POLS REVIEW Q and A

Power and the Role of Courts

1. Power: Courts and judicial decisions have distributional effects

   • Courts shape who benefits or loses from law by interpreting legislation and rights, influencing policy outcomes and social resource distribution.

2. Courts create tensions between different ideals of democracy (legitimacy, accountability, separation of powers, etc.)

   • Judicial independence ensures legitimacy but reduces direct accountability, creating tension between democratic control and impartial justice.

3. We want judges insulated from politics, but this can go too far and reduce accountability

   • Too much insulation can make judges appear unaccountable to the public, weakening trust in judicial legitimacy.

4. (Shapiro 1981; Russell 2010)

   • Both argue courts must balance independence with accountability to maintain legitimacy within a democratic system.

Facts about the Court System

5. Different types of law and legal systems

   • Public law (constitutional, criminal, administrative) vs. private law (contract, tort, family).

   • Common law system in Canada (except Quebec’s civil law for private matters).

6. Court structure in Canada (s. 92, 96, 101)

   • s. 92: Provincial courts created and managed by provinces.

   • s. 96: Superior courts with federally appointed judges.

   • s. 101: Federal courts (e.g., Federal Court, Supreme Court of Canada).

7. Jurisdictional authority of various courts

   • Provincial courts handle most criminal and family cases.

   • Superior courts hear major civil and criminal trials.

   • Federal courts handle national matters (immigration, IP, maritime, etc.).

   • Supreme Court of Canada is the final appellate court.

8. AG, Minister of Justice, Dept. of Justice

   • The Attorney General (AG) represents the Crown in legal matters.

   • The Minister of Justice oversees legal policy and law reform.

   • The Department of Justice supports both with legal advice and litigation.

9. Hennigar 2002, SNC-Lavalin Affair

   • Illustrates tension when political and legal roles of the AG/Justice Minister conflict — e.g., Jody Wilson-Raybould’s removal for resisting political interference.

10. Potential conflict between legal and political rules

    • Law demands impartial justice; politics seeks strategic advantage. This can put officials in difficult positions.

11. Can be punished politically for legal independence (e.g., LJW)

    • Acting independently may lead to political consequences despite fulfilling legal duties properly.

Judicial Process

12. Procedural requirements to launch legal challenge (justiciability: standing, mootness, ripeness, political questions)

    • Generally relaxed in Canada. Courts often hear cases of public interest even without direct personal harm.

13. Key cases: Borowski (1981, 1989)

    • Established standing for public interest cases, but also found appeals can become “moot” if the issue is no longer active.

14. How do cases get appealed (MOJ, DOJ)

    • Appeals move from trial → provincial appellate → Supreme Court (with leave).

    • MOJ/DOJ may intervene or appeal cases in the public interest.

Judicial Decision Making

15. Judicial reasoning: Issue, Rule, Analysis

    • Courts follow the IRAC model: identify the issue, apply the rule, analyze facts, and conclude.

16. Trial vs. Appellate courts

    • Trial courts hear facts and evidence; appellate courts review legal errors and precedents.

17. SCC: Conferencing, opinion writing

    • Justices meet privately to discuss, then one justice writes the majority opinion; others may write concurring or dissenting opinions.

18. Expert witnesses

    • Provide specialized knowledge to assist in determining technical or scientific facts.

19. Source of social facts

    • Social science evidence, research studies, and interveners inform broader context beyond legal facts.

20. Interveners (interest groups and governments)

    • Submit written arguments (factums) to influence judicial reasoning and outcomes.

Actors in the Judicial Process: Judges

21. Appointment process: s. 92, 96, 101

    • s. 92: Provinces appoint provincial judges.

    • s. 96: Federal government appoints superior court judges.

    • s. 101: Federal government appoints judges to federal courts.

22. General stages of appointment

    • Eligibility screening → nomination → short list → review by Minister of Justice → appointment by Governor in Council.

23. Role of judicial councils

    • Advise on conduct, investigate complaints, and recommend discipline or removal.

24. Partisan influence?

    • Still exists; appointments often reflect government ideology or networks (Hausegger et al. 2010).

25. Example: Alberta Justice Minister replaced committee with like-minded members

    • Shows potential for partisan bias in the appointment process.

26. Representation – Wilson (1990), Lawrence (2010), Reference Re Supreme Court Act (2014), Crandall (2022)

    • Cases emphasize gender, regional, and bilingual representation in judiciary; the Reference case confirmed SCC eligibility limits.

27. Reforms to appointment process

    • Goals: increase diversity, bilingualism, and transparency.

28. Pre- and post-1990s Harper/Trudeau changes

    • Harper prioritized ideological fit and law-and-order values; Trudeau emphasized diversity and merit transparency.

29. Different governments prioritize different values

    • Appointments reflect governing party’s political ideology and priorities.

30. Independence vs. Impartiality – Valente (1985)

    • Confirmed three essential elements of judicial independence: security of tenure, financial security, and administrative autonomy.

Independence and Accountability (Russell 2010)

31. Three mechanisms of independence:

    • Security of tenure, financial security, administrative autonomy.

32. Security of tenure: process to remove judges

    • Removal only for misconduct or incapacity via judicial council review and parliamentary recommendation.

33. Role of judicial councils (provincial & federal)

    • Investigate complaints and make recommendations on discipline/removal.

34. Judicial review to contest removal (Mareau-Berube, Douglas, Girouard, Brown)

    • Judges can challenge disciplinary decisions in court to ensure fairness.

35. Financial security – Remuneration Reference (1997), Bodner v. Alberta (2005)

    • Government cannot arbitrarily change judicial salaries; must consult independent commissions.

36. Administrative autonomy

    • Judges control court administration to maintain impartiality and prevent political interference.

37. Ethics: On and off the bench (CJC Ethics Handbook)

    • Judges must avoid bias, maintain dignity, and avoid public political involvement.

38. Importance of perception (Justice Mitchell)

    • Public confidence in impartiality is as important as actual impartiality.

39. Role of retired judges (Salzyn 2019; Mancini & Siglet 2020; SNC Lavalin)

    • Retired judges often mediate or advise governments but must avoid conflicts of interest.

Interest Groups and Social Change

40. Indirect and direct action

    • Indirect: Education, research, public campaigns.

    • Direct: Sponsoring cases, intervening in court, or initiating litigation.

41. Examples: CCLA, LEAF

    • Canadian Civil Liberties Association and Women’s Legal Education and Action Fund advocate through strategic litigation.

42. Pros and cons of legal action

    • Pros: Can create lasting precedent, gain visibility.

    • Cons: Costly, slow, uncertain results.**

43. Identity constraints or opportunities

    • Groups may gain legitimacy or face backlash depending on how courts frame their claims.

44. Favourable set of facts/dispute

    • Strategic litigation often depends on finding strong, sympathetic test cases.

45. Permanency of judicial victories

    • Court rulings can be overturned by new laws or constitutional amendments.

46. Laws directly affect policy alternatives and development

    • Court decisions can constrain or expand future government policy options.

47. Intervening: often granted standing

    • Courts often allow interveners when their expertise aids judicial reasoning.

48. Alarie & Green (2010), Trinity Western (2018)

    • Show how courts consider public values and equality rights when balancing freedom and discrimination.

Social Change and the Courts

49. Epp (1998), Rosenberg (1991)

    • Argue courts can drive social change when supported by political and legal networks (“support structures for legal mobilization”).

50. Court Challenges Program

    • Provides funding to support equality and language rights cases; reinstated by Trudeau government.

51. Democratic? Bordie (2002) says no, Hein (2001) says yes

    • Debate: Critics say unelected judges shouldn’t shape policy; supporters argue rights protection strengthens democracy.

52. Prosecutor, plaintiff, defendant (MOJ never far away)

    • The Ministry of Justice often plays a background role, ensuring legal consistency and fairness in public interest cases.

53. Intervener (McNabb 2023)

    • Confirmed that interveners can add valuable perspectives without becoming full parties.

54. Reference questions

    • Governments can ask courts for advisory opinions on constitutional or legal issues (e.g., Senate Reform, Assisted Dying).

55. Direct access to courts: strategic and quick

    • Reference questions allow governments to clarify legality without waiting for a lawsuit.

56. Appeal cases

    • Allow review of lower court decisions for legal error or misinterpretation.

57. Appoint judges

    • A core executive power under s. 96 and s. 101, shaping the long-term legal direction of the country.