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?
 www.yorku.ca/igreene: access to many course
readings and powerpoint presentations . (There will be
some handouts.)
 http://www.arts.yorku.ca/politics/ncanefe/index.html
 “Adjudication” is the dispute-
resolution system used in courts.
Characteristics?

Law applied to facts

Judge makes final decision

Reasons presented for judgment
 How is adjudication different from
arbitration and mediation?

Arbitration: standards agreed to by
disputing parties applied, but not usually
the whole body of law

Mediation: assistance in listening,
understanding, and resolving (contract)
 What are "legal persons?“
 People, corporations, and
governments
 What's the difference between
negative and positive law?
 Negative law: prohibited from
certain behaviours (crim. law)
 Positive law: positive incentive
to change behaviour (tax
deductions for donations to
political parties)
 Main sources of law:
statute law (laws created by
legislatures)
 case law (created by judges)

 Other (informal) sources: Ten
Commandments, Magna Carta
(1215), canon law, writings of legal
scholars (eg. Coke ~ 1630, and
Blackstone ~ 1770), community
standards (eg. obscenity cases),
Hogg's Constitutional Law of
Canada.
 primary and subordinate
legislation
 ratio decidendi; obiter dicta
 common = general
 common law judges "find" the
law
 Parliamentary sovereignty or
legislative supremacy. Aggregate
legislature can do anything.
Seven-fifty-formula; unanimity
formula; some-but-not-all
formula; provinces alone; feds
alone.
 Constitutional convention
 Reception: All English statutes
 Federal gov't: date depends on
enacted prior to reception are law in
Canada, unless changed in Canada.
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NB & NS: 1758
Quebec: 1759: French civil
law. 1763: English public law
PEI: 1763
Ontario: 1792
Newfoundland: 1832
BC: 1858
Man, Alta., Sask: 1870.
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when federal laws were inherited
from former colonies. Eg. Quebec,
1763; Ont. 1792.
Imperial statutes remained in force
until Statute of Westminster, 1931.
Development of common law courts
and courts of equity.
Preamble to BNA Act: implied Bill
of Rights
Barristers and Solicitors
Judicial Committee of the Privy
Council (JCPC); 1949.
per curiam vs. seriatim
England: specialized appeal j's;
Canada: generalist appeal j's.

____________________________
|
Supreme Court of Canada
|
|
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
|
|______________________|
federal appointments
and administration
 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. -
Hryciuk)
 Trial Courts:
 Improvisors (~10%)
 no single process, but for most
outcomes would be the same
 Strict Formalists (~ 20%)
 particular process followed, and
always leads to the same
conclusion.
 Pragmatic formalists (~45%)
 particular process followed
(check list, shifting balance,
water rising), but judges might
decide differently.
 Intuitivists (~25%)
 “gut feeling”
 Appeal courts:
 Panel process different
 Supreme Court of Canada
 a public law court (~100)
 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
 Minor appeals heard by a single judge in a higher court
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(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.
Dicey
 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.
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 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
Dworkin.
 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
stereotypes
 Stare decisis: a rigid form
 Hierarchy of courts
of doctrine of precedent
 Ways around stare decisis:
determining application
of stare decisis
 SCC can choose not to
follow precedent. Ont
CA: policy: follow
 What if conflicting
precedents?
 Distinguish
 Ratio is really obiter
 Per incuriam
 Emphasize different majority
opinion
 ignore
•
Legislation:
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–
–
•
primary legislation (enacted by a sovereign legislature, i.e. Parliament or provincial
legislature)
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
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purposes
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 - 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.
 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
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.
 Ss 1-34: The Charter of Rights
 S. 35: Aboriginal rights
 S. 36: commitment to equalization payments, so
that poorer provices can provide adequate
services.
 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
 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.
 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
 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
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
 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.: 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
 Canada
 1927-1982: six failed attempts
to find a domestic amending
formula
 1971 – Victoria charter came
close
 1982: success achieved after
SCC decision (discussed
later in course)
 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.

 United States
 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
 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 7-50
without support of Quebec, Ont,
B.C., 2/3 prairie provinces, 2/4
Atlantic; Quebec recognized as
distinct society
 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
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–
–
–
–
Coutume de Paris (1580)
Confusion after 1759
Royal Proclamation (1763)
Quebec Act 1774
Codification: 1866: Civil Code of
Lower Canada (CCLC)
– 1994: Civil Code of Quebec (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 – s. 92(14))
 Civil and common law
approaches coming
closer together
 Stare decisis: a rigid form
 Hierarchy of courts
of doctrine of precedent
 Ways around stare decisis:
determining application
of stare decisis
 SCC can choose not to
follow precedent. Ont
CA: policy: follow
 What if conflicting
precedents?
 Distinguish
 Ratio is really obiter
 Per incuriam
 Emphasize different majority
opinion
 ignore
Natural Justice & Fairness

Natural Justice

– Nemo judex in sua
causa
– Audi alteram partem

– Jurisdictional
– Abuse of power
– Natural justice
Functions of Admin.
Agencies:
–
–
–
–
Legislative
Administrative
Executive
Judicial or quasi-jud.
Judicial review
• Jud or quasi-jud
– Doctrine of fairness

Privative clauses
– Can’t hide behind priv
clause if const issue, or
patently unreasonable
Rules of Statutory Interpretation (1)
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Why are rules
needed?
Intent of legislature
“reasonable person”
test
1.Plain meaning rule
2.“golden rule”: avoid
absurdity & inconsistency

3.What was the
mischief & remedy?
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
Specific words help
explain general ones
nearby
Express inclusion of some
items implies exclusion of
items not mentioned
Aids:
– Interpretation statutes
– Definition sections of
statutes
Rules of Statutory Interpretation (2)

More Aids:
– Context in statute
– Other similar statutes
– Legislative history
• Minimal weight. Why?

Books on rules of
interpretation, & legal
dictionaries

French & English text
International
conventions & treaties
(sometimes)
 Preamble (but not
marginal notes)
 Headings (except in
Ontario – excluded by
statute)

Presumptions
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Criminal law: in favour of
accused
Taxation law: in favour of
taxpayer
Against alteration of
common law
Mens rea (guilty mind),
unless express absolute
liability
Against retroactivity
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Against ousting
jurisdiction of courts
For crown immunity (now
mostly replaced by statutes
allowing suits against crown)
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Every word is deliberate
Specific given precedence
over general
More recent > older
Leg. did not intend
drafting error (cts can
correct)