Week 3 - The Courts And The Charter

Question 1

Define terms like
- common law
- precedent
- civil law system
- adversarial

What is the Canadian judicial process based on?

Answer 1

The Canadian judicial process (outside Quebec) is based on a system of common law that originates from the U.K.
•Judges make decisions in line with previous precedent
•Contrast to a civil law system where judges act as impartial referees and make decisions (operates in Quebec)
•System is fundamentally adversarial

Question 2

What are the three types of law?

Answer 2

•Substantive v. procedural
•Constitutional v. statutory v. administrative
•Criminal v. civil

Question 3

The federal and provincial governments______ ________ in related to the administration of justice.

• what can the federal government do
• criminal code is…?
• provinces are tasked with…?

Answer 3

•Federal government can create courts: power used to create the Supreme Court of Canada (1875) and the Federal Court of Canada (1971)
•Criminal code is federal, unlike in the U.S.
•Provinces tasked with administering justice and creating and maintaining provincial courts

Question 4

What are the responsibilities of the
- lower provincial courts
- superior courts
- Appeals courts
- Federal courts

Answer 4

•Lower provincial courts assigned frequent, lesser offenses and most matters of civil law
•Superior courts tasked with less common, more serious offenses (e.g., murder)
•Appeals courts are self-explanatory
•Federal Court deals primarily with administrative law and matters that involve the federal government

Question 5

Appointment:
- superior and appeals courts are appointed by _______
- Lower provincial courts appointed by ________ __________(via _______ __________)
- ____________ common before 1960
•Now procedures exist to limit___________ __________ in appointments (if imperfectly)

Answer 5

•Superior and appeals courts are appointed by cabinet (via the governor general)
•Lower provincial courts appointed by provincial cabinets (via lieutenant governors)
•Patronage common before 1960
•Now procedures exist to limit political influences in appointments (if imperfectly)

Question 6

Appointment
•Committees in each province provide list of_________ ________ for section 96 judgeships
•Consists of _______ ________, the provincial________ ________ and experts from the legal community
•PM Harper included representative for police
•Provincial court appointments similar at _________ level, but vary by province

Answer 6

•Committees in each province provide list of vetted candidates for section 96 judgeships
•Consists of federal appointees, the provincial attorney general and experts from the legal community
•PM Harper included representative for police
•Provincial court appointments similar at provincial level, but vary by province

Question 7

How does the removal of judges work?

Answer 7

Very hard to remove judges!
➢Lower courts require removal by provincial cabinet after an inquiry by the provincial judicial council
➢Similar process for federal judges, but also requires passage of motion by Parliament
➢Otherwise, mandatory retirement at 75 for federal judges

Question 8

History of the Supreme Court

Answer 8

•The Judicial Committee of the Privy Council was the final court of appeal until 1949
•SCC created with the Supreme Court Act of 1875 using sec. 101
•Debate over constitutional status because of its creation via statute
•SCC ruled that the Constitution Act of 1982 entrenched the court and its composition requiring unanimous provincial consent to amend

Question 9

The Supreme Court is tasked with the power of _______ ______? What is this power

What are the two dimensions of the supreme courts power

Answer 9

Tasked with the power of judicial review: the power to review legislation and rule on its constitutionality

Two main dimensions:
•Ultra vires: is the law outside of the scope of power of the government based on the division of powers?
•Does the law infringe on Charter rights beyond reasonable limits?

Question 10

What is the process of the Supreme Court docket? Appeals are sometimes __________.

Answer 10

•SCC hears cases of public importance and national significance
•All avenues of appeal must be used up and then you must apply for “leave” so that the court hears your case
•3 justices review leave applications and make decisions without providing reasons for a decision

•Appeals are sometimes automatic: acquittal reversals or if there was dissent from an appellate judge
•500-600 applications, only 65-80 appeals (~13%)
•1/3 of docket is Charter cases, most of which involve matters related to criminal law procedures

Question 11

What is the process of deciding cases? (3)

Answer 11

•Once a decision is reached a justice is selected to write the opinion of the Court to justify the majority decision
•Justices that agree with the decision, but disagree with the reasoning behind the opinion can write concurring opinions
•Those that disagree with the majority opinion can write dissenting opinions

Question 12

What is the Supreme Court composition? (4 rules)

Answer 12

•Of the nine justices of the Supreme Court, 3 are required to be from Quebec
•2014 reference case further ruled that Quebec appointees must be from a Quebec provincial court or a member of the Bar of Quebec
•By convention, three appointments from Ontario, two from the West, and one from Atlantic Canada
•All must be judges of a superior court of members of the bar for 10 years

Question 13

What are the rules of Supreme Court Appointment and Tenure

Answer 13

•Appointed by the governor general on advice of the prime minister
•Non-partisan Advisory Board identifies a list of suitable candidates
•Assessment criteria, questionnaires and provided answers are all made public
•Hold office “during good behaviour” with retirement at 75

Question 14

What is judicial independence and why is it necessary?

Answer 14

•One of the foundational principles of the court system is judicial independence: the need for judges to be politically independent
•While governments can remove judges due to misconduct it is very rare
•Salary and benefits are prescribed by law – individuals cannot be targeted by governments

Question 15

But to what degree are judges truly “independent”?

Answer 15

•Social and demographic background
•Judicial philosophy and political views
•Public opinion

Question 16

What are the three main judicial philosophies?

Answer 16

•Textualism – interpret the constitution based solely on the plain meaning of the text
•Originalism – original intent variant leans on interpretation of what the drafters intended by text vs. original meaning, which is the meaning of the text at the time it was drafted (very close to textualism)
•These approaches are favoured by conservative justices, but are not well received in Canadian legal circles

•Living constitution (sometimes called living tree) or interpretivism – drafters couldn’t have known modern-day circumstances, so spirit of the law needs to be considered
•This approach is favoured by Canadian jurists

Question 17

Define rights and freedoms

Answer 17

Definitions
•Freedoms (often called civil liberties in the U.S.) require the government to refrain from interfering in certain matters (e.g., freedom of speech, mobility, association)
•Rights (often called civil rights in the U.S.) are most often related to individual or group-level entitlements that often require the government to take some action (e.g., fair and equal treatment, speedy trial, due process)

Question 18

Describe the pre-charter era

Answer 18

•Rights and freedoms acknowledged and enforced by the courts prior to the Charter
•Common law provided protections for fundamental freedoms, contract, mobility, and legal rights
•Constitution Act, 1867 protected bilingualism in Parliament and QC legislature, democratic rights, and religious education rights
•Indigenous rights protected by treaties

•PARLIAMENTARY SUPREMACY: The protection of rights and freedoms was seen primarily as the domain of Parliament
•It was often the case that rights would be protected though unrelated means, such as by labeling legislation ultra vires
•In practice, protection was scattershot

Question 19

What is the Canadian bill of rights - how did it start

Answer 19

•PM Diefenbaker passed the Canadian Bill of Rights
•The courts did not see it as being superordinate to other laws
•Courts ruled that only rights at the time of CBR counted
•Courts even prevented CBR from trumping common law precedent

Question 20

How did the Charter come to be

Answer 20

•Failures made constitutional enshrinement of the Charter a top priority for PM Pierre Trudeau
•Only secured provincial agreement with the incorporation of the Notwithstanding Clause

Question 21

What are the limitations of the charter

Answer 21

Important limits have been added to the power of the Charter:
•Reasonable limits
•The Notwithstanding Clause

Question 22

What are reasonable limits of the charter

Answer 22

“subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Principle of judicial restraint – some degree of deference to Parliament and cabinet

Question 23

What is the oaks test and what are the two steps

Answer 23

The courts apply the Oakes Test to see whether restrictions on rights are reasonable. Two steps:
1)Is the objective of sufficient important to warrant a restriction?
2)Is the limitation proportionate to the objective?
A.Is it rationally connected to the objective
B.Minimum necessary impairment
C.Harm done to rights doesn’t exceed benefits

Sometimes the courts have struck down legislation for failing to meet test
➢Tobacco advertising
➢French-only signage
Other times rights violations have passed Part 2 of the test
➢Child pornography
➢Hate speech

Question 24

What is the notwithstanding clause and an example

Answer 24

•A legislative override was included to get the premiers to sign off on the Charter (Section 33)
•Only applies to fundamental freedoms, legal and equality rights
•Must be included in legislation and renewed every 5 years

Only used sparingly and has never been renewed due to political costs:
•Bill 101 restricting non-French signage (1989)
•1986 law forcing strikers back to work in Saskatchewan (before SCC ruled on worker rights)
•Quebec’s Laicity Act (2019) banning public display of religious symbols
•Ontario’s Protecting Elections and Defending Democracy Act (2021) restricting pre-writ political spending by Third Parties

Question 25

What are the most important rights and freedoms in the charter

Answer 25

1. Fundamental freedoms
2. Democratic rights
3. Economic rights
4. Legal rights
5. Equality rights
6. Language rights
7. Indigenous rights

Question 26

What are the main aspects of freedom rights:

Answer 26

Section 2: Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

Question 27

What are the main aspects of democratic rights:

Answer 27

Section 3: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein
Section 4 (1): No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members
Section 5: There shall be a sitting of Parliament and of each legislature at least once every twelve months

Question 28

What are the main aspects of Economic rights:

Answer 28

Section 6 (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province;
(b) to pursue the gaining of a livelihood in any province.
Very weak protection of economic rights, but some others read into other rights, like protections against arbitrary search and seizure

Question 29

What are the main aspects of legal rights

Answer 29

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8 Everyone has the right to be secure against unreasonable search or seizure.

9 Everyone has the right not to be arbitrarily detained or imprisoned.

10 Informed of reasons for arrest, right to counsel, habeus corpus

11Informed of offence, speedy trial, self-incrimination, presumed innocent, denied bail without just cause, no grandfathering, double jeopardy, trial by jury

12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13 Self-incrimination in other matters

14 Right to an interpreter

Question 30

What are the main aspects of equality rights

Answer 30

Section 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination
Carve out exception for affirmative action in 15(2)
Section 28: Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Question 31

What are the main aspects of language rights

Answer 31

Section 16 (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
16-22 provide guarantees for bilingualism in government

Section 23 (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province…
…have the right to have their children receive primary and secondary school instruction in that language in that province
23 (2) provides right of continuity of instruction and (3) provides an exception for where numbers don’t warrant such instruction

Question 32

What are main aspects of indigenous rights

Answer 32

Section 35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(3)* For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4)* Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons

Question 33

What is the type of law where judges make decisions based on previous precedent?

Answer 33

Common law

Question 34

True or false: in Canada the judicial appointment process is free of political influence

Answer 34

False

Question 35

What court type of court is assigned infrequent but serious offences?

1. Appellate courts
2. Provincial courts
3. Superior courts
4. Federal courts

Answer 35

Superior courts

Question 36

What is the type of law made by bureaucracy and adjudicated by administrative tribunals?

1. Common law
2. Statutory law
3. Constitutional law
4. Administrative law

Answer 36

4

Question 37

True or false: the powers of the Supreme Court are outlined in the British North America Act of 1867

Answer 37

False

Question 38

Please match the term to the correct definition

1. Interpret the constitution based on what the drafters intended by text or by the meaning of the text at the time it was drafted
2. The power to rule on the constitutionality of legislation
3. The principle of making judgments in line with past precedent
4. Interpreting the constitution based on the “spirit of the law” to account for modern circumstances

A. Living constitutionalism
B. Textualism
C. Originalism
D. Ultra Vires
E. Judicial review
F. Stare decises

Answer 38

1, C

2, E

3, F

4. A

Question 39

True or false: The Courts defended the rights of citizens before the advent of the Charter by using the common law

Answer 39

True

Question 40

Why was the Canadian Bill of Rights ineffective?

1. The Courts had not yet accepted the importance of protecting rights
2. The Canadian Bill of Rights was a statutory law, so the Courts did not see it as above other laws
3. The Canadian Bill of Rights did not sufficiently enumerate the rights of Canadians
4. The Courts were unduly deferential to Parliament

Answer 40

2

Question 41

Which of the following classes of rights are covered by the Notwithstanding Clause? Please select all that apply.
1. Equality rights
2. Democratic rights
3. Mobility rights
4. Legal rights

Answer 41

1,4