Public Law I: September 23/05
• Court visit assignment
• Topics for today:
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Complete British Legal Tradition in Canada
Canadian court structure
Garth Stevenson article
Highlights of the Canadian constitution
Court reform in Ontario
Constitutional Amendment
Cases you need to start reviewing for Skeleton
Outline
– Quebec legal system
Canadian Court Structure
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____________________________
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Supreme Court of Canada
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9 judges
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|___________________________|
_____________________|
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____|___ ____|____
________________|________
federal |
| |
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| federal
appointments | Tax | | Federal |
| 10 provincial & 3 territorial | appointments,
& admin. | Court | | Court
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courts of appeal
| provincial
| 22 js | | 39 js
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128 judges
| administration
|______| |________|
|_______________________ |
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_____________ |______
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federal
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appointments | provincial superior
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provincial
| trial courts
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administration | 829 judges
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|__________________ |
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|___________________|
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___________ |__________
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(All counts as of 2001)
provincial | pure provincial and
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appointments | territorial courts
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& admin. |
984 judges
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|______________________|
federal appointments
and administration
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Use this instead of chart on p. 20 of Course Kit, which did not reproduce properly.
Interesting facts
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circuit judges: “assizes.”
Why don’t judges have to retire
until 70 or 75?
County and District courts now
merged with superior courts
judicial independence: purpose is
to promote judicial impartiality
• Trial Courts:
• Improvisors (~10%)
– no single process, but for most
outcomes would be the same
•
– particular process followed, and
always leads to the same
conclusion.
– Valente decision (1981 - 85)
• security of tenure
• financial security
• judicial control over adjudicative
matters
•
judicial discipline: Canadian Jud
Council & prov. Jud. Councils (eg.
– Hryciuk, suspended from Ont Ct
of Justice after judicial inquiry)
Strict Formalists (~ 20%)
•
Pragmatic formalists (~45%)
– particular process followed (check
list, shifting balance, water rising),
but judges might decide
differently.
•
Intuitivists (~25%)
– “gut feeling”
Courts and Constitution
• Appeal courts:
– Panel process different from
single judges in trial courts
• Supreme Court of Canada
– Primarily a public law court
(~100 cases / year; few pte)
– leave to appeal (~600 apps)
• Problems with justice system
•
– for some litigants and lawyers, a
game
– delay in client’s interest (about
half of trial lawyers)
– judges limited by adversary
system re control of caseflow
Role of courts: dispute resolution,
prevent abuse of power, official const.
philosophers, pawns in other peoples’
battles
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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.
Garth Stevenson: “Origins and Objectives
of Canadian Confederation”
• An analysis of the motives behind the 1978
confederation from a political economy
perspective
• Sheds some light on the political compromises
behind the division of powers in Ss 91, 92, 93 &
95 of the CA, 1867
• Strategic and economic motives
• Opponents of confederation
• Terms of union
• Shortcomings of the written constitution from
Stevenson’s perspective
See “highlights on the Canadian
Constitution” on www.yorku.ca/igreene
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Memorize bolded parts of this document
CONSTITUTION ACT, 1867
Ss. 56, 57 & 90: reservation and disallowance
91. the "preamble" to S.91 is the "POGG" clause (peace, order and
good government): It shall be lawful for [Parliament] to make laws for
the peace, order and good government of Canada, in relation to all
matters NOT coming within the subject-matters assigned exclusively
to the Provinces in S. 92. For greater certainty, Parliament may make
laws with regard to matters covered by the following list. However,
this list merely provides examples, and these examples are not to be
interpreted by courts as limiting Parliament's power.
2. Trade and Commerce
2A. Unemployment insurance (added in 1940)
3. Unlimited taxing powers (direct and indirect)
14. Currency & coinage
15. Banking
24. Indians, and lands reserved for Indians
27. The Criminal Law
92. The provincial legislatures have exclusive power to
make laws regarding the following:
• 92 - 2.
Direct taxation
10. Local works and undertakings EXCEPT
a) interprovincial railways & telegraphs
b) international shipping
c) any works that Parliament has declared are
within federal jurisdiction. (“declaratory power”): eg. Grain
elevators, local railways, canals, bridges, some mines, some factories. Used
470 times, but not since 1961.
13. Property and civil rights (meaning private law)
14. The administration of justice in the province, including
the establishment of all courts except the Supreme
Court of Canada and the Federal Court, and prosecution of criminal
cases.
16. All matters of a merely local or private nature.
92A (added in 1982). The provinces can regulate non-renewable natural
resources, including forestry and electrical energy, and can even regulate
exports. However, the federal government can also regulate exports in this
area, and federal laws are paramount.
Education and concurrent powers
• 93. The provinces control education, except
that the feds can intervene to protect Roman
Catholic schools in Ontario and separate
schools in any province that existed at the time
the province entered Confederation.
• 95. Agriculture and Immigration are
concurrent powers (both the feds and the
provinces can legislate). If there is a conflict, the
federal legislation is paramount.
Judiciary provisions
• 96. The federal cabinet has the power to appoint all superior
court judges in the provinces.
• 99. Superior court judges cannot be removed except by joint
address of the Senate and House of Commons. Superior court
judges hold office "during good behaviour" to the retirement age of
75 (to protect judicial independence).
• 100. The salaries of superior court judges are set by
Parliament, not by the cabinet (to protect judicial independence).
• 101. Parliament may establish a Supreme Court of Canada (which
it did in 1875) and other courts to adjudicate federal laws other than
the Criminal Code (eg. the
Federal Court, which hears federal administrative law cases, and
the Tax Court.)
Other important provisions in CA,
1867
• 109. The provinces own the natural resources within
them.
• 121. There shall be no customs duties or restrictions
of trade between provinces.
• 132. Parliament can make any law to implement British
Empire treaties, even if the law invades provincial
jurisdiction. However, after 1931 the courts interpreted
this section to mean that provincial approval is required
for any non-British Empire treaty which affects matters
under provincial control.
• 133. English and French can be used in Parliament,
and Canada's laws must be in both languages. Likewise,
English or French may be used in Quebec's National
Assembly, and Quebec's laws must be in both
languages. Either language may be used in the courts
of Quebec, the Supreme Court of Canada, the Federal
Court and the Tax Court.
CA, 1982
• Ss 1-34: The Charter of Rights (you
don’t need to know the content of the
Charter until January – April course)
• S. 35: Aboriginal rights (don’t need to
know until January – April)
• S. 36: commitment to equalization
payments, so that poorer provices can
provide adequate services.
Canadian Constitutional Amendment
• In Canada, there are 5
amending formulas for the
constitution:
– Unanimity formula (Queen,
GG, LGs, composition of
SCC, senate floor rule, federal
language rights, amending
formulas
– “some but not all” (eg.
language within province,
denominational school rights,
change in prov. borders)
– Provinces can amend own
constitutions
– Fed gov’t can amend its
internal constitution
– General amending formula
(seven-fifty): the rest of the
constitution (incl div of powers
& Charter) can be amended
with Parliament, 7 out of 10
provinces representing 50% of
pop. Dissenting provinces
may opt out, and get
reasonable compensation if
amendment affects culture or
education.
AMENDING FORMULAS (more detail)
•
38-40 & 42. The 7-50 formula. Most of the narrow constitution,
including the Charter of Rights and the division of powers in ss. 91
and 92 of the C.A., 1867, can be amended with the agreement of seven
provinces representing 50% of Canada's population and
Parliament. (That is, either Ontario or Quebec must be included.) Up
to 3 provinces could opt out of such an amendment. If they opt out of
an amendment which transfers educational or cultural matters to
Ottawa, these provinces shall be compensated financially by Ottawa
(Ottawa must give to the opting-out provinces what they are spending,
per capita, on the opting-in provinces).
•
There is a 3-year time limit which begins with the first resolution for
amendment (which could be in any provincial legislature or
Parliament). No amendment may take effect according to this
procedure until at least one year after the first resolution has passed
(unless all governments have passed resolutions).
7-50 formula continued
• No province can opt out of an
amendment affecting:
• a) proportionate representation of the
provinces in
the House of Commons
b & c) the Senate
d) the Supreme Court of Canada
e) the extension of existing provinces
north
f) establishment of new provinces
Amending forumlas (cont’d)
• 41. The unanimity formula. Unanimous agreement of all
provincial legislatures and Parliament is required for
amendments affecting:
• a) the Queen, Governor General and Lieutenant-Governors
b) the "Senate floor rule" (no province can have fewer MPs
than Senators).
c) the use of English or French in S. 133 or the Charter
d) the composition of the Supreme Court, and
e) changes to the amending formulas.
• 43. The "some but not all" forumla: Amendments which affect
some but not all provinces need by approved only by the
provincial legislatures affected and Parliament.
• 44. Parliament may amend parts of the constitution that affect
only Parliament.
• 45. Legislatures may amend parts of their constitutions that
affect only them.
U.S. & Canada: Comparison of Constitutional
amendment process
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U.S.: Congress proposes
amendments (2/3 of both houses)
Proposals have to be ratified by ¾
of state legislatures, or ¾ of state
constitutional conventions
Comparison:
– U.S. constitution amended 17
times in 21 decades (rate
.08/year)
– Canadian constitution amended
32 times in 13 decades (.23 to
1982, and 9 after) (rate .24/year)
– Canada’s constitution is more
flexible
•
Major Can. amendments:
– 1940: unempl ins
– 1951: old age pensions
– 1964: old age pensions
broadened to include
supplementary, survivors,
disability (CPP)
– 1982: Charter and amending
formulas
– 1983: S. 35.1: must be a
constitutional conf including native
peoples before native rights
amended
– 1987-1998: 3 amendments to
den school rts in Nfld
– 1997: den school rts Quebec
– 1993: equality of Fr & Eng in New
Brunswick
Amendment failures
• Canada
– 1927-1982: six failed
attempts to find a domestic
amending formula
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• 1971 – Victoria charter
came close
• 1982: success achieved
after SCC decision
(discussed later in course)
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– Meech Lake &
Charlottetown Accords
(discussed later)
U.S.: 6 amendments proposed by
Congress but not ratified by
states, including ERA (equal
treatment of women in all
legislation)
Impact of court decisions:
– 1940, 1951 amendments in
Canada a reaction to court
decisions
– Civil war amendments in U.S. a
reaction to court decisions
– 1918: SCUS decision led to
amendment to prohibit child
labour. 1938: Roosevelt
threatened to “pack” court. Court
overruled 1918 decision.
Informal constitutional amendment
• United States
•
Canada
– Feds assume they have power to
do something under POGG, or
provinces assume they have
power to do something under
92(13)
– After 1995, fed legislation passed
to prevent cabinet ministers from
proposing amendments under 750 without support of Quebec,
Ont, B.C., 2/3 prairie provinces,
2/4 Atlantic; Quebec recognized
as distinct society
– Clarity Act (2000)
– Washington: cabinet advisory
& responsible to president
– Jefferson: declared that U.S.
could purchase new territory;
never challenged in court
– Political parties developed
without constitutional
amendment
– Congress assumed vast
powers over economy in
1930s and 1940s
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Was Dicey right that in the U.S.,
judges are supreme because they
declare the constitution? Does
Dicey’s analysis apply to Canada?
Unwritten parts of the constitution
1. Constitutional conventions
-Rule of law
-Judicial independence
-Responsible government
-cabinet responsible to the legislature
-Ministerial accountability
-Cabinet solidarity
-Gov Gen and Lieut Gov’s must act according to the advice of
the first minister, unless that advice is unconstitutional
-The leader of the group in H of C or prov leg that can
command the support of the majority of members becomes first
minister and chooses cabinet. First minister tells GG or LG when to
call election, unless another group can form gov’t
2. The ratio in the judicial decisions about the meaning of the
constitution (eg. the ratio in the cases we’ll be studying in this
course)
The role of courts in Canada
• Why do we have “open”
courts?
• There are some
exceptions to open courts
– Young offenders
– Application to a judge for a
closed hearing
– Sexual assault trials
– Preliminary hearings in
notorious cases – to permit
fair jury selection
– Is closing the court justified
in these situations?
• Does open court concept
impact presumption of
innocence?
• Dignity and decorum
– Gowns, address to judge
– Dress codes
• Television
• Adversary system
• ADR (alternate dispute
resolution)
Reforms in Ontario
• Zuber report (1987)
– Create administrative
regions
– Give judges, lawyers, and
public more input into court
administration
• AG Ian Scott (1989)
– Created 7 regions to
administer superior and
inferior courts
– Merged High Court and
County/District Courts to
form Superior Court of
Ontario
• Provincial Court renamed
Ontario Court of Justice, with
criminal & family divisions
• Eventually, Scott wanted to
merge the Ontario Court and
the Superior Court into one
trial court. Give all provincial
court judges S. 96
appointments.
• Unified trial court idea
abandoned by NDP and
Conservatives. Will it be
revived by AG Michael Bryant?
Cases from course for mock trial
(summaries on www.yorku.ca/igreene)
• Meaning of “Peace,
Order and Good
Government (POGG)
(some refer to federal
criminal power):
– Russell v. the Queen
– Local Prohibition Case
– Re Board of
Commerce Act
– Snider
– Employment and Social
Insurance Act Reference
(1937)
– A.G. Ont. v. Canada
Temperance Federation
(1946)
– Johannesson v. West St.
Paul (1952)
– Reference re Offshore
Mineral Rights (1967)
– Ref re Anti-Inflation Act
(1976)
– Queen v. Crown Zellerbach
(1988)
Property & Civil Rights vs. Trade and
Commerce
• Parsons
• Proprietary Articles
Trade Assoc.
Reference
• Natural Products
Marketing Reference
• Ontario Farm
Products Marketing
Act Reference
• Chicken and Egg
Reference
• Labatt
Treaty-making cases
• -Aeronautics Case
(1932) Canada was
implementing a British Empire Treaty,
but federal gov't has the power to
implement a treaty on aeronautics
under several heads of S. 91, such as
defence, post office.
• -Radio Case (1932)
Section 132 is now obsolete.
Therefore, the treaty-making and
treaty-implementation powers are new,
and fall under POGG.
• Labour Conventions
Case (1937)
– Matters that fall under
S. 92 can only be
implemented by the
provinces.
Quebec and Civil Law Approach
• Codification of laws
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Coutume de Paris (1580)
Confusion after 1759
Royal Proclamation (1763)
Quebec Act 1774
Codification: 1866: CCLC
1994: CCQ
Deductive Reasoning
Inquisitorial System (not
in Quebec)
Code, la doctrine,
precedent
• Quebec courts:
– Court of Appeal (s.96)
– Superior Court (s.96)
– Court of Quebec
(provincial)
– 1994 CCQ: ten books
– Civil and common law
approaches coming
closer together