Escolar Documentos
Profissional Documentos
Cultura Documentos
1. What is “law”?
• To exist in societies
• To better marshal scare resources to fulfil wants and needs
(Economies of scale and scope)
• Why do we need law for societies?
• To facilitate the pooling of effort based on shared
incentives rather than the application of coercive force
(with law you have cooperation instead of coercion)
• Ensures that human effort is governed by something other
than raw power
• No law = no rules governing how we are to conduct
ourselves in relation to others in society
5. Why Courts?
• Most of the potent limiters on exec or leg powers are in the form of
the written C
– The Charter is written down.
• It is not always the case that principles of C law are written down.
Some are derived from courts own experience of CML law making.
– These are unwritten principles.
• Our C is a mix of not just written norms and propositions but also
unwritten doctrines, some of which are of high legal significance
and very limiting. Taken together, the written and the unwritten
have the effect of constraining political institutions.
1. Judicial independence
2. Parliamentary governance and powers
3. Democratic institutions
4. Ministerial responsibility and parliamentary sovereignty (notion that
P is supreme over all other
levels of gov)
5. Political neutrality of Crown servants
6. Rule of law
7. Separation of powers
8. Implied bill of rights
Kinds of Unwritten Principles
1. Conventions
- Political practices of long standing significance
- Norms or expectations that we have of our political institutions
- Not enforceable by courts (they are political creations)
- To establish a convention:
o What are the precedents
o Did the actors in the precedents believe that they were
bound by a rule
o Is there a reason for the rule
2. Legal rules
- Constitutional law
- Enforceable by courts
- E.g. independence of the judiciary
Principles
1. Rule of law is supreme over arbitrary power
- Law, if exercised, must be in accordance with the rule of law.
Power must be exercised lawfully (i.e. it must have a legal basis).
Must be able to trace power to some legal authorization,
wherever it comes from (statute, royal prerogative, constitution,
etc.)
2. Equality before the law
- All people are subject to the law no matter what their wealth,
status, etc. Includes the PM
3. Rule of law requires law
- Must have positive law out there that you can point to. Need a
codification of these rules
As demonstrated in the case Law
Roncarelli v. Duplessis
Facts: R kept posting bail for those arrested for work as Jehovah’s
Witnesses; 1946 D initiated process to cancel R’s liquor licence; at
lunchtime of Dec 4 of 1946, police confiscated all alcohol; when
contacted by press, D said, “Mr R has paid the bail... “; R retains Frank
Scott, brings lawsuit and asks by what authority D purports to exercise
this power (don’t have divine right, not above the law - can only do the
law‘s bidding) R wins $8 000; matter appealed to SCC
Analysis:
• Illustration of 2. equality before the law
• All public officers are subject of the law
• Must act according to statute. Must give statutory justification
for whatever you do
Holding: SCC delays striking down the legislation. Said they had X
number of months to correct the deficiency. Didn’t do it right away
because it would negate the RL that lies at the basis of C
Analysis:
Illustrates 1. Rule of law is supreme (government must obey
the law)
Illustrates 3. Rule of law needs law (to strike down = no law,
obliges crt to suspend declaration of invalidity)
Written Rules for the Law Givers
1. Political Institutions
- Exec branch
- Powers of Monarch
- Privy Council
- Parliament
- Anticipates creation of a judicial branch
3. POGG
- Many new circumstances not listed in s.91 or s.92 (e.g.
Environment). To resolve this, we have POGG
- Use Pith and Substance test to see if something falls within
s.91 or within s.92
- For Feds:
s.91
All matters not assigned to the Provincial Governments:
- For Provs:
s.92(16)
“All matters of local or private nature in the province”
Whatever this means is up to the courts to decide
- Judicial interpretation:
Crts have varied in their enthusiasm for using POGG to favour
the provinces or feds
Historically:
interpreted s.92(15) broadly, giving the provinces
substantial jurisdiction and reading narrow federal powers
More recently:
SCC has reinvigorated federal powers (more pro-fed than
privy council)
Examples where POGG power interpreted in favour of feds
include:
Where there is a gap (ie regulation of offshore mineral
resources)
Matters of national concern not covered by federal
power (national epidemics, narcotics control,
aeronautics, marine pollution)
Matters of national emergency (Emergency Act
enumerates number of powers that Feds can use in
case of emergency that would otherwise violate DOP;
emergency defined as sudden, abrupt, large-scale
and temporary)
Trade and commerce
Criminal law (fed has excl authority to create crim
offences and provide for evidentiary rules but prov
powers includes admin of justice; means provs
actually est many of the crts, and prov prosecutors
engaging in most of the prosecutions; provs can
impose punishment by fine or
penalty/imprisonment...for provincial crimes)
Constitution Act, 1982
Patriation controversy
Patriation Reference
Facts: Trudeau managed to get the support of all the provinces, but
Que; Que argued that their support was a necessary condition for
patriation
Hogan Case
Ford v. Quebec
Holding: Can’t pass a law that says the Charter does not apply
Remember: Politicians less popular than the Charter so s.33 may not
get a lot of support
Separation of Powers
Executive Branch:
Legislative branch:
BUT...
Entire Crt, “the Cdn Constitution does not insist on a strict separation
of powers” ...
The point:
There is no robust separation of powers, no bright line in the same
way as American Constitution
Sometimes crts make law - take on role of legislature;
Parliament can give enormous power to executive à ie.
Immigration and refugee board, even to apply the Charter of
rights, might be able to assess whether legislation is
constitutional) - take on role of legislature and judiciary
V few constraints on the ability of parliament to delegate
legislative and judicial functions to the executive
Parliamentary Sovereignty
à Within that piece of the power pie, the courts have no choice but to
apply that statute as best as possible. Need to unearth what P really
meant
Summary
The Legislature
• Components of Parliament:
– The Queen (and her delegate, the Governor General)
– The Senate
– The House of Commons
o 100 Senators
o Roughly equal to the HOC in terms of passing legislation.
Gives them substantial authority
· NOTE: Money bills must originate in the HOC
o In relation to C amendments:
- When it talks about approval by P (HOC, Senate and
GG), should the senate be equally entitled to bar a C
amendment that the HOC thinks is a great thing? Yes
– but only to a point. 180 day limit. After 180 days
they can be overridden by the HOC. Can only delay.
Can’t block.
- Most ministers are sitting members of the HOC. They
are rarely senators.
- Core arena of ministerial responsibility (that they are
answerable to people) is not shared by the senate
- Reason for S was to afford protection to the various
sectional interests in Canada
- “Voice of the Provinces” in the Fed legislative system
Senate Appointment
- Appointment
o Regional representation à Const Act, 1867 says that the
Senate primary purpose is to ensure that provinces are
represented at the fed level
§ Note: Historical formula codifies past demographics
and we get overrepresentation in some areas and
under representation in other areas
§ Can’t change this without amending the C
o Appointed by the GG on the recommendation from
the PM
o Currently have two Bills that would have the effect of
converting the Senate into a democratic body, but
manages to get around some of the C challenges that
would affect senate reform (see below)
Brown
Sued the Fed gov (AG) for not appointing him. Argued that GG’s
unilateral authority in 1867 Act to determine the identity of senator is
unconstitutional because of the democratic principle seen in the
Quebec Reference. He was not successful.
Analysis: Unwritten does not trump written!
Sampson
Tenure of Senators
o Consultation on appointment
§ Bill C-43
§ S.12. (1) On issuing a proclamation referred to in
section 57 of the Canada Elections Act for the
holding of a general election, the Governor in Council
may order the consultation of the electors of one or
more provinces in relation to the appointment of
senators to represent those provinces. (2) An order
for the consultation of electors shall (a) specify, for
each province specified in the order, the number of
places in the Senate in respect of which electors are
to be consulted;(b) direct the Chief Electoral Officer
to carry out a consultation in each province specified
in the order; and(c) fix the date for voting, which
shall be the same as that for voting in the general
election.
· Is this a C amendment?
o Would we have to take away the GG’s
powers to appoint senators?
· Have a consultation (referendum process)
o Ask people who they want as their
senators à NOT binding
· Not actually changing the C as it is only a
referendum!
· If we are to be more democratic, this depends
on the PM honouring the outcome of the
“consultations” when making
recommendations to the GG. If we have to
force him to then we’d be changing the C
· Could become a C convention over time that
the PM would only refer to people who have
been selected in this matter to the GG for
appointment
Right to Vote
• Pre-Confederation
– Restricted to men with sufficient property holding (usually tied
to land ownership)
• Post-Confederation
– Right to vote in federal elections continues to be determined
by provincial laws until 1920
– Exclusions continue to be made on gender, race, and property
grounds
• Franchise greatly restricted by these measures
• Restrictions gradually removed, with restrictions on
status Indian voting lifted in 1960
- Central focus of section 3, for the Supreme Court, “is the right
of each citizen to participate in the electoral process”
- S.3 Rights:
o The right to participate effectively and have effective
representation
o Right to play a meaningful role in the selection of
representatives
o Right to an informed electoral campaign that is not
drowned out by monetary interests
Figueroa
Harper
Defensive measures:
Positive measures:
Electoral Process
Key Actors in Elections
CEO
- Officer of P (independent of executive) who is charged with
administering the CEA
- Appointed by HOC (multiparty consultation)
- Tenure lasts until 65 yr mandatory retirement
- Can only be dismissed by the GG for cause (not at their
discretion) and has to be supported by an address by the
senate and HOC (a motion/affirmative vote in both HOC and
Senate)
- Also has financial independence. Salary set in a matter that
allows the salary to be maintained independently of any
position of the Exec
o Paid the same as a Federal Court Judge
- Role:
1. Oversees most of the election administration
2. Heads Election Canada Staff
3. Interprets CEA
Returning Officer
- Reports the official total from a given district
- 308 - One for every riding
- Hires staff to run polling stations
- Also has a substantial amount of discretion in observing where
the polling stations will be put
o Should be reasonable to reflect the distribution of the
population
- Federal Accountability Act – Made returning officers independent
(do not favour either political party)
o Hired by CEO
O Merit-based criteria
Parties
- Canada Elections Act: “an organization one of whose
fundamental purposes is to participate in public affairs by
endorsing one or more of its members as candidates and
supporting their election.”
O “one of whose”à They have more purposes than this one
O very generous definition of a political party
O opening door to potentially an enormous number of parties
O problematic because parties are eligible for public funding
= prospect of creating political parties of convenience
Figueroa
Note:
- Forcese says this is a stupid rule:
o Law school could create a party and then issue tax credits
o Also makes it easy to do an end run around 3rd party
advertising rules that limit the capacity of non-party people
to participate in the election process
§ 3rd parties form their own party and get to spend
more than if they were a non-party making the 3rd
party donation
Party Leaders
- Determined by party rules and party members
- Under regulated by law
- Most important actors in the political system; especially
important due to party transitions
- Power of party leader à potential candidate can only be
certified by the CEO if they bring in papers with the signature of
the party leader
- Get to be PM if your party wins
- Members of the party vote for their leader
o As leadership contestant the first thing you do is sign up as
many new members as you can and hope that they vote
for you (build your own constituency)
- For a long time there was no rule on campaign financing
o Now we have $1000 donation limits
o There are transparency requirements and reporting
obligations
o Still NO spending limits (independently wealthy
candidates), even after the Federal Accountability
Act (FAA)
Triggering Elections
- General elections:
o Triggered by proclamation from the Governor
General directing the CEO to issue a “writ” to each
returned officer
O Polling dates set a minimum of 36 days after the writ date
(typically longer)
§ GG usually dissolves P at the behest of the PM
(some cases where the GG can do it unilaterally) à
prerogative power
§ Now fixed election dates
· Bill C-16: from October 19 2009 onwards,
elections will be mandatory every 4 yrs, on the
3rd Monday in October
· Doesn’t preclude confidence measures
- By-elections
o For one seat only
o Held after Commons seat becomes vacant
o Discretion to hold off calling a by-election: specific
minimum period before calling election, but no maximum
= can have seats vacant for a long time
§ Raises some concerns re: democratic representation
when there is a seat empty for so long
Electoral Financing
Public Subsidies:
- Expense Reimbursement:
o Both parties and candidates can benefit
o Parties receive a 50% reimbursement if they win support of
at least 2% of national vote or 5% of votes in electoral
districts in which they ran candidates
o Candidates receive a 60% reimbursement if they win the
support of 10% of the votes in their electoral district
- Quarterly Allowance:
o Parties winning support of at least 2% of votes cast OR 5%
of votes in electoral districts in which they ran candidates
receive on a quarterly basis an annual subsidy of $1.75 x
number of votes party receives, adjusted for inflation
- Tax credits
o Very generous tax credit system for political donations:
§ 75 percent up to the first $400 contributed; 50% of
the amount above $400, up to $750; and 33.3%
percent of the amount above $750, up to $1,275
· Note: This is now capped at $1000
§ Allegation that this opens the door for dubious
practices
· Party gives you $100 for volunteering your
time, you donate $400, you get $300 back in
tax credits (so you break even) and the party
gets $300
o System works really well because of the disclosure rules
§ Must keep receipts etc.
§ Must be professionally audited
§ Must file financial reports on a quarterly basis
Election Advertising
- Defined in the Canada Elections Act:
o “the transmission to the public by any means during an
election period of an advertising message that promotes
or opposes a registered party or the election of a
candidate, including one that takes a position on an issue
with which a registered party or candidate is associated.”
- Issue with issue advertising:
o At what point do you consider it issue advertising?: party
positions shift so its hard to tell whether a given ad falls
within the definition
o Issue advertising is especially important to third party
advertising
Facilitating advertising:
1) Signage
- Limits on the capacity of landlords to restrict your capacity to put
campaign signs in your window (must be reasonable in terms of
size, etc.)
2) Broadcasting time
- Broadcasters must set aside 6.5 prime time hours for registered
parties during elections
o Time portioned between parties according to a formula
that generally takes into equal consideration the % of total
seats the party has in the HOC and the % of the popular
vote received in the previous election
o Green Party à no seats so accorded no partion of the 6.5
hours
§ Alberta COA: No restriction on FOE (they could still
speak, they just don’t get the prime time hours) and
even it if it was, the legislation could be upheld on
s.1 grounds
- Broadcasters must also set aside free time of 2 minutes for
each party
- Transparency requirement à Must ID the person who is paying
for the commercial (i.e. which campaign) and that it has been
authorized by that party’s official representative
Restricting Advertising
1) Polling day à no advertising
2) Opinion surveys à can’t be published on election day
- Tend to be partisan à answer people give tends to
depend on the questions they are asked
- Used to be bared 3 days before the vote. Struck down
by SCC in Thompson Newspaper case as a violation of
FOE
3) Foreign advertisers à campaign advertising from outside
Canada is not permitted
- Non-residents who are not citizens or permanent
residents cannot try and influence Canadian voter
preference
4) Third Party Spending Limits
- Current requirements:
o Advertising expenses of an individual third party
during a general election are capped at $150 000
o Not more than $3000 of the $150 000 is to be
incurred to promote or oppose the election of one
or more candidates in a given electoral district
o Advertising can be related to a specific party or a
specific issue
O See case law below
5) Government advertising
o Restrictions on incumbent parties on what they
can spend
o Can’t have partisan messages by the incumbent
gov during the election campaign
o CEA doesn’t preclude the “feel good” advertising,
however
§ “Heath Canada, making the world a better
place”
COA: Alberta COA struck down the $1000 limit (not upheld on s.1
because no evidence that election contests are influenced by third
party spending). No appeal to the SCC.
Harper v. Canada
IN SUM:
(1) $150 000 spending limit on 3rd Party stands
(2) Not a violation of s.2(b) (promotes political expression)
Dissolution
- Except in times of emergency, maximum of 5 year duration,
under both the Charter and the Constitution Act, 1867
- Timing of dissolution (in circumstances where 5 year limit not
reached) generally at discretion of PM; However, constitutional
convention requires a PM to resign his or her government or seek
parliamentary dissolution in the wake of a non-confidence vote by
the House
- Circumstances in which the Governor General may refuse a
dissolution: the so-called “reserve” powers of the Governor
General
o n/a following a non-confidence vote
o E.g. King-Byng Affair
§ GG can decline to dissolve when it is a new parliament
§Can
turn instead to the leader of the next largest party in
P, asking its leader if s/he is capable of forming a
government: a chance to try to make a coalition that
would have a majority and enjoy the support of
parliament
§ Only arises when you have two parties making a
coalition govt
- Fixed election dates: Bill C-16 now requires an election once
every 4 years, unless there is a vote of non-confidence
Confidence Vote
- To have a confidence motion you can have 3 main types:
– Explicitly worded motion of non-confidence
• Consequences are clear: “this is a vote of confidence
that...”
• Almost always done by the opposition
• Usually unsuccessful due to strong party discipline &
majority govts
– Unilaterally declared - Possible to have a scenario where
the government is allowed to unilaterally declare
something a non-confidence vote when there is actually
nothing about confidence in the topic they are voting on
– Implicit votes of non-confidence
• deemed to involve confidence, even though not
declared to be so by a prior statement of the govt
• E.g. Vote on a money measure
Political Parties
- Two legal considerations favour party discipline:
o 1) Decision-making by a majority in the Commons
§ Matters in HOC are decided by a majority of voices
§ Trouble getting agenda through if your party is not
very disciplined
· Extent to which free votes are allowed is
decided on a per party basis
o 2) Confidence convention
§ If you have a party that is disciplined and voting en
masse it is easier to warn off the opposition trying to
get a non-confidence vote
Parliamentary committees
- Perform the “detail” work in Parliament
- Six sorts of committees
o Standing Committeesà most important (see below)
o Committees of the whole à plenary session, which is
basically the HOC
§ Mostly done with procreation bills to approve govt
expenditures
o Legislative Committee
§ Special committee established on an ad hoc basis to
deal with a particular bill
§ Relatively uncommon
o Special Committees
§ Aka Task forces
§ Ad hoc basis
§ Examine particular public policy issues
o Joint committees
§ Share membership between Senate and HOC
§ Rare
o Sub-committees
§ Sub divisions of existing committees
§ Sometimes a full committee decides that a task should
be sub-delegated so that the sub-committee can probe
an issue in more detail
§ Relatively common
Standing committees
- Permanent existence
- Have particular mandates that tend to coincide with departments
- Powers set out in Standing Orders
- Review:
o (a) the statute law relating to the department assigned to
them;
o (b) the program and policy objectives of the department and
its effectiveness;
o (c) the expenditure plans and the effectiveness of
implementation of these plans by the department;
o (d) the relative success of the department; and
o (e) other matters, relating to the mandate, management,
organization or operation of the department, as the
committee deems fit.
- Selection of members:
o Mostly done by the party Whip
o Chair determined by the majority of the committee
- Has substantial power
o Can send for persons, papers and records, etc.
o Can hold people testifying against them in contempt. E.g.
RCMP Commissioner
Parliamentary Proceedings (PP)
Purpose of “Parliamentary law” (rules governing proceedings)
- PP à Rules for P to control and discipline membership
- Purposes (4):
- 1) To protect a majority and restrain the improvidence or
tyranny of a majority
- Gives opposition a fair amount of latitude for acting
in the P process
- 2) To secure the transaction of public business in an orderly
manner
- 3) To enable every Member to express opinions within the
limits necessary to preserve decorum and prevent an
unnecessary waste of time
- 4) To give abundant opportunity for the consideration of
every measure; and to prevent any legislative action from
being taken upon sudden impulse.”
- Due deliverance that leads to transparency
- Examples include:
– 1) The parliamentary power to control and discipline
membership
2) Freedom of speech:
- immunity from what they say in P proceedings
o Roman Corporation à Trudeau announced a
deal that fell through. At trial the judge said
that since it happened in the HOC it is
immunized so Trudeau cant be sued for
inducement of breach of K
o Ouellet à Privilege is designed to protect FOE,
but only during P proceedings (HOC and
Committees). Does not include statements
made to the media in the lobby outside the
context of any P proceedings
– 3) Immunity from being summoned as witnesses
during Parliamentary sessions
- Extends to 40 days before and 40 days after a
session of P
- Has been reduced in some cases because this is
antiquated
– 4) Control over Parliamentary proceedings
- P can decide where budget speech will be given for
example
– 5) The parliamentary jurisdiction over the
parliamentary precincts, facilities and personnel
- P supposed to have jurisdiction as to what goes
on in its buildings.
- Can not deny access to MP (violates PP)
- New Brunswick Broadcasting Case
- Issue: Could NS Legislature control
access by media to their sessions
(violated s. 2(b))
- Ratio: Charter did no apply bc NS
legislature was exercising constitutional
privilege; one part of the constitution can
not be used to beat down another
- Jurisdiction over P personnel
- PP to decide how to treat them
- Raised the question as to whether PP is free to
discriminate on racial grounds? Can they act in
a manner we would consider is inappropriate
for anyone else?
- Case law below tells us that not ALL employees
are subject to sole jurisdiction of Parliament
(Vaid Test)
- Thomson case
- Facts: former ee of former Speaker
claims sexual harassment; ON AG claims
PP on behalf of ON l egislature; claims PP
protects absolutely anything
- Ratio: PP doesn‘t protect absolutely
anything - “it cannot be clear without a
full blown trial” whether or not PP protects
Speaker in these circumstances
- Vaid case
- Facts: Speaker of federal parliament
fires chauffeur after some conflict;
chauffeur claims dismissal was motivated
by racism; complains to Canadian
Human Rights Commission;
Commission’s jurisdiction is contested
- Issue: whether a past Speaker’s
alleged behaviour is i immunized by PP
- Ratio: the privilege alleged by
Speaker does not extend as far as
would wish; have to analyse privilege very
carefully to see how far it reaches;
test =
(1) Look to jurisprudence: is privilege
one that has been
recognized?
(2) If can’t establish the it has been
authoritatively in existence, is it
necessary for the functioning of
parliament? (necessity test)
Bacon
Facts: Provincial gov replaces the old crop insurance program with a
new one that says any contractual claims you had under the old
program would now be cancelled; Bacon said it violated the unwritten
principle of the Rule of Law
Wells
Facts: Legislation passed and Wells job ends 6 months short of him
having a pension available à Sues for breach of K
Authorson
Facts: Funds weren’t being invested/growing so the pension
entitlement of the Veterans was not growing as much as it could have
been; Veteran's sued, saying the govt had violated the fiduciary duty in
administering the funds; Seeking billions of dollars in damages; P
passed a law in relation to this claim; “No claim allowed for anything
prior to 1990”; Barred by statute the claims that the veterans had
made
Parliamentary Functions
2. Legislative Function
– Terminological Issues
– Act/Statute à Written law that has gone through the
appropriate procedures in P
– Bill à Law project that is tabled in P that will become a
statute if it makes it thought the process of enactment
– Money bills à can only be introduced in the HOC
– Other bills à can start in the HOC or Senate
• Most start in HOC à viewed as the most democratic
part of P
– Private vs. Public Acts
• Private à statute that confirms powers on a
particular group or individual.
Narrow ambit
Process: bill à encourage Parl to intro bill through
petition à bill -à legislative process à act
Tend to start off in Senate
Not very important, few
Ie. incorporation
• Public à statute dealing with public policy
Broad ambit, general law
Two subspecies:
– Gov Bills (tabled by MPs)
– Less than 200
– PMB (tabled by someone other than an MP)
– 1000s
– Very low success rate due to restricted
time of the legislature (1%)
– Success rates go up in minority contexts
– New or Amending Acts
• New à Acts that never existed before. Have an act
that is internally coherent from s.1 to its final section
• Amending à Amending an existing statutes
The Legislative Process
Step 1: IDEA
- General public à voice concerns to gov or MPs à Grassroots origin
- Minster à in response to proposals coming out of the public
service
o Cabinet ministers champion the project at the Cabinet level
o Discussion papers à “here are things we are thinking about,
what’s your opinion?”
o Press release and Speech from the Throne can also give
ideas about what is brewing
o Public service ideas à two times a year from departments
- Committees à Can propose new law ideas
o Standing orders of HOC in 1994 were amended to facilitate
law making ides being generated out of the HOC itself
o MP can now refer an issue to a committee and tell them
how to draft a bill
- MPs à Gov bills can pre-empt PMB
o Gov doesn’t want to see the PMB enacted so it develops its
own bill that deals with the issue in a way that the gov
wants to approach it as opposed to the way the PMB is
approaching it
- Courts à e.g. Gov has one year to respond to courts by drafting a
new law to correct the C deficiency
Section Function
Legislation Section - Provides advice on legislative
writing
- Other specialists: Jury linguists
- All bills have to be bilingual and if
you’re going to have this you both
versions to mean the same thing!
Regulations section - Specialize in
secondary/subordinate legislation
- If you are proposing to introduce a
regulatory power in the Bill you talk
to these people
Human rights law section - Any bill that would have to do with
International law HR, etc.
- Also anything having to do with the
Charter
- Esp. important for things in the
Criminal area!
Constitutional and admin law - Consulted when there is questions
section about if the law falls within the
appropriate DOP for example
International law section - Obligations that go beyond HR
obligations
- E.g. Compliance with international
copyright law
Section Explanation
Regnal year Session of P related to how long the
Queen has been sitting. No legal
effect.
Act Number Reference to the order in which it
SC 1988 C-20 was introduced. i.e. 20th Act to get
Royal Assent in this particular P
Long Title Purpose of the statute
Gives indication of where to look to
see if amendments are consistent
with the purpose
Date of Royal Assent When the act becomes legally
operative
Enacting Words No legal significance
Short title Handle we used to refer to the
statute (s.1)
Executive Branch
Structure of the Executive Branch
• Monarch/GG
– Give Royal Assent
– Head of State (head of Exec branch)
– S.9 of the 1867 Act
• Ministry:
– Not the same thing as the Cabinet, necessarily
– Not the same thing as the Privy Council
– Ministry is just the generic term for everyone who is a Minster
– No requirement that ministry overlaps with cabinet (BC PM
chooses; however usually the same)
– Cabinet
– the collective decision making body (Ministers selected
by the PM)
– not anticipated by law (the constitution)
– instead there are references to the governor in council
– Federal Interpretation Act: governor general acting in
association w Queen’s Privy Council
– Queen’s Privy Council:
• The GG of Canada acting by or with the advice of
or in conjunction with the Queen’s PC (QPC)
• What’s the Queen’s PC?
• Found in the C Act, 1867
• Body that advises on the Gov of Canada
• How does that help us in understanding what
Cabinet is?
• All cabinet members when sworn in become
a member of the QPC (“the Honorable”)
• How is it that these powers of the QPC are
exercised exclusively by sitting Cabinet
members? Means the sitting cabinet
members are advising the GG and therefore
acting as GIC
• GIC à short hand for the GG acting at the
behest of the Cabinet
• The powers of the QPC are exercised exclusively
by sitting Cabinet Members (1867 Act)
• Every time you see a federal statute that
talks about GIC that is code for the Federal
Cabinet
• Provincial Level: Lieutenant GIC
• Prime Minister
– First among equals in the Cabinet system
– Key power: to select and fire ministers themselves
– Primus inter pares
– Appointed by the Governor General on the basis of whether
can secure confidence of Commons
– Resigns when incapable of retaining this confidence (usually
after an election in which another party obtains more seats in
the Commons; however, possibility of coalition)
• Ministers
– Appointed by the Governor General on the advice of
the Prime Minister after you get elected
– Dismissed by the Governor General on the advice of
the Prime Minister
– Different types of Ministers:
• Most common/important à one that heads up a
department
• Responsible theoretically for everything that goes
on in the Dept
• Sub Ministers à Ministers of State
• Assist the ones that head up a department
• Abandoned after the last election
– Selection process
– Typically members of Parliament (however no firm
requirement)
• Don’t want that situation to last for long because then
you have the head of the exec branch without any
connection to the leg branch
– Political considerations in selecting ministers:
• At least one minister for each province (exception: PEI)
• Adequate Anglophone/francophone representations
• Gender and Ethnic representations
– No security of Tenure
PM resigns à ministry also expires
No wrongful dismissal if the PM decides to let you go.
Totally at his discretion.
• Public Service
– Appointment: Appointed in keeping with the merit
principle in the Public Service Employment Act
• PSEA designed to create a reasonably independent
Public Service
• Appointments must be made on the basis of merit and
free from political influence
De-politicized by:
1. Admission tests: preserves emphasis on merit
2. Restricting dismissal
– Tenure: Dismissed according to employment law rules
• Can have different statutes (indeterminate has the
longest tenure, contract, etc.)
• Subject to union rules so it makes it hard to dismiss
them
• Special rules on dismissal/discipline for overt
political activity: Osborne
• Three scenarios:
• 1) You are a janitor at the DOJ and you are going
to run for liberal nomination in Toronto Centre.
Minister of J finds out. Can he fire you?
• Osborne à s.3 claim à case that engaging in
partisan work leading to dismissal was a
violation of C guarantees such as FOE, etc.
Court concluded that it was not upheld on
s.1 since it was an absolute provision. It
didn’t matter what your job was. SCC was
not persuaded that the neutrality of the
public service (PS) was in jeopardy every
time anyone did something
• They distinguished between sorts of
public servants. Under the new rules,
most PServants are allowed to engage
in partisan activity (there are some
constraints though – not an absolute
right)
• Rules must stricter for those in higher
up positions (Scenario 2)
• 2) Deputy Minister of DOJ and you are going to run
for liberal nomination in Toronto Centre. Can the
minister fire you?
• Can only engage in voting… can’t engage in
any other partisan activity
• 3) What if as a PServant I provide the Globe with
some inside info (whistle blowing)? To what
extent can you be disclosed for wrongdoing?
• Fraser:
• Issue: Comments made about Trudeau
implementing the metric system. Got fired.
Ended up at SCC. Could he be dismissed for
violating their duty of loyalty?
• Holding: Outer limit on the duty of loyalty.
It is not reached by the meritic system, but
it might be reached by info that the gov
engaged in illegal acts or the gov
jeopardized someone's safety/heath/life
then you do have the opportunity to voice
your views (implicit whistle blowing
protection)
• Pre-Charter case
• Your ability to release info about your safety,
etc. is basically a constitutional right (FOE)
*** Independence seen in the public service vis a vis the executive.
When the Tories take over they can’t fire all the public service because
they think it is tainted with liberals ***
*** Get even more robust independence where for various reasons P,
when it designs a certain agency or branch of the Exec, they say they
want to give it even more autonomy ***
- E.g. Human Rights Commission à want more independence
because the litigants are often a complainant and the
gov… so want them to be impartial to the gov so you get a
fair hearing and so their actions are subject to
manipulation by the gov
- E.g. Immigration and Refugee Board à Same situation as
above. Don’t want the person hearing the case to get a call
from the Immigration minister trying to influence him
Holding: SCC said they don’t get to enjoy the crown’s immunity
because cops are at arms length from the Crown à Police are
independent when it comes to conducting their work à Very important
because you don’t want the police to respond to political direction in
the way they conduct their affairs
Outcome: SCC said cops don’t enjoy the crown’s immunity. Gov’s
response was to give statutory provisions so the police can break the
law (s.25 of the Criminal Code)
Powers of the Executive Branch
Black v. Canada
Facts: Conrad Black à Appointed a peer in the UK HOL over the
resistance of JC à Chrétien called up the Queen and told her not to do it
à Relied on Nichols resolution (not binding law, just a resolution) said
that a Canadian citizen should not accept foreign honour without
Canadian permission à Black sued
Issue: Is the exercise of the prerogative subject to any controls from
the courts?
Holding: Black loses because the source of the PM’s power was
prerogative. Court said the PM’s use of power RP was not amenable to
judicial scrutiny à The source of power (RP or statute) does not
determine what is reviewable by the courts à controlling
consideration is the subject matter, not the source! à amenable
to judicial process if it affects the rights of individuals
Note: Some powers are subject/amendable to judicial scrutiny (e.g.
Passport stuff)
Delegated Legislation
– Most famous form is regulation
– Process is determined by Statutory Instruments Act and government
policy
Not a very robust procedure
Gov policy is mutable à Does not have to be followed if gov does
not want to follow it
– What is a “statutory instrument” subject to the Statutory
Instruments Act?
• Basically, all delegated legislation of importance:
1. Everything described as a regulation in an Act;
• SIA defines what we mean by regulations or
instruments that are subject to the SIA
– 1. Cost/benefit study
Obligation under gov policy to do a cost-benefit study when
making regulations
– 2. Regulatory proposal
Summarizing cost/benefit analysis, among other things
– 3. Examination of proposal
By, most important, the DOJ
And Clerk of Privy Council
Ask, is it in fact permitted by Statute, Charter, etc.
– 4. Pre-published in Canada Gazette I
In Govt periodical
General public has 30 days to respond
– 5. Regulation made
Executive order is signed
– 6. Regulation registered: CIF (coming into force)
Generally within 7 days of being made, registered with clerk
of Privy Council
When registration occurs, the reg comes into force and in
theory is therefore binding law
– 7. Regulation published
Published within 23 days of being registered in the Canada
Gazette II
Person can’t be penalized for violating the reg until it has
been published
1. Procedural Fairness
– A common law due process standard for administrative decision
makers
– Even where statute is silence, courts are grafting on due process
obligations
– What is due process:
1.Notice + opportunity to comment
2.Before and unbiased decision-maker
– Test for trigger: Knight v Indian Head
1) The nature of the decision is being made by the administrative
body
a. if final decision, it is more likely that procedural fairness
is required
b. if administrative decision (narrowly focused on
individual), “”
i. Legislative decision by exec à general decision that
applies to a large number of people
ii. Admin à applies to a more narrowly defined
group
2) The relationship between the body and the individual affected
by the decision [impact of Dunsmuir?]
a. Must be a public power that is being exercised
3) The effect of the decision on the individual’s “rights”
a. Does the decision have a severe impact on the individual?
b. Rights shouldn’t be read too narrowly: means interests,
property or otherwise. Not right as in the C sense or a right
in terms of a tort cause of action
– Test for content: Baker v. Canada
Highly variable and depends on the facts
Factors to consider:
1) Nature of the decision being made
more alike to a judicial process, more due process
awarded
2) Nature of the statutory scheme
is there an appeal route?
3) Importance of the decision to the people affected by it
4) The legitimate expectation of these people etc.
5) The choices of procedure made by the agency itself
especially where the statute leaves to the decision maker
the ability to choose its own procedures or when the
agency has an expertise in determining what
procedures are appropriate in the circumstances
At core, courts are pre-occupied with ensuring that you get robust
due process in light of the consequences (the more serious the
consequences, the more due process)
1. Substantive Mistakes
– Courts have capacity to review “jurisdictional” errors by the executive (errors re:
what is within govt’s piece of the pie)
– Culture of restraint and deference influenced how willing courts were to intervene
– Ultimately produced a tripartite test to determine standard of review
Established 3 different types of deference:
correctness (right or wrong)
patently unreasonable (most extreme form of deference - only intervene
when we think your decision is clearly irrational)
reasonableness simpliciter (ambiguous; akin to patently unreasonable)
– Impact of Dunsmuir: threw out tripartite standard review
Now only: correctness (aggressive) or reasonableness (deferential)
Cases
Baker v. Canada
Facts: Baker was a citizen of Jamaica à overstayed visa by 10 years à
kids born in Canada à she’s ordered deported à kid was sick so she was
worried about this if she got deported. Also worried she wouldn't’ get
back into Canada if she tried to re-enter à Seeks Humanitarian and
Compassionate Relief so she can apply for residency inside Canada à
turned down by senior immigration officer à responds with judicial
review à said the member of the admin branch did not act properly à
argued procedural fairness à said she should have been given
substantial reasons for the denial along with an oral hearing
Issue: Does procedural fairness apply here? How much due process
are you entitled to?
SCC: Procedural fairness was owed here. She was facing someone
holding procedural power. Meets the Knight v. Indian Head test.
Keeping the Legislative and Executive Branch Honest:
Ethics Rules
- Ethics rules regulate the private interest in the public interest
o Decisions should be made because they are in the public
interest, not because they are good for the decision maker
• Federal Accountability Act (FAA) is about codifying ethics
rules for the senior officials
• Theme of impartiality
• Must not make decisions for personal gain. Can still have
partisan objectives though.
1. Conflict of Interests
- Avoid real, potential and apparent conflicts of interest
Real à Some private interest that does exist that CAN/HAS
driven COI
Potential à COULD impair your decision making, Not so
directly related that it IS driving your DM (Could influence
your decision but has not yet)
Apparent à What does the PUBLIC perceive (setting aside what
the reality is) à reasonably well-informed persons could
probably have an apprehension that a conflict of interest
exists
- Economic and non-economic COI
Economic à Pecuniary interest. Make decision X and get money
for it
Non-Economicà non-pecuniary benefits (ie good exposure)
- Present and future private interests giving rise to a conflict
Present private interests à Present in time and immediate in
benefit (e.g. Here is a gov K because you paid my kids tuition)
Future à After you leave yore job with the govt
Governed by: Parliamentary Code, Criminal Code (special rules
about public office holders), Conflict of Interest Act
Cogger
Facts: Accepted money from two businessmen for trying to get
something passed through Senate
SCC: Gave us language to understand influence peddling in the
criminal code
Mens Rea requirement: have to intentionally commit the act with
knowledge of the circumstances (have to know you are an official),
intentionally demand compensation, and know that the compensation
is in exchange for influencing the gov a certain way; don’t need a
corrupt state of mind
Keeping the Legislative and Executive Branches
Honest: Lobbying
Lobbying as a Public Policy Issue
• “Lobby”: to seek support, to attempt to influence government
decisions either directly or indirectly
“Lobbyist”: someone who is employed to direct the exercise of
power without bribing
• The dilemma of lobbying: public service or suspect practice?
It is what makes democracy function (breaks isolationism of
decision makers)
But moneyed interests can dominate
With lobbying, it is not a private interest that is being affected on
the part of government (public authority has no private interest
in oil sands, for example)
Scope
• Applies to listed government institutions
Problem: when govtal structures change, requires prompt and
accurate updating
FAA now covers crown corps, but not in robust way
Includes very important “exclusions” from the Act
Material entirely outside scope of act (not to be confused with
exemption)
Cabinet confidences (memo to cabinets)
2001: certain info related to national security can be carved out
Controversial: why do we need to exclude when we already
have exemptions?
Materials in museums and libraries reserved for public viewing
Purpose
“To extend the present laws of Canada to provide a right of access to
information in records under the control of a government institution
in accordance with the principles that government information
should be available to the public, that necessary exceptions to the
right of access should be limited and specific and that decisions on
the disclosure of government information should be reviewed
independently of government.”
Tobias:
Facts: No way they could have gotten citizenship unless they lied
about it à because they had lied about their past affiliation with war
crimes à the gov was trying to revoke their citizenships à Counsel for
gov wrote a letter to the court administrator saying that it was a slow
case and they were unhappy about it à Chief Justice of the Federal
Court then had a chat with gov about how horrible these waits were.
Tobias lawyer not present à then tells the Associate Chief Justice who
was overseeing the case to speed up and he did! à Crown had
disproportionate access
SCC Holding: Independence was compromised à undue influence by
the gov à “As a general rule, counsel for one party should not discuss a
particular case with a judge except with the knowledge and preferably
with the participation of counsel for the other parties to the case.” BUT
can be limited by statute (e.g. Terrorist and CSIS)
Remedy: Slap the Fed Court on the wrist. Matter must be assigned to
another judge and that judge has to ignore the previous handlings and
the case will proceed in this way
Test: The test for determining whether the appearance of judicial
independence has been maintained is whether a reasonable observer
would perceive that the court was able to conduct its business free
from the interference of the government and of other judges.”
* who determines when judges fired, who determines what paid, which
cases they take
* 3 pillars given profound recog by SCC
- Talking about three things:
o 1) Security of tenure
§ Can’t be fired for an unpopular decision
§ Also, before a judge can be removed for just cause
there must be a judicial inquiry to establish the cause
exists and the judge must be given the opportunity
to be heard
*don’t want judge to tailor ruling so as not to be fired...
o 2) Financial security
§ Crime to accept bribes
§ Salary not related to decisions
*don’t want...pay cut...
o 3) Institutional/Administrative independence of the
court
§ Can’t play games with the judges
§ Financial independence has been the most
troublesome in the last decade
· Budget cuts à Many made at Provincial level
that affected the provincial inferior court levels
o Courts sued in the PEI Reference Case
*don’t want judge shopping
Financial Security:
A. Retirement
• Federal Court Act, s.8(2), Supreme Court Act, s.9(2): A judge shall
cease to hold office on attaining the age of seventy-five
years.
• Constitution Act, 1867, s.99: "A judge of the superior court shall
cease to hold office upon attaining the age of 75 years"
Step 5 à Inquiry
“It has always been said, and correctly so, that when women -- whom I
have always considered the noblest beings in creation and the noblest
of the two sexes of the human race -- it is said that when women
ascend the scale of virtues, they reach higher than men, and I have
always believed this. But it is also said, and this too I believe, that
when they devide to degrade themselves, they sink to depths to which
even the vilest man could not sink…”
CJC Inquiry:
“...the judge=s remarks about women and his deep-seated ideas
behind these remarks legitimately cast doubt on his impartiality in the
execution of his judicial office.”
- Full council then looked at it. Voted 22-7 that justice Bienvenue
be dismissed
- Minority view:
o Judges should be encouraged to speak their mind à want
them to be transparent in their views
Court Functions: Statutory Interpretation
Old view:
“New” view:
*** The task of the court is to give effect to the intention of the
legislature in so far as that intention can be discovered in the
language of the text, with the language of the text being analyzed
with reference to certain rules of statutory interpretation ***
– If the intent is still fuzzy after application of the rules of
statutory interpretation, the judge must rely on his or her
own judgment
- Give primacy to the words, to unearth their meanings, but
if the words are still ambiguous even after you’ve looked
the grammar and applied the words of SI, then the judge
just has to judge, and do their best
- Does not follow the marching orders of the legislature
- New view is more realistic but it does violence to the
theoretical constructs that we apply in terms of our C order
Rules of SI
SI: Examples:
R. v. Davie
COA:
Paccar v. Canada
Old Approach:
Driedger’s 5 steps:
• (4) If, notwithstanding that the words are clear and unambiguous
when read in their grammatical and ordinary sense, there is
disharmony within the statute, statutes in pari materia, or the
general law, then an unordinary meaning that will produce
harmony is to be given the words, if they are reasonably capable
of bearing that meaning.
Step 2(a) à If the words are clear and there is no disharmony à apply
the ordinary meaning à end of analysis
Step 2(b) à if the words are clear but in applying them there would be
a disharmony between the meaning and the broader context
- Then you choose a non-ordinary meaning (one which is more
consistent with the overall thrust of the statute
Ordinary meaning
NB: Interpreters are to take into account the ordinary meaning of the
words. Where there is no reason to modify or reject this ordinary
meaning, the ordinary meaning should prevail.
1) Dictionary meaning
2) Bilingual legislation
3) Plausible meaning rule à must be a meaning that the text can bear
given the grammar context
5) Drafting conventions
o Binding obligation à “Shall”
o Non-binding (discretionary) à “May”
Facts: Had a mini machine gun à Gun was seized under the Code à
Looking at the term “prohibited weapon” as described on the side à
“any firearm . . . that is capable of firing bullets in rapid succession
during one pressure of the trigger” à The actual gun, in the state it was
purchased, was sold in a manner in which you couldn’t shoot multiple
bullets on a single press à Problem was, that it could be converted in a
moment into a weapon that could shoot multiple bullets
If arguing for D:
- Can draw inferences from this that help unearth meanings of the
word
Ejusdem generis
à If the leg expresses one thing but fails to express another then it
potentially excludes that other thing
o “All vehicles must register with the ministry…. And motor
boats must also register”
§ Issue: Do you have to register your sail boat?
§ Is your sailboat a vehicle? Look at dictionary à it is
possible
§ What argument would you make to suggest you
don’t have to register your sailboat? Implied
exclusion of sailboats. If the leg felt the need to
expressly include “motor boats” that impliedly
excludes things like sail boats
Facts: Had a mini machine gun à Gun was seized under the Code à
Looking at the term “prohibited weapon” as described on the side à
“any firearm . . . that is capable of firing bullets in rapid succession
during one pressure of the trigger” à The actual gun, in the state it was
purchased, was sold in a manner in which you couldn’t shoot multiple
bullets on a single press à Problem was, that it could be converted in a
moment into a weapon that could shoot multiple bullets
Issue: Can the weapon be seized for being a prohibited weapon
If arguing for D:
“Presumed intention”
Summarize:
4. Courts read the whole act, then they determine the ordinary
meaning of the words from their immediate context and then, if this
ordinary meaning is clear and consistent with the broader context,
they stop.
o but if the words are unclear or they conflict with this
broader context, then a reasonable meaning that accords
with this broader context is generally to be preferred
- Read the words with a broader eye to the thrust and meaning of
the statue
Facts: Bankrupt firm. Employees lost jobs à Did this give rise to
severance pay under provincial laws à Provision in statute said you get
severance when the employee terminates the employment à Problem
here: it was an involuntary termination
Holding:
- Want to make sure they don’t violate the Rule of Law and that
the PS is met
- Courts play an important role in policing the bounds of
power
- Courts also play an interpretive role
o In the SI context the interpretive role is used so we know
how to follow Leg’s dictates
o In the C context, the courts have been less concerned with
intent
- Courts are not only policing the legislature, they are also defining
the scope of the power pie (reigns in exec, etc)
“A state is sovereign and it is not for the Courts to pass upon the
policy or wisdom of the legislative will. As a broad statement of
principle that is undoubtedly correct, but the general principles must
yield to the requisites of the constitution. The Courts will not question
the wisdom of enactments which, by the terms of the Canadian
constitution are within the competence of the legislatures, but it is the
high duty of this Court to insure that the legislatures do not transgress
the limits of their constitutional mandate and engage in the illegal
exercise of power”
Issue 2: Remedies
- Wilson J.:
o “We can no longer rely on the doctrine of the supremacy of
Parliament as a reason for staying our hand. We have to
examine any impugned legislation to see whether it
interferes with the fundamental rights of the citizen and, if
it does, strike it down. …”
o “I think the conclusion is inescapable that the scope of
judicial review of legislative and executive acts has been
vastly expanded under the Charter and that, indeed, the
courts have become mediators between the state and the
individual.”
o “I think that the new role under the Charter represents a
fundamental reordering of the political balance of power. ...
The judicial role under the Charter ... has, in my opinion,
effected a major change in the relationship between the
three branches of government. It challenges the right of
government to enact certain laws at all and makes the
courts the watchdogs over the rights of citizen.”
1. Certiorari
2. Prohibition
- No decision has been made yet by the delegate and the courts
decide that the delegate is not in a position to make that
decision
3. Mandamus
4. Quo warranto
- Important when you have uncertainty as to whether an official
was a bona fide officer
- Come to court to show you are actually the one entitled to
executive the functions
5. Habeas corpus
- Upon being detained the gov has to show cause as to why your
detention is illegal
- Designed to prevent arbitrary decision (detention without legal
basis)
Note:
- If the determination you are challenging is made by provincial
exec you go to the Ontario Divisional Court
- If you have a grievance with the Fed Exec you go to the Federal
Courts under the Federal Courts Act
***********************************************************************
*********************************
A. Retirement
Fed Crt Act, S.8(2), SC Act s.9(2): A judge shall cease to hold
office on attaining the age of 75 yrs
Const ct of 1867, s.99: specific same for judge of sup crt
v. Hard to get out any other way*
Landreville case
Justice Rand: “Would the conduct...public honour?”
Facts: inept law student, political involved in Sudbury, involved in gas
projects in mid-1960s, bunch of ON mayors offered free shares...etc,
only after got municipal rights; he got shares and made substantial
amnt of money; before details emerged, appointed to bench;
commission recommended that Landreville be removed from bench
Rand proposed standard by which to measure whether good
behaviour has been met or not
If answer yes - violated good behaviour
Recs considered by Parl, and Landreville resigned (no formal vote on
removal)
Why would there have to be formal rule?
Not enough that violated gb standard
In wake of Landreville...
Canadian Judicial Council
Established Judges Act
Chaired by Chief Justice of Canada
Purposes includes considering complaints against
federally appointed judges
Set up as standing Royal Commission
Walk briefly through complaints system (see slides)
1. Complaints made
judge has in some way failed to meet standard of good behaviour -
also includes being incapacitated)
In writing, from public, sent to council
Mins of justice and govt can also make complaint (some can short-
circuit process)
Bw 1971 and late 1990s = 1678 complaints
A lot of complaints are bounced bc not supposed to complain in circs
where dislike outcome (should appeal); supposed to complain about
conduct of judge
Over last decade = 165 (keep in mind over 1000 fed judges), so not
that many all things considered
4. Referred to Panel
5 members of council (excl judges from same crt as judge
complained of)
They decide to ...
5. Dismiss (end), or
6. Recommend Investigation
Complaint has some validity
Conduct is quite serious
Provides report that specifies grounds that judge acted improperly
Council considers...
7. Dismiss (end), or
8. Inquiry
Federal justice min and AG can compel and inquiry (circumvent all
steps before)
Inquiry hearings
Typically public and independent councils
V much formal proceeding
Report to Council (w or wo recommendations)
Recs will indicate whether judge should be removed or not
Since 1971, there have been 9-10 inquiries (not common at all)
9. Council hearings
If judge so requests, can appear before council or make written
submissions
Council then votes on its position
Reports to Min and may recommend dismissal
4 grounds = age or infirmity, misconduct, having failed in due
execution of office, or having been place in a position incompatible
with due execution (conflict of interests)
Council recommended dismissal once (Justice Bievenue case)
2 examples on slides