Public Law 2

8/8/2019 Public Law 2

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Postivism and Natural Law

legal positivism law is nothing more than the rules and principles that actually

govern / regulate society

-separation of law and morality

natural law theory : laws are only those that adhere to certain moral truths-univeresal and immutable

Re Drummond Wren 1945

restr cov stating parcel of land could not be sold to jews or persons of objectionable

nationality struc down bc of generally accepts principles of racial equality =

example of natural law application

Re Noble and Wolf 1948

did not agree with Wren : the courts are not auth to est as law evverything we may

think if for public good, andprohibit what we think otherwiseupheld the freedom of contract as against a policy that was not clearly legislated =

example of positvism

judge refused to rule on basis of his own ideas of morality ot justice but only by

expounding and interprting the law as it is.

both poitivism and natural law theory are descriptive ie identify whas law is

the folling focus on where the law fails and the need for reform:

Feminist Perspectives

critique of liberalism

Early mod feminism :

seeking women's formal equality w/men

replacing laws that were explicitly biased w/ neutral laws

eg suffrage movement

Edwards v AG Can women being recognized as persons for purpose of being

eligible to be a senator

Contempo Feminism

sociology and criminology introduced to study issues like violence against women

Feminism becomes more fractured radical vs conservative

R v Morgenthaler abortion req medical certificate from a committeee procedural

reqts contrary to fundamental justice

whether women could be compelled by law to carry a fetus to term.


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Charteer founded on human dignity incl right to make profound personal decisions

w/o interference from Stat

Impossible for a man to respond to such a dilemma not because it is outside the

realm of his personal experience but beecause he can only objectify it (ie

eliminate the subjective elements of the female psyche at the heart of the dilemma)

1st woman appointed to SCC: Madam Justice Wilson - 1982 91 (also the period ofthe formation of the Charter)

-seen as a legislator for women's rights not just a judge

Critical Legal Studies

leftist, radical departure from traditional legal theory

rejeccts the idea of a natural legal order discoverable by objective means

law legitmizes authority of particular social groups

law not coherent / universal and is subjectively interpreted

3 stages:1. Hegemonic consciousness

western laws maintaied by belief system of a liberal market driven economy

2. reification

the beliefs are made material presented as essential necessary and objective

3. denial

laws help us to deny real truths so we can cope with contradictions too

painful to realise denial occurs btw the promise of equality as a state of laws

and th reality which is discrimination found in society

law not independent but political

radical but may have influencesd lawyers / judges who went to law school in 70s

R v RDS judge made comments re PO charged and arested 15 yr old black boy

apprehension of bias? - SCC fair trial and right to unbiased adjudciator =

fundamental goal of justice system

bias = all judges entitled to presumption of judicial integrity so finding of bias = very

high threshold but als high standard of impartiality demanded of jduges but not to

the point where they cant bring their own life experiences to mind

judge can have an opinion but also required to entertain different points of view

w/an open mind

History of anti -black racism documented in NS in Donald Marshall trial

racism by POs toward minorities and in partic young black males

McL and L'H-D - of if trial judge decision influenced by the state of things as she knew

them to be. CLS point of view impossible to separate social and pollitical context in

which laws operate

Cory laws can evolve to reflect social reality but req expert evidence of those

social conditions for them to be considered


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Major Traditional approach objective standards reasons should be based strictly

on the evidence judge should only be using life experience to understand human

behaviour not to reach a decision for which there is no evidence

Law and Economics

not so much about morals more about efficiency

free market neo-liberal base

economics used to determine whether legal rules result in efficient outcome

efficiency = welfare of each party maxd and cant get any better unless at expense

of the other paty = pareto optimality

assumes humas are rational

Public Law and Econ Theory

public choice theory = policy makers act to max political support not necessarytryingto max social welfare so motivated by self interest

difffuse and fragmented groups less effective at infl legislators than focused concentr

groups

Duncan Estat v Baddeley if intrp court should not invoke arguments for its repeal

those arguments were lost when legisl enacted the statute a factor in the judge s

decision was that the legisl had taken no steps to amend the statute to reverse a

previous interp by the courts suggests that interp stands

Bhaduria v Board of Gov new intentional tort case from statute toprotect agaisnt

discrim w/ respect to employ this was based on the statute outside an area of CLthat was fully recog

SCC: rejected this approach as the statute itself was comprehensive and incl its own

remedy and procedures to enforce the policy of protection against discrim

Legal Sources

International Law

1. treaties law making contracts btw states only binding on signatories has tobe implemented

2. cutomary intl law binding on all states (unless persistently rejected)

automatically becomes CL

UN Decl HR principles entrenched in customary intl law and binding on all states

Canada = dualist = treaties have no effect on internal jurisprudence unless and until

they are implemented under domestic law by Act of Parlt

-maintains Parlt Supremacy


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-preserves division of powers

-maintains democratic process

dualist dilemma while Can bound by treaty intlly policay makers are not bound by it

domestically

solution delay ratification of treaty until domestic laws comply

but in some cases dom laws remain unmodified

the dilemma = exec fedl branch enters treaty --> parlt and provl legisl must either

1. disregard the oblig and preserve supremacy (non compliance w/intl rule), or

2. imiplement the intl oblig rubber stamping their approval (although exclusively

concluded by fedl branch)

unclear as to what is reqd to show courts a treaty has been implemented

Suresh v Can rendition = whthr viol Cdn Consti Law UN Convention agaisnt torture

ratified by Can and expressly bans torture - SCC: not replic in immigration law = not

implemented the case had to rest on the Charter - which did not provide an

absolute ban the way that the treaty did

Suresh : leaves courts to be inspired by intl treaties but with room to ignore their actual

reuirements and substitute their own standard problem: never soidified as statute

never fully adopted in words of treaty

Customary Intl Law

once recog autom forms part of Can's CL = monist as oppose to dualist like in the

case of treaties

can be displaced by inconsistent statute

Bouzan v Iran domestic legisl should be interpreted in line w/ Intl CL as far as possible

Statutory Law

Parlt provl legisl free to enact new laws displacing CL **stat rule supercedes CL rule

stats can be used as a guide for the courts as to public policy which enables courts

to take CL into a new direction, or fill gaps in new area

Bhadauria v Senecca College Racial Discrim Act may not be applic but expressed

the policy of prohibition against discrim on the basis of race, etc which allowed for a

CL action not prev recog

same sex marriage CL definiton of marriage questioned under Charter in Halpern v

Canada s15(1) equality before and under law + equal protec + equal benefit -->

sexual orientation is an analogous ground of prohib discim w/ respect to s15(1) (Egan

v Can) and in Halpern: CL is subject to scrutiny where govt action / inaction is based

on CL rule (Hill v Church Of Scientology)

to freeze the defiition of marriage at its confed meaning = contrary to progressive

interp of Constn. living tree approach. (found in Edwards v AG Can Lord Sankey)


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The reformulatd CL definition for marriage = voluntary union for life of 2 persons to

exclusion of all others

upheld by court in Re samesex marriages act now called civil marriage act

religious officals can still refuse to perform a same sex marriage under the act.

Constitutional Themes

constitution legitimacy of state actio and adherence to rule of law

1. who can make laws and

2. limits on what laws can be made

3. roles of different branches of govt

6 principles of Constitionaism:

Rule of law exercise of public power must be sourced in law

const is supreme and placed above ordinary law and state functions

(to protect rule of law while laws are made to adapt to changing soc and becauselaws are made by people who can change them)

Constitutional supremacy constitution = supreme law and any inconsitent ordinary

law is of no force / effect (as far as the inconsistency)

Roncarelli v Duplessis court affirmed that all legal officials are subj to same legal

obligations as other citizens denial of liq lic may be in official's discretion doenst

mean not subj to statutory constraints power must be exercised in furtherance of

the legisl objective

discretion implies good faith in exercise of public duty

constitution incl: s52(1) and s52(2) + unwritten prinicples (Secession Reference)-have force of law + limit govt power

-provide exhaustive legal framework for govt

-allow Const to endure

4 Fundamental Organizing Principles of the Constitution:

1. Federalism

2. democracy

3. constitutionalims / rule of law

4. respect for minorities

=lifeblood of the constitutionassist interp of Const / jursid / rights and obligations

-important for living tree evolution

-Primacy is in the actual text but reference can be made outside the text

Secession Ref expanded judicial auth w/ resp to Const

butunwritten prinicples can only be used to fill in gaps in the text

BC v Imperial Tobacco rule of law 3 prinicples:

1. legislation must be applied to all those to whom it applies incl govt officials


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2. legislation must exist

3. state officials actions must be legally founded

but court denied other principles were constitutional such as: laws must be forward

working (no, they can be retroactive if expressly stated); general in character (no,

ceretain co.'s w/in an industry can be taxed); not confering special priveleges on

govt unless nec for governance (no, govt has power to expropriate property eg form

vets even if unfair); esure fair civil trial (no, fair trial guaranteed where personscharged)

Constitutional Conventions:

Patriation Reference conventions arise by

a) practice / agreement devd by political actors

b) recog by pol actors that they are bound to follow the convention

c) normative reason (purpose) for the convention

Not law and cannot be enforced by the courts bindig force in realm of politics

did cosntl amendment re agreement by provinces if it affected fedl-provl

relationships?Courts can recog conventions makes them hard to ignore / deny

examples:

if opposition obtains majority govt must resign; ministers must continuously have th

econfidence of the elected branch of th legisl individually and collectively if confid

lost -> must resign of request dissol + a general election

Test for est a covention:

1. what are the precedents?

2. did those acting in the precedents believe they were bound by a rule?

3. is there a reason for the rule?

Applied in Pat Ref:

1. in all prev 22 amendments approval by affected provinces sought2. the polictical actors seemed to be acting on basis that this was necessary

3. reason for the rule: federalism ; each prov to retain indep and autonomy + be

represented

Constitutional Supremacy

3 reasons for it: 1. added safeguard for HR; 2. protection of vulnerable minority groups

agaisnt pressure to assimilate w/ majority; 3. division of powr among difft levels of govt

(no one has power to unilaterally usrurp additional powers)

CS implications:

Hierarchy of law constl law can shape the CL

Adjudication of inconistencies with Const judicial indep required to keep ajdud in

check by interp the const Can admin tribunals apply and interp the Charter? NS

(Workers Comp) v Martin since conferred power to interpret law then must also be

able to determine whether that law is constitutionally valid also explains why courts

must be given final word

Counter-majoritarinism check on majority democracy limits majority preferences


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which change over time allows constl interp andenforement to run contrary to

majority preferences

Amendment by Super Majorty if same Parlt that passes ord law can amend the

Const then how can Const be supreme? - super-majority req elements of soc other

than the simple majority amending formula infuenced by federalism the majorties

of the fedl and provl govts must approve

Human Rights Laws and CS :

HR statues are signif and deserve broad and liberal interp andcan be used to interp

provisions in other legisl which makes them special

Vriend v Alberta protection agaisnt discrim on basis of sex orient read into Alberta's

statute so that it would comply with the Charter (even though Alt legisl had delib

ommitted it)

Parliamentary Supremacy:

Parliament = House of Commons (elected) + Senate (appointed)

Senate and Provincial Legisl have power to make laws --> this is delegated to:elected municip councils, school boards, etc

Pariamentary Supremacy is qualified by Federalism:

doctrine of exhaustion of state powers = if one level cant enact a law the other can

and by Charter limitations:

but s33 allows Parlt to reasset Parl Suprem

Parlt is subservient to the Const but supreme over exec

Babcock v Canada - disclosure of cabinet confidences in litigation w/private

citizens?

Justice dept disparity in Toronto and Vancouver Lawyers' salaries cabinet confid vs

right to pursue justice discl must be refused by court w/o examining or hearing the

infocabinet confidentiality provided for in Evidence Act (if it werent for the Act CL

would apply which req a balancing of the interests) SCC: unwritten constl principle

must be balanced agiasnt the prinicple of Palriamentary Sovereignty Evid Act prov

found not to offend the rule of law or othe unwritten Const prinicples.

Test: Legisl has the power to enact laws even if Draconian if they do not

fundamentally alter or inerf w/the relationship between the courts and the other

branches of govt

Federalism:separation of ppowers doctrine -legisl makes laws; exec implements them; and

judicial intrprts / applies and determines/ and enforces them

at Confed Que and maritimes demanded regulation over private legal relationships

(property and civil rights)

federalism = unwritten princip of Const recognizing regional diversity

eg Secession Reference written provisions of Const interpreted in light of this

principle = protection of automy and individ cultures


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Hodge v The Queen recog fedl and provl legisl as co-ordinate equal sovereign

status under the Const

Fedl and provl jurisdictions mutually exclusive but SCC has expanded Fedl powers

and is criticised for it bacuse thats who pays them

HR Legislation and Federalism:

Prov HR laws cannot apply to banking; navigation; shipping; and the miliitary (whichare all fedl powers) instead covered by Cdn HR Act

Executive Power:

all ministries of govt + employees, civil service armed forces, statut created bodies

subord to legisl where their power is derived from (except royal prerogative)

powers delegated by Legisl can be revoked any time

PM must have the support of the majority of elected legislators

Juduicial Power:

1867 Act, ss 96-101s96 Fedl exev appoints judiciary (sup and distr courts) (but provs est them in their jurisd

per s92(14)) and appoint non s96 judges

superior courts aka s96 courts

s101 Parlt can create courts for better admin of the laws of Can -> was used to

enact the Fed Crt Act and est the Fed Crt of Canada

s101 auth Parlt to create general court of appeal -> used to enact SCA and est SCC

SCC status is not constitutional except for composition and appointing process

proisions found in the 1983 Act

But Courts have 2 core jurisdiction powers:

1. to rule on constl validity of all laws, and

2. suervise activities of govt and other delgated actors to ensure they act w/instat auth

1. remedy for const cases decl law of no force or effect

2. all persons affected can petition for jud rev and jud rev was given constl status in

Crevier v Que

3. Jud Indep = lifeblood of const in democ societies (Beuaregard v Can)

ensures judges as arbiters of disputes at complete lib to decide cases on their merits

Parliament

created by s17 of the 1867 Act

Queen = Cans 0fficial head of state- in Practice, powers exercised by Gov Gen by

auth of s10

Monarchy at root of our constl structure preamble can be used to fill in gaps

s9 role of Queen: Exec govt and auth over Canada vested in her

Amend to Const provs dealing w/Queen req unanimity s41(a)

Const incl Satute of Westminster

Monarch appoints GG but by constl convention on advice of PM


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also by convention must be canadian and atern Anglo / Franco

Senate unelected per s24, appointed by GG (advised by PM) contrav for being

used to reward friends/ supporters

Brown v Alt attempted to elect their senator worked for Mulroney not for

Chretien

Courts couldnt interfere not a legal question

H of Commons elected per s37 based on geo divisions revised every 10 yrs party

w/ most MPs become governing party ad their leader becomes PM

Then 2nd largest number of MPs become opposition party

per s3 all persons eligible to vote and to be qualifed for membership to HofC

Fuguera v Can SCC struc down rule req 50 districts to = party- Court had to determ

if 1. was the right viol and 2. if so was it justif under s1 of Charter?

Req Cout to interp what the right in s3 entails more than the words effective

represetation incl right to play a meaningful role in the electoral process.

Court concl that parties can make a valuable contrib even if not a genuine option

ie going to effect outcome of election so right infringed is it justified? Oakes test:

(burden on govt)

step 1 objective of legisl sufficiently pressing and subst to warrant viol of Charter right?

(ie neither trivial nor discordant w/ democ princip) Ensuring cost efficiency of tax

credit system = pressing and subst.

step 2 is infringement proportionate and rationally connected to the objective?

(ie minimal impariment of the right and salutory beenfits outweigh the deleterious

effefcts) Other methods could have been used not minimal impairment no rational

connection to objetive

Summoning: power to call HofC together

Prorogation: ends sessino w/o dissolving parlt aboishes all pending legisl all bills have

to be reintrod House in recess cp adjournment(termin during session and

pending proceedings not quashed)

Dissolution: elections ot HofC must occur every 5 yrs usu dissolved before that time

and must be if no confidence vote

Confidence: minister resp to Queen / GG; individual minister resp to House; minisntrycollectively to house

Documents

Public Law 2