exam Flashcards
(143 cards)
Pre-Charter Judicial Power
Parliamentary Supremacy;
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
Pre-Charter Judicial Power
Judicial Committee of the Privy Council (1844-1949)
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
❖Federalism
-ultra vires vs intra vires
-ultra vires; outside jurisdictional capacity of gov ,intra vires; inside jurisdictional capacity of gov
Pre-Charter Judicial Power
Cairns reading (1971)
❖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
Pre-Charter Judicial Power
Human Rights Abuses in Canada
❖Slavery
❖Immigration
❖Segregation
❖Internment
Pre-Charter Judicial Power
Slavery
❖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
Pre-Charter Judicial Power
Immigration
❖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
Pre-Charter Judicial Power
Segregation
❖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
Pre-Charter Judicial Power
Cunningham v Homma (1903)
❖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
Pre-Charter Judicial Power
Christie v York (1939)
❖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
Pre-Charter Judicial Power
Internment
❖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)
Pre-Charter Judicial Power
Edwards v. Canada (AG) 1929
❖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.”
Pre-Charter Judicial Power
Provincial Human Rights Codes
❖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)
Pre-Charter Judicial Power
Bill of Rights (1960)
❖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
Post-Charter Judicial Power
Charter of Rights and Freedoms sections
❖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)
Pre-Charter Judicial Power
Parliamentary Supremacy
VS
Post-Charter Judicial Power
Constitutional supremacy
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
Post-Charter Judicial Power
Parliamentary Supremacy
Pros vs Cons
Pros
❖Clear lines of accountability
❖Shifting majorities
❖Institutional capacity to address complex policy problems
Cons
❖Not representative
❖Executive dominance
❖Political compromises could undermine rights
Post-Charter Judicial Power
Constitutional Supremacy
Pros vs Cons
Pros
❖Protection of minorities/marginalized
❖Check on executive power
Cons
❖Not representative
❖Only benefits select groups
❖Unelected and unaccountable
❖Judicialization of political issues
Post-Charter Judicial Power
s. 1: Reasonable Limits (Oakes Test)
“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
Post-Charter Judicial Power
s. 33: Notwithstanding Clause
❖Legislatures can override s. 2 or s. 7-15
❖Lasts 5 years and can be renewed
❖Compromise between parliamentary and constitutional supremacy?
Post-Charter Judicial Power
Ford v. Quebec (AG) 1988
❖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
Post-Charter Judicial Power
New (recent) uses of s. 33
❖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
Judicial Power Evolution
❖Change in power
❖Change in role of courts
❖Change in institutional relationship
Judicial review
Studying courts
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