Page-by-Page Notes: The Judiciary, Law, and Courts (Pages 2–38)
Page 2
Topic: Comparison of political systems—Canada/UK-style fusion vs. U.S. presidential system.
Canada/UK: Executive drawn from legislature; PM/cabinet tied to Parliament; elections can be called early if confidence is lost.
Pros (Canada/UK): Efficient lawmaking with majority government.
Cons (Canada/UK): Less direct leader election; potential instability if confidence is lost.
U.S.: President elected separately (Electoral College); can pass legislation quickly if aligned with Congress.
Pros (U.S.): Strong, clear head of state; momentum in policy when aligned with legislature.
Cons (U.S.): Won’t always reflect popular vote; potential accountability gaps; mid-term unpopular leaders.
General take: Flexible but potentially unstable (parliamentary systems) vs. stable but slower (presidential systems).
Page 3
Central question: If judges interpret the Constitution, where does their power come from?
Highlights the ongoing debate about the source and legitimacy of judicial power to interpret constitutional provisions.
Page 4
Activist vs. restrained judicial interpretation.
Activist judges read context into the law, providing missing context to approach and potentially shape law.
Page 5
Introduction to Marbury v. Madison (1803).
Issue: Delivering commissions vs. legal authority to hear the case.
Holding: Marbury was right that commissions were effective when signed; the Judiciary Act of 1789 extended the Court’s original jurisdiction beyond the Constitution, which was unconstitutional.
Impact: Established judicial review—the power of courts to invalidate legislation deemed unconstitutional.
Note: Marbury left unresolved the full scope of judicial review; Hamilton’s view minimized the judiciary’s power; modern courts are powerful political actors.
Page 6
Topic: Judicial Review and the Canadian Constitution.
1981: Supreme Court of Canada faced constitutionality of Ottawa’s plan to restructure constitutional amending procedures and entrench a Charter of Rights and Freedoms.
Canadians were surprised by the Court’s involvement in a political question; shows the evolving role of judicial interpretation of the Constitution.
Historical shift: British North America Act (1867) and the move toward an explicit basis for judicial veto (Section 52) after patriation in 1982.
Charter and Aboriginal rights expanded the focus from federalism to individual/group rights.
Notwithstanding Clause (Section 33): allows overrides for five years on certain Charter rights; rarely used but politically significant.
Privy Council vs. Supreme Court: Pre-1949, JCPC was Canada’s appellate constitutional authority; post-1949, the Supreme Court becomes the final arbiter.
The Court’s role has expanded from resolving federalism disputes to adjudicating Charter and Aboriginal rights, with increasing public importance.
Charter-related decisions have grown from initial activism to a more varied, sometimes doctrinally mixed, jurisprudence over time.
Appointment framework: nine justices; three from Quebec; regional representation conventions; discussion of significance of Quebec civil law influence.
Page 7
Patriation and post-1982 constitutional framework solidified the Supreme Court’s central role.
Central figures: Severn v. The Queen (1878) as a historical anchor; Severn decisions illustrate early federalism interpretations.
The Court’s independence evolved as Privy Council appeals ended; the Court gradually gained autonomy to interpret the Constitution.
In the 1960s-1980s, the Court expanded its handling of federalism and Charter issues, shaping Canada’s constitutional order.
The Patriation Reference and related cases (e.g., Quebec veto/secession references) tested the amending process and the Court’s role in constitutional structure.
Overall: A move toward a balanced approach to federalism, rights protection, and the use of the Charter to shape public policy.
Page 8
Transition from Privy Council to the Supreme Court as Canada’s constitutional arbiter.
Section 33 Notwithstanding Clause as a deliberate tool to insulate legislation from Charter challenges.
Debate over compatibility of override with constitutional rights and democratic accountability.
Page 9
The Supreme Court’s rising prominence as Canada’s constitutional arbiter continued.
The Court’s early Charter decisions signaled an activist posture, followed by periods of moderation.
The Court’s treatment of civil liberties, Aboriginal rights, and the division of powers demonstrates a shift from a strictly centralist view to a more balanced federal approach.
Page 10
The Court’s evolution: from a predominantly federalist controller to a robust protector of rights and a critical archive of federalism jurisprudence.
Emphasis on the Court as a dynamic institution whose decisions reflect political realities and influence policy.
Page 11
The 1970s-1980s division-of-powers litigation surged: more cases, more contentious debates between federal and provincial governments.
Notable shifts: Anti-Inflation Reference (moving away from national concern approach); offshore minerals (federal jurisdiction expansion).
The Court’s credibility as an impartial umpire fostered more constitutional litigation and contributed to the evolution of Canadian federalism.
By late 1980s-1990s, Charter and Aboriginal-rights litigation dominated much of the docket, with a continued but less dominant presence of pure federalism cases.
Comparisons to the U.S. show Canada’s federalism jurisprudence becoming more balanced over time.
Page 12
Patriation of the Constitution in 1982 did not create a new constitution but added three elements: Charter of Rights and Freedoms, Aboriginal rights, and amending formula.
The Charter’s entrenchment significantly increased the Court’s role in protecting individual rights.
Judicial activism in Charter cases initially high, with many first decisions upholding Charter claims; later years show more nuanced outcomes.
Page 13
Charter cases produced a major increase in the Court’s docket and influence on public law.
The Court’s activism in the Charter era sparked ongoing debates about judicial interpretation and the boundaries of judicial power.
Page 14
Early Charter decisions showed a willingness to strike down laws and impose liberal interpretations of rights, followed by moderated activism as jurisprudence matured.
Page 15
Aboriginal rights era begins with Sparrow (1990) and evolves through Delgamuukw and Haida Nation.
Sparrow encouraged a liberal approach to 35 rights; Delgamuukw expanded Aboriginal land-rights protections.
Aboriginal rights litigation interacts with political negotiation; litigation can be costly but can yield favorable negotiating leverage.
The Court’s Aboriginal-rights agenda often elicits political controversy and public reaction.
Page 16
Aboriginal rights decisions continued to shape policy while also interacting with politics (e.g., Canada Social Assistance Reference; Hydro-Québec).
The Court’s role remains multifaceted: rights protection, division of powers, and constitutional amending process.
Page 17
The Justices and appointment process:
The Supreme Court Act sets the structure: Chief Justice + eight puisne judges.
Appointments are made by the Governor in Council (the federal Cabinet).
Qualifying criteria: minimum legal experience; three judges must come from Quebec due to civil-law relevance.
Regional representation conventions: Ontario (3), Western provinces (2), Atlantic (1); Quebec’s mandatory three seats.
Page 18
(Content not provided in transcript.)
Page 19
Chapter focus: The Judiciary—politics, law, and the courts.
Courts balance support and opposition; interpret laws with policy implications; inherently political role
Page 20
Chapter objectives: understand the legal system’s role, independence/impartiality, judge selection, decision-making factors, access to justice.
Introduction: Courts enforce law and resolve disputes; judges shape law via enforcement, interpretation, and sometimes creation; courts can block or shape government action through constitutional and rights-based challenges.
Page 21
What is law? Key questions on who makes law, how it’s enforced, and content.
Law is created by recognized authorities (state actors), and enforcement distinguishes law from norms.
International law can be domestic or supranational; enforcement may require domestic incorporation or international courts.
Legal philosophies: positivism (law as a set of rules by recognized authorities) vs. natural law (universal principles often tied to norms or prosperity).
Page 22
Public opinion on social issues (e.g., same-sex marriage) can influence or be influenced by legal decisions; the interplay between law and social norms is dynamic.
Page 23
Domestic vs. international law; NAFTA as an example of international law; ICCPR as a broad rights framework; enforcement challenges across borders.
Distinctions between public law (state relations, constitutional, criminal, administrative) and private law (contracts, torts, family law).
Law can be national, or imported into domestic systems to be enforceable in courts.
Page 24
Four main types of legal systems: common law, civil code, religious law, customary law.
Common law relies on precedent and stare decisis; civil code emphasizes comprehensive statutes and codes.
Religious and customary systems persist in various forms (e.g., Sharia in some states; customary indigenous laws).
History: from ecclesiastical courts to secular courts; adoption of mixed systems in many countries (e.g., Canada, Nigeria, Quebec, Scotland).
Page 25
Courts vs ADR: mediation (non-binding), arbitration (binding if agreed), adjudication (binding under established rules).
Tribunals (human rights tribunals, administrative tribunals) operate within or parallel to the formal judiciary.
Adjudication remains the core form of dispute resolution in many systems; ADR often complements courts.
Page 26
Adjudication defined; courts enforce the law; tribunals provide specialized dispute resolution in certain domains.
Types of disputes: private law, public law, administrative disputes; courts interpret and apply laws.
Page 27
Adversarial vs. inquisitorial approaches to court proceedings; jury trials in some systems; restorative justice as an alternative approach.
The judge’s role varies by system; lay judges or juries may participate in some contexts.
Page 28
Rule of Law: government acts through laws known to the public, applied equally, and disputes resolved by fair judges.
Rationale for elites endorsing courts: efficiency, legitimacy, international credibility, and policy delegations.
Buck-passing and delegation: leaders may use courts to handle controversial issues; public support for courts helps preserve independence.
Page 29
Judicial independence and impartiality: essential for effective adjudication.
Legal realism vs. formalism; judges’ backgrounds influence decisions; openness to interpretation varies.
Independence requires tenure, financial security, and some administrative autonomy.
Tenure length and removal mechanisms: balance between stability and accountability; many systems allow removal for cause or professional misconduct; peer-review and legislative/executive involvement.
Page 30
Administrative independence and budget control: risk of government influence on court funding.
Hungary example: political interference via a judicial czar showed risks to independence.
Page 31
Additional threats to independence: private political pressure on judges, structural changes to judiciary, attempts to stack courts.
Public support for courts strengthens independence; in low-support environments independence may weaken.
Distinction between independence on paper vs. in practice.
Page 32
Think and discuss prompts address real-world trade-offs in judicial decision-making and rights protection.
Page 33
Judicial independence and impartiality: deeper discussion of the concept and its implications.
Public confidence in courts (World Values Survey data) illustrates cross-national trust levels.
Page 34
Judicial interpretation debates: originalism vs. living constitutionalism; living tree doctrine in Canada; variety of international examples.
Critiques of judicial activism vs. restraint; concerns about judges creating law rather than interpreting it.
Page 35
Judicial discipline and removal: processes vary; some systems rely on judicial councils or peer review; others involve executive/legislative oversight.
Salaries and financial security: arm’s-length mechanisms (e.g., Compensation Commissions) help protect independence.
Page 36
Administrative vs. judicial independence continues to be debated; Hungary example shows risk of politicization.
Additional threats and safeguards discussed, including demographic diversity and merit considerations in selection.
Page 37
Judicial selection: two key questions—what qualifications are needed and who selects?
Patronage vs. merit; the role of diversity; training pathways differ across civil and common law traditions.
France, UK, and federations illustrate different models: professionalization, independent commissions, regional representation, and provincial considerations.
Page 38
Seminar #2 conclusion excerpt: Courts should enforce and interpret constitutions to uphold neutral, apolitical governance for the common good; courts act as a check on legislatures and executives, reinforcing accountability and the public interest.
Central takeaway: constitutional interpretation by courts is a normative choice about balancing neutrality, accountability, and the preservation of rights.