week 3: The Courts and the Charter of Rights and Freedoms Flashcards
The Courts and the Charter of Rights and Freedoms
Structure of the Court System:
The Canadian judicial process outside of Quebec is based on a system of common law that originates from the U.K
Judges make decisions in line with previous precedent
In contrast to a civil law system where judges act as impartial referees and make decisions (operates in Quebec)
The system is fundamentally adversarial
types of law
Substantive v. procedural
Constitutional v. statutory v. administrative
Criminal v. Civil
Federalism and the Courts:
The federal and provincial governments share authority related to the administration of justice
The federal government can create courts: power used to create the Supreme Court of Canada (1875) and the Federal Court of Canada (1971)
The criminal code is federal, unlike in the U.S.
Provinces tasked with administering justice and creating and maintaining provincial courts
Responsibilities of courts:
Lower provincial courts are assigned frequent, lesser offenses, and most matters of civil law.
Superior courts tasked with less common more serious offenses (ex: murder)
Appeals courts are self-explanatory
Federal Court deals primarily with administrative law and matters that involve the federal government.
Appointment:
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)
Committees in each province provide a 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 a representative for the police
Provincial court appointments are similar at the provincial level but vary by province.
Removal:
Very hard to remove judges
Lower courts require removal by the provincial cabinet after an inquiry by the provincial judicial council.
A similar process for federal judges, but also requires passage of a motion by Parliament
Otherwise, mandatory retirement at 75 for federal judges
The Supreme Court:
The Judicial Committee of the Privy Council was the final court of appeal until 1949
SCC was 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
Powers of the Supreme Court:
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?
Supreme Court Docket:
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%)
⅓ of dockets are charter cases, most of which involve matters related to criminal law procedures
Deciding Cases:
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 who disagree with the majority opinion can write dissenting opinions.
Supreme Court Composition:
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.
Supreme Court Appointment and Tenure:
Appointed by the governor general on the advice of the prime minister
A non-partisan advisory board identifies a list of suitable candidates
Assessment criteria, questionnaires, and provided answers are all made public
Hold office “during good behavior” with retirement at 75
Judicial Independence:
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
Structure of the Court System:
The Canadian judicial process outside of Quebec is based on a system of common law that originates from the U.K
Judges make decisions in line with previous precedent
In contrast to a civil law system where judges act as impartial referees and make decisions (operates in Quebec)
The system is fundamentally adversarial
Types of Law:
Substantive v. procedural
Constitutional v. statutory v. administrative
Criminal v. Civil
Federalism and the Courts:
The federal and provincial governments share authority related to the administration of justice
The federal government can create courts: power used to create the Supreme Court of Canada (1875) and the Federal Court of Canada (1971)
The criminal code is federal, unlike in the U.S.
Provinces tasked with administering justice and creating and maintaining provincial courts
Responsibilities of the Court:
Lower provincial courts are assigned frequent, lesser offenses, and most matters of civil law.
Superior courts tasked with less common more serious offenses (ex: murder)
Appeals courts are self-explanatory
Federal Court deals primarily with administrative law and matters that involve the federal government.
appointment
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)
Committees in each province provide a 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 a representative for the police
Provincial court appointments are similar at the provincial level but vary by province.
Removal:
Very hard to remove judges
Lower courts require removal by the provincial cabinet after an inquiry by the provincial judicial council.
A similar process for federal judges, but also requires passage of a motion by Parliament
Otherwise, mandatory retirement at 75 for federal judges
The Supreme Court:
The Judicial Committee of the Privy Council was the final court of appeal until 1949
SCC was 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
powers of the Supreme court
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?
Supreme Court Docket:
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%)
⅓ of dockets are charter cases, most of which involve matters related to criminal law proced
Deciding Cases:
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 who disagree with the majority opinion can write dissenting opinions.
Supreme Court Composition:
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.
Supreme Court Appointment and Tenure:
Appointed by the governor general on the advice of the prime minister
A non-partisan advisory board identifies a list of suitable candidates
Assessment criteria, questionnaires, and provided answers are all made public
Hold office “during good behavior” with retirement at 75
judicial independence
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
Questioning Judicial Independence:
But to what degree are judges truly “independent”?
Social and demographic background
Judicial philosophy and political views
Public opinion
Diversity in the Judiciary:
As of 2012 3 percent of all judges are visible minorities
In 1971 5% of legal professionals were female, today closer to 40%
Judges also come from higher socio-economic backgrounds, though systematic evidence of class bias has not been gathered in Canada
judicial philosophy
Three main judicial philosophies:
Textualism: interpret the constitution based solely on the plain meaning of the text
Originalism: The original intent variant leans on the 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 favored by conservative justices but are not well-received in Canadian legal circles.
A living constitution is sometimes called a living tree or interpretivism: drafters couldn’t have known modern-day circumstances, so the spirit of the law needs to be considered.
Flexibility, up to our interpretation
This approach is favored by Canadian jurists.
evolution of rights and freedoms
Freedoms: often called civil liberties in the US, require the gov to refrain from interfering in certain matters
Rights: often called civil rights in the U.S are more often related to individual or group level entitlements that often require the government to take some action
types of rights and freedoms
- poliical
- demoractic
- legal
- economic
-equality
the pre-charter era
Rights and freedoms acknowledged and enforced by the courts before the Charter
Common law provided protections for fundamental freedoms, contracts, 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 through unrelated means, such as by labeling legislation ultra vires.
In practice, protection was scattershot.
canadian bill of rights
PM Diefenbaker passed the Canadian Bill of rights
The courts did not see it as being superordinate to other laws
Courts rule that only rights at the time of CBR counted
Courts even prevented CBR from trumping common law precedent
the charter 1982
Failures made constitutional enshrinement of the Charter a top priority for PM Pierre Trudeau
Only secure provincial agreement with the incorporation of the Notwithstanding Clause
limitations to the charter
Reasonable limits:
Subject to only 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
The notwithstanding clause:
A legislative override was included to get the premiers to sign off on the charter section 33
This 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 nonfrench signage in 1989
1986 law forcing strikers back to work in Saskatchewan before SCC ruled on worker rights
Quebec’s Laicity Act (2019) bans public display of religious symbols
Ontario Protecting Elections and Defending Democracy Act (2021) restricting pre-writ political spending by Third Parties
Oakes Test:
The courts apply the Oakes Test to see whether restrictions on rights are reasonable.
Is the objective sufficiently important to warrant a restriction?
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
sections in the charter
- fundamental freedoms: section 2
- democratic rights: section 3, 4, 5
economic rights: section 6
legal rights: section all of them basically
equality rights: section 15, 28
language rights: section 16, 23
indigenous rights: section 35
the quiet revolution
Radical Change in Quebec
1960s
The election of a new Liberal Party government led by Premier Jean Lesage marks the beginning of a period of sustained change known as the Quiet Revolution.
René Lévesque
His government completed the nationalization of hydroelectricity through Hydro-Quebec. He also created the Quebec Charter of the French Language, the political party financing law, and the Parti Quebecois itself.
FLQ Crisis:
Separatist liberalist group
Kidnapped a liberal party cabinet minister from Quebec and killed him unintentionally
Pissed off the federal government and they invoke the war measures act which made the military go into Quebec and arrest a bunch of students
Fuels the separatist movement
Mega Constitutional Politics:
Politics of trying not just to change a constitution, but to change it at one time in a large wholesale way by formal amendment, and in a context where the effort absorbs, and exhausts, the political energies of the country’s leaders and its citizens.
The big bang of constitutional politics
Meech Lake Accord
Forgot about the Indigenous people
Elijah Harper protests for the Indigenous people
Charlottetown Accords
Quebec autonomism
