Quiz 2 Lec 6 Flashcards
1
Q
What does the centralization thesis entail? Main ideas
A
- Canada = one of the most decentralized countries in the world
- federalism divides power among provincial and federal government, giving control over local concerns and allowing for regional variation to accord with local preferences
- some feared the charter would have a centralization effect - altering the balance of power in favour of the federal government (not a hierarchical system like the courts)
- court system is hierarchical, SCC decisions are binding on all lower courts and the SCC is appointed by the PM
2
Q
Why do some argue that Ottawa could use its power to appoint judges, to shift the policy making power away from the provinces? (Centralization thesis)
A
1) through the invalidation of provincial legislation in areas of provincial interest, the judges who are federally appointed could use the charter to strike down provincial legislation and interfere in areas of provincial jurisdiction on behalf of the federal government, court could function as an arm of the feds by striking down provincial legislation the feds did not like
2) by imposing national standards across the country, which would undermine policy diversity among the provinces by allowing the federal gov to do what it wanted through the court
3
Q
According the Kelly, does the charter have the potential to undermine provincial autonomy and the ability of the provinces to establish policies that accord with local needs?
A
- Kelly stated while the centralization thesis was a possibility it did not occur
- the SCC has shown respect for the federal system and the policy diversity of each province, it has interpreted the charter in a flexible way to accommodate different provincial priorities and policy mechanisms
- 2 mechanisms the SCC uses to protect provincial autonomy:
1) SCC developed explicit federalism jurisprudence to actively protect provincial legislation, the court relies on principles of federalism and diversity to frame a dispute, whether it is the SCC or federal legislation that sets national standards, how a province goes about meeting that standard can vary
2) the gate keeping function - the court saves provincial legislation by relying on the principle that Canada’s two constitutional documents have equal status (charter and the constitution) therefore one document cannot be used to attack the other
4
Q
Trends in judicial activism - Kelly
A
- in the early years of the charter, the SCC was engaging in significant judicial activism (interpreting rights broadly) and more provincial statutes were struck down than federal statutes ex. Vriend - court read in sexual orientation to Alberta’s human rights code
- in 1985 and 1986, 64% of rights claimants won their cases before the SCC (4 fold increase since bill of rights)
- however, this trend declined and by 1989, more federal laws than provincial laws were struck down and it was argued that provincial autonomy had not been undermined
5
Q
Adler v. Ontario (1996) (SCC)
- one document cannot be used to attack the other (gate keeping function)
A
- Jewish organizations wanted public funding for Jewish schools in Ontario, pursued claims by attacking Ontario’s education act which provides funding for public schools and Roman Catholic schools
- Jewish organizations wanted a declaration that the funding scheme was unconstitutional and argued it violated freedom to religion and was religious discrimination (section 2a and 15)
- Jewish organizations wanted the funding to be extended to all faith based schools in Ontario
- question: is the non-funding of Jewish and other faith based schools in the Ontario education act unconstitutional?
- answer: no, the court turned to section 93 which grants provinces jurisdiction over education and specifies provincial power over education is subject to certain restrictions
- court stated, Ontario is not required to extend funding to other faith based schools and that the current funding scheme is constitutional, court relied on section 93 and the division of powers to save the provincial legislation, Catholic schools were funded because of section 93 and the historical compromise between French and English speakers that was crucial to confederation
- SCC: if section 93 is extended to other religious minorities, it will allows others to use the charter to attack section 93 of the constitution (cannot use one to attack the other)
6
Q
Section 93 - Adler
A
- Gives special status to religious minorities who enjoyed legal rights protecting their faith based schools at the time of confederation
7
Q
Who comprises the executive?
A
- three elements
1) the crown (personified by Governor General)
2) the political executive (prime minister and cabinet)
3) the permanent executive (the bureaucracy and public servants) - senior public servants work with the political executive to craft laws and public policy
- focus: the federal department of justice
8
Q
Kelly argues that a new rights culture has taken hold in the executive. Why did this occur?
A
- courts took new responsibility to protect rights and freedoms seriously and because of this increased judicial activism, the executives were mindful of the charter when drafting legislation
- new rights culture was a response to courts early judicial activism
- Kelly suggests decline was due to new rights culture that took hold of the executive, the government was wary of having its legislation struck down
- between 1982-2002, 168 statutes were reviewed by the SCC and only 10% were enacted after 1990 (most of the legislation being struck down was drafted before the charter or in the early days of the new rights culture)
- for Kelly, the decline is explained by the new rights culture and the attention to rights when drafting
9
Q
How was the new rights culture operationalized?
A
- early activism by the courts made the executives realize it was necessary to assess the constitutionality of legislation before it was passed (charter proofing)
- section 4.1 (1): the minister shall examine every regulation and every bill introduced or presented in the house to decide whether any of the provisions are consistent with the charter and the minister shall report any inconsistency to the house - charter proofing
- charter proofing is coordinated by the department of justice (DOJ)
10
Q
DOJ - what is it?
A
- the DOJ has a human rights law section within the department (HRLS), which coordinates the charter proofing activities of the entire federal government
- this is done through legal service units who receive charter proofing guidelines and training from the HRLS of the DOJ (exception: global affairs and finances)
- the ministry formulates a new policy proposal, first it is scrutinized for charter compliance by the LSU, then the DOJ scrutinizes proposed legislation for charter compliance directly, the DOJ through its HRLS is responsible for ensuring the charter analysis of new laws and policies at every stage of development
11
Q
DOJ - charter risk analysis
A
- the DOJ first assess the likelihood the legislation will be struck down, pass section 1 reasonable limits analysis or be deemed unconstitutional, second - what is the impact on the government going to be if we lose? Third - what are the litigation costs going to be if legislation is challenged?
- looks to previous court rulings
- effect this process has had on the DOJ:
1) DOJ has become very powerful in charter area, it can be thought of as a central agency, because the DOJ has a monopoly on providing legal expertise to the executive branch of the federal government
2) confidentiality rules that prevent federal policy makers from seeking outside legal advice on charter issues, can only ask the DOJ (exception: global affairs and finances)
3) Kelly says the DOJ has unprecedented influence in the policy making process, the DOJ was transformed from an ordinary ministry to a central agency
12
Q
Why are the benefits of the DOJ’s charter proofing activities? On what grounds are they criticized?
A
- benefits: sharp decline in the number of statutes being struck down
- critics: charter risk assessments are based on legal precedents (judicial interpretations of the charter), suggests charter proofing subordinates legislature to the courts because the range of policy making options available to lawmakers is determined by the court
- Kelly offers a different perspective on charter dialogue: argues must pay attention to charter proofing activities of DOJ, focus is on transfer of political power from elected to unelected, however there is another form is activism
- legislative activism: the DOJ’s charter proofing activities is a form of undemocratic legislative actions (involves the transfer of policy making power from elected legislatures to the executive), Kelly argues charter proofing contributes to a greater degree of power in the executive (permanent executive)
- parliament is meant to be lawmakers, up until December of 2019, the minister of justice under section 4.1 (1) would declare to the House of Commons that legislation was charter compliant, minister did not have to present evidence
- Kelly says dialogue between the SCC and parliament does not exist, court is engaging in dialogue with DOJ instead (unelected bureaucratic institution that seeks to advance the policy agenda of the cabinet)
- rise of the DOJ can have a negative effect on the power of parliament and democracy
13
Q
Who was Edgar Schmidt?
A
- he was a senior lawyer in the DOJ
- he was suspended without pay in 2012 because he sued his employer (fed gov, DOJ, the minister of justice, and the deputy minister of justice) claiming that the DOJ’s charter proofing activities were contrary to law because they failed to fulfill the direction in section 4.1 (1)
- the department of justice act based on four internal documents: instructed the lawyers of the DOJ to find virtually all government legislation as charter compliant, used the any credible argument standard - legislation is charter compliant if any credible argument can be made, even if there is only a 5% chance that legislation could survive charter challenge
14
Q
What did Edgar argue?
A
1) this practice of any credible argument ignored and violated the directive in 4.1 (1) because it demands that problem legislation be reported to the house (no real charter proofing going on)
2) the any credible argument standard was ridiculous, threshold for charter compliance should be higher, a balance of probabilities more likely consistent with the charter than not
3) the only people that could ensure legislation conformed with the charter was the public ex. In 2012, the Harper gov passed a very controversial crime bill, many argued it was unconstitutional, gov said it was charter compliant because it had been vetted through DOJ, Schmidt case calls into question the validity of this legislation
15
Q
Amendment of the any credible argument standard
A
- according to Edgar, the any credible argument standard went into play in 1993, and after never once has a minister of justice advised the house that there may have been a charter inconsistency
- in 2016, he lost his case to the federal court trial division (said it was satisfied with the govs standard and could pass leg to change it), he then appealed to the federal court of appeal in 2018 and lost again, appealed to SCC but application was dismissed
- bill C-51 was passed by parliament in 2018 which amends the department of justice act and requires charter statements (took effect dec 13, 2019), amendment provides that the federal minister now has a duty to provide parliament with a charter statement
