Final POLI 342 Flashcards
1
Q
Borowski, Thorson, McNeil (Late 70’s Early 80’s)
A
Asks whether a citizen can challenge the abortion law for being too lax.
- SCC finds that if there is a serious issue, must show genuine interest as a citizen in the validity of the legislation AND that there is no other reasonable and effective manner in which the issue would come before the court.
- Any law subject to Charter challenge, standing only applies until it makes a challenge impossible
- No longer need personal interest
- SCC grants standing to Thorson, federal civil servant seeking declaratory judgement that new bilingualism legislation invalid even though not personally impacted
2
Q
Problems with Citizens Challenging Legislation
A
Not many can: expensive, need lawyer, campaign of cases leads to bigger impact.
3
Q
US Civil Rights Litigation
A
- National Association for the Advancement of Colored People (1909) and Legal Defense Fund (1939) are the exemplary cases.
- Southern Democrats blocked desegregation the LDF litigates against segregated education in colleges and universities then in public school.
- They did this by sponsoring test cases to overturn legal precedent of ‘separate but equal’ (out of 1896 Plessy v. Ferguson)
- mid 50’s see success Brown v. Board of Education
4
Q
Canadian Interest Groups
A
- In Canada, interest groups sponsor cases but it is more common for them to be intervenes in court (amici curiae or friend of court)
- Heard in someone else’s case but has implications for adjudicative model
- Partly funded by the government (almost unique to Canada)
- Examples of interest groups: Canadian Civil Liberties Association , Criminal Lawyers Assn, BC Civil Liberties Assn, LEAF, Canadian Labour Congress
5
Q
NAACP Type Story
A
- Interest group litigation as: a government oppressing someone’s rights vs a citizen group trying to defend itself from oppression
- In the US, the government was enforcing oppressive laws and a group of citizens banded together in reaction.
- Interest group pluralism as a moral force to it.
6
Q
Trudeau and Interest Groups in Canada
A
- 1970’s Trudeau was pushing the court towards policy making (creative judges, docket control and the CCRF)
- CCLA founded in 1964 in Toronto. Bora Laskin was a founding members
- CCLA is a traditional civil liberties group that opposes overly powerful police, defends criminal due process rights and upholds free speech principles
- Pressured court to allow more interveners because unwise to allow government and not advocacy to intervene. Governments would instinctively oppose broad readings of rights so need to hear countervailing opinion. Interveners submit factums to court
- In the 1970’s they opposed the War Measures Act, hate propaganda laws, new wiretapping powers and promoted legal aid.
- Funding OLMG, french language groups outside Quebec, English language groups inside Quebec
- Starting in 1970’s- women’s and multicultural groups
7
Q
Threat to the Canadian Regime 1976
A
- Quebec elects Parti Quebecois
- 1977 Bill 101 makes French official language of QC and restricts English language education rights
- Trudeau government worries that this will become a challenge to bilingualism and that other provinces will restrict French language education rights and eventually Quebec will vote on separation
- Trudeau government considers disallowing it or challenging it in court but it is popular
- Instead encourages English language groups to challenge it and push ahead with Charter of rights with new language rights enshrines.
8
Q
Bill 101
A
-To encourage English groups to challenge Bill 101, 1978 creates Court Challenges Program (access the courts for the litigation of test cases of national significance. language, human rights,
-BNA Act 1867 S.133- English or French may be used in debates of the Legislature of QC and in courts. Manitoba Act 1870 same.
-Court Challenge Program funds three cases in QC, three outside QC
-
9
Q
Charter of Rights and Language
A
- Section 16-20 includes existing language rights
- Section 23: any Canadians education in French have the right to French education for their children outside QC and if in English, English education for their children in QC
- Court Challenges Program expands accordingly
- Equality rights section comes into effect, Court Challenges Program expands to fund those cases too (LEAF, disability cases, AFN, EGALE)
10
Q
Interest Group Pluralism
A
- In Canada, interest group litigation does not always follow the NAACP model
- Whereas in the US, the government is enforcing oppressive laws and a group of citizens band together in reaction, interest group litigation was encouraged and funded by the federal government.
11
Q
Hein Brodie Debate Setting
A
- Trudeau got a policy-making judicial system and a CCRF that anchors unlimited judicial power plus a constellation of interest groups to invoke that power
- By 2000, SCC well established locus of politics
12
Q
Hein and Judicial Policy Making
A
- Thinks this is good for democracy because judicial policy making is used by judicial democrats: left feminists, disability groups, labour, new left groups (progressives) to counter-balance corporate interests
- Judicial power balances are an inherently unfair political process
13
Q
Brodie and Judicial Policy Making
A
- Does judicial power re-balance an inherently unfair political system?
1. are the courts more diverse than Parliament or the Alberta Legislature or Cabinet. Decision are made by judges and lawyers.
2. what do you need to have to succeed in court? The same resources you need to succeed in legislature or regulatory politics
3. Interest group litigation is not a group up process, it is driven by the state - More we make the judicial system like the rest of the political process, the farther it is from the original triad structure and the more it becomes like the rest of the political process— except the courts are second guessing the rest of the political process
14
Q
Weiler + 50
A
- Now that we have policy making courts,
- Better realization, policy making is damned complicated
- Competing goals or objectives, imperfect means of implementation
15
Q
Hausegger and Farm Worker Rights
A
- Long policy debate. In 1970’s minimum wage and 90’s unionization
- All of which end up in court, to this day NDP Bill 26 and UCP repeal. Extend workplace legislation to farms and ranches.
- Government trying to protect family farms and new push for local food but there is a competitive and cost trade off. Farmers argue that family farms are unique.
16
Q
Judicial Impact on Ability to Unionize
A
- CCRF Section 2 everyone has the right to freedom of association but does that include the right to form a union and bargain collectively?
- At first, 1987 SCC decided no but gradually has changed the law so now everyone has the right to form a union and bargain collectively.
17
Q
Sliding Scale of Implications for Judicial Policy
A
- Administrative law: clarify and make new rules, cabinet or Parliament can changes these rules
- Statue law- clarifying statute and filling in gaps, Parliament can change the statute
- Constitutional Law: impossible to reverse, judicial policy making needs more serious think.
- Wide open remedies clause and a wide range of rights and freedoms
18
Q
Smiley
A
- How balance judicial v.s legislative policy making
- Not following the will of the people (elected officials)
- How far should judges go in policy making? Can’t use the ‘when rights are at stake’ justification because:
- judges are not isolated from politics, rights violations aren’t always clear and who does the balancing: S.2 freedom of expression v.s equal protection without discrimination: race, national ethjnic origin, colour, religion, sex. Hate literature or porn?
- Can’t use ‘should intervene when public opinion is inflamed’ Crisis or passing panic?
- Good legislative debates on capital punishment, divorce, abortion, hate speech, bilingualism, euthanasia, gay marriage
19
Q
McLachlin on Constitution
A
- Unwritten constitutional principles, how are judges better at finding them if they aren’t written down.
- Judges are guided by their own personal views shouldn’t be they elected before they make policy?
20
Q
Morton on the Charter
A
- Why do we have one?
- Trudeau hoped it would help nation building to emphasize what we have in common.
