january 8, 2008 ian greene & richard haigh course expectations introductions electronic...
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January 8, 2008
Ian Greene & Richard Haigh
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Course expectationsIntroductionsElectronic resourcesIntroduction to public law and the Canadian
legal system
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Seminar Presentations Analysis of Federalism AssignmentCase analysisMajor EssaySeminar participationPlagiarism
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NameHow did you get interested in public
administration?How does your work (current or past) relate
to constitutional and administrative law?
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www.yorku.ca/igreene: access to most course readings and powerpoint presentations . (There will be some handouts.)
Links to videostreamed lectures will be mounted on the MPPAL (QuickPlace) web site a few days after the lecture
Excerpts from Greene’s The Charter of Rights will be posted on www.yorku.ca/igreene.
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“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)
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Main sources of law: statute law (laws created by
legislatures) case law (created by judges)
Other (informal) sources: Ten Commandments, Magna Carta, canon law, writings of legal scholars (eg. Coke ~ 1630, and Blackstone ~ 1770), community standards (eg. obscenity cases), Hogg's text.
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
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Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada.
NB & NS: 1758 Quebec: 1759: French
civil law. 1763: English public law
PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: 1870.
Federal gov't: date depends on 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.
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____________________________ federal appointments | Supreme Court of Canada | and administration | 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 | |______________________|
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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)
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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
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Minor appeals heard by a single judge in a higher court (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
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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.