Beruflich Dokumente
Kultur Dokumente
legal positivism – law is nothing more than the rules and principles that actually
govern / regulate society
separation of law and morality
natural law theory : laws are only those that adhere to certain moral truths
univeresal and immutable
Re Drummond Wren 1945
restr cov stating parcel of land could not be sold to “jews or persons of objectionable
nationality” struc down bc of generally accepts principles of racial equality =
example of natural law application
Re Noble and Wolf 1948
did not agree with Wren : the courts are not auth to est as law evverything we may
think if for public good, andprohibit what we think otherwise
upheld the freedom of contract as against a policy that was not clearly legislated =
example of positvism
judge refused to rule on basis of his own ideas of morality ot justice but only by
expounding and interprting the law as it is.
both poitivism and natural law theory are descriptive – ie identify whas law is
the folling focus on where the law fails and the need for reform:
Feminist Perspectives
critique of liberalism
Early mod feminism :
seeking women's formal equality w/men
replacing laws that were explicitly biased w/ neutral laws
eg suffrage movement
Edwards v AG Can – women being recognized as “persons” for purpose of being
eligible to be a senator
Contempo Feminism
sociology and criminology introduced to study issues like violence against women
Feminism becomes more fractured – radical vs conservative
R v Morgenthaler – abortion req medical certificate from a committeee – procedural
reqts contrary to fundamental justice
whether women could be compelled by law to carry a fetus to term.
Charteer founded on human dignity – incl right to make profound personal decisions
w/o interference from Stat
Impossible for a man to respond to such a dilemma not because it is outside the
realm of his personal experience – but beecause he can only objectify it – (ie
eliminate the subjective elements of the female psyche at the heart of the dilemma)
1st woman appointed to SCC: Madam Justice Wilson 1982 – 91 (also the period of
the formation of the Charter)
seen as a legislator for women's rights not just a judge
Critical Legal Studies
leftist, radical departure from traditional legal theory
rejeccts the idea of a natural legal order discoverable by objective means
law legitmizes authority of particular social groups
law not coherent / universal and is subjectively interpreted
3 stages:
1. Hegemonic consciousness
western laws maintaied by belief system of a liberal market driven economy
2. reification
the beliefs are made material presented as essential necessary and objective
3. denial
laws help us to deny real truths – so we can cope with contradictions too
painful to realise denial occurs btw the promise of equality as a state of laws
and th reality which is discrimination found in society
law not independent but political
radical but may have influencesd lawyers / judges who went to law school in 70s
R v RDS – judge made comments re PO charged and arested 15 yr old black boy –
apprehension of bias? SCC fair trial and right to unbiased adjudciator =
fundamental goal of justice system
bias = all judges entitled to presumption of judicial integrity so finding of bias = very
high threshold but als high standard of impartiality demanded of jduges – but not to
the point where they cant bring their own life experiences to mind
judge can have an opinion but also required to entertain different points of view
w/an open mind
History of anti black racism documented in NS in Donald Marshall trial
racism by POs toward minorities and in partic young black males
McL and L'HD of if trial judge decision influenced by the state of things as she knew
them to be. CLS point of view – impossible to separate social and pollitical context in
which laws operate
Cory – laws can evolve to reflect social reality – but req expert evidence of those
social conditions for them to be considered
Major – Traditional approach – objective standards – reasons should be based strictly
on the evidence – judge should only be using life experience to understand human
behaviour not to reach a decision for which there is no evidence
Law and Economics
not so much about morals – more about efficiency
free market – neoliberal base
economics used to determine whether legal rules result in efficient outcome –
efficiency = welfare of each party maxd and cant get any better unless at expense
of the other paty = pareto optimality
assumes humas are rational
Public Law and Econ Theory
public choice theory = policy makers act to max political support not necessary
tryingto max social welfare – so motivated by self interest
difffuse and fragmented groups less effective at infl legislators than focused concentr
groups
Duncan Estat v Baddeley – if intrp court should not invoke arguments for its repeal –
those arguments were lost when legisl enacted the statute – a factor in the judge s
decision was that the legisl had taken no steps to amend the statute – to reverse a
previous interp by the courts – suggests that interp stands
Bhaduria v Board of Gov – new intentional tort case from statute toprotect agaisnt
discrim w/ respect to employ – this was based on the statute outside an area of CL
that was fully recog
SCC: rejected this approach as the statute itself was comprehensive and incl its own
remedy and procedures to enforce the policy of protection against discrim
Legal Sources
International Law
1. treaties – law making contracts btw states – only binding on signatories – has to
be implemented
2. cutomary intl law – binding on all states (unless persistently rejected) –
automatically becomes CL
UN Decl HR – principles entrenched in customary intl law and binding on all states
Canada = dualist = treaties have no effect on internal jurisprudence unless and until
they are implemented under domestic law by Act of Parlt
maintains Parlt Supremacy
preserves division of powers
maintains democratic process
dualist dilemma – while Can bound by treaty intlly policay makers are not bound by it
domestically
solution – delay ratification of treaty until domestic laws comply
but in some cases dom laws remain unmodified
the dilemma = exec fedl branch enters treaty > parlt and provl legisl must either
1. disregard the oblig and preserve supremacy (non compliance w/intl rule), or
2. imiplement the intl oblig rubber stamping their approval (although exclusively
concluded by fedl branch)
unclear as to what is reqd to show courts a treaty has been implemented
Suresh v Can – rendition = whthr viol Cdn Consti Law – UN Convention agaisnt torture
ratified by Can and expressly bans torture SCC: not replic in immigration law = not
implemented the case had to rest on the Charter which did not provide an
“absolute ban” the way that the treaty did
Suresh : leaves courts to be inspired by intl treaties but with room to ignore their actual
reuirements and substitute their own standard – problem: never soidified as statute
never fully adopted in words of treaty
Customary Intl Law
once recog autom forms part of Can's CL = “monist” as oppose to dualist like in the
case of treaties
can be displaced by inconsistent statute
Bouzan v Iran – domestic legisl should be interpreted in line w/ Intl CL as far as possible
Statutory Law
Parlt provl legisl free to enact new laws displacing CL **stat rule supercedes CL rule
stats can be used as a guide for the courts as to public policy – which enables courts
to take CL into a new direction, or fill gaps in new area
Bhadauria v Senecca College – Racial Discrim Act may not be applic but expressed
the policy of prohibition against discrim on the basis of race, etc which allowed for a
CL action not prev recog
same sex marriage – CL definiton of marriage questioned under Charter in Halpern v
Canada – s15(1) equality before and under law + equal protec + equal benefit >
sexual orientation is an analogous ground of prohib discim w/ respect to s15(1) (Egan
v Can) and in Halpern: CL is subject to scrutiny where govt action / inaction is based
on CL rule (Hill v Church Of Scientology)
to freeze the defiition of marriage at its confed meaning = contrary to progressive
interp of Constn. living tree approach. (found in Edwards v AG Can – Lord Sankey)
The reformulatd CL definition for marriage = “voluntary union for life of 2 persons to
exclusion of all others”
upheld by court in Re samesex marriages act – now called civil marriage act –
religious officals can still refuse to perform a same sex marriage under the act.
Constitutional Themes
constitution – legitimacy of state actio and adherence to rule of law
1. who can make laws and
2. limits on what laws can be made
3. roles of different branches of govt
6 principles of Constitionaism:
Rule of law – exercise of public power must be sourced in law
const is supreme and placed above ordinary law and state functions
(to protect rule of law while laws are made to adapt to changing soc and because
laws are made by people who can change them)
Constitutional supremacy – constitution = supreme law and any inconsitent ordinary
law is of no force / effect (as far as the inconsistency)
Roncarelli v Duplessis – court affirmed that all legal officials are subj to same legal
obligations as other citizens – denial of liq lic may be in official's “discretion” doenst
mean not subj to statutory constraints – power must be exercised in furtherance of
the legisl objective
“discretion” implies good faith in exercise of public duty
constitution incl: s52(1) and s52(2) + unwritten prinicples (Secession Reference)
have force of law + limit govt power
provide exhaustive legal framework for govt
allow Const to endure
4 Fundamental Organizing Principles of the Constitution:
1. Federalism
2. democracy
3. constitutionalims / rule of law
4. respect for minorities
=lifeblood of the constitution
assist interp of Const / jursid / rights and obligations
important for living tree evolution
Primacy is in the actual text – but reference can be made outside the text
Secession Ref – expanded judicial auth w/ resp to Const
but”unwritten prinicples” can only be used to fill in gaps in the text
BC v Imperial Tobacco – rule of law – 3 prinicples:
1. legislation must be applied to all those to whom it applies incl govt officials
2. legislation must exist
3. state officials actions must be legally founded
but court denied other principles were “constitutional” such as: laws must be forward
working (no, they can be retroactive if expressly stated); general in character (no,
ceretain co.'s w/in an industry can be taxed); not confering special priveleges on
govt unless nec for governance (no, govt has power to expropriate property eg form
vets even if unfair); esure fair civil trial (no, fair trial guaranteed where persons
charged)
Constitutional Conventions:
Patriation Reference – conventions arise by
a) practice / agreement devd by political actors
b) recog by pol actors that they are bound to follow the convention
c) normative reason (purpose) for the convention
Not law and cannot be enforced by the courts – bindig force in realm of politics
did cosntl amendment re agreement by provinces if it affected fedlprovl
relationships?
Courts can recog conventions makes them hard to ignore / deny
examples:
if opposition obtains majority govt must resign; ministers must continuously have th
econfidence of the elected branch of th legisl individually and collectively – if confid
lost > must resign of request dissol + a general election
Test for est a covention:
1. what are the precedents?
2. did those acting in the precedents believe they were bound by a rule?
3. is there a reason for the rule?
Applied in Pat Ref:
1. in all prev 22 amendments approval by affected provinces sought
2. the polictical actors seemed to be acting on basis that this was necessary
3. reason for the rule: federalism ; each prov to retain indep and autonomy + be
represented
Constitutional Supremacy
3 reasons for it: 1. added safeguard for HR; 2. protection of vulnerable minority groups
agaisnt pressure to assimilate w/ majority; 3. division of powr among difft levels of govt
(no one has power to unilaterally usrurp additional powers)
CS implications:
Hierarchy of law – constl law can shape the CL
Adjudication – of inconistencies with Const – judicial indep required to keep ajdud in
check by interp the const – Can admin tribunals apply and interp the Charter? NS
(Workers Comp) v Martin – since conferred power to interpret law then must also be
able to determine whether that law is constitutionally valid – also explains why courts
must be given final word
Countermajoritarinism – check on majority democracy limits majority preferences
which change over time – allows constl interp andenforement to run contrary to
majority preferences
Amendment by Super Majorty – if same Parlt that passes ord law can amend the
Const – then how can Const be supreme? supermajority req elements of soc other
than the simple majority – amending formula infuenced by federalism – the majorties
of the fedl and provl govts must approve
Human Rights Laws and CS :
HR statues are signif and deserve broad and liberal interp andcan be used to interp
provisions in other legisl – which makes them special
Vriend v Alberta – protection agaisnt discrim on basis of sex orient read into Alberta's
statute so that it would comply with the Charter (even though Alt legisl had delib
ommitted it)
Parliamentary Supremacy:
“Parliament” = House of Commons (elected) + Senate (appointed)
Senate and Provincial Legisl have power to make laws > this is delegated to:
elected municip councils, school boards, etc
Pariamentary Supremacy is qualified by Federalism:
doctrine of exhaustion of state powers = if one level cant enact a law the other can
and by Charter limitations:
but s33 allows Parlt to reasset Parl Suprem
Parlt is subservient to the Const but supreme over exec
Babcock v Canada disclosure of cabinet confidences in litigation w/private
citizens?
Justice dept – disparity in Toronto and Vancouver Lawyers' salaries – cabinet confid vs
right to pursue justice discl must be refused by court w/o examining or hearing the
info
cabinet confidentiality provided for in Evidence Act – (if it werent for the Act CL
would apply which req a balancing of the interests) SCC: unwritten constl principle
must be balanced agiasnt the prinicple of Palriamentary Sovereignty – Evid Act prov
found not to offend the rule of law or othe unwritten Const prinicples.
Test: Legisl has the power to enact laws even if Draconian if they do not
fundamentally alter or inerf w/the relationship between the courts and the other
branches of govt
Federalism:
separation of ppowers doctrine legisl makes laws; exec implements them; and
judicial intrprts / applies and determines/ and enforces them
at Confed – Que and maritimes demanded regulation over private legal relationships
(“property and civil rights”)
federalism = unwritten princip of Const recognizing regional diversity
eg Secession Reference – written provisions of Const interpreted in light of this
principle = protection of automy and individ cultures
Hodge v The Queen – recog fedl and provl legisl as coordinate – equal sovereign
status under the Const
Fedl and provl jurisdictions – mutually exclusive – but SCC has expanded Fedl powers
and is criticised for it bacuse thats who pays them
HR Legislation and Federalism:
Prov HR laws cannot apply to banking; navigation; shipping; and the miliitary (which
are all fedl powers) – instead covered by Cdn HR Act
Executive Power:
all ministries of govt + employees, civil service armed forces, statut created bodies
subord to legisl – where their power is derived from (except royal prerogative)
powers delegated by Legisl can be revoked any time
PM must have the support of the majority of elected legislators
Juduicial Power:
1867 Act, ss 96101
s96 Fedl exev appoints judiciary (sup and distr courts) (but provs est them in their jurisd
per s92(14)) and appoint non s96 judges
superior courts aka “s96 courts”
s101 – Parlt can create courts for better admin of the laws of Can > was used to
enact the Fed Crt Act and est the Fed Crt of Canada
s101 auth Parlt to create general court of appeal > used to enact SCA and est SCC
SCC status is not constitutional except for composition and appointing process
proisions found in the 1983 Act
But Courts have 2 core jurisdiction powers:
1. to rule on constl validity of all laws, and
2. suervise activities of govt and other delgated actors to ensure they act w/in
stat auth
1. remedy for const cases – decl law of no force or effect
2. all persons affected can petition for jud rev – and jud rev was given constl status in
Crevier v Que
3. Jud Indep = lifeblood of const in democ societies (Beuaregard v Can)
ensures judges as arbiters of disputes at complete lib to decide cases on their merits
Parliament
created by s17 of the 1867 Act
Queen = Cans 0fficial head of state in Practice, powers exercised by Gov Gen by
auth of s10
Monarchy at root of our constl structure – preamble can be used to fill in gaps
s9 – role of Queen: Exec govt and auth over Canada vested in her
Amend to Const provs dealing w/Queen req unanimity s41(a)
Const incl Satute of Westminster
Monarch appoints GG but by constl convention – on advice of PM
also by convention – must be canadian and atern Anglo / Franco
Senate – unelected – per s24, appointed by GG (advised by PM) – contrav for being
used to reward friends/ supporters
Brown v Alt – attempted to elect their senator – worked for Mulroney – not for
Chretien
Courts couldnt interfere – not a legal question
H of Commons – elected per s37 – based on geo divisions revised every 10 yrs – party
w/ most MPs become governing party ad their leader becomes PM
Then 2nd largest number of MPs become opposition party
per s3 all persons eligible to vote and to be qualifed for membership to HofC
Fuguera v Can – SCC struc down rule req 50 districts to = party Court had to determ
if 1. was the right viol and 2. if so was it justif under s1 of Charter?
Req Cout to interp what the right in s3 entails – more than the words – “effective
represetation” incl right to play a meaningful role in the electoral process.
Court concl that parties can make a valuable contrib even if not a “genuine option”
ie going to effect outcome of election – so right infringed – is it justified? Oakes test:
(burden on govt)
step 1 objective of legisl sufficiently pressing and subst to warrant viol of Charter right?
(ie neither trivial nor discordant w/ democ princip) Ensuring cost efficiency of tax
credit system = pressing and subst.
step 2 is infringement proportionate and rationally connected to the objective?
(ie minimal impariment of the right and salutory beenfits outweigh the deleterious
effefcts) Other methods could have been used not minimal impairment – no rational
connection to objetive
Summoning: power to call HofC together
Prorogation: ends sessino w/o dissolving parlt – aboishes all pending legisl all bills have
to be reintrod – House in “recess” cp “adjournment”(termin during session and
pending proceedings not quashed)
Dissolution: elections ot HofC must occur every 5 yrs – usu dissolved before that time –
and must be if no confidence vote
Confidence: minister resp to Queen / GG; individual minister resp to House; minisntry
collectively to house