Public Law I: September 25/09

• Topics for today:– Canadian court structure– Role of Courts– Quebec legal system– Highlights of the Canadian constitution– Constitutional Amendment

Canadian Court Structure• ____________________________

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 | 22 js | | 39 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 | |______________________|

• Unified (integrated) hierarchical court system as opposed to dual court system such as found in the U.S.

Adjudication

• Adjudication involves an independent, impartial and qualified judge authoritatively settling a dispute, according to law, with reasons. Usually, decisions can be appealed.

• Other forms of dispute resolution: combat, negotiation, mediation, arbitration. (ADR refers to alternatives to the courts – especially mediation and arbitration.)

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– National security cases– Preliminary hearings in notorious cases – to permit

fair jury selection– Is closing the court justified in these situations?

The role of courts in Canada continued….

• Does open court concept impact presumption of innocence?

• Dignity and decorum– Gowns, address to judge– Dress codes

• Television • Adversary system• ADR (alternate dispute resolution)

Role of courts continued…

• Role of courts: dispute resolution, prevent abuse of power, official const. philosophers.

• Problems with justice system– for some litigants and lawyers, a game– delay in client’s interest– judges limited by adversary system re control

of caseflow

Judicial Independence and Accountability

• judicial independence: purpose is to promote judicial impartiality– Valente decision (1981 -

85)• security of tenure• financial security• judicial control over

adjudicative matters

• judicial discipline: Canadian Jud Council & prov. Jud. Councils )

• For provincially-appointed judges: complaints can be sent to the Provincial Judicial Council (usually composed of the Chief Judges and Justices in the province)

• For federally-appointed judges: the Canadian Judicial Council investigates complaints

Types of Offences in Criminal Law

• Summary conviction Offences (minor offences under Criminal Code with penalties including fines of up to $2000 and/or 6 months imprisonment. Eg. communicate for the purposes of obtaining the services of a prostitute, causing a disturbance.

• Indictable Offences (more serious offences with more serious penalties—entitles you to a trial by jury for most offences.)

• Hybrid Offences—Crimes for which the charge can be either summary or indictable depending on the decision of the Crown Attorney, eg. Impaired driving, theft under $5,000

Appeal Courts

• 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.• Appeal by right; leave to appeal

Appeal Courts continued…

– Panel process different from single judges in trial courts

• Supreme Court of Canada– Primarily a public law court (~100

cases / year)

– leave to appeal (~600 apps)• per curiam (or per coram) vs. seriatim decisions

• Codification of laws– Coutume de Paris (1580)– Confusion after 1759– Royal Proclamation (1763)– Quebec Act 1774– Codification: 1866: CCLC– 1994: CCQ

Deductive ReasoningInquisitorial 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

Quebec and Civil Law Approach

Canadian Constitution• .• Canada’s constitution:

go to http://laws.justice.gc.ca/en/const/index.html• 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.

Some causes of Confederation

• Political Motives:– British move to free trade policies and re-evaluation of benefits of empire– Breakdown in political accord between English and French in colony of the

United province of Canada and subsequent search for a new viable political structure.

• Strategic Motives:– Problem of defense of separate British North American colonies in face of Fenian

raids and anticipated American aggression following Civil War.

• Economic Motives– Fear of loss of British markets because of British Free Trade sentiments and

American markets because of ill will resulting from civil war.– Easier to gain credit form British lenders with larger country.– Prospects of absorbing remaining British territory in central and western part of

continent to create a vast “commercial empire.”

Some Political Compromises in the Canadian Confederation

• Unitary vs federal state

• Appointed Senate

• Limited bilingualism in Ottawa and Quebec

• Leaving control over property laws and other civil laws to the provinces

• Provinces retain control over education

The Constitution Act (1867)

• The CONSTITUTION ACT, 1867 created Canada as a federal country. • Some of the more important features in the “division of powers” that

make up Canada’s federal system of government:• 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 their borders (although initially this ownership right was not extended to the new provinces of Sask and Alta.)

• 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.

Constitution Act, 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 provinces 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.

Canada: Constitutional Amendments

• Major Can. amendments:– 1940: unempl ins– 1951: old age pensions– 1964: old age pensions broadened to include

supplementary, survivors, disability as part of contributory 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

• 1971 – Victoria charter came close

• 1982: success achieved after SCC decision (discussed later in course)

– Meech Lake & Charlottetown Accords (discussed later)

Informal constitutional amendment

– 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)

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)

Some of the Cases to be read

• 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.