exam

Question 1

Pre-Charter Judicial Power
Parliamentary Supremacy;

Answer 1

Parliamentary Supremacy; parliament is ultimate law making authority in country
❖Parliament can make or abolish any law
❖Rule of law; understood as protecting legislative socraty
❖Inherited from UK system
❖Responsible government
❖Elections

Question 2

Pre-Charter Judicial Power
Judicial Committee of the Privy Council (1844-1949)

Answer 2

Highest court of appeal until 1949
Powers waned over time
❖Federalism
❖Federal powers narrowly defined
-POGG clause; can override provincial jurisdiction if it intervenes with peace
-Trade and Commerce
❖Provincial powers broadly defined
-Property and civil rights
During Great Depression (1929)
❖PM at time wanted to pass Canadian New Deal legislation
-unemployment insurance, minimum wages
❖JCPC ruled great depression was Not a national emergency
❖Out of step? JCPC seen as out of step with the times

Question 3

❖Federalism
-ultra vires vs intra vires

Answer 3

-ultra vires; outside jurisdictional capacity of gov ,intra vires; inside jurisdictional capacity of gov

Question 4

Pre-Charter Judicial Power
Cairns reading (1971)

Answer 4

❖2 groups of critics against JCPC
1.Fundamentalists: JCPC did not correctly interpret the document
2.Constitutionalists: JCPC should be more flexible and attentive to policy consequences

Cairns (1971)
“It is impossible to believe that a few elderly men in London deciding two or three constitutional cases a year precipitated, sustained, and caused the development of Canada in a federalist direction the country would otherwise not have taken”
Provincial gov’ts asserting autonomy and producing decentralization

Question 5

Pre-Charter Judicial Power
Human Rights Abuses in Canada

Answer 5

❖Slavery
❖Immigration
❖Segregation
❖Internment

Question 6

Pre-Charter Judicial Power
Slavery

Answer 6

❖Enslavement practiced in British colonies
❖Slave trade abolished in 1807
❖Made illegal under Slavery Abolition Act, 1833
❖Upper Canada: Anti-slavery Act (1793)
❖PEI: abolition of slavery pronounced on 1825

Question 7

Pre-Charter Judicial Power
Immigration

Answer 7

❖Discouraged immigration of non-whites
-Immigration Act(1869)
❖Chinese Head Tax (1885)
-38 years in effect
-$23 million in tax paid
❖Chinese Immigration Act (1923)
-ban all Chinese immigrants until 1947

❖Chinese Canadian National Council and National Congress of Chinese Canadians advocate for redress
❖June 2006: Harper apologized in the House of Commons
-pledged symbolic payments
-fewer than 50 head
-tax payers received payments

Question 8

Pre-Charter Judicial Power
Segregation

Answer 8

❖Employment
-Service sector
-denied membership to unions
❖Education
-Black Canadians segregated in primary schools (ON, NS) and universities

❖Housing
-restrictive land titles
-rental discrimination
-reserves for Indigenous peoples

Question 9

Pre-Charter Judicial Power
Cunningham v Homma (1903)

Answer 9

❖Cunningham is the Chief registrar of BC who controls the BC voters list
❖Tomekichi Homma is excluded because of his Asian ancestry (as per the BC law)
❖Homma: argues exclusion is based on ultra vires (he is a naturalized citizen)
❖Sec. 91.23: federal gov’t has jurisdiction over naturalized citizens and aliens

❖JCPC upheld BC law
❖BC law discriminates against all Asians equally
❖Upheld province’s jurisdiction over civil rights
❖No inherent right to vote for naturalized citizens

Question 10

Pre-Charter Judicial Power
Christie v York (1939)

Answer 10

❖Mr. Christie (Jamaican) is denied service in a tavern owned by Mr. York due to Christie’s race
❖QC Civil Code: a licensed restaurant cannot deny service without a reasonable cause to give food to travellers
❖SCC formalistically asserts that Christie is not travelling and is not seeking food (wanted a beer)
❖SCC allowed private businesses to discriminate on the basis of freedom of commerce
❖Exception: someone violating laws or acting contrary to good morals

Question 11

Pre-Charter Judicial Power
Internment

Answer 11

❖WWI: arrest and detention of Canadians from
Germany or Austria-Hungary
-8,579 men held at 24 internment camps
-Enemy alien status: 80,000
❖WWII: internment of 21,000
Japanese Canadians
-Jewish refugees (3,000)

Question 12

Pre-Charter Judicial Power
Edwards v. Canada (AG) 1929

Answer 12

❖Do women constitute “qualified persons”?
“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

“their Lordships do not think it right to apply rigidly to Canada of to-day the decisions and the reasonings therefor which commended themselves […] to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.”

Question 13

Pre-Charter Judicial Power
Provincial Human Rights Codes

Answer 13

❖Ontario: Racial Discrimination Act (1944)
❖Saskatchewan Bill of Rights (1947)
❖1960s and 1970s: consolidated human rights codes
❖Codes administered and enforced by tribunals (administrative law)

Question 14

Pre-Charter Judicial Power
Bill of Rights (1960)

Answer 14

❖Petitions from Jehovah’s Witnesses
❖PM John Diefenbaker
❖Gov’t statute
-no constitutional force
-amended or repealed by gov’t
-only federal matters
-little legal impact

Question 15

Post-Charter Judicial Power
Charter of Rights and Freedoms sections

Answer 15

❖Fundamental freedoms (s. 2)
❖Democratic rights (s. 3-5)
❖Mobility rights (s. 6)
❖Legal rights (s. 7-14)
❖Equality rights (s. 15)
❖Official languages (s. 16-22)
❖Minority Language Educational Rights (s. 23)

Question 16

Pre-Charter Judicial Power
Parliamentary Supremacy

VS

Post-Charter Judicial Power
Constitutional supremacy

Answer 16

Parliamentary Supremacy
❖No clear role for judiciary
-Apply rules? Policy considerations?

Constitutional supremacy
❖Any law that violates the constitution is null and void
❖Parliament must make laws consistent with the constitution
❖Judicial review: power to interpret the constitution and strike down invalid laws

Question 17

Post-Charter Judicial Power
Parliamentary Supremacy
Pros vs Cons

Answer 17

Pros
❖Clear lines of accountability
❖Shifting majorities
❖Institutional capacity to address complex policy problems
Cons
❖Not representative
❖Executive dominance
❖Political compromises could undermine rights

Question 18

Post-Charter Judicial Power
Constitutional Supremacy
Pros vs Cons

Answer 18

Pros
❖Protection of minorities/marginalized
❖Check on executive power
Cons
❖Not representative
❖Only benefits select groups
❖Unelected and unaccountable
❖Judicialization of political issues

Question 19

Post-Charter Judicial Power
s. 1: Reasonable Limits (Oakes Test)

Answer 19

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

❖Balance individual rights with interests of society
❖Onus of proof: party seeking to justify the limit on rights
❖Way to save gov’t legislation from being struck down

❖Pressing and Substantial: is it important enough to justify limiting a Charter right?
❖Is the law proportional?
Must have;
1. Rational Connection
2. Minimal Impairment
3. Proportionate Effects

Question 20

Post-Charter Judicial Power
s. 33: Notwithstanding Clause

Answer 20

❖Legislatures can override s. 2 or s. 7-15
❖Lasts 5 years and can be renewed
❖Compromise between parliamentary and constitutional supremacy?

Question 21

Post-Charter Judicial Power
Ford v. Quebec (AG) 1988

Answer 21

❖QC passes La charte de la langue française (Bill 101)
❖QC gov’t instructs shopkeepers to replace bilingual signs with unilingual French signs
❖SCC finds Bill 101 violates s. 2 freedom of expression

❖Aftermath: Bourassa invokes s. 33
❖Controversial: protection of Anglo minorities?
❖Defeat of Meech Lake Accord
❖Is s. 33 politically feasible? The understanding was it was not really feasible outside quebec, now becoming more politically viable

Question 22

Post-Charter Judicial Power
New (recent) uses of s. 33

Answer 22

❖ON: third-party political advertising (2021)
❖SK: Catholic school funding (2018)
❖QC: French language requirement for business and schools (passed 2022) and ban on wearing religious symbols by public servants (2019)
❖SK: gender identity and parental consent

Question 23

Judicial Power Evolution

Answer 23

❖Change in power
❖Change in role of courts
❖Change in institutional relationship

Question 24

Judicial review
Studying courts

Answer 24

IV(s) → DV- independent variables (cause) → dependent variable (thing you want to explain, effect) this happened so, abc happened, the balloon popped so the child jumped in fear

Examples
Post-Secondary Education→Higher incomes
Mechanism: access to higher wage jobs
Female judges→decisions in favour of rights claimants
Areas of study
Impact on politics (courts as IV)

Examples:
Court’s Decisions→Policy change/stability
Decisions produce some sort of change
Judicial Review→Executive-dominated policymaking
Areas of study
Judicial decision-making (courts as DV)

Examples:
Dynamics on the bench→court decision-making
Political and social context→court decision-making
Policy change as DV (Do 2018)
DV is the outcome of interest (policy change/stability)
Analyze broad range of IVs
- don’t want to overestimate or underestimate judicial influence

Question 25

Simeon’s “funnel of causality” (1976)

Answer 25

Macro level: Socioeconomic environment- demography, geography, industrialization
Meso level: fundamental political variables- power, ideas, institutions
Micro level: decision- making process (interests, agenda, behaviour)

Question 26

3 (New) Institutionalisms (Hall and Taylor 1996)

Answer 26

Rational choice-
Historical-
Sociological-

Question 27

Rational choice institutionalism-

Answer 27

intuitive, everyone has fixed preferences, a goal you want to achieve, your preference does not change, example- finishing a degree- you need 20 credits to graduate uni- you will take the courses you absolutely need and then easier courses that will benefit you and be easier

Actors behave instrumentally to advance preferences
Preferences are fixed
Cost-benefit
Institutions are rules of the game

Question 28

Neo-institutionalists:

Answer 28

structures matter
Rules of the game- under which actors all must play, and/or
Shapes goals of actors

Question 29

Prisoner’s Dilemma

Answer 29

Two members of a gang of bank robbers have been arrested and are being interrogated in separate rooms
No other witnesses: must convince at least one of the robbers to betray their accomplice and testify to the crime
Each bank robber is faced with the same choice: cooperate with their accomplice and remain silent or to defect and testify for the prosecution
Both co-operate (remain silent): the authorities will only be able to convict on a lesser charge (1 year of jail each = 2 years total)
One testifies and the other does not: defector will go free and the other will get five years (0 years for the defector + 5 for the convicted = 5 years total).
Both testify against the other: each will get two years in jail (4 years total jail time)
If you trust that the other person wont testify against you, then you remain silent, but you never know so both people should testify against each other- this is the best outcome for both people
Person 2

Silent: Silent; 1 year each (1,1), Defect; No jail time for defector, 5 years for the other (5,0)

Defect: Silent; No jail time for defector, 5 years for the other (0, 5), Defect; Some jail time for each (2, 2)

Question 30

Rational Choice
Attitudinal model

Answer 30

judges motivated to pursue preferences - legal explanations form of rationalization - predict votes through characteristics of judges (partisan affiliation, gender, etc.)- assuming they want to advance their own agenda
Attitudinal model
Measurement of ideology and decisions - Process of judicial decision-making: collegial?
Unanimous decisions?
institutional relationships (deference)- government has relationships with different courts

Question 31

Rational Choice Institutionalism
Strategic model

Answer 31

• judges motivated to pursue preferences- but less obvious and more strategically
• interested in how judges strategically behave
• bargaining within judiciary- maybe they are constrained by them and they want their decision to be the main decision
• influence of external institutions- maybe they want to use their preferences but the case might be too public so they act according with restraint

Question 32

Rational Choice Institutionalism (Do 2018)

Answer 32

❖Interest group mobilization
- actors motivated to pursue preferences
- will use judiciary as another venue for policy change
❖ Brodie (2002)

Question 33

Historical Institutionalism

Answer 33

Institutions reflect and embed power asymmetries- doesnt affect everyone equally
Institutions define interests and goals- its not a thought you already had
Institutional stability: path dependency (once you go down a specific path, it is hard to change courses,example- where the keys are on the key board), feedback effects- policy may changes but the institution does not
Institutional change: critical junctures- french revolution- once in a life time moment
Critical juncture: missing or catching the subway
Path dependency: different “routes” that cannot be reversed
Importance of sequencing
Locked-in after critical juncture
Issues: only retroactively know the critical juncture- its only in retrospect, the person does not know before it happens
- counterfactual can be difficult to prove
Institutions and actors shape each other
Institutions shape preferences and roles of judges (Macfarlane 2013)
- role of the institution
- individual role within institution
- consideration of other institutions/actors

Question 34

Historical Institutionalism (Do 2018)
“Dialogue” theory

Answer 34

• legislative sequels to judicial decisions
  Missing mechanisms explaining stability and change
  
  • can court decisions be critical junctures? - path dependency?
  • feedback?

Question 35

Sociological Institutionalism

Answer 35

Scripts and symbols- for example raising your hand in a classroom
Logic of appropriateness, satisficing
Institutional context creates norms and culture- acts as the structure
Police “culture”- once individuals enter the police course, there are different and unspoken norms, want to help the community and before entering, they score higher in ethics than s regular college student
Recruits are optimistic, strong sense of ethics (Raganella and White 2004; Blumberg et al. 2015)
Training: bootcamp atmosphere
Police “culture”
Organizational pressures: see job as risky/dangerous, repression of emotion, moral distance
Regardless of individual’s qualities, the institution changes them

Question 36

“Ideational” Institutionalism (Do 2018)

Answer 36

Discursive effects of judicialization: social movements (Smith) and political action (Turner 2004)
Ideas and norms within judicial decisions
- Aboriginal rights (Woo 2011)
- Federalism (Schertzer 2016)
Internal judicial decision-making (DV) and judicial impact on politics (IV)
Consider judiciary alongside other important political variables

Question 37

Legal Reasoning

Answer 37

Explaining the rules or standards to settle a dispute
5 steps:
1) Issue: what is being debated?
2) Rule: what rules govern the issue?
3) Facts: what facts are relevant to the rule?
4) Analysis: apply the rule to the facts
5) Conclusion: the outcome

❖Rules vs. standards
❖Application of rules influence future decisions
❖Substantive doctrines
-Statutory Interpretation
-Constitutional review
❖Procedural doctrines (standing, ripeness)

Question 38

Legal Doctrines

Answer 38

“rules and principles of constitutional law … that are capable of statement and generally guide the decisions of courts, the conduct of government officials and the arguments of counsel.” (Charles Fried)
❖Rules, steps, tests to guide decision
-making; mediating principles (Baier 2006)

Question 39

Legal Doctrines
Precedent (stare decisis)

Answer 39

❖like cases treated alike
❖Lower courts more bound by precedent
❖SCC: create precedent for the future
❖Stability comes from the idea of precedent, predictability

❖When to change? Precedent reversed under very specific conditions
-law is out of date, unworkable, confusing
-new legal issue or new evidence emerges
-social facts;
important source of new evidence

Question 40

Legal Doctrines
Framers’ Intent

Answer 40

❖What did the drafters intend?
❖Legislative history, debates, committees
❖Out of touch law?
❖Conflicting intentions?

Question 41

Legal Doctrines
Statutory Interpretation

Answer 41

❖Analyze the text
❖Words in their plain meaning
❖Golden Rule; if the literal rule would lead to inconsistent conclusion, reading of rule should be disregarded
❖Mischief Rule; judges ask what common law was before legislation was passed and what type of mischief parliament tried to correct with this statute

Question 42

Legal Doctrines
Statutory Interpretation
❖R v. Smith [2015] 2 S.C.R. 602, example of golden rule

Answer 42

❖Controlled Drug and Substances Act
❖cannabis could onlt be consumed Medical purpose and in dried form (smoking, vaporizer)
❖policy issue; some people can not consume cannabis in this way; Health risks and ineffective
❖Cannabis Buyers Club of Canada (in BC) sold both edible and topical cannabis products
Arrested because violated act
❖Trial: regulation caused harm in an arbitrary way, violated s.7, SCC ruled act was contradictory
❖The effects of the prohibition contradicts its objective (health and safety)
❖Importance of social facts; court relied on social facts to reach this conclusion

Question 43

Legal Doctrines
Competing Human Rights

Answer 43

❖No rights are absolute
❖No hierarchy of rights
❖Rights may not extend as far as claimed
❖Context, facts, and constitutional values

❖Extent of interference
❖Core of a right is more protected than periphery
❖Respect the importance of both rights
❖Statutory defences may restrict rights of one group and give rights to another

Question 44

Legal Doctrines
McLachlin (2001) reading

Answer 44

❖Guides judicial decision-making pre-and post-Charter
❖Developing law through precedent may require changing the law
❖Changing laws is not “activist”

❖Issues with the term “activism”
❖Political mirror
❖No evidence of agenda-driven judging
❖Judicial consistency

Question 45

Legal Doctrines
Doctrine as Certainty (Baier 2006)

Answer 45

❖Legal positivism: law is not inherently good or bad, law is a human construct, and is legitimate if produced by a legal authority
❖David Beatty’s definition: law is naturally objective and neutral (natural law)
❖Can help courts get to the correct outcome (consistent vs. principled)
-law is perfectible

❖Comes from internal logic of the constitution
❖Constitution has basic elements that other laws are developed from
-Modification
-Concurrency

❖Can have very normative presumptions about the law and judges’ abilities to reach the correct law
❖Conflicting values or principles are found in law, making it difficult to “perfect”

Question 46

Legal Doctrines
Reference re Secession of Quebec (1998)
4 principles of the constitution

Answer 46

1.Federalism
2.Democracy
3.Constitutionalism and the Rule of Law
4.Protection of Minorities

Question 47

Legal Doctrines
Doctrine as Politics (Baier 2006)

Answer 47

❖Draws on Patrick Monahan (legal realist)
❖Doctrine simply disguises political choices
❖Contrary elements and principles in constitution
❖Primacy of political processes

❖Courts continue to intervene in political issues (political actors seek courts’ intervention)
❖Lack of protections for the weakest players without legal accountability

Question 48

Legal Doctrines
Doctrine as Autonomy (Baier 2006)

Answer 48

❖Mediating principles
❖Provides constraints
❖Legal tradition

❖Constrain ideological behaviour
❖Constrain lower courts (avoid reversal)
Judicial Doctrine
Case facts > Judges > Decision

Question 49

Legal Doctrines
Jurisprudential Regimes (Richards and Kritzer 2002)

Answer 49

❖Speaking about U.S. Supreme Court
❖Structure decision-making and case analysis
-Relevant case factors
-Levels of scrutiny or balancing

❖Law as a cognitive structure
❖Institutionalist perspective
❖Policy goals still exist but are constrained
❖Regimes have coordinative functions between different courts (consistency)

❖Factors that influence justices’ decisions vary across regimes
❖Identify regimes through iinterpretive process
❖Does not explain why regimes change

❖Votes are assumed to be independent
-Conference after oral arguments
❖doesnt explain Interaction between variables

Question 50

Legal Doctrines
Conference Dynamics (Macfarlane 2013)

Answer 50

❖Institutional culture
❖Norms of collegiality
❖Strategic bargaining
❖Formal and informal interactions

Question 51

Legal Doctrines
Remaining questions (Tiller and Cross 2006)

Answer 51

❖Decision structures
-understand the calculus behind choices
❖Model of judicial mind
-socialization, psychological aspects
❖Judicial hierarchies
❖Political saliency

Question 52

“Juristocracy”

Answer 52

“[T]he reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies” (Hirschl 2008)
Judicialization of politics (Hirschl 2008)
Spread of legal discourse- public discourse affected everybody but now with legal discourse, it displaces public discourse and thus excludes certain perspectives and carries legal opinion
Judiciary determining policy
administrative review
rights jurisprudence

Reliance on courts to resolve mega- political issues- the fact that their cleavages exists is not going to help - judges can potentially weigh the cost and benefits of certain things opposed and calls it an inappropriate use of their time (for example east vs west or french vs english, these are the types of questions that courts should not answer)
core political controversies that define policies

Question 53

Hirschl (2004)
Debunk common explanations

Answer 53

1. Democratization- as countries do this, they adopt powerful courts and adopt judicial review but he debunked this
2. Evolutionist theories
3. State expansion

Question 54

Why would elected officials voluntarily accept judicial review?

Answer 54

Reducing decision costs- the only reason why actors would give up their power, is because theres something else they will gain
Electoral market thesis
insurance to prospective electoral losers in transitioning democracies- not corrupt, people should think highly of the judges

Question 55

Hegemonic preservation

Answer 55

Political, economic, and judicial elites- scrutiny to public elites, will share power with the courts if that means they will be safe
Judiciary has high public reputation- although they share the power
Judicial appointments controlled by political elites- they still have some power
Political elites: Insulate policymaking
from democratic politics
- limits imposed on rivals outweigh self-imposed limits
- control judicial appointments
Economic elites: certain rights may promote more freedom for trade
- property, mobility, occupational rights
- limit state regulatory power
Judicial elites: expand scope of power
- prestige
Realist, strategic assumptions about behaviour
Reflection of social, political, and economic struggles in a polity
All the elites want to enhance their own power
Top-down explanation- nothing to do with collective society, its what the elites want

Question 56

Case of Canada (Russell 1983)- elite bargaining

Answer 56

Quebec’s Quiet Revolution (60’s, wanted to challenge anglo dominance in politics, french people were treated like second class citizens) and powerful provinces
Counter with national unity- canadians are canadian before they are ontarians or quebecers etc
Canadian interest in bill of rights
Trudeau’s unilateral action
Case of Canada (Russell 1983)
Charter’s unifying effect
1. Transform discourse of issues
2. Uniform national standards
3. Federal apex court making binding decisions

Question 57

Judicial activism

Answer 57

Poorly defined term (McLachlin 2001) Judges are more willing to strike down legislation- contested judicial activism
Consider broader social implications of law- some say its inappropriate to their role
Charter Revolution (Morton and Knopff 2000)- dont think judicial power has stayed the same, they have more power because they are broadly doing it
Judicial discretion is not constrained
- core values
- textually mandated change
- original intent, traditional understanding, purposive analysis
New powers under Charter

Question 58

Charter Revolution (Morton and Knopff 2000)

Answer 58

Relaxation of standing and mootness - more parties are getting standing, those rules have relaxed after the charter tho
Role change: create constitutional standards for broader society, less interested in specific dispute
Obiter dicta (words in passing, does not actually answer the legal dispute properly) and ratio decidendi (actual rule of law and sets of legal rule), they want the law to be ratio decidendi
Facilitates interest-group litigation- courts are being seen as a new way to create social change

Strategic assumptions: judges interested in increasing their own powers
The judicial elite is accompanied by bottom-up processes as well
The “partisans” of the court
5 groups: national unity advocates, civil libertarians, equality seekers, social engineers, and post materialists
Elitism but bottom-up
Court party also acts strategically
Uses new venue (courts) to advance goals (social change)
Courts are one of many avenues for change- most critiqued
Ideological
Equality-seeking groups as anti- democratic?
Missing role of elected officials: have own interests to maintain judicial review

Question 59

Judicial Exclusivity in Charter Interpretation (Huscroft 2004)-

Answer 59

how the public sees the courts and how they see themselves
No satisfactory way to evaluate “activism”
Post-1982: court monopoly over constitutional interpretation
- now factored into political decision- making
- debilitating consequences for politics

no evidence they even wanted this power, huscroft says just because they didnt ask for it doesnt mean they arent fully embracing it
1. Need for judicial interpretation
2. Judicial review is democratic
3. Living tree Constitutionalism
4. Court’s decisions = the Charter itself
5. Popularity of the court

Same-sex reference case: political strategy
No meaningful debate on rights issues
Court’s exclusive role means diminishment of legislatures’ roles to resolve rights conflicts
Court’s actions have strategic impacts

Implications
Judicial Activism and “Juristocracy”
Assume strategic behaviour
- different groups of actors strategically want courts to have more power (varies in literature)
- courts welcome more power and seek to maintain it
Judicial Activism and “Juristocracy”
Assume courts are powerful
Few constraints on court power
- legal doctrine, popularity

Question 60

Judicial Activism
Judicial Exclusivity in Charter Interpretation
(Huscroft 2004)

Answer 60

❖Same-sex reference case: political strategy
❖No meaningful debate on rights issues
❖Court’s exclusive role means diminishment of legislatures’ roles to resolve rights conflicts
❖Court’s actions have strategic impacts

Question 61

Implications
Judicial Activism and “Juristocracy”

Answer 61

❖Assume strategic behaviour
-different groups of actors strategically want courts to have more power (varies in literature)
-courts welcome more power and seek to maintain it

❖Assume courts are powerful
❖Few constraints on court power
-legal doctrine, popularity
“Juristocracy”
Judicialization of politics (Hirschl 2008)
❖Spread of legal discourse
❖Judiciary determining policy
-administrative review
-rights jurisprudence
❖Reliance on courts to resolve mega
-political issues
-core political controversies that define polities

Question 62

Mega-Political Issue
Reference re Secession of Quebec (1998)
Lead-up to secession reference

Answer 62

Whether quebec as a distinct french nation is diff from rest of the country

Lead-up to secession reference
❖QC never signed Constitution Act, 1982
❖Failed constitutional amendments, did not amend constitution to make quebec want to sign
-Meech Lake Accord (1987); failed
-Charlottetown Accord (1992); failed
❖PQ in Quebec, BQ in House

❖QC secession referendum (1995)
❖Extremely close victory for “no” side
-No: 50.58%, Yes: 49.42%
❖Failed federal proposals
-Calgary Declaration
-Prospect of another secession referendum

❖Constitutional dispute about federalism
❖QC’s place in federation
❖Status of other provinces
❖Political issue defines Canada

Question 63

Mega-Political Issue
Reference re Secession of Quebec (1998)
1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

Answer 63

1.Quebec cannot secede unilaterally
❖Clear majority on a clear question
❖Negotiations between federal government and other provinces
❖Constitutional obligations more important than democratic majority

4 underlying principles of the constitution
1.Federalism
2.Democracy
3.Constitutionalism and the Rule of Law
4.Protection of Minorities

Question 64

Mega-Political Issue
Reference re Secession of Quebec (1998)
2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

Answer 64

2. Quebec cannot unilateral secede under international law
   ❖QC not subject to colonial rule, alien subjugation, domination or exploitation
   ❖Can exercise self-determination within the state

Question 65

Mega-Political Issue
Reference re Secession of Quebec (1998)
3. In the event of a conflict between domestic and international law on the right of the
National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

Question 66

Mega-Political Issue
Reference re Secession of Quebec (1998)
❖Courts have jurisdiction to answer questions
❖Answer questions about the legal framework in which democratic decisions are to be taken

Question 67

Mega-Political Issue
Reference re Secession of Quebec (1998)
Everybody wins?

Answer 67

❖federal gov win; No unilateral secession
❖quebec win; But negotiations would be required if QC won a referendum vote
❖Clarity Act (2000) and Bill 99 (2000); contradicting acts
Two acts exist side by side
-secession questions remain
-referendum questions remain

Question 68

Mega-Political Issue
Alberta Referendum on Equalization (2021)

Answer 68

❖62% vote yes to remove equalization from the constitution
❖Premier Kenney: expect federal government to negotiate
❖Turnout: 39% of voters
❖Outcome: probably nothing, prime minister trudeau did not engage, politically not important

Question 69

Moral Question
Reference re Same-Sex Marriage (2004)
Proposed legislation:

Answer 69

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

Question 70

Moral Question
Reference re Same-Sex Marriage (2004)
Reference questions:

Answer 70

1.Is the Proposal within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?

2.If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry two persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the
   Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

Question 71

Moral Question
Reference re Same-Sex Marriage (2004)
reference q answers

Answer 71

❖Questions have political underpinnings
❖Political considerations provide the context, rather than the substance, of the questions
❖Reference the Secession Reference

1. s. 1 of the Proposed Act is within Parliament’s jurisdiction (intra vires), but s. 2 is not (ultra vires)
2. s. 1 is consistent with the Charter
3. s. 2 of the Charter is broad enough to protect religious officials
   4.Declined to answer

❖Relied on living tree doctrine of constitutionalism
-progressive interpretation
-accommodation modern life

Question 72

Moral Question
Aftermath of the reference
(Huscroft 2004)

Answer 72

❖Why did federal gov’t resort to SCC?
-issue already decided in many lower courts
❖Political contestation among and within parties
-many Liberal MPs oppose (free vote)
-Conservative opposed

❖Political strategy in aftermath of 2003 Halpern decision (OCA)
❖Pending election, divisive issue (among public, among Opposition and Gov’t, within Gov’t)
❖Second question: “feign caution where courage is lacking” (pg. 258)

❖Fourth question: gov’t should have appealed Halpern to get this answer
-federal law at stake
-remedial discretion
❖Gives objectors to same-sex marriage an answer without gov’t appealing
❖Clear strategizing happening

❖Against the use of the reference: stifles political debate on rights
-based issues
❖Court should use discretionary powers to not answer certain questions
-SCC has high docket control
-must be more aware that they create incentives/disincentives for political actor

Question 73

Moral Question
Gov’t Reference Power (Puddister 2019)

Answer 73

❖Political advantages (short-term, immediate problem)
❖Circumvent a resource-and time-intensive litigation process, respond to uncertainty in legislation, or negotiate with another gov’t
❖Contributes to increasing judicial power

Question 74

Moral Question
Should courts respond to political questions?
(Do and Schertzer 2023)

Answer 74

❖Questions about jurisdictional authority
(mega-political)
❖Courts are political; can’t simply ask courts to act with restraint
❖Courts should facilitate political negotiations between conflicting parties

Question 75

Constraints

Answer 75

Judicial decision-making is a “function of what [judges] prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (Gibson 1983), acknowledging judges have preferences, but care about norms and are constrained by feasbability

Judicial decisions are not absolute
❖ Political actors can respond to judicial rulings
Judicial decisions are not made in a vacuum
❖ Political environment
❖ Internal constraints

Question 76

Dialogue Theory
Hogg and Bushell (1997):

Answer 76

Political actors can respond to judicial rulings (Legislative sequels)
Charter establishes a two-way exchange between the judiciary and legislature

Section 33: Notwithstanding clause
❖Legislative override (5 years)
❖Applies to s. 2, 7-15
Section 1: Reasonable limits
❖Applies to all sections of Charter
❖Alternative law could satisfy s. 1

Qualified Rights (not absolute)
❖Standards of reasonableness and fairness
-s. 7: life, liberty, and security of the person … except in accordance with fundamental justice
-s. 8: unreasonable search and seizure
-s. 9: arbitrary detention

What counts as dialogue?
❖Any legislative action
❖Found that 80% of decisions have a response
❖Legislatures use Charter-speak

Question 77

Dialogue Theory
Problems with the dialogue theory

Answer 77

❖Everything constitutes “dialogue”
-is it dialogue or compliance? (Macfarlane 2012) capturing compliance rather than dialogue
-hard to distinguish; genuine agreement and begrudging acceptance look the same (Hennigar 2004)

Question 78

Dialogue Theory
Sauvé v. Canada (AG) (1993)

Answer 78

❖Canada Election Act prevents all incarcerated persons from voting
❖Gov’t argued it violates s. 3 but it is ultimately saved by s. 1
❖SCC rules that the provision fails the proportionality test, fails minimally impairing part
Struck down, parliament must respond

Question 79

Dialogue Theory
Post Sauvé v. Canada (AG) (1993)

Answer 79

❖Parliament amends the Canada Election Act
❖now Prevents incarcerated persons serving sentences of two years or more from voting, in order to be more minimally impairing
-reasonable limit

Question 80

Dialogue Theory
Sauvé v. Canada (CEO)(2002)

Answer 80

Case is relitigated
❖SCC doubles down, finds amendment violates s. 3, not saved by s.1
❖SCC talks about dialouge theory in judicial decision, Dialogue does not mean deference, does not automatically mean courts will accept any government response, just because they responded
-is not a rule of “if at first you don’t succeed, try, try again”. (para. 17)
❖Deference may be appropriate in decisions involving competing social and political policies; but this case is about fundamental rights (para. 13)

❖courts said s. 3 is not a qualified right, its a fundamental right (Manfredi 2007)
❖s. 33 does not apply to s. 3 (Manfredi 2007)
This case shows dialouge theory does not accurately portray legislative decisions
❖Dialogue means neither courts nor legislatures hold monopoly over values
❖Courts may hold monopoly over constitutional interpretation

Question 81

Coordinate Constitutionalism

Answer 81

❖Legislatures are equal partners with courts in constitutional interpretation
❖Legislatures and courts can legitimately come to different interpretation of rights
-reasonable disagreement
-cases that are not unanimous or close

❖Courts are not the only branch that can interpret the constitution s. 52 (1) of Charter: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Question 82

Coordinate Constitutionalism
Judges Make Mistakes R. v. Daviault (1994)

Answer 82

❖Court allows the defence of extreme intoxication in sexual assault trial
❖Otherwise, is a violation of s. 7 and 11(d) of Charter (not saved under s. 1)
❖Ordered a new trial

Parliament responds: Bill C-72 33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Question 83

Coordinate Constitutionalism
Judges Make Mistakes
R. v. Sullivan (2020) Ontario Court of Appeal

Answer 83

❖Drug overdoses, tried to kill himslef, ended up stabbing elderly mother
❖Struck down s. 33.1 of Criminal Code
❖Violates s. 7 and 11(d) of the Charter
❖Apply to intoxication? Will this open a case for automatism to be used as defence for alcoholism
❖Gov’t appealed to SCC (granted leave)

R. v Brown (did mushrooms, breaking and entering and assault) and R. v Sullivan (May 2022)
❖SCC upholds acquittal (2) and new trial (1)
❖s. 33.1 of Criminal Code violates s. 7 and 11(d) of the Charter
❖Intoxication akin to automatism: means person has no will to control actions
Intent to become intoxicated is not the same as the intent to commit a crime like assualt
❖they clarify that Alcohol alone extremely unlikely to support the defence of automatism

❖Recognize value of Parliament’s objectives (public safety)
❖Stand alone offence of criminal intoxication
❖Legal standard for criminal negligence requires proof that risks (loss of control and subsequent harm) were reasonably foreseeable

❖s. 33.1 of Criminal Code amended
❖Individuals who consume drugs and/or alcohol in a criminally negligent manner are held criminally responsible if they harm others while extremely intoxicated

Question 84

Coordinate Constitutionalism
Judges Disagree
R. v. O’Connor (1995)

Answer 84

❖Catholic bishop from B.C. found guilty of sex crimes in 1991
❖Disclosure of medical/counselling records; argued crown failed to provide records of psychologists
❖Court is divided on appropriate test to release records (5 to 4)
Court upheld right to view records
❖Truth seeking/full answer vs. privacy and interest in encouraging reporting
Applicant must establish records as relevant and then judge views records and establishes if records are necessary for truth seeking
❖Parliament passes new law adopting language of the dissenting opinion
-Bill C-46, introduced ss. 278.1-278.91 in Criminal Code; rape shield laws; these limit the ability of the accused to introduce sexual history, more in interest of upholding privacy

Question 85

Coordinate Constitutionalism
Judges Disagree
R. v. Mills (1999)

Answer 85

❖Court upholds new law
❖Court uses dialogue principle
“The courts do not hold a monopoly on the protection and promotion of rights and freedoms”

Follow up case to connor
R. v. Mills (1999); accused and charged w sexual assualt, council obtains medical records
Trial judge agreed with mills
❖Case moves up to SCC, Court upholds new law (rape shield), agrees with parliament
❖Court uses dialogue principle; saying “The courts do not hold a monopoly on the protection and promotion of rights and freedoms”; parliaments approach is legitimate, court agrees to learn from them
Parliament is useful when courts are not unanimous

Question 86

Coordinate Constitutionalism
Judges Make Ambiguous Decisions
Canada (AG) v. Bedford (2013)

Answer 86

❖Does constitution require sex work to be decriminalized?
❖Gov’t criminalizes prostitution (in terms of buying)
Canada (AG) v. Bedford (2013); argued canadas prostitution laws are unconstitutional, forced to work in secret, said it violates right to security, forces them into dangerous situations
Court agreed but delayed striking down of laws for 1 year to let parliament respond
❖Does constitution require sex work to be decriminalized?; courts did not answer this question, vague outcome
❖parliament response; Gov’t criminalizes prostitution (in terms of buying)
Because courts left question open, it gave space for parliament to respond in this way, therefore legitimate response
Another reason parliament does have legitimate role in judicial decision making
Some evidence legislative response can put some constraints on what judges do, but most of the time they are compliant

Question 87

Coordinate Constitutionalism
Judges Make Mistakes
R. v Brown and R. v Sullivan (May 2022)

Answer 87

❖SCC upholds acquittal (2) and new trial (1)
❖s. 33.1 of Criminal Code violates s. 7 and 11(d) of the Charter
❖Intoxication akin to automatism: no will to control actions/ can not be held criminally responsible
❖Alcohol alone extremely unlikely to support the defence of automatism

❖Recognize value of Parliament’s objectives (public safety)
❖Stand alone offence of criminal intoxication
❖Legal standard for criminal negligence requires proof that risks (loss of control and subsequent harm) were reasonably foreseeable, can be held criminally responsible if risks are reasonably forseeable

Parliament’s Response: Bill C-28 (June 2022)
❖s. 33.1 of Criminal Code amended
Justices make statement;
❖Individuals who consume drugs and/or alcohol in a criminally negligent manner are held criminally responsible if they harm others while extremely intoxicated
Daviult case; parliament getting it right
Compliance? Parliament passing bill/policy alternative to appease courts

Question 88

Constraints
Judicial decisions are not absolute

Answer 88

❖Political actors can respond to judicial rulings
Judicial decisions are not made in a vacuum
❖Political environment
❖Internal constraints

Question 89

Constraints
Judges must Cultivate legitimacy

Answer 89

❖Ideal triad (Shapiro 1981)
❖About perception from other actors
❖Judicial decisions need to be sensitive to the perception of others
-public opinion; important to maintain
-almost have to rely on government compliance, ultimately need government to support decisions

Question 90

Constraints
Internal and external constraints

Answer 90

❖Political context
❖Perception of other actors
❖Coalitions between judges
❖Norms from institutional culture

Question 91

External Constraints
Radmilovic (2010)
How do courts cultivate legitimacy?

Internal Constraints
Knopff, Baker, and LeRoy (2009)
❖Judges persuade one another in decision-making (conference)
❖Minimalist interpretation of SauvéI: only shared position between disagreeing judges
❖SauvéI: strategic response as a result of a lack of majority on any side of the issue
❖Strategic waiting game: delay a substantive decision in the hope of a certain majority in the future

Answer 91

❖SCC acts strategically to cultivate legitimacy
❖courts Constrained by broader political context in which they make decisions
❖Constrained by reactions of others
❖Example: Quebec Secession Reference (1998); demonstration of these dynamics
❖High visible case
❖QC already highly suspicious of courts taking on this decision, assume they are going to promote federal gov perspective
❖Focus on duty to negotiate
❖Non-decisions; silent on alot of important factors to do with legality of succession, very vague, did not answer what duty to negotiate looks like or implications for indigenous people
❖Moderated judicial activism; strategic decision not to answer, long term benefit

Radmilovic (2010) opinion;
❖Legal doctrines and jurisprudence is flexible; dont have legal hold on judges, courts massage these docs to get outcome they need
❖Used to accommodate political context and manage conflict

Question 92

Internal Constraints

Answer 92

Institutions shape preferences and roles of judges (Macfarlane 2013)
❖Role of the institution
❖Individual role within institution
❖Find that justices had respect for the roles of other institutions

“[W]hen you’re telling the legislative or executive through a judicial outcome or decision, that they’re offside of the Constitution, you want
to lower the temperature. … There’s going to be tension, but I don’t think it helps anybody’s role–legislature, executive, or judiciary– to say that somehow there is this adversarial nature to the functioning of each of the branches of government.”

Question 93

What does it mean for the courts and judiciary to be politicized?

Answer 93

When political decisions unduly influence;
*Judicial decision-making
*Functioning of the courts
Key considerations
*Elected v. appointed judges
*Partisan appointments
*Ideological decision-making
*Legitimacy, the courts, and public trust
Judicialization of politics
*Juristocracy

Question 94

Politicization and the Courts
Highly politicized courts

Answer 94

*Impacted by individual judge’s politics and partisanship
*Ideological and/or personal preference guide judicial decision-making
US courts are politicized at all levels
*Inherent within the structure of US courts
*Many judges are
*elected officials
*obvert political actors
Canadian courts are less politicized than US courts

Question 95

US Supreme Court Justices

Answer 95

President nominates at their discretion
Generally aligns with political or philosophical goals
Senate holds public hearing and confirms
Rare for senate not to confirm
No term limits
Appointed for life
Only removed by impeachment
E.g., Justice Samuel Chase William; debates around whether he was fit as SCJ, seen as bringing own politcal stance in, it was ruled he could not be impeached based on bias on political stance

Question 96

William (“Wild Bill”) O. Douglas

Answer 96

Most known for…
Longest serving US Supreme Court Justice (1939-1980)
Controversial professionally and personally
Supporter of freedom of speech
Experienced “debilitating” stroke in December 1974
Remained on the court until November 12, 1975, depsite “debilitating cognitive decline”, wife had to convince him to sign letter of resignation
US Supreme Court Justices put off cases in which he would have a deciding vote

Question 97

Selection of Supreme Court Justices

Answer 97

SCC
Shortlist
Created by Minister of Justice and Prime Minister (PM)
Governor General appoints W/ advice of PM
Often thought to have no political elements
May serve until 75 years of age
May be removed by Senate and House of Commons misconduct or incapacity

The Court has “managed to safeguard its institutional legitimacy as evident by the high degree of support it enjoys among the Canadian public”
(Hausegger & Riddell, 2004 as cited in Radmilovic, 2010, p. 843)

Question 98

Legitimacy

Answer 98

*Institutional legitimacy
*Legitimacy cultivation
How do the courts and judiciary establish and promote institutional legitimacy?

The ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.
The Right Honourable Beverley McLachlin

Question 99

Ethical Principles for Judges
Judicial independence

Answer 99

*Indispensable to impartial justice under law
*Uphold and exemplify judicial independence in both its individual and institutional aspects
Integrity
*Strive to conduct themselves with integrity
*Sustain and enhance public confidence in the judiciary
Diligence
*Be diligent in the performance of their judicial duties
Equality
*Conduct themselves and proceedings before them so as to assure equality according to law
Judges must be and should appear to be impartial with respect to their decisions and decision making.

Question 100

Ethical Principle:Impartiality

Answer 100

General
Conduct maintains/enhances confidence in their/judiciary impartiality
Conduct their personal and business affairs so as to minimize disqualification from hearing cases
Impartiality is to be assessed from the perspective of a reasonable, fair minded, and informed person
Judicial Demeanour
Maintain firm control of the process and ensuring expedition
Treat everyone before the court with appropriate courtesy
Civic and Charitable Activity
Judges are free to participate in civic, charitable, and religious activities
Conditions include avoiding certain activities/associations, soliciting funds, involvement in certain causes or organizations, and/or giving legal or investment advice
Conflicts of interest
Self-disqualify if potentially not impartial or with any suspicion of conflict

Question 101

Impartiality and Political Activity

Answer 101

Refrain from conduct that undermines confidence in judicial impartiality
*E.g., Consider group/organizational membership, participation in public discussion.
All partisan political activity must cease upon appointment
Judges should refrain from:
*Political party membership and fundraising
*Attendance at political gatherings/fund-raising events
*Contributing to political parties or campaigns
*Taking part publicly in controversial political discussions (some exceptions)
*Signing petitions to influence a political decision
Family members political involvement/partisanship
*May adversely affect the public perception of a judge’s impartiality

Question 102

How do these ethical principles create/maintain (or cultivate) institutional legitimacy?
Radmilovic’s (2010) Hypotheses

Answer 102

1) Judicial disposition of individual cases will tend to accord with the state of specific support.
2) Judges will tend to avoid overt clashes and entanglements with political actors.
3) Judges will tend to moderate judicial activism.
4) Jurisprudence will tend to be informed by the tenor of the extent of political involvement.

Question 103

Public Support and Jurisprudence

Answer 103

Populism
Judicial independence
Decision-making
Strategic judicial decision-making
Strategic sensitivities (e.g., public opinion)
QS & duty to negotiate
Specific v. diffuse support
Determinants of diffuse support
Institutional legitimacy

Question 104

Judicial Review
What is judicial review?

Answer 104

Based on the rule of law
Ensure decisions and the legislature are fair, reasonable, and lawful
Government officials/administrative bodies are subject to the law
Courts can nullify unlawful actions

Question 105

Types of judicial review

Answer 105

Administrative acts
Constitutionality of legislation
What are potential links between judicial review and institutional legitimacy?

Question 106

An Alternative: Rights-Based Judicial Review
Rights-based judicial review

Answer 106

*Alternative to politics, political negotiations, and (a)political decisions
*Expands beyond political and civil rights
*Substantive equality and equity for Indigenous peoples
5 key Indigenous rights
*Fishing and hunting rights
*Institutional representation
*Welfare policies
*Land rights
*Self-governance

Constitutional recognition of specific Indigenous rights
Law’s Indigenous ethics (John Borrows)
How is love relevant to regulation and dispute resolution–particularly when considering treaties? What is the role of relative truth in law–especially considering law’s so-called foundational sources and force? Is bravery a constitutional value, and can it be applied in an Aboriginal rights context? Does humility have a place in helping us understand Aboriginal title’s relationship with private property? Can wisdom be specifically invoked to require more holistic approaches to learning that take us outside of the classroom and onto the land? Can honesty assist us in acknowledging Canadian law’s syncretic nature–and can this affect how we teach law? Can respect be activated to inculcate mutual responsibilities for Indigenous-settler relations–especially when residential schools and other assimilatory pressures are at issue? (Borrows, 2019, pp. 26-27)

Question 107

Aboriginal law
Definitions:

Answer 107

Aboriginal peoples
First Nations
”Indians” in Constitution and Indian Act
Status and non-status
Métis
Inuit
Indigenous peoples

Settler-colonialism- you don’t want to exploit the people living on the land, you want to eliminate them and have their land
Erasure is goal (assimilation)
Not an event, but a structure (Wolfe 2006)
Erase Indigenous rights to pursue their dispossession- key way to gain land and put your own population, this is done over time
Doctrine of discovery, terra nullius- this justified the erasure of indigenous peoples
Indigenous peoples were never conquered

Question 108

Legal and political evolution
Indigenous Legal Systems

Answer 108

Treaties- revisited and reopened, the individuals in the treaties all had relationships with one another, revisited all the time
Kin-like relationships “fictive kinship”- in order to be close enough to have treaties
Ceremonies- to celebrate the treaties
Treaties with Newcomers
Trade- wanted to trade furs, for beaver felt top hat
Indigenous protocols
Diplomacy- although they had the EU supporting them, the european knew that they had to do it the way of the Inidigenous

Question 109

Guswentah or Two-Row Wampum

Answer 109

1613 agreement between Haudenosaunee and Dutch
Purple beads: 2 vessels- the indigenous and the europeans
White beads: peace, friendship and mutual respect
Represents co-existence- british were successful in dominating

Question 110

The Royal Proclamation, 1763

Answer 110

“…the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds”- indigenous peoples did not sign or partake in this
Only the Crown can purchase lands from Indigenous peoples; this exchange is often understood as one between governments or between nations- not regular settlers, crown understands the relationship with Indigenous peoples
The exchange of lands must be done explicitly, thus beginning the treaty making process

Question 111

Treaty of Niagara, 1764-

Answer 111

indigenous peoples did sign and have a say in this, part of our constitutional law (the wampum belt)
Exchange of Wampum Belts between the British representatives and First Nations- shows one person and the other person linking hands (indigenous peoples and europeans), also there are numbers- adding in a english perspective

Question 112

The 1764 Covenant Chain Wampum Belt
Numbered Treaties (1871-1921)
Different understandings
Crown: surrender of land for white settlement and use of resources
Indigenous: legal obligations between equal partners, they thought it meant they are sharing the land, be able to hunt and fish and everything else and the crown would only just want a little bit of land to settle on. The crown was lying and stole their land
- Indigenous peoples wanted to share the land, not surrender their land

Question 113

Indian Act, 1876
Matters relating to Indigenous peoples fell under federal jurisdiction
The priority of the Crown was to assimilate Indigenous people
Indian Act, 1876 and treaties
Exist side-by-side (even to this day)
Treaty promises not upheld
Terms of treaties that were signed have no consensus (surrender vs. coexistence)
Indian act is constitutional
Legally dubious foundation for Canada’s existence

Question 114

St. Catharine’s Milling Company v. The Queen (1888)

Answer 114

Aboriginal title is “dependent on the goodwill of the Sovereign”
Aboriginal title resembles a “personal and usufructuary right”

Question 115

Calder v. British Columbia (1973)

Answer 115

The decision: Aboriginal title exists independently of the Royal Proclamation
Aboriginal title: a burden on underlying Crown sovereignty
Extinguishment of title must be explicit and justified
The indigenous people in BC have never given away their rights and thus should be able to govern that land and the people on it
This was first a mistrial

Question 116

s. 35 in the Constitution Act, 1982

Answer 116

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada
are hereby recognized and affirmed”
“‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada”

Question 117

Aboriginal law
R. v. Sparrow (1990)

Answer 117

Fishing net restriction
Net restriction infringed s. 35 rights
s. 35 provides constitutional protection from legislative power
Gov’t regulation that infringed s. 35 rights requires justification
R. v. Sparrow (1990)
1. A Valid Legislative Objective
2. Infringement Is Minimally Impaired
3. The Indigenous group has been consulted
4. There has been compensation, in the case of expropriation

Question 118

Aboriginal law
R. v. Van der Peet (1996)

Answer 118

Commercial fishing restriction
Test for evaluating an Aboriginal right
1. the right must be considered integral to the distinctive culture of the Aboriginal group
2. the right must show continuity with customs that existed before first contact with Europeans
Reconciliation between Indigenous perspective and common law

Question 119

Delgamuukw v. British Columbia (1997)

Answer 119

Aboriginal title: right to exclusive use and occupation of land for a variety of purposes - sui generis right
Title use must not irreconcilable with the nature of the groups’ attachment to that land
Infringement must be justified
Infringement must be justified
- agriculture
- forestry
- mining
- hydroelectric power

Question 120

Easy to justify infringements?

Answer 120

Aboriginal title
The land must be occupied before Crown asserted sovereignty
There must be some continuity between pre-sovereignty and modern times
Occupancy must be exclusive at the time of sovereignty

Question 121

Legitimacy of the courts

Answer 121

Promise: can challenge gov’t actions
Perils: colonial interpretation limits decolonizing potential of rights
Do courts contribute to the elimination of
Indigenous sovereignty

Question 122

Charter and federalism
Charter and judicial review

Answer 122

Unifying/centralizing effect (Russell 1983)
- impose binding decisions on lower (provincial) courts
s. 33: effective compromise?

Question 123

Reasonable accommodation
Multani v. CSMB (2006)

Answer 123

Gurbaj Singh Multani is an orthodox Sikh; must wear kirpan at all times
Accidentally dropped kirpan
School board accommodation: sealed inside clothing
Governing board: refused to ratify agreement
​​s. 2 freedom of religion
- sincere belief
- severe infringement
Orthodox, kirpan must be metal
Violation considerable: leave public school
s. 1 test
Objective: school safety is
reasonable
Proportionate: failed this test
- means is rationally connected
- not minimally impairing, no proportionality between infringement and objective
Backlash/debate in Quebec
Justice Charron
- QC appeal court disrespectful to believers of Sikh religion
- did not take into account Canadian values based on multiculturalism

Question 124

High profile events (2006-2007)
Mont-Saint-Grégoire sugarhouse

Answer 124

Perception: Muslims arrived and demanded menu alterations and interrupted the dance hall to recite their prayers; everyone else was expelled
Mont-Saint-Grégoire sugarhouse
Facts: representative of Muslim association met with owners to discuss menu changes
Members prayed for less than 10 minutes and no one was expelled
Hérouxville: “Life standards”
Town council passed code of conduct
No immigrant population
Forbade carrying of weapon (even if symbolic)
Forbade covering one’s face
Stated stoning women, burning them alive and female genital cutting is prohibited
Backlash: based on racist stereotypes
About rural/urban divide?
Code of conduct revised after a delegation of Muslim women met townspeople

Question 125

Accommodation Crisis

Answer 125

High media coverage
Lack of knowledge
Partial perception of practices on the ground
Political consequences:
- 2007 QC election: Action démocratique du Québec (ADQ) became official opposition

Question 126

Bouchard-Tayor Commission (2008)

Answer 126

No accommodation crisis
QC: cultural insecurity
- minority in Canada, majority within province
emphasize reasonable accommodation stems from concerns about equality
- treatment can be differential without being preferential
Interculturalism model of integration
1. French is the common language
2. Pluralism with protection of rights
3. Creative Tension Between Diversity And French-speaking core
4. Emphasize Integration
5. Emphasizes Interaction
Limited ban on wearing religious symbols
Apply to officials with “coercive” powers
- judges, prosecutors, and peace officers
- Taylor no longer supports this position
Crucifix must be removed from National Assembly
- removed in July 2019

Question 127

Post-Bouchard-Tayor Commission

Answer 127

Quebec Charter of Values (Bill 60): introduced in 2013 by the Parti Québécois gov’t- did not pass
An Act to foster adherence to State religious neutrality (Bill 62): passed in 2017 by Liberal gov’t

Question 128

Quebec’s Laicity Act (Bill 21)

Answer 128

Affirms religious neutrality of the state
Religious symbols prohibited for public service employees
- public employee who carries a weapon
- Crown prosecutors, gov’t lawyers and judges
- School principals, vice-principals and teachers
Prohibition when receiving public services
- Municipal services (public transit)
- Doctors, dentists, midwives in public institutions
- Subsidized daycares
- School boards
Invokes s. 33 to avoid legal challenges
Amend Quebec Charter of Human Rights and Freedoms
- “state laicity” is of “fundamental importance”
- avoid lawsuits under Quebec law
4 different lawsuits, 3 heard together
1. Civil rights groups v. Quebec
Ultra vires
Alters unwritten principles of Canadian constitution
Vague definition of “religious symbols”
2. Coalition Inclusion Québec v. Quebec
Incoherent law
Violates freedom of religion found in the
Quebec Act, 1774
Ultra vires
Violates s. 28 of Charter, must affect men and women equally, argued it disproportionately affects women
3. English Montreal School Board v. Quebec
Violates s. 23 of Charter
Violates s. 28 of Charter
4. Teachers Union v. Quebec
Contest use of s. 33
Should have rules to account what rights are being overridden
Violation of s. 2(d) by altering duly signed collective agreements

Question 129

Charter and Federalism
Hak et al. v Attorney General of QC (April 2021)

Answer 129

Superior Court of QC: upheld the bill
Struck down provisions affecting English- language school boards and members of the provincial legislature
Both parties are appealing the decision
Federal gov’t will intervene if the case reaches the SCC

Question 130

Charter and Federalism
s. 33: Notwithstanding Clause

Answer 130

❖Should s. 33 be respected under all conditions?
❖Have the courts considered federalism when upholding Charter rights? (Hiebert 2019)
-Federalism: one of four principles of the constitution

Question 131

Charter and Federalism
Janet Hiebert (2019)

Answer 131

❖In Quebec, Charter can undermine federal governance: provincial autonomy
❖s. 33 as “thick” federalist response:
-protect provincial autonomy or cultural objectives from Charter constraints
-rejection of conforming to norms about justifying restrictions on Charter rights in areas of provincial jurisdiction

❖s.33 mostly used pre-emptively and not as a reactive response to a judicial ruling- QC: 15; SK: 2; AB and YK: 1
-11/19 uses: federalist responses

❖Protesting the 1982 constitutional changes:
-QC re-enact all legislation passed before the Charter was enacted (omnibus fashion)

❖Disagree with a SCC ruling:
-QC (1988): Bill 101 (Ford 1988)
-AB (2000): Bill 202 (Marriage Amendment Act)
-SK (2018): Bill 89 (Parental choice in schooling)

❖Disagree with a SCC ruling:
-QC (2019): Bill 21 (religious symbols)
-protecting collective and cultural objectives over judicial norms about freedom of religion

❖Provincial legislatures may pass Charter-vulnerable legislation without s.33
-timeframe: new gov’t or time to entrench voter base
-Westminster gov’t: executive powers to pass legislative agenda (discipline, etc.)

Question 132

Charter and Federalism
Peter Russell (1991);

Answer 132

why s. 33 is important despite being controversial
❖Neither legislatures nor courts should have the final word on identifying limits on rights
❖How to balance majority/minority rights should not be solely determined by the SCC
❖Important political debates happen after an SCC ruling

“I would add that it is extremely doubtful that the unity of Canada could survive an insistence by the rest of Canada that Quebec’s legislature be denied a continuing role in deciding what is necessary to preserve Quebec’s French character.”

Question 133

Charter and Federalism
Bill 96: French language

Answer 133

Changes to ❖Constitution Act, 1867
1) Quebecers form a nation
2) French shall be the only official language of Quebec
❖Use of s. 33 to shield the bill

❖Education; capping English speakers who can choose cjep
❖Commerce and signs; predominant French writing
❖Workplace; more than 25 employees must operate in french completely
❖Unilateral constitutional change? Constitutional change shielded by s. 33
-can amend provincial constitutions
- does it affect other constitutional rights?
Only affecting french constitution is contestable
❖Support from major parties and provinces
timed right before the federal election, need Quebec votes

Question 134

Implications
Increase use of s. 33?

Answer 134

❖QC (2019): public ban on wearing religious symbols
❖ON (2021): legislation restricting third-party spending in elections
❖QC (2021): French language requirements

❖ON (2022): use and subsequent withdrawal of s. 33 to prevent a teachers’ strike

❖SK (2023): used to pass Parental Inclusion and Consent policy, students need parent permission to change pronouns in school
❖ did it to Bypass injunction (court intervening on party decision to fix damages done by party) from trial judge: pause policy until its constitutionality is tested in court, because of this s. 33 was invoked

“It (Section 33) was meant to be a last word for a legislature to exercise parliamentary sovereignty. If it’s used at the beginning, it guts Canadian democracy, it means the charter doesn’t exist.”
Using it preemptively without dialogue is illegitimate

Question 135

Charter and Federalism
Federal gov’t role?

Answer 135

❖Concern: rather than correct judicial excess, now s. 33 used pre-emptively to stop debate between courts and legislatures
❖Disallowance powers (not used since 1943)
❖Ask a reference question to the courts

Question 136

Charter and Federalism
Webber et al. (2019)

Answer 136

❖s. 33: a law shall operate notwithstanding one or more Charter rights
❖Does not preclude judicial review: court can still declare that the law violates rights
❖Judicial scrutiny ensures no gov’t is above the law (even for laws with s. 33)
❖Declarations respect parliamentary supremacy

1.Can better hold the gov’t to account after hearing court weigh-in
2. Another avenue for minorities to make voices heard
3. Judicial review may alter the law’s political standing

Question 137

Who rules in Canada?;

Answer 137

SCC, judiciary, parliament, the crown

Question 138

Does the constitution favour Parliamentary Supremacy vs. Judicial Supremacy

Answer 138

Parliament does not always adequately safeguard rights, ex; internment camps and orders for deportation WWII, residential schools, sterilization of disabled people

Question 139

1960 Bill of Rights introduced; protection for individual rights and freedoms
Charter of Rights and Freedoms

Answer 139

”A constitutional Bill of Rights would modify even further the concept of parliamentary sovereignty in Canada. Once fundamental rights are guaranteed, they will be beyond the reach of government at all levels. This will confer new and very important responsibilities on the courts, because it will be up to the courts to interpret the Bill of Rights, to decide how much scope should be given to the protected rights and to what extent the power of government should be curtailed.” –P.E. Trudeau (1967)

Question 140

The Notwithstanding Clause

Answer 140

s.33(1): “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”
S. 33 preserves parliamentary supremacy

Question 141

Standing up for notwithstanding…

Answer 141

a democracy which puts its faith as much in its politically active citizenry as in judges to be the guardians of liberty is stronger than one that would endeavour to vest ultimate responsibility for liberty and fundamental rights exclusively in its judiciary.
- Russell 1991, p.309

Question 142

Media portrayal of s.33

Answer 142

A recent use of the notwithstanding clause
Bill 21
“The court notes that the evidence undoubtedly shows that the effects of Bill 21 will negatively impact Muslim women first and foremost… In one way, by violating their freedom of religion, and in another, in doing the same in regards to their freedom of expression, since clothing constitutes both pure and simple expression, and also the manifestation of a religious belief.”
- Justice Marc-Andre Blanchard, Quebec Court of Appeal (2021)

Question 143

Notwithstanding the notwithstanding clause?

Answer 143

1. “Notwithstanding Act” (van Ert and Attaran, 2023)
   *Use of disallowance for legislation that violates Canada’s international treaty obligations.
2. Permit judicial review despite s.33 (Webber, Mendelsohn, Leckey, 2019)
   *s.33 does not allow legislation to “override” rights; it shields the operation of law the violates certain Charter rights.
   What is attractive about these proposals?
   What would be their political or legal consequences?