POLI 1120 - Chapter 9/Week 11

unanimity amending formula

Applies to the fundamental institutions in Canada: Crown, Supreme Court, bilingualism, representation of provinces in Parliament, changes to amending procedure

general amending formula

Most constitutional amendment require the consent of the federal government and 7/10 provinces, who together represent at least 50% of the population (aka 7/50 rule)

7/50 rule

Commonly used name for the general amending formula

bill of rights

Statute enacted in 1960 by the government of John Diefenbaker, enumerated common law rights enjoyed by Canadians, prohibited discrimination based on race, national origin, colour, religion, or sex

NOT in the constitution, just a statutory law (could be overturned by next gov't)

could not be used to void other laws b/c it was not in the constitution

basically useless, but important for Canada's political culture (was previously considered too american to have a 'charter')

advocacy groups

Organizations representing the concerns of various social movements or economic interest

No contesting elections, but seek to influence government policy from the outside

Aka interest groups (kinda shitty to say this though)

charter canadians

Minority groups with a bested interest in particular sections of the Charter, like Section 27 which recognizes Canada's multicultural heritage

notwithstanding clause

Section 33 of the Charter that allows parliament or provinces to violate section 2 or sections 7 to 15, for 5 years after which it has to renewed or law is let go

limitations clause

Section 1 of the Charter, that allows government to place reasonable limits on the rights guaranteed by the Charter

oakes test

Judicial test used by Supreme Court to determine if a law is in accordance with Section 1 of the Charter or not

Courts want to know = Is the law addressing a pressing issue?

BASICALLY are the limitations to our rights democratically justified

1. Measures must be rationally connected to the objective

2. Means should impair the rights as little as possible

3. Good must out weigh the bad of limiting rights

civil law

Does not use judge-made precedent like common law, but a civil code that is written by a legislature

Still used in Quebec, have their own civil code, the Code civil du Quebec

Legal system from Roman law, still used in Non-English European countries and a lot of African countries

chief justice

(typically) Most senior member of the Supreme Court

administrator of canada

Held by chief justice, if governor general dies in office to continue out their duties

BIG things the constitution did

Supreme Court is a more significant player in Canadians politics

Enormous impact of Canadian society

Affirmed and recognized rights of Indigenous peoples

Equalization program (only social program with constitutional status)

After 115 years after Confederation, Canada was self-governing

No new rights, just entrenched our historical rights into constitution

why create the constitution act of 1982?

Pierre Trudeau thought the 1867 one was responsible for the deep regional cleavages in the federation (mostly between Quebec and the rest of Canada)

• (The federation has not been united today)

Wanted it to be an instrument of unity and help to overcome longstanding cultural and political divisions

• HOWEVER, Quebec opposed the new Constitution and continue to but still have to follow its terms

literally pierre's lifelong goal to bring the constitution home

purpose of charter

prevent democratic majorities from using their political power to violate the tights of individuals, especially minorities

- Done so by putting them in a constitution, and beyond the power of Parliament

habeas corpus

most basic human right is from the 14th century, protects citizens from unlawful and indefinite imprisonment (rights to fair trial too)

sections 1 to 15

classic liberalism rights

sections 16 to 22

policies of official bilingualism

section 23

entrenched minority language rights

• English speakers in Quebec can send their kids to English schools

• French speakers in other provinces can send their kids to French schools

sections 25 to 29

rights of Indigenous, BIPOC, women, and religious groups

"the people's constitution"

Held a special joint commission to hear the people (and piss off the Gang of Eight)

Lots of advocacy groups came forward = group rights (queer, Indigenous, BIPOC, disabled, labour, civil liberty, etc.)

Charter Canadians were largely supporting the charter (they cared!), so couldn't just ignore them

section 33

Key compromise that created the constitution

Gang of Eights and the Night of the Long Knives is the reason why it was created (Trudeau didn't want to but was forced)

VERY CONTROVERSIAL = undermines the Charter because it allows a province or the federal government to create a law that violates section 2 or sections 7 to 15

Protects a law from being struck down for 5 years (but no limits on how many times it can be used)

In 1982, Quebec government passed all their laws with section 33 to be petty

Federal government has never used it

Makes the government that uses it look bad, and Trudeau knew that, so that may have been why he agreed to the compromise

"We know this law violates your rights, but we don't care"

section 1

Has grown to be much more important than section 33

Suggests our rights are not absolute (reasonable limits and prescribed by the law)

Section 1 = "constitutional loophole"

Section 33 is barely used, but basically every Charter case boils down to section 1

1. Judge must decide if the law places limits on the rights guaranteed by the charter

2. IF YES, then are they reasonable in a free and democratic society?

• Supreme Court needed to test the reasonable limit - now known as the Oakes Test

supreme court basics

9 justices,

Three justices must be from Quebec (justices trained with Quebec's civil code)

CONVENTION = 3 from Ontario, 2 from the West, 1 from Atlantic Canada

Allowed to serve until the age of 75

Most senior members is usually the Chief Justice, but Governor General may appoint someone else on the advice of the PM

8 other justices are known as puisne = younger (in French) justices

supreme court qualifications

no official requirements to become a Supreme Court judge, except:

Must be a lawyer, with minimum 10 years of experience

Ppl have argued judges should be fluently bilingual, but not an official requirement

Judicial experience is not required, so sometimes private practice lawyers are appointed to balance/compliment judicial experience already there

becoming a supreme court judge PAST

minister of justice would consult members of the legal community in the region the judge would be coming from ("old boys' school")

Short list of candidates for the PM to decide

Governor General would accept

VERY SECRET until the announcement

Liberal governments appointed liberal judges, conservative governments appointed conservative judges

becoming a supreme court judge 2005 PAUL MARTIN

2005 PM Paul Martin had Minister of Justice give the list to a committee that consisted of:

• MP from each party in the House

• Attorneys general from region the judge would be chosen

• Representative of regional law societies

• Retired judge

• 2 prominent citizens (noy lawyers or judges)

Committee would recommend 3 names to the PM, who would nominate one of them

Minister of Justice would then defend the choice in front of the House of Commons

becoming a supreme court judge 2006 HARPER

Harper made Rothstein stand in front of House for a parliamentary hearing

Harper didn't do the hearing for the next justice, and changed the committee to only have MPs

becoming a supreme court judge 2015 TRUDEAU

Trudeau re-established an Independent Advisory Board for the Supreme Court of Canada Judicial Appointments

republican critique

Called for a more democratic process

• provinces to nominate candidates for the Supreme Court

• nominations be considered and ratified by Senate

• justices are fixed for 10 year terms (no serving to 75)

federal critique

Focus on the structure of the court system, not its operation

BASICALLY, provinces should have a role in the appointment process because provinces and federal government fight in front of the Supreme Court

Whenever power of the federal government is challenged by provinces, they choose the referees (Supreme Court)

Supposed to be unbiased, but cannot fully remove their bias

Quebec has said Supreme Court should be entrenched in the constitution, because they don't believe they would ever get a fair trial with federal court judges

• Fair TBH, pop off Quebec

2019 = Trudeau created the Independent Advisory Board for Quebec

• Separate committee for Supreme Court justices from Quebec

old v. new constitution main differences

Old constitution = white male dominance, federalism, OLD CANADA

News constitution = multiculturalism, Aboriginal right and title, gender equality

Quebec feels like it has been reduced from a full partner in federation to another multicultural group in Canadian politics

Charter challenges principles of federalism, and limits the power of Parliament

new and old constitutions are NOT compatible

charter v. federalism

Before federal and provincial government were the only players in the constitutional game, BUT NOW there are interest groups whose rights are constitutionally protected and their perspective of federalism is completely different

charter v. responsible government

Charter removes some power from provinces and federal government

Critics of the charter say it is undemocratic for unelected judges to strike down the laws of elected legislators

Canada = liberal democracy

BUT the core principles of liberalism (liberty and equality) are not always congruent with democracy

Charter bulwarks against tyranny of the majority

judicial branch

The branch of government in which judicial power is invested – it deals with interpretation of the law, the legal system, embodies justice, law, and order
and justice within a political community,

what type of judiciary system does Canada have?

integrated judicial system

Single system of courts, under joint custody of both levels of government

The court that handles each type of case is also a jurisdiction

provincial court

handle most cases (traffic, family, small claims)

provincial superior court

serious offences and crimes

Less serious crimes can go to the federal tax court, tribunals

supreme court cases

criminal cases can end up here if they have been appealed all the way up from lower courts

Get to choose the cases they see if there has been a serious error in a lower level court or important legal/constitutional issue (ex: Charter cases)

Also makes decisions for jurisdiction disagreements between federal and provincial governments

functions of judiciary

1. Adjudicate legal disputes between private parties (private law)

2. Adjudicate cases in public law (crimes)

3. judicial inquiry

4. judicial review of constitution

adjudicate legal disputes between private parties (private law)

Mostly provincial jurisdiction

• Quebec's separate civil code, common law everywhere else in Canada, so it makes sense to be at the provincial level --- Provinces have their own bar exams for this reason as well

• A lot of laws are made at the provincial level, and disputes are local/provincial level dispute --- Ex: renter and landlord dispute

Contract law, marriage, divorce, last will and testament, child custody

Adjudicate cases in public law (crimes)

Federal jurisdiction (criminal code of canada) AND provincial jurisdiction (takes place in provincial superior courts)

Public law is there to protect society (Canada's social contract has been broken, not a private contract between 2 civilians)

- HOWEVER, a victim of a crime can sue the criminal in private law for psychological and physical damages

judicial inquiry

Federal OR provincial jurisdiction

Called upon for a special inquiry

Executive government recognizes there's a societal issue that needs an unbiased legal perspective to research it further (which is better for Canadians want)

• Executive branch might be causing those problems, so you want an outsider

Form a commission (often called Royal commissions) who will research for months or years and produce reports that are usually available to the public

• Will provide solutions to government or other groups in Canadian society

Ex: MMIWG inquiry, Truth and Reconciliation Commission

judicial review of constitution

Federal jurisdiction in the Supreme Court of Canada

interpret the constitution of Canada and most important role for the Supreme Court

When: a case is related to the constitution, or when there's an unconstitutional ruling in a lower level court
- Called Charter cases

Supreme court are the ultimate interpreters of the constitution

Ex: Multani case (Kirpan in Quebec school)

fundamental principles of judiciary/judges

impartial, independent, rule of law

impartial

= freedom from prejudice

Appeal courts (judge can be judged for their decision by others)

Have a passive role in court cases - just listen to the cases and evidence presented by the lawyers

expected to be politically neutral - cannot be a part of any political parties or publicly support/disagree with a political party/decisions

independent

= judicial branch is separate from the executive branch

Can only be removed if they are no longer physically or mentally capable, or if they have partaken in unethical behaviours

Salaries are protected from interference (executive branch can’t see or do)

Control their workload (how many cases they want to see)

rule of law

= equality in front of the law

HOWEVER, money can buy a better lawyer but they won't get a better or more sympathetic judge this way

Everyone has the right to legal representation, if they can't afford it

judicial activism

comes from justices in the supreme court who were heavily involved in Charter case rulings

• Ex: 1988 ruling that the law criminalizing abortion is VOID, as it infringes on a person's rights under Section 7, security of one's person

• SINCE THEN, there have been no rulings on abortion so it had a profound impact on Canadian society

Can influence the making of law - Supreme court is a legal AND political institution

• Undemocratic for UNELECTED judges to do so (supposed to remain impartial)

• These discussions should happen in parliament, by elected officials

Supreme court cannot avoid becoming political because it is part of their job to assess the constitution and rule on Charter cases

limit judicial power

changing how supreme court justices are appointed (reform recently with independent experts giving a list of names)

If judges are elected, it could cause them to make rulings with popularity in mind, rather then what is correct under the law


Charter dialogue - discussions on a law's legality before it is proposed (usually with the attorney general)

Section 33 - limits charter rights, but supreme court is unable to do anything once this clause has been used (at least for 5 years)

- Some argue its about parliamentary sovereignty and some say it makes the Charter useless