GS/Law 6761
Fall 2007
Instructor: Ian Greene
Preliminary Matters
 Introductions
 Origin of this course: Justice John Evans
 Evaluation
 Presentations
My own background
 Grew up in a small Alberta town (population 1000)
 Attended the U of Alberta (Edmonton), and did a
student exchange to Bishop’s University
(Sherbrooke, Quebec) during 2nd year
 Majored in political science
 Wanted to be a lawyer BUT got a scholarship for an MA
at U of T
 MA in Political Science at University of Toronto: loved
political science study of courts
Post MA
 Traveled around the world for 2 years: New Zealand,
Australia, Indonesia, Singapore, Malaysia, Thailand,
Burma, India, Nepal, Pakistan, Afghanistan, Iran, Turkey,
Europe
 Accepted to law school, but decided to do a Ph.D. first.
Studied the causes of unreasonable delay in courts
 Theory: we didn’t understand the proper relationship between
judicial independence and ministerial accountability
 What I found: friction, misunderstanding, and “passing the buck”
amongst judges, lawyers, crown attorneys and court administrators
is the major cause of unreasonable delay
British Columbia & Alberta
 Worked for Alberta
gov’t for 4 years
 Assistant to a cabinet
minister 1 year
 Middle manager in
Alberta Social Services 3
years
 First teaching job:
College of the Rockies
in Columbia Valley, BC
My family
York University Years
 Research on judicial behaviour & ethical politics
 The Courts (2007)
 A Question of Ethics (2006)
 Honest Politics (1998)
 Final Appeal (1998)
 Judges & Judging (1991)
 The Charter of Rights (1988)
Teaching
 For next 4 years will teach mostly graduate courses
 Director of Master of Public Policy, Administration &
Law Program
 Co-Coordinator of part-time LLM in Administrative La
 Master of McLaughlin College

You’re invited to College events – eg. Joe Clark speaking on
Thursday, November 15, 5 p.m., 014 McLaughlin
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
Act of Settlement
Superior court judges appointed “during good
behaviour” (security of tenure), and their salaries are
“established” by Parliament (not the cabinet)
(In Canada, Valente (1985):
-security of tenure (judges can’t be removed except as
recommended by an inquiry that conducts a fair
hearing)
-salaries must be set by legislature and high enough to
discourage bribery
-judges control those aspects of court administration
that directly affect adjudication
Parliamentary Supremacy vs. Separation of
Powers
 U.S. constitution of 1787 recognizes “separation of
powers,” not legislative supremacy. Why?
 Fathers of U.S. constitution read Montesquieu (~1750)
who argued that the British protected their liberty
through a separation of powers. But British government
was evolving toward parliamentary supremacy and
responsible government
 Dicey argued that separation of powers meant judicial
supremacy. British unwritten constitution infinitely
superior.
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
system
Alan Cairns
 “The past and future of the Canadian administrative
state.”
 Yong Wang
 Alan Cairns – one of Canada’s best-known political
scientists
 Born in Ontario
 B.A. in 1953 and M.A. degree 1957 from U of Toronto
 Member of the Department of Political Science at
University of British Columbia from 1960 -- 1995 and
served as head of the department from 1973 to 1980.
Evans, Janisch, Mullan & Risk
 Administrative Law text, Introduction
 Raj Sharma
Martin Loughlin
 Public Law and Political Theory
 Guy Brownlee
 Prof. of Public Law, London School of Economics
Alberta provincial lawsuit settled
 Ian Greene
 Assured Income for the Severely Handicapped
Administrator in Southern Alberta, 1983-85
 Rule of law issue
John Locke
 The Second Treatise on Civil Government [1690]
 Judy Verbeeten
John Stuart Mill (1806-1873)
 On Liberty [1859] (worked for Br East India Co until
1858)
 Trudy McCormick
Peter Hogg
 Constitutional Law of Canada
 Alia Ahmed
Hutchinson & Monahan
 “Democracy & the Rule of Law”
 Hillary Cameron
Greene, Baar, McCormick,
Szablowski, Thomas
 Final Appeal (1998)
Ipperwash Inquiry
 Leanne Briscoe
Stephen Brooks
 Karey Lunau
Professor, U of Windsor; B.A., M.A. (Windsor), Ph.D. (Carleton)
Harry Arthurs
 “Without the Law: Administrative Justice and Legal
Pluralism in 19th Century England”
 Ian Greene