midterm exam

Important Terms and Concepts 

  • The State 

    • Actors who may legitimately exercise coercive/authoritative 

      • Division of powers – federal/provincial/municipal governments 

      • Separation of powers – legislative/executive/judicial powers 

  • What is Law? 

    • There is nothing concise enough to be recognized as a definition as a definition that could provide a satisfactory answer – H.L.A Hart 

    • A set or series of formal rules that govern the relations and interactions between people and/or organizations and are interpreted, applied or enforced by a judicial or quasi-judicial process 

      • Law is also what judges say the law is 

  • Liberty 

    • The individual 

      • Freedom is presumed as the general rule, individuals should be able to do whatever they want, whenever they want, wherever they want, unless they are prohibited to by law 

      • Restrictions are the exceptions 

    • The State 

      • Incapacity is presumed, state is incapable of doing whatever it wants, whenever it wants, however it wants unless it is given permission/authorized to do so 

      • Authority to act is the exception 

    • Our notion of liberty is tied to a communal interest in the state 

 

Law in Canada 

  • Public Law 

    • Government must be one of the litigating parties in a legal action 

    • Body of law that concerns public action 

      • Constitutional law, criminal law, administrative law 

  • Private law 

    • Disputes between individuals, groups, corporations or private entities (state is not involved) 

      • Contract law, property law, corporate law, estate law 

      • Tort law (damages): property, physical, emotional, psychological, economic, personal reputation 

        • This is related to negligence 

  • There are public dimensions to public law 

    • The public/private distinction of law is not always so clear cut 

      • Family law:  

      • Corporate law: should a business be able to acquire another business for the sole reason for putting it out of business? 

      • Estate law: should you be able to dispose of your own private property in any way you choose, even if the way you choose to do so is discriminatory 

  • Cy-Pres Doctrine 

    • Connected to royal trust vs western  

    • Common law 

    • Allows a judge to carve out discriminatory parts of the will while upholding as much as possible 

 

Sources of Law 

  • Hierarchy of authority 

    • First: Constitution 

      • 1867 BNA, 1982 Constitution Act 

    • Second: statutes- formal acts of governments passed in parliament (federal)/legislative assemblies (provinces) into laws 

      • Federal statutes: applies to everyone in Canada (Criminal code) 

      • Provincial statutes: applies only to one province 

      • Statutes must adhere to the Constitution, cannot pass laws that violate Charter 

    • Third: regulations 

      • Complicated as definition of regulations can vary 

      • Laws made under a delegation of authority by statute to another body or office 

        • Subordinate legislation 

      • Gives Minister power to make changes without being subjected to the legislative process 

    • Fourth: Case Law/common law 

      • Judge made law, what the judges say the law is 

      • Important because not all our laws are found in statutes 

      • Eg. Cy-Pres Doctrine was a common law principle applied by a judge 

      • Comes from precedence  

      • If legislative assemblies are unhappy with a common law judgement, they can pass a law 

        • Sometimes judges will have to declare acts of the government as unconstitutional 

  • Constitutional supremacy 

 

 

Lieutenant Governor in council 

  • Provincial cabinet/government 

     

Ultra vires 

  • Latin for being outside the domain of authority 

 

 

Roncarelli v. Duplessis  

  • Maurice Duplessis 

    • Premier of Quebec 

    • His time in office was known as "La Grande Noirceur" – "the Great Darkness" 

    • Was also the attorney general (minister of justice) 

  • Frank Roncarelli and Frank Scott 

    • Jehovah's Witness 

    • Restaurant owner with license to sell alcohol 

  • Important to remember Quebec was.. 

    • Small government state 

      • Catholic Church was heavily involved in things like education, welfare things, public services 

    • Duplessis was often in battle with federal government about maintaining the Catholic Church's dominance in delivering public services 

  • The Law: Alcoholic Liquor Act 

    • Alcoholic Liquor Act 

      • Contained under the revised statues of Quebec 1941 c 255, entitled An Act Respecting Alcoholic Liquor, a commission is created as a corporation, the only member of which is the general manager 

      • Section 5 says that all the power of the commission is in one person alone  

      • Section 35 makes provision for the cancellation of a permit  

  • Ratio Decidendi (Latin for the reasoning) - Majority 

    • "It is not proper to exercise the power of cancellation for reasons which are unrelated to the carrying into effect of the intent and purpose of the Act" 

    • The Supreme Court found that there was no reason for Duplessis to lawfully take away Roncarelli's license 

    • All government action must be authorized by law 

      • Authority to act must be found in constitution, statutes, regulations, common law judgements of decisions 

    • If a person exercising delegated power exercises it improperly, this would strike a blow to the fundamental constitutional order, which is the rule of law 

  • E.g. Can Quebec unilaterally secede from Canada? Quebec Secession (1998) 

    • Court said there is nothing in the Constitution that would allow ANY province to separate from the union 

    • Nothing in Quebec's laws allow for declaration of independence 

 

Style of cause – title of the case 

 

Second principle of Rule of Law 

  • There must be known and enacted laws 

    • Citizens need to know what the laws are, must be written down somewhere in legislation 

    • They must be enacted, they are a product of the legislative process and be 

  • E.g. Manitoba Language Rights (1985) 

    • Canada's Language Crisis 

    • Manitoba Act (1870) (constitutional document) 

      • "all laws in Manitoba must be passed in both English and French" 

    • Official Language Act (1890) or An Act to Provide that English shall be the official language of the province of Manitoba (Statutory Document) 

      • Over 90 years, all the laws were passed in English only 

    • Supreme Court considered this unconstitutional, in reference to the Manitoba Act 

      • Any laws that are unconstitutional are no longer valid or active 

      • Declared under section 52 of constitution 

    • The Supreme Court suspended the validity of their ruling to allow Manitoba to write down their law in English and French (for up to one year) 

  • e.g. Bilodeau v. A.G. (1986) 

    • Reaffirmed the Supreme Court's earlier ruling 

 

 

Third Principle of Rule of Law 

  • Everyone is subject to the law 

  • The Rule of Law is supreme law over any exercise of arbitrary power 

  • Equality before the law, irrespective of rank or station 

  • E.g. Wells v. Newfoundland (1999) 

    • Contract law case 

    • Government of Newfoundland and Andrew Wells 

    • Legislature enacted a law that abolished a public utilities board 

    • Wells sued the government, saying that government was breaking contract with employees when abolishing boards 

    • SCC: Legislature has the authority to abolish the board needed, but needed clear and specific language passed in law to extinguish the existing laws in compensation that is conferred in an agreement between two parties 

      • Legislature needed to revoke a statute that had created the board, they did not pass a regulation that stipulated how employees were going to be compensated 

 

Our public law system is nothing if not a product of history. 

Comes from blended history but most dominant comes from the UK 

Law because people in UK are fed up with taxes 

  • William the Conqueror installed himself as absolute monarch 

  • Over time, power over public policy/people became common law (prerogative power) 

    • Source of the king's authority 

    • Monarch could exercise this power whenever they wanted 

    • Power was discretionary and arbitrary  

    • Limited to physical enforcement of the monarch 

  • A council was formed for king 

    • Comprised of largest land owners 

    • Met to deal with many political issues but mainly taxation 

  • Curia Regis (Latin for king's court/council) 

    • Known as the privy council 

    • Smaller council that would reflect the will of the monarch to the people 

  • Kings started taxing freemen  

    • Knights, farmers etc. 

  • Consequences 

    • In 1215, this provoked resistance by the barons, which created the Magna Carta 

      • It ensured that there would need to be consent on taxation before the monarch could tax 

      • No freeman could be seized and imprisoned except said to by a jury of their peers 

      • This meant that the monarch could be bound by the law, could not act outside parameters of the law 

 

 

 

The Rule of Law 

  • Law is discretionary 

    • Bureaucratic/Administrative/Criminal law actors 

  • Legal Test 

    • There must be known and enacted laws 

    • Government action must be authorized by law 

    • Everyone is subject to the law 

  • Legal Authorities 

    • Roncarelli v. Duplessis (1959) 

    • Manitoba Language Rights (1985) 

    • Wells v. Newfoundland (1999) 

    • Quebec Secession (1998) 

Parliament and Legislative Authority 

  • Separation of powers and responsible government 

    • Preventing tyranny of one government actor/institution usurping all powers of other branches of government(John Locke) 

    • Important distinctions in a constitutional democracy  

      • Related to idea of constitutional supremacy, no branch of government can violate Constitution 

    • Accountability 

      • Responsible government 

        • Through elections 

        • Legislative to pass laws that can limit the powers of the executive 

        • Executive answers to Legislature (Question period) 

 

  • Legislative Branch 

    • 3 Elements 

      • House of Commons (elected representatives) - 1295 is when Parliament was named in UK 

      • Senate 

        • Appointed 

        • Have a job until the age of 75 

      • Governor General 

        • Exercises power on behalf of king and queen 

        • More ceremonial now 

        • Currently Mary Simon, first Indigenous GG 

    • Purposes 

      • Representation 

        • Elect to represent their riding 

        • MPs have a responsibility to advocate for their community, also holding the executive accountable 

      • Approval 

        • Suggesting and approving laws 

      • Legitimizing laws 

        • Voting bills into laws, legitimize the process 

    • Parliamentary Supremacy 

      • Can limit the power of all other branches of government 

 

 

Limits to Parliamentary Supremacy 

  1. Constitutional Limits 

    1. Charter Rights 

    2. Federalism 

  • Amending formula 

    • General procedures and the "7/50 formula" 

    • Unanimity procedures 

      • All governments need to agree, so very unlikely that it would change 

      • 3 examples 

        • Change the king/queen 

        • Changing language of the country 

        • Changing the rules for changing the rules 

  • Re: Senate Reference (2014) 

    • Reference case, referred to by the Supreme Court  

    • Court had opportunity to clarify the amending formula 

    • Long-standing criticism of the Senate in Canada, undemocratic nature of Senate 

    • Stephen Harper proposed to make two changes for Senate by legislation 

      • Term limits on Senators, up to 8 years 

      • Subject to popular elections 

    • He felt that these responsibilities about the role of Senate were up to the federal government 

      • Federal government is responsible over the institutions it owns 

    • Argument: if the federal legislation was passed by Stephen Harper, he would basically be changing the Constitution 

    • Courts said no. Have to follow procedures to amend the Constitution  

  1. Extra Territoriality  

    1. Can the Canadian government extend its laws outside of the country 

    2. R v. Bakker, 1997 (BCSC) 

      1. Bakker took advantage of loose sex work laws in South East Asian countries, esp Cambodia and Vietnam, had sexual relations with underage girls 

      2. When he came back to Canada, he was charged with sex with minors and lack of consent 

      3. He challenged charges, argued that Canadian Criminal Code cannot be applied to crimes committed outside of Canada 

      4. He ended up pleading guilty, sentenced to 10 years in prison 

      5. Ended up that Canadian law can extend beyond its borders, however, even though the federal government can apply laws outside of Canada, provincial laws do not 

        1. Clarified that provincial laws cannot be enforced outside of provincial boundaries 

    3. Should Canadian privacy laws apply to US based tech companies, even though they do not have employees/offices in Canada? 

      1. Clearview AI v. BC OIPC, 2024 (BCSC) 

        1. Stems from a US based company that was data scraping off the faces of individuals with face recognition tech, using FB, Twitter, TikTok, Instagram 

        2. Was selling this info to other companies, collected over 50 billion faces on the internet 

        3. Issue was that the data was being offered to users in Canada, not just law enforcement 

        4. The governments issued an order to tell them to stop selling data immediately, they refused, governments issued another order 

        5. Challenged on these grounds – Canadian laws do not apply to US based companies bc no employees/offices in Canada, information collected was already public, requested for judicial review 

        6. Court dismissed the request for judicial review 

          1. BC Information and Privacy Act does apply to companies outside the province, and not all information is considered publicly available 

      2. Bill C-19 (2022) Crimes in Space Act 

        1. Proposing to enforce Criminal Code on the Moon 

        2. "Civil Lunar Gateway Agreement Implementation Act" 

  2. Self-Imposed Limitations (internal) 

    1. Can a legislative body bind itself in the future? 

      1. Balance Budget Act and Taxpayers Protection Act 

      2. Federal statutes to limit the government from running a deficit 

    2. Can future government change previous legislative acts? 

      1. Yes but they must follow a set of rules 

        1. They need to repeal the previous acts of government 

      2. Re: Canada Assistance Plan (1991) 

        1. Mid 1960s, fed government entered into agreements with the provincial governments, allowed federal government would provide 50% of subsidy and provincial gov would provide other for social welfare programs 

        2. Wanted to bind the hands of future federal governments so that they could not back out of subsidizing  

        3. Mid 1980s, fed government was trying to fight deficit, wanted to limit funding to Alberta, Ontario and British Columbia 

        4. SCC: could the federal government back out of agreement or have to get provincial consent? SCC said yes, without consultation from provinces 

          1. This means previous governments cannot bind future governments 

  3. Indigenous Rights 

    1. What extent must the government (fed and prov) recognize Indigenous rights? 

      1. Haida Nation v. BC (2004) 

        1. SCC explicitly acknowledged that the government can pass laws regarding Indigenous peoples, but had duty to consult 

        2. Duty to consult: constitutional obligation for governments to consult with indigenous peoples before passing laws or implementing policies that would have an adverse effect on those Indigenous groups 

          1. Issues of Land 

          2. Treaties 

          3. When dealing with inherent rights of Indigenous peoples 

        3. The government of BC granted forestry licenses to timber companies on land that was part of the Haida Nation, Haida Nation argued they were not included or asked before granting licenses 

        4. SCC found that the constitution invoked something called the Honour of the Crown: a constitutional principle that requires the Crown to act with integrity 

 

 

 

 

The Executive and Delegated Authority 

  • Executive is comprised of various actors that execute and enforces laws 

    • Monarch: represented through governor General 

    • Prime minister: exercise prerogative powers (the powers and privileges accorded by common law to the Crown) 

      • Include things like forming head of government, calling meetings of Cabinet, setting political agenda (what government wants to pursue), appointments to Senate, SCC 

    • Cabinet 

      • Ministerial responsibility: fundamental principle of the constitution, requires that Cabinet Ministers be personally answerable to the House of Commons for the exercise of powers 

      • Collective ministerial responsibility: all members of Cabinet are collectively responsible for carrying out government policy 

  • Confidence principle: Prime Minister and Cabinet must have the confidence of the majority of House of Commons in order to remain in office, if a government is defeated in the house of commons on a question of confidence, it is expected to resign or dissolve Parliament and have a general election held 

    • Does not mean there needs to be a majority government 

    • Majority is expressed through votes of confidence 

    • Tradition, not really written anywhere 

  • King-Byng affair (1926) 

    • King was losing seats, losing confidence of the House, wanted to dissolve Parliament 

    • Byng said no 

  • Delegated Authority 

    • Transfer of state's decision making power to other state actors 

    • All actions needs to be authorized by law 

    • Provided that they do so within Constitutional boundaries 

  • Hodge v. The Queen 

    • Context: Toronto, Ontario in 1880s 

    • Temperance movement: debate about liquor laws, regulating alcohol in city was ok, but alcohol was taking men away from their families  

    • Archibald Hodge: had a liquor and billiard license 

      • Charged and convicted of unlawfully allowing billiard table to be used/played after 7pm, to drink and play pool 

      • Brought issue to Ontario Court of Queen's Bench, argued government doesn't have the authority to delegate that power, and the licensed commissioner did not have the authority to make these rules (impose fines or impose imprisonment) 

      • Ontario Court of Queen's Bench said they don't believe that the government can delegate power, to create a quasi-offence and punish it 

      • Appealed to Court Appeal for Ontario 

      • Privy Council Ruling 

        • Liquor License Act, noted that within the Act that there was a provision that allowed a commissioner to administer and implement the Liquor License Act 

Public Law Principle #4: Judicial Independence 

 

Features and Structure of Judiciary 

  1. Division of government authority 

    1. Section 92 Courts 

      1. Purely provincial courts 

      2. Courts that are created, organized and administered by provincial government 

      3. Judges are appointed and paid for by provinces 

      4. e.g. Ontario Court of Justice 

    2. Section 96 Courts 

      1. Considered mixed courts 

      2. Courts that are created, organized and administered by provincial government 

      3. Judges are appointed and paid for by the federal government 

      4. e.g. Ontario Court of Appeal 

    3. Section 101 Courts 

      1. Purely federal courts 

      2. Courts that are created, organized and administered by federal government 

      3. Judges are paid by federal government 

      4. e.g. Federal Court of Appeal, Supreme Court of Canada 

  2. Variety and hierarchy of Functions 

    1. Trial Courts 

      1. Courts of first instance, fact finding courts 

      2. Where a matter/legal issue first arrives 

      3. Heavily concerned with the facts of the case 

      4. Test the evidence against the facts 

    2. Appellate Courts 

      1. Not concerned with facts of case, do not retry/rehear matters 

      2. Concerned with reviewing decisions of lower courts 

      3. Concerned with the application of the law 

    3. Tribunals 

      1. Make quasi-judicial decision, require administrative actors to make judicial decisions based on statutes 

  3. Multiple Legal Systems 

    1. Public Law (criminal, administrative, constitutional) 

      1. State is involved in legal battle 

    2. Private Law (tort, contracts, employment, real estate) 

      1. Disputes between private entities  

  4. Highly Specialized Field 

    1. Front end gate keeping 

      1. Hard to become a lawyer 

      2. 24 law schools in the country  

      3. Law schools accept 

        1. UT 2017 – accepted 200, 2199 applied 

    2. Regulated 

      1. Law societies across country that are required to uphold Code of Conduct of judges, lawyers, and paralegals 

    3. Representing various interests 

      1. Depends on where you stand  

        1. Represent Crown 

        2. Represent clients  

        3. Interveners are a group of people that represent the interests of interest groups, more than likely found in appellate courts 

  5. Judicial Discretion 

    1. Judges have an insurmountable amount of discretion on which cases they wants to hear  

      1. This is called docket control/case selection/sentencing/granting leave/panel selection  

        1. Anything that comes before a court of first instance cannot refuse 

        2. Appellate courts can choose whether or not they hear a case 

      2. Supreme Court hears around 100 cases per year, has 500 applications a year 

      3. Panel Selection 

        1. Mainly Chief Justice 

        2. Gets to decide who is on a panel, odd number of judges 

        3. Decides the combination of judges, who sits together and who does not 

        4. Factors in consideration: area of expertise 

  6. Judicial (Review) Supervision 

    1. Difference between judicial review and statutory appeal 

    2. Judges play a supervisory role  

    3. Vourts are institutions of accountability, through their power, they hold government institutions accountable 

    4. Criticisms: 

      1. Judicial activism – concern that judges are acting undemocratically because judges are not elected, end up making decisions that influence public outcomes and matters 

      2. e.g. Edwards v. Canada (1929) "Persons Case" 

        1. The law during 1900s in Canada was that women were not considered people from a legal perspective, could not sit in Senate 

        2. Decision was review by the Judicial Committee of the Privy Council, found that women were considered persons (highest court of appeal, outside of Canada in UK) 

    5. Obtaining Judicial Oversight (obtain protections from the courts) 

      1. Individuals directly affected by government action 

      2. Raising legal issues during ongoing proceedings 

        1. e.g. raise a constitutional question 

      3. Standing/intervenor status/ amicus curiae 

        1. Appellate courts – where there is issue between appellate and responder, only two parties 

        2. Intervenor makes applications to SCC on behalf of different parties that have a stake in the decision, not directly involved 

        3. Amicus Curiae (friend of the court) - court will invite counsel to help court make decisions, esp if they are controversial 

        4. Standing – an individual must have standing in a case before they can actually be part of litigation, they are directly part of the case, directly affected by case 

      4. Reference from government 

        1. Reference cases – only the government of the day can refer a matter up to the highest court of appeal in its province 

      5. Granting leave 

        1. Court needs to grant leave for there to be an appeal, if leave is not granted, then that means the lower court's decision still stands 

 

 

Judicial Hierarchy 

  • Bottom – provincial trial courts (section 92) 

  • Provincial (section 96) 

    • Can conduct reviews of cases in their provinces 

 

 

 

The Supreme Court of Canada 

  • Supreme court of Canada created by federal legislation called the Supreme Court Act 

    • It is constitutionalized, government cannot change anything about Supreme Court Act 

    • Jurisdictions 

      • Broad territorial jurisdiction 

      • Appellate jurisdiction 

      • Unrestricted jurisdiction 

      • Constitutional disputes 

      • Charter matters 

      • Unlimited jurisdiction 

  • Important features 

    • Composition is based on constitutional convention known as regional representation 

      • Judges cannot all come from the same place, 3 judges must come from Ontario and 3 from Quebec, 2 judges from Western Canada, 1 judge from Atlantic 

  • Chief Justice plays highly administrative role, many decisions made by them 

  • Not the highest court of appeal, first founded in 1875 but only became highest court of appeal over everything in 1949 

    • Before 1949, all matters could be appealed to Judicial Committee of the Privy Council (JCPC) 

    • Not all judges but had to be legally trained, appointed by House of Lords 

    • Hear cases from British colonies 

    • Determine conformity to common law in the UK 

 

 

 

Judicial Independence: Background and Context 

  • Case stems from problems arising from different types of courts 

  • Salaries (section 100) 

    • Salaries of judges are paid for by the government (Section 101) 

    • Protections of federal judges are not the same as Section 92 courts 

  • Purpose 

    • Judges must be free from positive or negative influences 

  • Renumeration of Judges of PEI (the Provincial Court) (1997) 

    • Government tries to cut salaries of provincially appointed judges (Pei, Manitoba and alberta) 

    • These cuts would have only affected federally appointed judges in provincial courts? 

    • Cuts would violate section 11D of Charter, cuts would potentially impact judicial independence 

    • Legal test applied was called the reasonable apprehension of bias test 

      • Would a reasonable person, aware of all the circumstances, believe that a judge was free to render any decision in the case before them? 

      • There needs to be four features that will never be compromised 

        • Security of tenure 

          • The Supreme Court had to read in security of tenure so it applied to provincial judges as well, before it only protected federal judges 

        • Financial security 

          • Only time you can change salary is if there is fraud or bribery involved 

          • Fixed salaries by Parliament, not the executive 

        • Administrative independence 

          • Ability of courts to deal with and manage their own affairs 

            • Includes selecting judges to hear cases 

          • Judge shopping: allows governments to choose certain judges to rule in a way that they want, administrative independence stops 

          • Sanctioning: government cannot give or take away cases, make judges take cases far away from where they were residing 

            • Used to happen in Alberta during renumeration of judges case 

        • Immunity from prosecution 

          • Judges cannot be sued civilly for their decisions 

          • Judges are still subject to criminal code 

  • Judicial Independence is not written in the Constitution, but is considered a convention for all judges 

  • Eli v. Alberta (2003) 

    • Case about whether or not judicial independence should apply to justices of the peace 

  • R v. Edwards (2024) 

    • Deals with whether or not judicial independence should extend to military judges