midterm

Question 1

❖Power:

Answer 1

courts and judicial decisions have distributional effects, have political consequences, they are politicial actors and players, courts are intuitive in structuring institutions, but they are unelected and appointed so brings issues of legitimacy, can conflict with ideals of accountability, expectations on judiciary to be impartial but trapped in political system

Question 2

❖Courts create tensions between different ideals of democracy (legitimacy, accountability, separation of powers, etc.)
-Shapiro 1981; Russell 2010

Answer 2

legitimacy; judges showing different demographic representation
accountability; courts are intuitive in structuring institutions, but they are unelected and appointed so brings issues of legitimacy, can conflict with ideals of accountability
Russell (2010)
❖Tension between independence and accountability
❖Independence as a relational concept
❖External and internal threats to independence, targeting judiciary or individual judges
❖4 types of threats to independence
1. Structural
2. Appointing, removing, disciplining, remunerating, educating and evaluating judges
3. Court administration
4. Direct exposure and attacks
separation of powers:

Question 3

Judicial Process and Actors
1)Facts about the court system
❖Different types of law and legal systems

Answer 3

Legal Systems
Common Law
❖Emphasize precedent: legal principles from previous decisions (stare decisis)
❖Legislation
❖Organic, living tree doctrine
❖UK, former commonwealth colonies: USA, Australia, India, English Canada

Civil Law
❖Comprehensive codification
❖Napoleonic code
❖Continental Europe, Central and South America, Asia, Africa, Quebec

Types Of Law
2 Types of Law: Private and Public
Private law: disputes between private entities (individuals, groups, corporate)
Public law: disputes involving the state

Private Law
❖Torts
❖Contracts
❖Family
❖Property

Public Law
❖Constitutional, rules that define the rules, governs the state and relationship to the state
❖Criminal
❖Administrative
❖Tax

Question 4

Judicial Process and Actors
1)Facts about the court system/appointment process
❖AG, Minister of Justice, Dept. of Justice
-Hennigar 2002,
SNC Lavalin affair

Answer 4

maintaining independance/ undue pressure
Tension between cabinet solidarity and proscetorial independance

Question 5

2) Judicial Process
What it takes to make a case through courts
❖Procedural requirements to launch legal challenge justiciability: standing

Answer 5

Who can bring a lawsuit to court?
❖Must be party to a legal dispute
3 SCC decisions relaxed rules of standing
1.Thorson (1975) issue of who can bring standing
2. McNeil (1976) wanted to challenge powers of novia scotia board of sensors, supreme court raised issue of standing but granted board power, issue of when court will hear issue
3. Borowski (1981) challenging pro life, not a a women, doctor, not directly affected, courts relaxed standing and said he does have standing because of genuine interest

Borowski (1981)
❖Pro-life activist who wanted to challenge the federal government’s abortion law
❖Neither directly nor indirectly affected
❖Does he have standing?

Borowski (1981)
“…he has a 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 may be brought before the Court” (page 598).

Canadian Council of Churches v. Canada (1992)
Relaxed standing to allow citizens to utilize the charter
1. Is there a serious, justiciable issue raised as to the invalidity of the legislation?
2. If the plaintiff is not directly affected, do they have a genuine interest in the invalidity of the legislation?
3. Is there another reasonable and effective way to bring the issue before the Court?
Charter and burowski paved way for relaxed rules on standing

Question 6

2) Judicial Process
What it takes to make a case through courts
❖Procedural requirements to launch legal challenge justiciability: mootness

Answer 6

Is the dispute still “live”?
Borowski (1989)
❖SCC Morgentaler decision (1988)
❖Wanted to challenge the law from a pro-life standpoint
Borowski (1989)
❖Would both sides of an issue be represented? (adversarial situation)
❖Is the issue important?
❖What is the court’s role?
-Court has discretion to decide when to hear moot cases (M v. H [1999])

Question 7

2) Judicial Process
What it takes to make a case through courts
❖Procedural requirements to launch legal challenge justiciability: ripeness

Answer 7

Is the dispute developed enough to have a legal and factual foundation?
❖Allegations only speculative
❖Discretion-based determination
-Reference cases; Reference cases, are a legal mechanism to seek guidance or clarification on constitutional or legal matters from the highest court in the land. These cases typically involve important questions of law or constitutional interpretation and are initiated by the government, rather than by private litigants

Question 8

2) Judicial Process
What it takes to make a case through courts
❖Procedural requirements to launch legal challenge justiciability: political questions

Answer 8

Purely political matters or matters that do not raise a significant legal component should not be heard by courts
❖American doctrine
❖Strict application rejected by Canadian courts
-discretion to decide

Question 9

2) Judicial Process
What it takes to make a case through courts

Answer 9

❖Procedural requirements to launch legal challenge
-overall the canadian courts have relaxed requirements, ex genuine interest, useful use of judicial resources, if courts are open to hearing wide range of questions this mean they have a broad influence

Question 10

Review: Judicial Process and Actors
3) Judicial Decision-Making, courts making decisions
❖Judicial reasoning

Answer 10

-facts, issue, rule, reasoning/analysis

Question 11

Review: Judicial Process and Actors
3) Judicial Decision-Making, courts making decisions
❖Trial vs. Appellate courts

Answer 11

what they do
trial; finding correct facts,
apellate; application of law is correct

Question 12

Review: Judicial Process and Actors
3) Judicial Decision-Making, courts making decisions
-SSC:

Answer 12

conferencing, opinion writing

Question 13

Review: Judicial Process and Actors
3) Judicial Decision-Making, courts making decisions
❖Facts;

Answer 13

crucial to determing and understanding broader societal impact decsisions will make
-adjudicative and social facts
Factums
Written summaries of litigants or interveners’ argument
❖Data (social facts) compiled
❖More common at appellate level
❖Not subject to examination
❖How to evaluate the data

Question 14

Review: Judicial Process and Actors
3) Judicial Decision-Making
❖Expert witnesses

Answer 14

Present scientific and social scientific data at the trial level
❖Presents only an opinion
❖Experts disagree; how to evaluate?
battered women syndrome
-source of social facts

Question 15

Review: Judicial Process and Actors
3) Judicial Decision-Making
❖Interveners (interest groups and gov’ts)

Answer 15

-factums, strategic arguments to influence judicial opinions
Open judicial process
Interested third parties who submit arguments in a case
❖Need court’s permission
❖Have a statutory right
Typically the courts grant leave
Interveners required to provide:
❖Party’s interest
❖Position of the party
❖Submissions and their relevancy
❖Reasons for believing submissions are useful to the Court

Question 16

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Appointment process: s. 92

Answer 16

Administered and appointed by the provincial government

the “workhorse”
❖Provincial offences
-Ontario Highway Traffic Act ,Liquor License Act
❖Federal offences
-Criminal Code of Canada (summary offences)
-Youth Criminal Justice Act
❖Family law (except for divorce)
❖Civil law
-small monetary claims (tort and contract disputes)

Question 17

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Appointment process: s. 96

Answer 17

❖Administered by the provincial government
❖Appointed by the federal government
expansive jurisdiction
❖Trial court (Superior Court)
❖Appeals from s. 92 courts and provincial tribunals
❖Serious criminal law charges
❖Civil law (Tort $$$)
❖Family law (divorce, custody)
Serious, but local matters (provincial) & way to create uniformity in law (federal)

Question 18

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Appointment process: s. 101

Answer 18

❖Administered and appointed by the federal government
national importance
❖Trials (Federal Court) and appeals (Federal Court of Appeal
❖Federal administrative boards
-immigration, human rights commission
❖Citizenship
❖Federal-provincial relations

Question 19

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
-Role of judicial councils:

Answer 19

Judicial Councils
❖Found in all provinces and federal level
❖Buffer between judges and gov’t
❖Handle complaints against judges
❖Possible sanctions: Reinstatement (with training
and/or remedial actions), suspension, removal
❖Other duties: education, nominating candidates,
recommending improvements

partisan influence? Can still seep through

Question 20

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
examples of partisan influence

Answer 20

→Hausegger et al. 2010, found empirical evidence that a good chunk of judges who were appointed had partisan ties
→AB Justice Minister; tried purging and replacing cabinet for more lenience
→Trudeau gov’t undergoing background checks, pressuring AG

Question 21

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Appropriate role: adjudicator or policymaker

Answer 21

Competing ideals of what judges should be doing

❖trudeau Reforms to appointment process: diversity, functional bilingualism, more accountable and transparent process
-Questionnaires (michelle), hearing process

Question 22

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Representation:

Answer 22

Wilson 1990, Lawrence 2010, in favour of representative bench for impartiality
Reference Re Supreme Court Act 2014, nadal reference; quebec judges are important, linguistic representation

Crandall 2022; doing well in terms of gender diversity, not other diverse groups

❖trudeau Reforms to appointment process: diversity, functional bilingualism, more accountable and transparent process
-Questionnaires (michelle), hearing process

Question 23

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖judicial Independence vs. Impartiality

Answer 23

Russell (2010)
❖Tension between independence and accountability
❖Independence as a relational concept
❖External and internal threats to independence, targeting judiciary or individual judges
❖4 types of threats to independence
1. Structural
2. Appointing, removing, disciplining, remunerating, educating and evaluating judges
3. Court administration
4. Direct exposure and attacks
Impartiality
State of Mind
❖Free of bias
❖Representation and impartiality?
❖Will representative judges act to represent a social group?

Impartiality
Lawrence (2010)
❖Why have a representative bench?
❖Creating impartiality through diverse perspectives
❖Improving public confidence
❖Improving democratic legitimacy
❖Homogenous courts undermine judicial independence
❖Institutions reflect existing social inequality (including courts)
❖structural impartiality requires diverse viewpoints on the bench
❖Identities most relevant to inequality and power (major social cleavages)
❖Professional qualifications and salary limit certain identities
❖Norms of judging can assimilate differences

Impartiality
❖Is representation the best instrument to ensure impartiality?
❖How can we tell whether decisions exhibit bias or partiality?

-Valente decision (1985); independence as institutional phenomenon, impartiality more single minded thinking

Question 24

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Independence vs. Accountability

Answer 24

(Russell 2010);independance very important, can be argued courts have too much independence not enough accountability

Question 25

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖3 mechanisms of independence

Answer 25

-security of tenure; cant be fired
-financial security; set salary
-administrative autonomy

Question 26

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Security of tenure: controversies

Answer 26

process to remove judges
-role of judicial councils (prov and fed)
-judicial review
Removal of judges is controversial
-Moreau-Bérubé; no consensus council and judicial review did not agree , Evans; sexual assualt resigned still practices law, Camp; resigned on his own, Douglas; pictures, Girouard; lack of consensus, tried to appeal, Brown; resigned before investigation even started
Difficult to hold judges accountable, too much security of tenure?

Question 27

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
❖Financial Security: controversies

Answer 27

maybe too much financial security, Remuneration Reference (1997), Bodner v. Alberta (2005) suggests MG can go against what commissioners say should be salary, still a lot of financial security

Question 28

Review: Judicial Process and Actors
4) Actors in Judicial Process: Judges
Administrative autonomy
Ethics:

Answer 28

on the bench and off (CJC ethics handbook)
Importance of perception (justice mitchell), teepee
Role of retired judges (salyzyn 2019, mancini and sigalet 2020): SNC, meng, HKCFA

Question 29

Review: Judicial Process and Actors
4) Actors in Judicial Process: Interest Groups

Answer 29

❖Indirect and direct action
-Indirect: education, disseminating information (writing, conferences)
-Direct: sponsoring, intervening, litigating
-CCLA, LEAF

Question 30

Review: Judicial Process and Actors
4) Actors in Judicial Process: Interest Groups
❖Pros and cons of legal action/appealing to courts

Answer 30

-resources (time, money, expertise)
-discursive constraints or opportunities
-favourable set of facts/dispute
-permanency of judicial victories/hard to reverse a higher courts decision
-laws directly affect policy alternatives and development

Question 31

Review: Judicial Process and Actors
4) Actors in Judicial Process: Interest Groups
❖Intervening:
❖Social change?
-Epp 1998, Rosenberg 1991, Hein 2001
-Court Challenges Program
❖Democratic? Should interest groups be able to intervene so easy/have such easy access to judicial process: Brodie 2002, Hein 2001

Answer 31

often granted standing, because of pros and cons common option
-Alarie and Green 2010,Trinity Western (2018)

Question 32

Review: Judicial Process and Actors
4) Actors in Judicial Process: Interest Groups
❖Social change?
❖Democratic? Should interest groups be able to intervene so easy/have such easy access to judicial process: Brodie 2002, Hein 2001

Answer 32

-Epp 1998, Rosenberg 1991, Hein 2001
-Court Challenges Program

Question 33

Review: Judicial Process and Actors
4) Actors in Judicial Process: Interest Groups
❖Democratic?

Answer 33

Should interest groups be able to intervene so easy/have such easy access to judicial process: Hein 2001 reading

This article discusses the role of interest groups in Canadian judicial politics, focusing on the use of litigation as a strategy to shape public policy and influence the legal system. The article highlights the diversity of interest groups and the wide range of issues they bring to the courts, including civil liberties, disability rights, feminist issues, Aboriginal treaty rights, environmental concerns, and more. It presents differing perspectives on the impact of interest group litigation on Canadian democracy, with some critics arguing that it undermines the legislative process, while others see it as a means to enhance democracy by providing access to justice for marginalized groups.

Question 34

Review: Judicial Process and Actors
4) Actors in Judicial Process: Government
❖Prosecutor

Answer 34

-AG at both provincial and federal level
-2-part test: conviction and public interest
-Shawcross principle (SNC Lavalin)
-discretion and accountability mechanisms

Government as prosecutor
❖Most common reason why gov’ts appear in court
❖Criminal law: State represents the victim/society
❖Provincial gov’ts responsible for prosecuting the majority of criminal offences

Government as prosecutor
Criteria for prosecution:
1.Reasonable likelihood for conviction
2.Prosecution is in the public interest
Crown may not prosecute because it does not believe the law should be enforced

Prosecutorial Independence
❖Discretion to prevent miscarriages of justice
❖Avoid politically motivated prosecutions
❖Discretion to use diversion where prosecution may not be in the public interest

Government as prosecutor
Shawcross Principle
❖AG has discretion over whether or not to pursue criminal proceedings
❖Take into account public interest
❖Cabinet only gives advice
❖Decision is AG’s alone
❖No pressure from government

Government as prosecutor
Prosecutorial Independence:
Public Prosecution Service of Canada (PPSC)
❖Director of Public Prosecutions (DPP) is the Deputy AG
❖Agent Affairs Program (1996): managing private-sector lawyers or firms

Government as prosecutor
Prosecutorial Accountability
❖Internal: hierarchical decision-making
❖Internal: legal ethical guidelines (deskbook)
❖Political (Parliament/legislatures)
❖Legal community: provincial law societies

Government as prosecutor
Prosecutorial Accountability
❖Judicial review
-Fair trial
-Admission of evidence
-Charter of Rights and Freedoms (s. 11[b] and s. 7)
❖Public/media

Question 35

Review: Judicial Process and Actors
4) Actors in Judicial Process: Government
❖Defendant

Answer 35

-Charter cases (Chaoulli 2005)
-out of court settlement (IRSS)
❖defendant in civil suits
Government as defendant
❖Individuals or groups sue gov’t (damages, unfair treatment)
-many Charter cases begin as civil suits (demanding remedies)
-more gov’t regulation, the more potential for conflict with individuals

Chaoulli v. Quebec (2005)
❖Individual sued the QC gov’t for prohibition on private health care
❖Ban coupled with long wait times: infringement of QC Charter of Human Rights

❖Gov’ts don’t always defend themselves
❖Out of court settlement
-IRSSA
❖Alternative dispute resolution

Question 36

Review: Judicial Process and Actors
4) Actors in Judicial Process: Government
❖Plaintiff

Answer 36

plaintiff in civil suits
Government as plaintiff
❖Gov’t sues someone else (rare)
❖Sues business contracted by gov’t
❖Gov’t sues one another
❖Influence policy
-QC gov’t sued tobacco company for smoke-related health care costs (2012)

Question 37

Review: Judicial Process and Actors
4) Actors in Judicial Process: Government
❖Intervener

Answer 37

(the state intervenes as a group often, highly successful)
-gov’t frequently intervenes
Government as intervener
❖Most common intervener, often appear as a group
❖Present legal arguments: legal interpretation, legislative intent
❖Present social-scientific data: consequences of policy decisions
❖Signal level of gov’t support for a certain outcome

Question 38

Review: Judicial Process and Actors
4) Actors in Judicial Process: Government
❖Reference questions

Answer 38

-direct access to courts, strategic, quick strategies
Government asks a reference
❖Ask question(s) to courts (of law or fact)
-federal gov’t asks SCC
-provincial gov’ts ask highest court of appeal
❖Answers are “advisory”
❖Questions are considered non-justiciable
❖Gov’ts get privileged access to courts
Subject of references
❖Constitution Act, 1867
-Patriation reference (1981)
❖Constitution Act, 1982
-Charter of Rights and Freedoms
-Same Sex Marriage (2004)
❖Statutory interpretation
-Nadon reference (2014)

Reasons Government asks a reference
❖Political hot potato/buck passing, passing question to courts
❖gives opening or venue to ask politically sensitive questions
❖Create legitimacy for unpopular or divisive decisions
❖Efficient

Question 39

Justiciability

Answer 39

What kinds of questions can the courts answer?
Who decides what the courts can and cannot answer?
❖The courts themselves
-example: SCC’s public importance test
❖Litigant must have standing
❖The issue must not be moot
❖The issue must be ripe
❖The issue must not be of a purely political nature

Question 40

s. 101 Courts: SCC

Answer 40

❖Final court of appeal in 1949
❖9 justices
-3 Quebec (law)
-3 ON, 2 West, 1 Atlantic (convention)
❖Retire at age 75

❖Appellate court
-Reference cases are exception
❖Unlimited jurisdiction
-public and private
-federal and provincial laws
❖Decisions are binding on all lower courts
-unifying/centralizing

❖Docket control, control of number and types of cases they hear
-few appeals as of right; need leave to appeal
❖Appeals as of right
-when an appellate judge dissents on a question of law
❖Leave to appeal
-three judge panels review applications

Question 41

s. 101 Courts: SCC
❖Public importance test

Answer 41

❖Public importance test
1. Novel legal issue
2. Conflict with lower courts
3. Important statute
4. Aboriginal rights
5. Need for national standard

Question 42

Judicial Independence
Retired judges example cases
SNC Lavalin Affair
Meng Extradition
Hong Kong Court

Answer 42

Judicial Independence
SNC Lavalin Affair
❖SNC’s legal counsel was Frank Iacobucci
❖Iacobucci consulted Major
❖Beverley McLachlin approached by Iacobucci and PMO, declined
❖Thomas Cromwell advised JWR about solicitor-client privilege

Judicial Independence
Meng Extradition
❖CEO of Huawei was arrested in YRV at request of American authorities (2018)
❖Canadians Michael Korvig and Michael Spavor are arrested in China
❖Open letter penned
❖Louis Arbor (former SCC judge)

Judicial Independence
Hong Kong Court of Final Appeal
❖Former Chief Justice McLachlin: an overseas non-permanent judge in HKCFA
❖National Security Law targeting pro-democracy advocates (2020)
❖Reward of $1 million HK dollars (about$170,000 CAD) for pro-democracy leaders

Hong Kong Court of Final Appeal
❖Beijing loyalist (John Lee, HK’s chief executive) chooses which judges the chief justice can choose to hear appeals
❖Lending legitimacy to oppressive laws from the new autocratic regime
❖Two British judges left their posts in protest
Judicial Independence

Question 43

Judicial Independence
Ethical Principles of Conduct

Answer 43

1. Integrity and respect
2. Diligence and competence
3. Equality
4. Impartiality
   *must be and appear to be upholding these principles

Question 44

Ethical Principles of Conduct: Impartiality

Answer 44

“Judges contemplating retirement and former judges avoid conduct that is likely to bring the judicial office into disrepute or put at risk public expectations of judicial independence, integrity and impartiality”

Question 45

Retired judges: current restrictions

Answer 45

❖Preserve impartiality, can’t act in interest of other party
❖Arbitrator, mediator, or commissioner
❖should avoid appearing as counsel before a court
❖Exercise caution when providing legal advice in high profile cases
❖No disclosure of confidential discussions/information

Judicial Independence
Retired judges (Salyzyn 2019):
❖Power of prestige-influence/bias
-powerful actors can acquire prestigious allies (commodification of status)
-political cover
*Legitimacy is about perception
❖Retired judges should be free to work
-SCC judges have exceptional circumstances
❖Benefit of retired judges’ legal expertise
-judicial confidentiality must be upheld anyway
❖Brief tenure on bench

Mancini and Sigalet (2020):
❖Prohibiting constitutional and administrative law
-upholds rule of law and democracy
-allows judges to work in some areas of law
❖Punitive and exception-based models

Question 46

Salazyn reading on retired judges

Answer 46

In this article, the author argues that retired judges from the Supreme Court of Canada (SCC) should not be allowed to practice law in any capacity, as current law society rules allow. The main concern is the potential harm to public confidence in the administration of justice when retired SCC judges engage in legal practice, particularly in court appearances. The author expresses concerns about perceptions of bias and undue deference when retired SCC judges are involved in legal cases. The article highlights the need for a prohibition on retired SCC judges practicing law to address these systemic and institutional concerns. The author acknowledges counter-arguments related to freedom to work and the benefit of clients receiving legal expertise from retired judges but maintains that the potential harms outweigh these considerations.