POL 151 Final

executive appointment

the process of selecting judges

judicial accountability

judges should be accountable for their actions on and off the bench. (Direct answerability to the public or to parliament through transparency of rulings)

Judicial Impartiality

absence of bias in courts

English system of law

monarch regarded as the foundation of judges

provincial executive

appoint S.92 court judges

federal executives

appoint all S.101 and S.96 court judges

appointment by the cabinet

provincial governments appointing half of all judges in Canada

provincial cabinets

administer day-to-day operation of the provincial government

judicial appointments advisory committee

established in 1995, submits a list of at least two names to the AG who must select a judge from this list

nominating committee

nominates judges

direct accountability

not a goal of any province's selection system

Appointment of Supreme Court Justices

- not addressed in the constitution, instead guided by the Supreme Court Act of 1875
- the choice made by the prime minister with help from minister of justice

Supreme Court Act of 1875

- 3 judges must come from Quebec

Quebec civil law system

also concerns themselves with private affairs of citizens

2004 recommended reforms of appointment process

1. the creation of a commission to recruit and evaluate candidates
2. the introduction go legislative scrutiny of the prospective appointee before official selection by the PM
- for the first time, any qualified canadian lawyer or judge can apply

judicial elections in America

been proven to have influence on judges and their branches, when judges are closer to a re-election period, they become more punitive

Three steps of appointments by executive branch

1. President nominates an individual
2. Senate judiciary committee holds hearing on the nominee and makes a recommendation
3. a vote takes place on the senate floor - the nominee is confirmed by a majority vote

desire for judicial accountability

stems from the history and distinctiveness of American political culture - particularly their greater distrust of government

foundational concept of judicial independence

of adjudication, of any triadic dispute resolution process
- requires that the 3rd party that resolves the decision is independent of the two other parties, must be impartial or neutral with regards to the outcome of the dispute

judicial independence

an objective relationship of separation between courts and other actors, such as the executive branch of government, which permits a judge to be impartial

importability

a subjective mind or attitude in relation to the issues and parties of a case. Absence of bias, actual and perceived

Questions we can ask about judges

- are judges, both individually and collectively, formally protected from interference by other individuals and institutions in the political system?
- does the behaviour of a judge display autonomous decision-making
- is it crucial that judges approach cases as impartially as possible?

main concern of judicial independence

from government - judges expected yo not have extensive connections to the private parties appearing before them

2 ways of thinking about judicial independence

1. relational: the formal institutional protection for judges, as individuals, the institutional protections for judges, as individuals and as a group, from other individuals and institutions in the political system
2. behavioural: whether pr not actual judicial behaviour displays autonomous decision-making
- it is widely believed that formal protections make autonomous decision-making possible

Judicial independence requirements

1. job security (tenure): a judge must not fear removal for ruling on a case, and should be insulated from that
2. financial security: salaries shouldn't be arbitrarily cut, and judges should earn enough so that they are not vulnerable to bribes
3. administrative control: by the judges themselves over the workings of the county. More or less expansive control?
- min requirement: control over assignment of judges, sittings of the court, court lists, allocation of court rooms, and direction of administrative staff

act of settlement (1701)

judicial appointments were valid 'during good behaviour' and can only be removed

Charter of Rights and Freedoms (1982)

1. any person charged with an offence has the right
a) to be presumed innocent until proven guilty according to law in a fair and public hearings by an independent tribunal

the rule of law

the government must act through recognizes legal channels and not arbitrarily and is bound by its own laws, as enforced by an independent judiciary

independence judiciary

unwritten constitutional principle

seven key issues affecting judicial independence in canada

judicial exposure to civil or criminal proceedings, politicians contacting judges about cases, judicial education, structural threats, reference cases, judicial appointments, public criticisms of judges

judicial exposure to civil or criminal proceedings

if a judge were to make a decision, legitimately carrying out their duties, but then subject to a civil suit or criminal proceedings for doing so. It is a well established principle in common law that judges enjoy immunity from such proceedings

politicians contacting judges about cases

- judges should be free from interference by state officials. The PM, MPs, and members from the cabinet should not contact judges directly regarding cases over which they are presiding.
- Federal guidelines how exist which prohibit contacting judges about cases.
- this principle also applies to the attorney general

the SNC Lavalian Affair (2019)

- found that PM Justin Trudeau had improperly sought to influence the prosecution of the SNC Lavalian
- Jody Wilson-Raybould: there was a breach of prosecutorial independence when members of the government pressured her to offer SNC Lavalian a plea deal instead of proceeding with criminal prosecution

judicial education

- prospective judges aren't trained in Canada
- Newly appointed judges require training in order to perform their duties properly and avoid misconduct
- they also need training over the course of their careers to keep up with developments in law
- how is this training conducted without violating judicial independence? who conducts it?
- it is clear that the executive and legislative branches cannot provide it

structural threats

- the power of government bodies outside the judiciary to create and modify judicial institutions
- lower courts have no constitutional protection against structural reforms
- provinces have wide authority to recognize S.92 and S.96 courts

reference cases

- the power of the political executive to 'refer; questions to the court on 'any matter whatsoever'
- federally to the SCC, provincially to the top appeal court
- and the rulings reached are cited by courts and recognized by governments like all other cases
- often politically controversial issues
- does this blur the separation of powers between executive and judicial branches?

judicial appointments

- judicial independence may relate to judicial appointments methods
- judicial appointments are executive appointments with only minor constrained made by screening or nominating committees
- wholesale restricting of the process may pose a structural threat to judicial independence

public criticisms of judges

- it was a long-standing tradition that politicians should not publicly criticize judges for their rulings
- judges could not charge individuals with 'contempt of court'
- this tradition has been declined

two versions of accountability

- weak version: judges must render their decisions and provide justification for them publicly, they must also ground their rulings in established precedent and law, and justify their decision when they do not
- SCC: judges accountable to broader society
- stronger version: more direct answerability to the public, other judges, or branches of government

professional accountability

judges are accountable to the legal community to their peers

democratic accountability

to the wider public and their elected representatives

judges in canada shape public policy

1. internal clarification, a by-product of interpreting the law and how it should apply to a certain situation
2. adapting laws incrementally to suit new social, economic, and technological situations
3. directly and actively creating rules and policy

the challenge of dunmore v. Ontario (1995)

- agricultural workers in Ontario launch a charter case after a newly elected conservative government repeals legislation that extended trade union protection and bargaining rights to agricultural workers. this policy violates the charter right to freedom of association
- justice bastaracne strikes down the clause of the law

policy-making model

willingness to allow shape of law, to use social facts, allow interveners, relax the rules concerning political questions, standing, and mootness

4 ways courts shape law and policy in non-constitutional cases

- reviewing decisions made by administrative tribunals
- courts can have a cumulative policy-making rule
- judges shape police through clarifying the law
- creating new rules

1. reviewing decisions made by administrative tribunals

- courts often deferential to tribunals but not always
- and not even when they are deferential, policy implications can result

pre-cautionary principle

government must anticipate and prevent environmental degradation

2. courts can have a cumulative policy-making rule

routine decisions made by judges when applying legislative or common law can forge policy over time in the aggregate

3. judges shape policy through clarifying the law

- filling in gaps of law when applying common law precedents of legislation to specific cases
- legislation may be poorly drafted
- or not written precisely enough to cover every possible situation
- when law is not clear, judges make the rules

4. creating new rules

- judges can deviate from applying legal rules that are laid out fairly clearly in common law or legislation
- the most controversial method of judicial policy-making

In BC, areas of daily life are covered by human rights protection

employment, tenancy services like stores and schools, buying land or a house

charter application

the charter applies only to the actions of all governments and organizations controlled by the government

judges legal authority

was not until the charter of rights and freedoms was added to the constitution that judges were given clear legal authority

empowered judges

review the constitutionality of provincial of federal laws

charter interpretation

- the scc has said that charter rights deserve a 'broad and purposive' or 'large and liberal' interpretation
- also emphasizes a 'living tree approach' rather than a 'framer's intent' approach

limitations of rights

scc has made it easier for claimants shifting the burden of proof to the government to justify the limitations of rights are reasonable under the S.1 of the charter

S.1

the rights and freedoms set out in the charter are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"

the Oakes test

1) does the law have a pressing and substantial objective in a free and democratic society
2) does the law have means that are proportional to meet that objective
a) are the means rationally connected to the end
b) do the means impair the right as little as possible
c) are the effects if the measure proportional to the objective - collective benefits

Oakes test and judges

requires judges to engage in legislative tasks and evaluate the objective and means of public policy

reading in

when a court adds language to legislation to make it constitutional

arguments against judicial policy-making

1. the charter and its application encourage unelected and accountable judges to make policy decisions that are more rightly reserved for elected politicians
2. right wing critics argue that the charter and its application have favoured equality-seeking groups such as feminists, allowing groups to bypass the political process to achieve policy goals
3. left wing critics argue that those who already have socio-economic power
4. critics on both sides of the spectrum argue that expansive interpretation of the charter have politicized the judiciary and make politics a thoroughly legalized field
5. concerns made over institutional capacity of courts decide policy questions
6. framer's intent of constitution and law is ignored

support of active judicial review

1. the charter was entrenched by elected politicians and judicial policy making and the protection of rights pre-exist in the charter
2. because judges don't have to worry about votes, they can inject an element of principle and reasoned decision-making that may be lacking in the legislative and executive branches
3. charter review can enhance liberal democracy by advancing the goals of the protection of minority rights and social equality, especially for disadvantaged who are marginalized from the traditional political process

post-materialism

value orientation that emphasizes self-expression and quality of life over economic and physical security

when was the charter of rights and freedoms passed in canada

1982, the charter entrenched certain rights and freedoms in the constitution
- today in Canada, demand are usually expressed in the language of rights and freedoms
- courts are active ruling upon and protecting rights claims

rights

individual and group entitlements that are considered so fundamental to human dignity that they receive special protection under the law and usually under the constitution of a country

freedoms

involves an individuals liberty to do or believe certain things without restraint by government

political rights/fundamental freedoms

freedom of association, assembly, expression, belief, religion

democratic rights

rights to vote and stand for office

legal rights

right to due process, freedom from arbitrary arrest

economic rights

right to own property

equality rights

everyone's right to equal protection under the law and the right to be free from discrimination

S.2 - Fundamental Freedoms

freedoms of conscience, religion, thought, belief, opinion, expression, peaceful assembly, association

S.7-14 Legal Rights

life, liberty, security of the person. Arrest and detention, search and seizure, etc.

S.15 Equality Rights

equality before and under the law. Against discrimination on the basis of race, religion, national or ethnic origin, colour, age, sex, disability

S.27 commitment to multiculturalism

interpret the charter in a consistent manner with regards to preserving and enhancing the multicultural heritage of Canadians

reasonable limits clause

charter of rights and freedoms are not absolute and government can in certain circumstances limit a right

the notwithstanding clause

Allows any government to exempt a particular law from the conditions of the Charter

social rights

the right to a job, decent housing, healthcare, economic security
- no explicit mention of social rights in the charter

substantive equality

An approach to the interpretation of equality rights premised on the idea that individuals may experience advantages or disadvantages as a result of belonging to a specific group and that their equality rights claims should be judges against the reality of these group-based inequalities

group rights

such as indigenous rights or religious minority rights

vitra vires

beyond the powers

R. v. Drybones

Struck down a provision in the Indian Act that made it an offence for an Indian to be intoxicated off reserve.

Status Indian

A First Nations person who is registered according to the provisions of the Indian Act and is therefore eligible to receive specific benefits.

indigenous

peoples of long settlement and connection to specific lands, who have been adversely affected by European settlement

aboriginal

first inhabitants of canada. used in constitution of 1982

First Nations

collective term that refers to indigenous peoples who are not Metis or Inuit. Points to the right to self-determination

metis

specific cultures and identifies that resulted from unions between indigenous and European peoples in what is now Canada

inuit

indigenous peoples who generally live in the far north

Indian

the legal identity of a First Nations person in Canada

the Indian act

an Act created to regulate the lives of the First Nations of Canada

aim of Indian Act

control and assimilation and defines who counts as a legal Indian

indian definition in 1876

any male person of Indian blood that belonged to a band or a child of such a person, of a woman married to such a person

the reserve system

- mostly located on the fringes, in remote areas away from valuable or productive land
- indians living on reserves were placed under total control
- reserves owned by the crown

the pass system

status Indians were nor allowed to leave their reserve without written permission of the local Indian agent

the band system

limited powers of governments assigned by the federal government to elected band councils and chiefs on reserves. Traditional and inherited Indigenous modes of government were delegitimized and European practices enforced

the white paper, 1969

The 1969 White Paper proposing the abolition of the Indian Act. Canada shouldn't negotiate any further treaties with the Native peoples.

indigenous sovereignty

the right of indigenous peoples to self-government

Royal Commission on Aboriginal Peoples

original sovereignty of Indigenous peoples and their ownership of the land to which they law historical claim must be acknowledged and their continuing right to a land base and self-government must be embedded in the constitution

1763 Royal Proclamation

dealt with North American territories surrendered by France to the British, and included detailed provisions regarding the relations between British and Indigenous inhabitants

Delagamuukw v. British Columbia (1993)

a group of Gitksan and Wet'suwet'en chiefs argued that they owned an area in British Columbia roughly the size of Nova Scotia