at in the secession case Language the SCC used within this case: “It would be impossible to conceive of our written structure without them, they are not merely descriptive but are invested with a powerful normative force, and are binding upon courts and governments” Parliamentary Powers that are Unwritten (are binding on governments and courts): ○ Parliamentary Privilege A set of power that belongs to the legislature that allows them to properly function as a parliamentary body Ability to hold other representatives responsible Gives MPs the ability to say whatever they want in chambers, without fear of being prosecuted New Brunswick Broadcasting Corparation v. Nova Scotia, 1993  NB Broadcasting Corp. wanted to broadcast NS legislative proceeding NS objected: banned all television proceedings that took place in the NS legislature NB sued on the grounds of them violating section 2B of the Charter (freedom of self expression) SCC asked to balance the rights in the Bharter (written constitution) against parliamentary privilege (unwritten source of authority) NB lost this case, as the court upheld the parliamentary privilege powers of NS The SCC recognized that the const is made up of more that just written rules ○ Perogative Powers Set of powers that belongs only to the executive branch, which is considered residual (is a power that is left over from the discretionary power of the crown) Entetring treaties, declaring war, negotiating international relations, are all examples of perogaitve power Operation Dismantle v. The Queen, 1985 ○ During the 60-70s there was a very real possibility of nuclear war ○ This is when the US started developing cruise missiles, where they entered an agreement with the Mulroney government where they were able to test these missiles over Northern Alberta and NWT ○ Operation Dismantle, stated that this international agreement was violating section 7 of the Charter ○ The Canadian Gov, responded that they had the prerogative power to enter into these agreements, and how it was not justiciable (not able to go to judges) ○ The court said that they could, and that they would, however there would be no section 7 (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) violation ○ The court acknolwdged that they should not constrain the power of the executive, and that it would have to be done through the legislature and not the courts Canadian Federation of Students v. Ontario, 2019 “neither argument justifies exempting the impugned directives from judicial review for legality. To hold otherwise would undercut the supremacy of the legislature and open the door for government by executive decree... this is a question of legality and is clearly justiciable. Indeed, it lies at the very heart of the court’s public law mandate” (para 5) ○ Constitution Conventions British Constitution (not codified in a single document) Written ( Magna Carta, Bill of Rights, Treaty of Union) / Unwritten (Parliamentary sovereignty)  Customary but achieved levels of permanence Rules of good political behaviour, usually developed from established constitutional practice The King appoints as PM the person who is most likely to be able to command the confidence of the House of Commons Ministers are bound by collective responsibility to support government policy, even if they privately disagree Judges will not criticize government policy and ministers will not criticize judges for their individual decisions ○ Patriation Reference, 1981 1. Describe and explain the difference between section 92 courts, section 96 courts, and section 101 courts (3 marks). Using examples, define and explain each type of courts' territorial, hierarchical and subject matter jurisdiction (4 marks). Identify at least one court for each type in Canada (3 marks). - Section 92 courts are provincially run, funded, appointed and operated - Section 92 have original/narrow jurisdiction and are trial courts - Family court would fall under section 92  - Ontario Court of Justice is a section 92 - Section 96 courts are provincially run , appointed by the federal government - Section 96 courts have original and appelate jursidiction, also considered restricted/narrow - Hard crimes (murder) - Ontario Superior Court of Justice is a section 96 - Section 101 courts are federally run, funded, appointed and operated - Section 101 courts have original and appelate jursidiction, also consider unrestricted/broad - Laws involving with citizens and immigration, indigenous and tax matter 2. One of the main features we learned about the judiciary within the Canadian legal system is that courts are held responsible for constraining the exercise of state powers. Identify and describe the difference between the exercise of legislative and executive authority (4 marks). and explain the need to constrain those powers in Canada (4 marks). Is constraining the power of the two branches of government similar or different? Explain. (2 marks). Your answer should consider the different purposes and functions that each branch of government serves in a constitutional democracy like Canada. - Legislative Authority Legislative authority refers to the power to make laws. It is exercised by Parliament at the federal level and by provincial legislatures at the provincial level. This authority involves drafting, debating, and passing legislation. Members of Parliament (MPs) are elected and accountable to their constituents. The legislative process includes multiple readings, committee reviews, and votes. - Executive Authority Executive authority pertains to the power to enforce and administer laws. It is exercised by the Prime Minister and the Cabinet at the federal level, and by Premiers and their cabinets at the provincial level. The executive’s role includes implementing laws, managing government operations, and conducting foreign policy. constrain those powers  - Prevent tyranny - Promote accountability - Safe guards rights and freedoms - Uphold the the rule of law Similar: Both are constrained by the rule of law and constitutional limits. Different: The executive needs legislative confidence, while the legislature is bound by constitutional divisions and the Charter. - 3. Describe and explain the significance of the Parliamentary Supremacy principle in Canadian public law (2 marks). Use examples to support your answer. Further identify and explain the significance of all limits that constrain Parliamentary Supremacy (6 marks). What are the advantages and disadvantages (if any) in limiting legislative authority (2 marks). - 4. In The Rule of Law in the Supreme Court of Canada, authors Peter Hogg and Cara Zwibel discuss whether the principle of the rule of law was necessary for deciding the legal issues raised in three Supreme Court of Canada decisions. Identify and briefly describe those decisions (3 marks), and explain whether, according to the authors, the rule of law was necessary for deciding each of those cases (3 marks). Briefly explain some of the difficulties associated with understanding the rule of law (2 marks). In your opinion, is the rule of law nothing more than "meaningless rhetoric" as some legal scholars havê argued? (2 marks) THE MANITOBA LANGUAGE CASE the Quebec Secession Reference Roncarelli v. Duplessis (1959. In Wells v. Newfoundland 5. Describe and explain the significance of Constitutional Supremacy (4 marks). Using case law as examples explain how this principle is used to illustrate the primacy of legal instruments in Canada (4 marks). How, if at all, does this principle challenge the notion of democracy in Canada? (2 Marks) 6. Describe and explain the significance of at least four main features of the Canadian judicial system. Use examples to support your answer for each component (8 marks). In your opinion, is there one feature that is more significant than the other? Why or why not? (2 marks). 7. Briefly describe the Re: Remuneration of Judges of the Prov. Court of PEl, that was decided by the Supreme Court of Canada in 1997. Describe and explain the facts and issues in this case (1 mark). Further explain any legal tests that the court relied on in making their determination (2 marks). Identify and explain all the elements of judicial independence that the Court extended to provincial courts (4 marks) and explain their significance more specifically in relation to the provinces that were parties to this legal proceeding (2 marks). Does the principle of judicial independence necessarily mean that judges cannot be held accountable? (1 marks). Facts and Issues in Re: Remuneration of Judges of the Provincial Court of P.E.I. (1997) Facts: The provincial court judges in Prince Edward Island challenged the government's decision to freeze their salaries, claiming it undermined their independence and violated constitutional protections. Issues: The main issue was whether the government’s actions violated the principle of judicial independence, which is essential for maintaining an impartial judiciary. Legal Tests Used by the Court Test for Judicial Independence: The Supreme Court applied the test to assess whether the salary freeze constituted a violation of judicial independence. Contextual Framework: The court considered historical and contextual factors, emphasizing that judicial independence is vital to upholding the rule of law and public confidence in the justice system. Elements of Judicial Independence Extended to Provincial Courts 1. Security of Tenure: Judges cannot be easily removed from their positions, ensuring they can make decisions free from external pressure. 2. Financial Security: Judges must receive fair compensation to prevent any influence over their decisions and maintain the dignity of the judiciary. 3. Institutional Independence: Courts should operate without interference from the executive or legislative branches, allowing for impartial adjudication. 4. Administrative Independence: Courts have the authority to manage their own administrative functions, ensuring effective judicial operations. Significance in Relation to the Provinces  Protection of Judicial Independence: The ruling affirmed that judicial independence is crucial for maintaining public trust in the judicial system within the provinces. Impact on Provincial Governance: It set a precedent for how provincial governments should respect and uphold the independence of the judiciary, ensuring fair treatment of judges across Canada. Accountability of Judges Principle of Judicial Independence: While judges are granted independence, this does not mean they are above accountability; they can still be held accountable for misconduct through established processes (e.g., judicial review, disciplinary measures). 8 Describe the difference between positive law and natural law (4 marks). Explain each legal theory's significance in relation to the Canadian legal system. In what ways do positive and natural law theories contribute to structing the law in Canada (3 marks). Briefly explain which of the two theories appear to be more prominent in the Canadian legal system. Use examples to support your answer (3 marks). Difference between Positive Law and Natural Law  Positive Law: Refers to laws that are formally enacted by a legitimate authority (e.g., statutes, regulations) and must be followed as written. Natural Law: Asserts that there are inherent rights and moral principles that exist independent of human-made laws, often grounded in ethics and universal justice. Significance in the Canadian Legal System Positive Law: Provides a clear and structured framework for governance and legal proceedings, ensuring predictability and stability. Natural Law: Influences constitutional interpretation, particularly in relation to human rights, emphasizing justice and ethical standards. Contribution to Structuring Law in Canada Positive Law: Forms the basis for legal codes, statutes, and regulations that govern societal conduct and institutional functioning. Natural Law: Guides the interpretation of laws and constitutional rights, promoting fairness and moral reasoning in legal decisions. Interaction: Both theories encourage a balanced legal system where enacted laws align with ethical standards, promoting justice. Prominence in the Canadian Legal System  Positive Law Prominence: Canadian law is primarily based on positive law, with clear statutes and regulations guiding legal processes. Examples: The Criminal Code of Canada exemplifies positive law, while the Charter of Rights and Freedomsreflects natural law principles by protecting fundamental rights. Conclusion: While positive law dominates, natural law influences the interpretation and application of laws, particularly regarding human rights and justice. 9. Compare and contrast the Supreme Court of Canada's decisions in Kosoian v. STM, 2019 and Roncarelli v. Duplessis, 1959. Briefly describe the facts, legal issues, and outcomes of both cases (3 marks). Explain the Courts' reasoning and how they arrived at their outcomes. In both cases, identify the most important factor that was considered by the court to determine the legal issues (3 marks). Describe the similarities and differences of the two cases (2 marks) and explain their broader significance to Canadian public law (2 marks). Comparison of Kosoian v. STM and Roncarelli v. Deplessis Facts Kosoian v. STM (2019): Ms. Kosoian was at a subway station where a sign cautioned users to hold the handrail. After ignoring a police officer's commands, she was arrested and had her bag searched. She sued the city of Labelle, the police department, and STM for unlawful actions. Roncarelli v. Deplessis (1959): Frank Roncarelli, a Jehovah's Witness and restaurant owner, paid bail for jailed Jehovah's Witnesses. His liquor license was arbitrarily terminated, leading him to sue the government of Quebec for abuse of power. Initially successful, his case was overturned but later won at the Supreme Court. Legal Issues 1. Kosoian: Did Constable Camacho incur civil liability, and was his action unlawful? 2. Roncarelli: Was the termination of Roncarelli's liquor license lawful, and did it have legal justification? Outcomes Kosoian: The Supreme Court ruled in her favor, finding shared liability between the police and STM.  Roncarelli: The Supreme Court unanimously ruled in favor of Roncarelli, deeming the termination of his license unlawful. Court Reasoning Kosoian: The Court emphasized that the sign’s wording indicated a caution rather than a legal requirement, and police actions must have a legal basis. The lack of binding authority for the sign contributed to the determination that the police action was unlawful. A language discrepancy further complicated the legality of the by-law. Roncarelli: The Court established that government actions must have legal authorization and found that there were no existing laws permitting the termination of Roncarelli’s liquor license. The actions of Premier Duplessis were viewed as arbitrary and lacking justification, reflecting an abuse of power. Most Important Factors Kosoian: The Court's consideration of whether the sign constituted a legal obligation was pivotal in determining the police officer's liability. Roncarelli: The lack of legal authority for the government’s actions was the crucial factor in assessing the lawfulness of the liquor license termination. Similarities and Differences Similarities: Both cases involve the assessment of whether government or police actions were lawful and justified, focusing on the need for legal authority in their respective decisions. Differences: Kosoian involved police conduct in enforcing public safety regulations, while Roncarelli dealt with administrative power and its misuse by the provincial government. Kosoian's case involved civil liability, whereas Roncarelli's focused on the abuse of executive power. Broader Significance to Canadian Public Law Both cases underscore the principle that government actions must be grounded in law, reinforcing accountability and the rule of law in Canada. They highlight the importance of protecting individual rights against arbitrary state actions, setting precedents for future cases concerning civil liberties and the limits of governmental power. These decisions strengthen the notion that all entities, including government and police, are subject to legal scrutiny and must operate within defined legal frameworks. 10. Describe the difference between the legal approach and the political science approach in studying and understanding Canadian public law (4 marks). Provide and describe at least one example from case law discussed in class for each approach (2 marks). Which of the two approaches does Martin Loughlin's work in Swords and Scales best reflect? Support your reasoning (2 marks). In your opinion, what are the advantages and disadvantages to viewing the law strictly from a legal approach (2 marks). - Legal Approach: Focuses on interpreting statutes, precedents, and constitutional provisions to understand legal obligations and rights. - Political Science Approach: Analyzes power dynamics, institutional behavior, and political processes shaping public law. - Legal: Emphasizes judicial decisions and how courts apply the law. - Political Science: Focuses on the interaction between government branches and how political factors influence legal outcomes. For legal approach - Manitoba Language Rights, 1985 - It reinforced the principle of constitutional supremacy, as the Supreme Court invalidated Manitoba's English-only laws for violating the bilingualism requirement in the  Manitoba Act, showcasing how courts ensure that government actions comply with constitutional obligations - For polisci - Royal Trust Corporation v. The University of Western Ontario, 2016. - It highlights how judicial decisions can reflect broader political and social influences, demonstrating the role of courts in balancing testamentary freedom with public policy considerations, such as university funding and cy-près doctrine - Loughlin's - He advocates on the polisci approach. Political power is Relational) but is a product of the relationship between the State and its citizens. Advantages  Clarity and Precision: A legal approach provides clear guidelines and interpretations based on statutes and precedents, leading to consistent application of the law. Rule of Law: It reinforces the principle of the rule of law, ensuring that all individuals and government actions are subject to legal standards and accountability. Disadvantages Lack of Context: This approach may overlook the broader social, political, and economic contexts influencing the law, limiting understanding of its real-world impact. Rigidity: A strict legal focus can lead to rigidity, where adherence to legal texts may hinder adaptability and responsiveness to evolving societal needs and values.