Class Test 2 POLI 342 Law and Politics Flashcards
Canada Before SCC
-1867 rush to create federal government but not SCC.
-S.96 fed-prov balance and are very busy. but S101 unbalanced
-Good situation for Quebec because Quebec Court of Appeal settles most issues and the JCPC is better than an anglophone SCC for the remainder of the cases.
-Good situation for parliamentary supremists because why should courts be able to review legislation and government action if they are not elected?
-Judicial Committee of the Privy Council: last court of appeal in London even after SCC is created in 1875.
per saltum appeals bypassed the SCC altogether
six then seven judges 1927
not a prestigious appointment and not a prestigious place to get a decision
Why does Canada need a SCC
- nationalistic reasons?: no, the rising tide of nationalism present in 1918-1928 did not result in SCC as final court of appeal
- standardizing the law?: JCPC did a good job of standardizing the law.
- It was to resolve conflicts between the federal and provincial governments: jurisdiction disputes from the 1867 division of powers (S.91 S.92). trade and commerce and well as property and civil rights were heavily contested.
Citizens Insurance v. Parsons 1880
- Parsons took out insurance in Ontario, and after a fire, the insurance company refused to pay, saying Parsons didn’t uphold all of the terms. Parsons sued, saying Citizens’ terms didn’t comply with Ontario Fire Insurance Policy Act.
- Citizens argued the Fire Insurance Policy was ultra vires, and that insurance was federal jurisdiction under trade and commerce
- JCPC upholds Ontario Law, rules for a broad reading of property and civil rights and a narrow reading of trade and commerce
Federal v.s Provincial Government Before SCC
- Many provincial laws were being passed around 1880 that could be seen as unconstitutional due to their infringement on federal government powers.
- Federal cabinet had the power of dis allowance, could over rule provincial laws, becomes controversial (serves political function
Controversy over Intro of Supreme Court Act
- 1869
- John A MacDonald government intro Supreme Court Act to offer advisory opinions and judge the validity of federal and provincial laws.
- Objections: advisory opinions isn’t a case and it isn’t judicial
- Provinces saw the mandate of better administration of the laws of Canada as a threat; not the better administration of the laws of the provinces
- Provinces opposed to having a wholly federal court rule on disputes with the federal government
Supreme Court Act
1875
- aim to replace disallowance
- turn political disputes over jurisdiction in to legal constitutional disputes
- appeal still possible to JCPC but gvt indication that it would like these to end. Don’t end till 1949
QC Bill 21
- An act respecting the laicity of the state
- public workers in authoritative positions cannot wear religious symbol on duty
- state must have neutral religious stance
- covers anyone carrying a weapon
- which court ought to adjudicate disputes arising from this bill?
Weiler’s Models Summary
- Weiler believed would force judges to make value judgements reducing the impersonal and mechanical judicial process.
- The British House of Lords made it permissible for ‘earlier precedents’ to be overruled, changing their previous ‘long-standing rule’. Weiler believed that the Supreme Court of Canada (SCC) would follow
- the study of the SCC began employing ‘techniques of the behavioural sciences’ lead to judges understanding they have ‘the freedom and the responsibility’ to change and develop the law
Adjudication of Disputes Model
- Judges should settle disputes through an adversary process using pre-established standards
- The disputes ought to be concrete, meaning that they must arise from the ‘collision of specific interests’
- parties to the dispute had to have known that the standards ‘would be used to evaluate their private conduct’. These standards are derived from a legal order.
Judges as Policy makers
- dispute a reason to tackle policy, can’t limit process to two parties, standards may not be shared, judge is not just impartial
- parties to the dispute had to have known that the standards ‘would be used to evaluate their private conduct’. These standards are derived from a legal order
- personal judgement
How to Change a Court
- Appoint new judges: US trained? pure academics?
- Docket Control
- Fewer sets of reasons
- Rules of evidence
Bora Laskin
- no private experience
- Harvard, Osgoode, UT constitutional law specialist, wants more active judicial role
- Five years Ontario Court of Appeal
- Puisne judge Supreme Court 1970-1973
- Chief Justice 1973-1984 (appointed chief justice out of order)
Docket Control
- Pre-docket control: appeals arrive by right to SCC until 1975: any civil case over 10K at stake (about 50K today), capital criminal case, reference case, routine commercial cases
- After 1975: reference cases and criminal cases where lower court is divided on the law arrive by right, all other cases are by leave meaning you must APPLY to be heard (85% by leave).
- Flemming: Application for leave filed with process clerk of Court Registrars Office, forwarded to Law Branc who summarize, goes to panel of three justices, need two votes for appeal to be granted
- Accept if issue of public importance ie) Aboriginal rights, constitutional rights
Fewer Sets of Reasons
-Traditionally: British model of seriatim decisions
seriatim decisions = each judge reads his or her own opinion rather than a single judge writing an opinion on behalf of the entire court. takes up a lot of time and hard to tell what was decided.
-Roncarelli: 9 judges with 7 sets of reasons.
-late 1960’s: move to majority and dissenting opinions with judicial conferences to discuss cases. less seriatim
Rules of Evidence According to Two Models
- Adjudicative Court: backwards looking with a focus on concrete facts. who did what, when, to whom, how and why. Collected by affidavit, oral testimony and cross examination from eye witnesses or experts.
- Policy Making Court: future oriented focus on thousands of incidents. no eye witnesses to future, experts making guesses and no two experts agree. ex) How much does carbon taxing reduce GHG emissions.
