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part 1 and 2 Flashcards

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1
Q

The SNC-Lavalin Affair

A
  • Wanted DPA’s (deferred prosecution agreement)
  • lobbied the Trudeau gov to create one
  • In 2018, the director of public prosecutions decided against offering the options to SNC lavalin
  • Trudeau repeatedly urged Wilson-Raybould to reconsider, saying a criminal trial could hurt SNC lavalin’s business prospects, would hurt Canadian economy and jobs, and even his own chances of re-election
  • PM JT said no there was no inappropriate pressure
  • “I can’t apologize for standing up for Canadian jobs”
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2
Q

Life before the law

A
  • Courts denied discrimination as a legal problem

- SCC believed freedom of contract was more important than racial equality

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3
Q

Christie v. York facts

A

Black man not served at a bar; claimed $200 for humiliation; business argued it was within its rights to do so as a private enterprise (unless law prohibits it or it’s against good morals/public order)

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4
Q

Christie v. York ratio

A

Freedom of commerce trumps freedom of discrimination

Only limit to this principle is statute or disruption to good morals/public order

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5
Q

why was the Christie v. York case not against good morals/public order

A

Good morals/public order: at the time blatant racial discrimination was the norm and not contrary to good morals/public order
- C would be the one disrupting public order by calling the police

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6
Q

Viola Desmond facts

A
  • Was told she could not sit in the downstairs part of the movie theatre
  • She refused to move, and manager and policeman resorted to physical force
  • Was found guilty of defrauding the Nova Scotia 1 cent in sales tax
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7
Q

viola desmond results

A
  • Desmond got a lawyer, who argued that “natural justice” had been denied
  • Court rejected argument
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8
Q

what do christie and desmond challenge?

A

challenged idea that bar owner/cinema owner had the presumptive right that they could refuse them
- Wanted to put on trial a legal system that would condone their actions

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9
Q

Gilpin v Halifax Alehouse Limited facts

A
  • Man of colour denied drink and asked to leave when he can’t show id
  • Refuses to leave
  • Manager calls police, they remove him and charge him with public intoxication
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10
Q

Gilpin v Halifax Alehouse Limited reasoning

A
  1. Denial of Service – within policies and requirements for license
  2. Calling the Police - Tribunal can’t understand why he would call the police other than race
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11
Q

Gilpin v Halifax Alehouse Limited showed?

A

Recognition of systemic racism - different public ideology of racism

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12
Q

1940s human rights law

A

human rights statutes were quasi-criminal statutes

  • Provincial statutes that were modeled on prohibitions backed by penal sanctions
  • Law enforced by police and judges
  • Discrimination understood as singular kind of crime, isolated. Not one indebted to all of society
  • Judges rarely convicted, reluctant to understand this conduct as crime
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13
Q

1950s human rights law

A

fair accommodation and practice acts

  • They correct some of the problem of criminal law type
  • Pay attention to everyday injustice
  • Emphasize mediation (provided for assessments of complaints, investigation and conciliation, for setting up commissions or boards of inquiry when conciliation is unsuccessful and used prosecution and the application of sanctions as a last resort )
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14
Q

1960s/70s human rights law

A
  • Comprehensive and dedicated statutes (Canadian human rights act)
  • Also have dedicated administrative machinery (Independent agencies that will administer and enforce these acts)
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15
Q

Canadian human rights act

A

Comprehensive = Lists of prohibited practices and grounds continues to expand

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16
Q

what did Canadian human rights act establish

A

its own administrative machinery

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17
Q

how does Canadian human rights act work

A
  • Works through mediation and conciliation

- Only if it fails, then do you turn to the tribunal and its formal legal work

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18
Q

what does Canadian human rights act tell you about the nature of discrimination and the state interest in addressing it?

A

transition of private wrong to public harm. State putting itself and resources behind project. State claiming project as own

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19
Q

Reasons for the turn to Human Rights in Canada post WWII

A
  1. To distinguish itself from radical acts of Holocaust

2. Influence from US human rights movement and legislation

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20
Q

Markets are inadequate substitute for HR because

A
  1. Third parties might impose serious costs on those who agree to deal with members of disadvantaged groups
  2. Sometimes discriminatory behaviour is a response to generalizations or stereotypes that provide an economically rational basis for market decisions
  3. Private preferences for both beneficiaries and victims of discrimination tend to adapt to existing injustice
  4. Most fundamentally, markets incorporate the practices and norms of the advantaged group
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21
Q

Ontario created Canada’s first human rights commission in what year? significance?

A

1961

helped raise the profile of discrimination issues, also invited victims of discrimination to come forward

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22
Q

Grant v. Willcock facts

A
  • When Mrs G went to look around, owner (Willcock) showed them around for 45 min, seemed very interested
  • When Mrs. G came back with her husband, Mr. Willcock was reserved and not friendly - said there was another buyer
  • Mrs. G’s mother went to look at the cottage, Mr. W indicated it was still for sale and showed her around. said he thought he had sold the place, but turned out the husband “was as black as the ace of spades”, and that he could not sell to a black person
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23
Q

Janzen v platy enterprises ltd facts

A
  • Waitress, sexually harassed by cook (grabbing legs, bum, and crotch)
  • When she resisted, he told her to shut up or he’d fire her
  • Spoke to owner, who said he couldn’t do anything about it
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24
Q

Janzen v platy enterprises ltd issue

A

Whether sexual harassment in the workplace is discrimination on the basis of sex under the Manitoba Human Rights Act

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25
Q

Janzen v platy enterprises ltd reasoning

A

Sexual harassment not socially acceptable conduct, but can’t be equated with sexual discrimination

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26
Q

Sheppard’s analysis on why sexual harassment is sex discrimination

A

Sexual harassment is sex discrimination because it perpetuates an economic hierarchy on the basis of sex
- It’s about a structural vulnerably of women

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27
Q

Genetic Non-Discrimination Act

A
  • Make it a criminal offence for a service provider or anyone entering into a contract with a person to require or compel person to take or disclose the results of a genetic test
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28
Q

state interest in Genetic Non-Discrimination Act

A
  • Advancement of society, don’t want people to fear being genetically tested
  • The harm of genetic discrimination is that it deters people from getting genetically tested because of fear
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29
Q

rule of law

A

gov actions must always be sourced in law and therefore bound by law in order to be considered both valid and legitimate

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30
Q

is rule of law written

A

a foundational principle, but an “unwritten” one

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31
Q

landmark case for rule of law

A

Roncarelli v Duplessis

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32
Q

Roncarelli v Duplessis facts

A
  • Appellant was Jehovah’s witness who owned restaurant, had provided bail for a number of Jehovah’s witnesses who had been arrested
  • existing liquor license was cancelled and his application for renewal was rejected with an added declaration that no future license would ever be issued to him
  • respondent, the premier and attorney general, had ordered the cancellation of the license. And warned others
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33
Q

problem in Roncarelli v Duplessis

A
  • D’s action was wrong bc the wrong person cancelled the license
  • but also, regardless of the person cancelling it, it was cancelled for the wrong reason
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34
Q

Roncarelli v Duplessis reasoning

A

To revoke a license bc someone exercises an unrelated religious right is a breach of the rule of law

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35
Q

Roncarelli v Duplessis ratio

A

No public official is above the law

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36
Q

Facts of Roncarelli v Duplessis under formal rule of law

A

Sues Duplessis and claims that he didn’t have the authorization. Only a statute can authorize someone to cancel license, and in this case statute authorizes commission not premier. Duplessi had no legal authority to cancel license

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37
Q

Facts of Roncarelli v Duplessis under political morality

A
  • Duplessi orders cancellation of license, with the precise statement of hurting JW’s and to punish Roncarelli
  • Complaint is not about wrong person cancelling license, but claims that license was cancelled and destroying his livelihood, downgraded as a citizen
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38
Q

Federalism

A

division of public power between two orders of government: federal and provincial (s91/92)

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39
Q

S91 is

A

the feds
- o Trade and commerce… Taxation… Postal service… Indians and lands reserved for Indians..
o Also given authority to make laws for peace, order and good governance. And residual power (all matters that are not otherwise covered by provinces)

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40
Q

If you don’t want something to fall to the residual power, have to…

A

have to SHOVE IT IN a provincial head of power by interpretation to avoid it going into the feds. Why interpretation is critical

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41
Q

S92 is

A

provinces

- Hospitals, charities, property and civil rights, all matters of local or private nature

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42
Q

Doctrine of paramountcy

A

In the event of inconsistency between a federal law and a provincial law, federal law prevails

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43
Q

Subsidiarity

A

a principle of social organization that prescribes that decisions affecting individuals should, as far as reasonably possible, be made by the level of gov closes to the individuals affected

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44
Q
  • Reasons for federalism
A
  • large area country, includes diverse regions, advantages of efficiency and accountability in dividing the powers of gov so that a national gov is responsible for matters of national importance and provincial/state gov are responsible for matters of local importance
  • A province, being more homogenous than the nation as a whole, will occasionally adopt policies that are too innovative or radical to be acceptable to the nation as a whole
  • preclude excessive concentration of power and acts as a check against tyranny
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45
Q

argument that federal gov is weak gov

A

dispersal of power makes it hard to enact and implement new public policies, especially radical policies

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46
Q

R v. Comeau facts

A
  • Comeau challenged constitutionality of s.134 (6) of the NB Liquor Control act, couldn’t hold liquor beyond a specified amount other than from the NBLC
    • Basically, said it violated this free trade clause in the constitution act
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47
Q

R v. Comeau reasoning/ratio

A

Constitution sets up feds and provinces in a “symbiotic relationship”, allowing them to come together to share goals while also pursing their own interests

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48
Q

where does human rights fall

A

textually under no one’s jurisdiction

- Not listed under either 91 or 92 - becomes matter of interpretation

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49
Q

case about jurisdiction in human rights law

A

Scowby

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50
Q

Scowby v. Glendinning facts

A
  • 5 aboriginal men arbitrarily detained by RCMP without notice of charge, which violates s.7 of SK’s human right act (right to be free from arbitrary arrest)
  • RCMP argued that s.7 was essentially concerned with criminal law and procedure, a federal jurisdiction
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51
Q

Scowby v. Glendinning reasoning

A

Concluded that s.7 was in pith and substance concerned with procedure in criminal matters

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52
Q

Scowby v. Glendinning ratio

A
  • Human rights law is a shared jurisdiction, but it is not overlapping (can’t chose which level)
  • Jurisdiction is divided based on the underlying subject matter
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53
Q

How do you decide which jurisdiction in human rights?

A

Decided by the underlying character of the human rights dispute or issue (pith and substance)

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54
Q

what kind of human rights disputes are provincial

A

Because employment, commercial activity… is largely regulated by the provinces, most of your human rights disputes move through provincial systems

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55
Q

what kind of human rights disputes are federal

A

The Canadian human rights act only applies to matters in the federal jurisdiction - employment, accommodation or services that fall under s91 (banking, telecommunication…)

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56
Q

weaknesses of first era of HR law

A
  • Focus was on individual cases and individual perpetrators
  • Difficulties proving the offence beyond a reasonable doubt
  • Difficult to prove someone hasn’t been denied access for another non-discriminatory reason
  • Criminal sanctions didn’t do much for the victims such as providing them jobs or homes – the remedies (punishment) were not consistent with the nature of the human rights project
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57
Q

Iron hand and velvet glove of HR

A
  • Human rights legislation is a recognition that it is not only bigots who discriminate but also upright members of society
  • These people should be given the opportunity to reform their attitudes after seeing how they injure the dignity and economic well-being of others for their own comfort and convenience (velvet glove)
  • However, if persuasion and conciliation fail, then the law must be upheld, and the law requires equality of access and equality of opportunity (iron fist)
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58
Q

Genetic non-discrimination act

A

Act criminalizes the act of requiring a genetic test, as well as disclosing or using the results thereof in certain context

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59
Q

issue with the Genetic non-discrimination act

A

Does this act constitute a valid exercise of parliaments jurisdiction over criminal law under 91?

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60
Q

pith and substance of Genetic non-discrimination act

A

The pith and substance is to prohibit the use of genetic tests or of their results in order to allow Canadians to access these tests without their results being used without their consent when they enter into agreements with 3rd parties or when they seek the provisions of goods and services

  • Effect of these provisions impact especially insurance contracts, and employment contracts
  • One cannot discern the Act the “evil” within the meaning of criminal law that parliament seeks to ban here
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61
Q

The UN Declaration and Plurinational Federalism in Canada

A

incomplete reading of jurisdiction in Canada, because its account of constitutional order does not recognize Indigenous people as legitimate actors in it - doesn’t provide any space for indigenous laws to govern Indigenous people in their jurisdiction
- we have to move towards jurisdictional division of powers, plurinational state, in essence a third coordinate order of gov

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62
Q

Canadian human rights act s67

A

exclusionary clause, any matter coming under Indian act cannot be brought as a human rights issue
- not repealed until 2008

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63
Q

why was s67 added

A

Crafted out of a concern to shield the Indian act from human rights scrutiny

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64
Q

what did s67 result in

A

For three decades, this section prevented people from filing discrimination complaints resulting from the Indian Act

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65
Q

why did -First nations not really participate in the early human rights campaigns and turn to law

A

There was no turning to the state in this case when the state itself was a gross perpetuator of colonial violence

66
Q

Caring society v. Attorney General of Canada facts

A
  • Caring society claim discrimination against federal gov under the Canadian human rights act
  • Specifically, for insufficient funding of child welfare services on reserves, leading to over representation of first nations children in child welfare service systems
67
Q

how did gov defend itself in Caring society v. Attorney General of Canada

A
  • Said not to bring this under CHRA, no jurisdiction here, said character of the underlying dispute was about child welfare services, and who has jurisdiction here? The provinces
  • This case is about discrimination, and there may have been a harm here but it’s not a harm of discrimination because in this case, the feds don’t provide funding for child welfare services for anyone else (Can’t make a comparison in the nature of funding here - how can there be inequality when there are no two groups of people to compare)
68
Q

Caring society v. Attorney General of Canada reasoning

A
  • good jurisdiction under CHRA because the character of this case was jurisdiction over aboriginal people, which the feds are responsible for
  • don’t need comparison in this case, just need to show that fact that these children were first nations mattered for the underfunding
69
Q

Indigenous self-determination (as an issue of constitutional division of powers)

A
  • Moving from governed subjects to self-governing people (Moving from s.91(27) - head of federal jurisdiction, to a third coordinate order of gov in the constitutional state)
  • Shift from rights to jurisdiction (Using Canadian human rights act was inappropriate as an anticolonialism project, Not a project in which you are claiming rights from the state)

Aboriginals becoming a jurisdiction of self-government, so a new form of federalism!!!

70
Q

Power to enact law and statue is vested in

A

legislative branch

71
Q

Parliament consists

A

Queen (Governor General), the Senate, and the H of C

72
Q

political norm for GG not to…? real work done by?

A

not to exercise power and to always give Royal Assent

- real work done by senate and H of C

73
Q

senate appointed? elected? what about H of C?

A

Senate is appointed, and the H of C is elected

74
Q

Upper and lower house?

A

senate and house of commons

75
Q

PM and his cabinet (the gov) are in office solely because they have the support of

A

majority of members in the House of Common

76
Q

common situation in which the gov may lose the support of the majority in the house of commons

A

after a close election has given neither of the two major parties a majority in the house of commons, and the control of the house depends on one of the major parties being able to secure the cooperation of one of the minor parties

77
Q

Situation of minority gov can be stabilized by..

A

the major party entering into coalition

78
Q

senate members appointed by

A

by gov general on the PM’s recommendation

79
Q

Governor general

A

must complete the legislative process by conferring the royal assent, but plays no discretionary role

80
Q

Two main categories of bills

A

public and private bills

81
Q

Public bills

A

deal with questions of national (public) interest

- When initiated by a minister, called government bills

82
Q

Private bills

A

grant powers, special rights or exemptions to a person(s), including corporations named in the bill

83
Q

Once a bill has been granted Royal Assent

A

it becomes law and comes into force on that date or a date provided for within the Act

84
Q

If you want to make law democratic, you would make law through the legislature (Waldron, Law and Disagreement), particularly through

A

large assemblies, deliberate formality and majority vote

85
Q

Legislation by assembly

A
  • the importance of numbers

- why legislature is so large? Argues that this is what makes it legitimate

86
Q

Why does it give law legitimacy to be made by large assemblies?

A
  • Democratic representation of the people

- Democratic participation, not that you represent the people, but that you ARE the people

87
Q

Deliberate formality

A

Why are there such specific rules for how bills are drafted? why is everything so structured?
They DELIBERATE -> talking towards some end/action

88
Q

why is deliberate formality important

A

make sure that everyone has the same thing on their mind - tells us that we are voting on the same thing

89
Q

why does voting have a bad name (waldron)

A

Letting a single vote decide a matter of great justice, vote at one time deciding everything

  • doesn’t seem much better than coin tossing
  • how can someone take legislation seriously when it’s made so arbitrarily?
90
Q

Majority voting shows respect for difference among people, in two ways

A
  • By not requiring that any person’s view be downplayed

- Not only that you get to participate, but that you get EQUAL VALUE

91
Q

why is the executive branch the MOST DANGEROUS BRANCH

A

PM effectively controls the legislative branch as well
- PM’s leadership of the majority party in the house of commons enables him to determine what legislation will be enacted

92
Q

executive branch, divided into

A

executive and administrative branches

93
Q

Cabinet

A
  • What the ministers are called collectively , PM and all other ministers
94
Q

who selects the PM

A

Governor general’s duty to select the PM
- Governor general rarely has any real choice, must appoint the parliamentary leader of the political party that has a majority of seats in the house of commons

95
Q

ministers in cabinet formally appointed by

A

formally appointed by governor general, but the PM selects

96
Q

how does PM control the executive branch of gov

A

Through his control over ministerial appointments and over the cabinet

97
Q

danger in the executive branch? problem?

A

PM effectively controls the legislative branch as well

  • normal situation of majority gov, the PM’s leadership of the majority party in the house of commons enables him to determine what legislation will be enacted
  • So majority vote, can put their gov agenda in the law
98
Q

Why is this convention/system called responsible gov

A
  • historically, the executive acted in allegiance to British gov, no Canadian legislature
  • So responsible gov introduced as antidote to that crisis of power. Only those who enjoy the confidence of majority of assembly may be appointed to executive (have to be elected member of house)
99
Q

In responsible gov, we made .. problem?

A

we made executive in control of the legislature, so how can you claim that executive is responsible to the legislature when the exec basically controls the legislature

100
Q

the most dangerous aspect of executive power

A

that the executive has such control over the legislature and its law-making power

101
Q

How does cabinet work?

A
  • Ministers have control over gov departments, and carry out its agenda/policies
  • All acts of a department are done through a minister, and minster is responsible to parliament for those act (Minister standing up and answering questions in legislature)
102
Q

in practice how does the cabinet work

A
  • Increasingly executive has been getting civil servants to testify (holding individuals responsible, rather than ministers) - downshifting
  • Or upshifting responsibility, cabinet will adopt minister’s decision as its own (becomes less ministerial decision and instead cabinet decision)
103
Q

There are generally considered three branches of gov:

A

executive, legislative, judicial

104
Q

administrative branch is considered part of? dispute?

A

considered part of the executive

- Dispute about if administrative branch of gov should be considered 4th branch, or if still understood as executive

105
Q

The role of the executive

A

carry out the directives of Parliament

106
Q

how has the way the executive works changed over the time

A
  • increase in delegated legislation (pushing powers down) -> laws passed by parliament, which give more discretion to the executive
  • practice of delegating of Executive functions to administrative tribunals (pushing power out)
107
Q

how is power pushed out in the executive branch

A

Work that was formerly done by civil servants in ministers, under direction of minster who was accountable to parliament, now work is done/pushed out to independent administrative agencies

108
Q

subject matter of administrative law

A

governing the implementation of public programs, particularly at the point of delivery

109
Q

To know what agencies do/what powers they have..

A

look at whatever statute created it (parent statute)

- they are creates of statute

110
Q

how are agencies dependent from gov departments?

A
  • Minister cannot direct what decisions they must reach in a matter that is before them
  • In turn the minister is not politically accountable to the legislature for individual decisions
111
Q

are agencies completely insulated from the political process?

A
  • Members of these bodies are appointed by the minister responsible for relatively short term of office, and their appointment may or may not be renewed
  • Can also be starved of resources
  • A few statutes enable cabinet to influence the making of particular decisions
112
Q

Those liable to be affected by decision of agency are given what opportunity?

A

given an opportunity to participate in the decision-making process by producing evidence and making submissions

113
Q

at what point do IA operate?

A

typically operate at or close to the “sharp end” of the administrative process

114
Q

how do IA’s have one foot in the world of gov and bureaucracy and the other in the world of law and judiciary

A
  • Part of gov in that they are responsible for advancing the public interest through implementing programs
  • Like courts, they conduct hearings and must be able to justify their decisions
115
Q

independent agencies have certain advantages over gov departments

A
  • They are insulated from politics
  • also convenient for ministers to shed political responsibility for individual decisions (esp. in sensitive areas of policy)
116
Q

Problem of taking human rights project out of politics?

A

Taking it out of what makes law legitimate (difference and disagreements)

117
Q

how are IAs specialised

A
  1. All administrative agencies are specialized’ they deliver a particular public program or part of one
118
Q

Independent administrative agencies have four features in common

A
  1. Independence from the government department with overall responsibility for the policy area in which they operate
  2. Those liable to be affected by a decision are given an opportunity to participate in the decision-making process by producing evidence and making submissions
  3. Independent administrative agencies typically operate at or close to the “sharp end” of the administrative process
  4. All administrative agencies are specialized’ they deliver a particular public program or part of one
119
Q

Relation between commission and parliament

A

Commission is required to report activities to parliament

120
Q

why does law remains to be ‘elaborated’ after parliament has finished

A
  • Matter of detail
  • Limits of language
  • Technological or social changes not contemplated at time of enactment
  • May even be that parliament deliberately left legislation vague, unwilling to make a policy choice
121
Q

one way that IA elaborate on a statute? problem?

A
  • One mode is they work like judges, elaborate law just by running it case by case (apply statute and give meaning to it by applying it to each individual case)
  • not good enough because these agencies are vested to administer public policy, want certainty and stability
122
Q

Tools of elaboration

A

regulations, guidelines, policy statements

123
Q

regulations

A
  • statute sometimes grants regulation-making powers to administrative actors
  • Legislature delegates its law-making power to members of the cabinet (Ministers) not independent agencies to enact regulations
  • Regulations have power to bind, enforceable by law and sanctions (That’s why we give it to ministers)
124
Q

guidelines

A
  • Guidelines try to structure agency discretion
  • Intended to guide decision making at sharp end of the process
  • Most guidelines still leave some discretion, most are not binding guidelines
125
Q

difference between regulation and guidelines

A
  • guidelines only binding on agency itself, while regulations have general binding effect and bind all
  • guidelines also dont bind the same way (not law)
126
Q

who has authority to make guidelines? regulations?

A

guidelines: the agency itself, the commission

regulations (ministers)

127
Q

Policy statements

A
  • Less formal instruments
  • Commission develops policy statements through process of internal and (sometimes) external consultation (the commission’s opinion)
128
Q

ex of policy statement

A

collective will to interpret “sex” to “sexual orientation” everyone will follow… and it will become law

129
Q

N.S.H.R. Commission’s 1990 Motion on Sexual Orientation as a Ground of Discrimination

A

The NS human rights commission, impatient with the lack of legislative action, took the initiative by announcing in a motion/policy statement that it would interpret “sex” to include “sexual orientation”

130
Q

role of the Canadian human rights commission in advancing sexual orientation equality rights in Canada

A

commission accepted complaints from homosexuals who alleged discrimination on the basis of sexual orientation even before this was a proscribed ground in the legislation
- used the law and claimed that by issuing policy statement, they were fulfilling the purposes of the statute

131
Q

“The wrong way to rights” chronicle-herald

A

this massacres plain English

- Nowhere in language does “sex” mean “sexual orientation”

132
Q

what constrains elaboration?

A

The rule of law

133
Q

To know if elaboration is valid..

A

run it against the law

  • Authorized by statute?
  • Consistent with statute?
  • Consistent with other constitution?
134
Q

who are guardians of the rule of law

A

judiciary

135
Q

hat makes the judiciary a good institution to serve as guardians of the rule of law

A

Judicial independence and impartiality

136
Q

How do we assess impartiality?

A
  • Free of bias and prejudice, and any preconceived notion

- “a blank state”

137
Q

Jennifer Nedelsky, “Embodied Diversity and the Challenges to Law”

A

impartiality in judgement is not about judging from position of objectivity and neutrality, but impartiality is about judging inside messiness of experiences

  • “judging in diversity not neutrality”
  • Not an “empty mind” but an enlargement of mind
138
Q

Arsenault Cameron v. Prince Edward Island issue

A

Whether Justice Bastarache’s prior involvement in minority language education precluded him from hearing a specific minority language education rights case

139
Q

Arsenault Cameron v. Prince Edward Island reasoning

A

Duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies, or attitudes

140
Q

3 attributes of judicial independence

A
  • Security of tenure
  • Financial security
  • Institutional independence of judicial tribunals
141
Q

Security of tenure

A

that a judge only be removable from office for cause, and that cause be subject to independent review

142
Q

Financial security

A

security of salary or other remuneration and where appropriate, security of pension

143
Q

Institutional independence of judicial tribunals

A

with respect to matters of administration bearing directly on the exercise of its judicial function, including assignment of judges, sitting of the court and court lists

144
Q

MacKeigan v. Hickman (marshall inquiry) facts

A
  • PL was aboriginal youth wrongly convicted of murder

- Commission investigating the case requested that the judges on the case testify but they declined

145
Q

MacKeigan v. Hickman (marshall inquiry) issue

A

Can the commission compel the judges to testify regarding their reasons for their judicial decisions?

146
Q

MacKeigan v. Hickman (marshall inquiry) reasoning

A

Judiciary should not fear that decision they give, will be called by political branches to justify

147
Q

MacKeigan v. Hickman (marshall inquiry) ratio

A

Judges may not be politically questioned or called upon to justify their reasons, or composition of court

148
Q

Reference re remuneration of judges basic story

A

Idea that judicial independence restricts from reducing salary of judges
- Have to protect whole judiciary from economic manipulation by political branches

149
Q

Reference re remuneration of judges outcome

A
  • Even parliament can’t change salary without independent consultation
  • Judges may never engage in direct salary negotiations - any negotiation in their salary will always be political
  • Judges have to be paid a certain amount (to avoid corruption by money)
150
Q

judicial accountability

A

o Security of tenure important for judges themselves and power to remove them gives accountability in the system

“shall hold office during good behavior”

151
Q

judges act of 1979

A

Parliament introduced procedures to remove judges

152
Q

why did -parliament adopt a statute to govern removal of judges

A

if they didn’t introduce it statutorily then the judges would have made a procedure based on unwritten law again similar to the financial

153
Q

what did the judges act of 1979 create

A

the Canadian judicial council - delegated power to conduct investigations into supreme court justices for “bad behavior”
- Report conclusions and offer recommendations for removal of judge

154
Q

controversy of judges act

A

statutory scheme is removal, but what standard?

- when is a breach of good behavior sufficient to be removed?

155
Q

Graffton Case facts

A

Argued that having a stroke was “not bad behavior”

156
Q

Graffton Case reasoning

A
  • Federal court issues decision and says that yes true, only one ground for removing a judge = bad behavior as set out in the constitution act (s99.1)
  • What is section 65(2) of the judges act - doesn’t add new grounds, but elaborates that constitutional provision
  • It is not in contradiction to, but gives us an interpretation of s99.1
157
Q

graffton case ratio

A

Breach of good behaviour is the sole reason for removal, but other legislations can elaborate on the law to provides examples of good behaviour breaches

158
Q

what case is the standard for breach of good behaviour

A

marshall inquiry

159
Q

MARSHALL RULE

A

Is the conduct alleged so manifestly destructive of the concept of judicial impartiality, integrity and independence, such that public confidence in judiciary is sufficiently undermined

160
Q

Justice Camp case facts

A
  • During sexual assault trial he kept victim blaming

- Controversy was he often misstated law on sexual assault

161
Q

Justice Camp case issue

A

Can you hold a judge responsible under this removal process for merely misstating or having a different opinion/view of the law?

162
Q

Justice Camp case reasoning

A
  • usually deal with these problems through appeal (a judge being wrong should not be reason to remove from bench)
  • but this case, wasn’t just a misstatement of the law on sexual assault, was a refusal to apply law for reason of personal disagreement with it
  • This was something that undermined public confidence in the judiciary

Public law (7 decks)

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