Lecture #11 - Judicial Review

The Executive

Branch of government mainly responsible for initiating government action, making and implementing public policy, and coordinating the activities of the state. Ex. the Prime Minister and the Cabinet.

The Judiciary

Branch of government responsible for authoritative interpretation of the law and applying it to particular cases.

Confederation-era Role of the Judiciary

• Adjudicate legal disputes between private parties (mediation, arbitration and negotiation)

• Adjudicate cases in public law (the relationship between individuals and government, ie. criminal law and administrative law)

• Judicial law (legislation that contravenes the Charter or any aspect of the constitution)

Criminal Law

Derived from the Criminal Code. Defines offenses and punishments. Courts have a lot of room for interpretation of what constitutes a violation of the Code, and room to give out appropriate punishment.

Administrative Law

Traffic regulations, worker’s compensation, things mostly handled by tribunals.

Parliamentary supremacy to judicial supremacy

With the introduction of judicial review, we see a shift away from _______ to ________.

Principles of the Canadian Judiciary

• Impartiality

• Judicial Independence

• Equality before the law

Impartiality

• As a principle, tells us that judges should not be biased in a specific case towards one or another party

• Promoted in the Canadian regime through the act of appeal (parties may appeal the decision made by the court to another)

• Judges serve as a referee to the information presented to them by other parties

• Also protected in the norm of judicial political neutrality — judges cannot engage in forms of political participation

Judicial Independence

• The idea that the work of the judiciary is at arms-length from other branches of government

• Constitutional principle that the judiciary should be work ________ from the executive legislature

• CA 1867 lays out a couple ways this happens, including security of tenure, security of renumeration (salaries of judges are fixed by law), and judicial administration of courts

Security of Tenure

Related to judicial independence from the executive branch. Forbids executives from firing judges.

Security of Renumeration

Related to judicial independence from the executive branch. Salaries of judges are set/fixed by law.

Judicial Administration

Related to judicial independence from the executive branch. Judges have control over any aspect of administration that has an impact on decision-making.

Section 15 (Equality Before the Law)

Section of the Charter that enshrines equality before the law, a principle of the Canadian judiciary.

Provincial and territorial Courts → Superior Trial Courts → Court of Appeal → Supreme Court

Hierarchical organization of Canadian court system/order of appeal in the provincial system.

Political liberties, legal rights, equality rights and economic rights.

Types of rights and freedoms (list four)

Joint Jurisdiction

Federalism is important to understand the Canadian court system — Canada has an integrated judicial system, in which there is a single judicial system under the _____ ______ of the provincial and federal governments. Provinces can administrate their own courts, but the federal government can appoint judges to superior courts.

Section 96 Courts

A provision in CA 1867 that allows the federal government to appoint judges to the provincial superior courts.

Political Liberties

Freedom of press, speech, religion, expression and assembly. Intended to provide freedom from political repression or legal consequences for political opinions.

Legal Rights

Procedural rights of a person suspected of or accused of a crime. Meant to protect individuals in contact with the criminal justice system.

Equality Rights

Freedom from discrimination on the basis of mutable characteristics/identity markers of various types.

Economic Rights

This is more controversial — not provided for in the implementation of the Charter, despite some debates leading up to its enactment. The Constitution is generally vague, reliant on the interpretation of courts, which becomes common law.

Section 1: Reasonable Limits Clause

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

• This text is opaque, confusing and vague — reliant on interpretation

• To interpret this limit, judges use the Oakes test

Oakes Test

A tool for assessing whether a government’s infringement on rights is considered reasonable. When the gov. is found to infringe on a Charter right, they must convince the court of four things:

• Pressing and substantial purpose served by the impairment

• The means chosen to achieve the end is rationally connected to the demonstrated, pressing and substantial public purpose

• The right in question is minimally impaired

• Public benefits of the measure convincingly outweigh the cost of infringement

Section 2: Fundamental Freedoms

Includes freedom of conscience and religion, freedom of thought, belief, opinion, expression, press, peaceful assembly, and association. Can be limited by the notwithstanding clause.

Section 3 (Democratic Rights)

Every citizen of Canada has the right to vote in elections of members of the House of Commons or a legislative assembly, and to be qualified for membership therein.

Section 4 (Democratic Rights)

“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.” 

• Protects the right to somewhat frequent elections, and thus, the right of participation in the electoral process 

Section 5 (Democratic Rights)

There shall be a sitting of Parliament and of each legislature at least once every twelve months.

• Prevents a situation where we have a Parliament or legislature in name only, and engaging in the important work of meeting in public/involving the public in some way is not carried out

Section 6: Mobility Rights

The idea that every citizen has the right to enter, remain or leave Canada, as well as the right to domestic travel (take up residence or work in each province of Canada). This right is necessarily limited by the fact that leaving Canada means entering another country’s legal jurisdiction.

Section 15: Equality Rights

• “Every individual is equal before and under the law, and has the right to equal protection and equal benefit of the law without discrimination, and in particular, on the grounds of race, national or ethnic origin, color, religion, sex, age, or mental or physical disability”

• List of renumerated grounds has been “read in” to include additional “analogous” grounds that are considered to be of the same legal weight as the renumerated grounds

  • Ex. citizenship status, marital status, sexual orientation, non-resident status

Section 23: Minority Language Education

Attempts to make anglophone schooling available in francophone regions, and vice versa, for citizens of Canada who’s parents have been educated in that language.

Section 33: the Notwithstanding Clause

• Allows the government to create legislation exempt from three parts of the Charter

• Enactment valid only for five years, after which it lapses and must be re-enacted by the legislatures

• Emerged as a compromise between Pierre Elliot Trudeau and the premiers at time of drafting

  • Premiers wanted the clause to apply to the entire Charter

• Attempt to counter-balance pan-Canadian nationalism with federalism

Fundamental freedoms, legal rights, equality rights

The three sections of the Charter that Section 33 is applicable to.

Minority language rights, mobility rights and democratic rights

The three sections of the Charter that Trudeau (Sr.) thought were too important to be subject to Section 33.

Judicial Review

The power of the courts to overturn legislation or action of the executive branch. Role that was expanded and reinforced with the repatriation of CA 1982.

A specific case or a reference procedure

The two things that can trigger judicial review.

Reference Procedure

• A court is asked to give an opinion on the constitutionality of a particular statute

• Used as a quicker process to obtain the court’s opinion on the constitutionality of a particular policy/law

• Used to determine whether PET needed the provinces’ permission to change parts of the constitutions (yes)

Strong Form Judicial Review

• A system where the court’s constitutional interpretation are given more weight than the legislature’s constitutional interpretation.

• Exists when judgements of the court are final and unrevisable, and there’s little recourse for the people or the legislature if they disagree with the interpretation.

• Ex. the United States (Cooper v. Aaron affirmed this decision)

• Challenges to interpretation can only occur through a process of constitutional amendment, or the introduction of a new judge.

Weak Form Judicial Review

• Tries to reduce the tension between judicial enforcement of constitutional limits on democratically elected governments

• There are mechanisms in this system for people to respond to an interpretation deemed incorrect or mistaken without having to wait a long time for a process of formal constitutional amendment or for a judge to retire

  • Revision of judicial interpretation is possible through standard parliamentary

• Ex. Canada, the UK, New Zealand

Judicial Review in New Zealand

• Bill of Rights doesn’t allow courts to either refuse to enforce a statute or to find legislation put forward by the government invalid

• Instead, judicial review takes the form of an “interpretive mandate”, wherein courts are encouraged to interpret legislation in a way that protects the rights laid out in the Bill in circumstances where competing interpretations are present

• Weak form of judicial review

Dialogic System of Judicial Review

If the court finds that legislation/actions by the government violates the constitution, legislatures have two options: invoke Section 1 to justify the violation as “reasonable” or invoke Section 33, the notwithstanding Clause, to make legislation that violate sections of the Charter enforceable regardless of Charter language for fixed periods upon the end of which they must be reassessed.

Judicial Activism

Refers to a court that is willing to decide constitutional issues and to invalidate legislative or executive action.

Judicial Restraint

Refers to a court that is less likely to overturn legislation for contravening the Charter.