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public law final exam Flashcards

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1
Q

Who has power to create courts

A

federal and provincial

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2
Q

who has the power to appoint judges

A

provincial to all lowest provincial courts
federal to all other provincial and federally created courts
must be a lawyer for 5-10 years first

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3
Q

highest court in ontario

A

ontario court of appeal

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4
Q

what is an intervener

A

an individual or group that are not a party to the case but are allowed to provide legal arguments to the court on an issue related to the case

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5
Q

composition of Canadian Govt: Legislative

A 
house of commons and senate (fed) 
legislative assemblies (prov)
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6
Q

composition of Canadian govt: executive

A

Prime minister, federal cabinet, governor general (fed) premieres, provincial cabinets, lieutenant governor (prod)

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7
Q

composition of Canadian govt: judicial

A

supreme cour of canada, federal courts, military and tax courts(fed) courts of appeal, superior courts, lowest provincial court (prov)

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8
Q

power to create courts what sections

A 
sec 92 (14) for provincial
sec 101 for federal
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9
Q

key functions of courts

A

resolving disputes
interpresting legislation
overseeing administrative decision-making
determining constitutionality

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10
Q

key features of court system

A

formality and decorum, open court, adversarial system

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11
Q

Provincial court order

A

court of appeal for ontario
ontario superior court of justice
ontario court of justice

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12
Q

federal court order

A

supreme court of canada
federal court of appeal
federal court: tax court and military court

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13
Q

trial court

A

hear facts of the case for the first time

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14
Q

appellate court

A

sees if law has been interpreted correctly
court of appeal and supreme court are always appellate courts
superior court is a trial and appellate court ex murder has to go to appellate court

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15
Q

appeal as of right vs appeal as of leave

A

appeal as of right you can pursue a further appeal without getting permission from court
appeal as of leave- need to get permission

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16
Q

how many judges in trial court vs appellate

A

trial court is heard by one judge

appellate is heard by 3 5 7 or 9

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17
Q

how many judges at scc

A

usually 7 or 9 can have 5

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18
Q

how many women on scc

A

4 women

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19
Q

what is process for provincial judges appointment

A

screening and recommendation by an independent committee, selection and appointment of candidate by a provincial executive

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20
Q

what is process for federal judge appointment

A

screening by an independent committee, recommendation to the federal minister of justice, further recommendation to the federal cabinet, executive chooses who they want from that list

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21
Q

judicial independence and ethics

A

guarantees of ethics: principle of judicial independence, security of tenure, adequate financial compensation, administrative independence

ethics: selections process, canadian/ provincial ethics council
professionalism: continuing education, codes of ethics

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22
Q

judicial misconduct

A

complaint and investigation process
conducted by canadian/ provincial judicial council
sanctions: reprimand(express sharp disapproval), suspension, and removal
misconduct hearing is to discipline, appeal is to correct their mistakes

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23
Q

Legal factors that influence decision making

A

precedents, legislative intent

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24
Q

Role orientation and policy preferences affecting decision making

A

activist vs restraint

liberal vs conservative

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25
Q

other influences of judicial decision making

A

personal attributes, influences inside the court (discussion with colleagues), influences outside court (media, public opinion,interest groups,legislature and executive)

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26
Q

activist position

A

vigorous review of actions of other branches of government, willingly striking down laws that are unconstitutional, use of far-reaching remedies

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27
Q

restraint position

A

deference to legislature or executive, correcting only what is absolutely necessary, reluctant to use far reaching remedies

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28
Q

Lobbying vs Litigation

A

lobbying (directed at politicians, and civil servants): direct talks, indirect pressure through media and awareness campaigns, submissions to parliamentary committees
Litigation: launching a case or participating as an intervener

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29
Q

executives role in the legislature

A

executive drafts and introduces bills: most pf legislatures time in dedicated to govt bills
MP/MPP vote according to party lines: easy passage of govt bills

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30
Q

Legislature impact on executive

A

powers of many executive departments are granted and can be amended by legislation
Accountability (executive to the legislature): daily question period, debate of the bills, vote of no confidence

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31
Q

interaction of legislature and judiciary

A

structure and jurisdiction of most courts is set out by legislation and can be amended by legislatures
courts check for constitutionality of legislation
when legislation is found unconstitutional, legislature need to respond

32
Q

judicial/ legislative dialogue

A

when a law is challenged a court needs to consider arguments of both parties and take into account the intent of legislature

courts overturn laws and need legislature to enact new laws

33
Q

limitations to the charter

A

sec 1 and 33

34
Q

section of remedies under charter

A

s 24 and 52

35
Q

does everyone enjoy charter rights

A

it differs for different rights ex only canadian citizens have the right to vote

36
Q

what is section 33

A

the not withstanding clause - only valid for up to 5 years

37
Q

what is section 1

A

reasonable limits prescribed by law as can be justified in a free and democratic society

38
Q

charter litigation- challenging legislation

A

does law infringe upon a charter right?

if yes is it justified under section 1, if no apply the oakes test

39
Q

principles of fundamental justice criteria

A

must be a legal principle
must be sufficient consensus that the principle is fundamental to society notion of justice
the principle can be clearly formulated and applied
no exhaustive list
determined contextually

40
Q

section 52 remedies

A

1) strike down the law
2) sever offending provisions
3) read in
4) read the provision down
5) provide a constitutional exemption
6) issue a declaration of invalidity (with a temporary suspenstion

41
Q

sec 24 (when govt authorities violate the charter

A

1) order a remedy as the court considers appropriate (ex damages, stay proceedings)
2) order exclusion of evidence obtained in violation of charter rights

42
Q

tried within a reasonable time

A

18 months for provincial

30 months for federal

43
Q

impact of jordan

A

positive: pushes govt to improve system
negative: cases being stayed/ thrown out

44
Q

exposing connections within system (judges staying cases)

A

judicial appointment- vacancies not filled- fewer judges on the bench- contributing to delays

prioritizing criminal cases over civil

45
Q

R v Cody - presumptive ceiling

A

how to calculate the delay: total delay form charge to trial- delay caused by defence, compared to the number of presumpted ceilings

if above presumpted ceiling rights violated

46
Q

how did the charter impact the role of courts

A

expanded the power of courts to scrutinize legislation and government action
increased the role of courts in policy-making

47
Q

prior to the charter (judicial grounds)

A

judicial review and legislation only on jurisdictional grounds, checking if govt was acting within jurisdiction

48
Q

Positive and negative effects of the charter

A

positives: more refined understanding of individual rights, stronger rights protection, rethinking of relationship between the state and individuals

Negatives: concerns about policy-making role of courts, socio-economic rights did not gain much protection, strengthening of accused’d rights, arguably made work harder for law enforcement

49
Q

Administrative law - controlling the government (non-judicial control)

A

parliamentary and electoral control (question period, no confidence vote)
internal controls within the agency (reconsideration)
the media (indirectly)
public opinion and private interests
ombudsman, public inquiries, auditor general

50
Q

Administrative law- controlling the government (judicial control)

A

constitutional (checking for consistency with the constitution)
judicial review (checking if decision complies with enabling statutes)
appeal (reconsideration of decision)
action for damages

51
Q

Common features of administrative agencies

A

their scope of authority is prescribed in enabling legislation
agencies perform various functions: decide on applications, monitor, regulate, investigate and resolve disputes
decision makers are usually given discretion
each agency is unique: subject matter, powers, volume of cases, nature of parties who appear before it

52
Q

What are the 2 main functions of administrative law

A

promote efficiency in government work

ensure decisions are made fairly

53
Q

Principles of administrative law

A

respect the limits of authority given by enabling legislation
reasonable exercise of discretion
fair procedure
availability of recourses: appeal and judicial review

54
Q

What are the components of procedural fairness

A

right to be heard (to be informed of the case to be met and have an opportunity to respond)
right to have a decision made by an independent and impartial decision-maker

55
Q

what is the procedure before administrative tribunals

A

notice
disclosure
participatory rights
adversarial vs inquisitorial

56
Q

ways to contest administrative decision making

A 
available avenues are outlined in enabling legislation
typical recourses: 
reconsideration 
appeal 
judicial review
57
Q

Appeal of administrative decision

A

the scope is determined by statute
often allows for reconsideration of the case
appellate body may substitute the reviewed decision with its own or send it back for redetermination

58
Q

What is judicial review (administrative)

A

checking if decision was made in according to enabling legislation and or respected procedural fairness

usually results in the decision being sent back to original decision maker for re-determination

only check for mistakes that the previous decision maker made- only what has been decided prior no substituting prior decision

59
Q

What is procedural judicial review

A

scrutiny of how a decision was made
fair process wasn’t followed
each party should be able to present their case

60
Q

what is substantive judicial review

A

scrutiny of what was decided

what was decided, how they arrived at the decision, their reason for decision

61
Q

Types of substantive review

A

standard or review: the degree of rigour with which a court scrutinizes the decision
deference: respect for the expertise and reasons of the original decision-maker

62
Q

what is the correctness standard

A

there is only one correct answer, allows no deference, applicable usually to: questions of jurisdiction, constitutional issues, issues of law of special expertise

63
Q

what is the reasonableness standard

A

focusses on the reasons and outcomes, different way to reach correct answer as long as it is explained well, allows for some deference

64
Q

possible remedies if judicial review is successful

A

1) quashing a decision
2) issuing an order of mandamus
3) declaring that an agency acted contrary to the law
4) requiring a decision-maker to follow a fair procedure

65
Q

what is an ombudsman?

A

a body that is established by the executive

they are responsible for reviewing certain types of complaints and maladministration

66
Q

ombudsman general features

A

neutral and independent, usually reports to legislature

main purpose: to investigate allegations of maladministration and recommend improvements or solutions

powers: to investigate and recommend (does not have a power to enforce its decision or to prosecute/punish)

67
Q

Ontario Ombudsman

A

established by enabling legislations: Ombudsman Act

Paul Dube

68
Q

Public Inquiries- established by?

A

established for a specific purpose by the executive

69
Q

2 types of public inquiries?

A

policy and investigative

policy: to study an issue and develop recommendations for new policy changes
investigative: to investigate allegations of scandal and misconduct, which affect public confidence in the government

70
Q

what was the braidwood and motherisk commissions

A

braidwood- investigate tasers

mothers- investigate alcohol in hair

71
Q

who is the top executive

A

the prime minister

72
Q

__ will ask people to be members of the ___

A

PM will ask people to be members of the house of commons

73
Q

is the senate elected or appointed? house of commons?

A

the house of commons are elected and the senate is appointed by governor general on the recommendation of the pm

74
Q

what are the functions of the legislature

A

represent the electorate
formally enact laws
monitor the executive

75
Q

formal executive and political executive

A

formal: the queen, governor general and lieutenant governors
political: the prime minister, federal cabinet, premiers and provincial cabinet

76
Q

head of canadas state

A

the queen

Public law (1 decks)

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