Rule of Law

• A cornerstone of civilized life

• Laws: institutionalized rules– Discourage arbitrary use of power

• role of the judiciary in a democracy - to maintain constitutional governance.

• Court System: extension of rule of law

The Fifth Estate

“You Should Have Stayed At Home”

http://www.cbc.ca/fifth/2010-2011/youshouldhavestayedathome/

Remarks of the Right Honourable Beverley McLachlin P.C., Chief Justice of Canada

The Challenge of Fighting Terrorism While Maintaining our Civil Liberties

• One of the most destructive effects of terrorism is its ability to provoke responses that undermine the fundamental democratic values upon which democratic nations are built.

• It is also clear, however, that it would be equally disastrous to jettison our liberties in the name of fighting terrorism. That too would constitute loss of the fight against terrorism.

• Our only option is to fight terrorism while maintaining our constitutional rights and freedoms to the maximum extent possible.

• Read the full text: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2009-09-22-eng.asp

What is the annual salary of the SC Chief Justice?

$278,400

• The Charter guarantees to every person — not just citizens — liberty, mobility, freedom of expression and religion, and basic criminal law procedural protections like the presumption of innocence.

• Rights, it states in s.1 are:

– subject only [and the “only” is important] to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

• The single big idea driving s. 1 is that limits on rights must be justified as proportionate. Proportionality means a fair and justified balance between the exercise of a guaranteed right and a broad conflicting public goal. ...And when Canadians challenge the balance that has been struck, the courts’ role is to review the balance that Parliament or the executive has reached, between rights on the one hand and fighting terrorism on the other.

• Read the full text: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2009-09-22-eng.asp

ConstitutionsA constitution is a set of the most

fundamental rules by which a community organizes and

governs itself. Those rules tell who has what rights and powers and how things should be done. They tell us—and others—what

to expect of our government.

Federalism & the Judiciary

3 March 2011

Federal System

• While deciding what system to use in Canada, the Federal System seemed the best choice.

• Under a Federal System, the responsibilities for governing were divided between two levels of government, the central government and the provincial government.

• Each government had their own jurisdictions but the Feds could override a provincial law if it was seen as not in the best interest of all Canadians.

Doctrine of Ultra Vires

• Government may make laws only in its own jurisdiction.– Called Intra Vires, within the power of

government to pass laws.

• If a government attempts to pass laws beyond or outside of its jurisdiction it would be said to be Ultra Vires, beyond the power of government to pass laws.

Review: Government and Law-making

• The executive branch of government is responsible for carrying out the government’s plans and policies.– Prime Minister, – Cabinet – public or civil service.

• The executive branch at the provincial level works much the same way.

Review: The Legislative Branch

• Refers to the branch of government that has the power to make, change and repeal laws.

– Federally, this is the House of Commons

& the Senate.

– Provincially, it the Legislative Assembly.

• The Governor General and the Lieutenant Governor are appointed to represent the Queen.

The Judiciary

• branch of government responsible for presiding over Canada’s court system.– independent of the other two branches.

• Made up of judges who:– adjudicate disputes, – interpret the law – and decide on punishments.

• Apolitical and independent!• Highest court is the Supreme Court of Canada.

Why are we concerned about the role of the judiciary in federalism?

• In a federation, there will be a need for a final arbiter in a dispute over which level of government has the power to act in a particular case

• The judiciary is appropriate choice for this final arbiter provided that it has the following characterisctics: – legitimacy; – impartiality; – operates with procedural and legal guarantees to ensure

that it can and will continue act with these qualities.

Legitimacy & Federalism

• The primary role of a tribunal is to be the Guardian of the Constitution– to be in a position to the fiduciary of all the

hopes, the compromises of the different groups that came together to unite in a federal state.

• People and government must respect the decisions of the courts.

Impartiality

• Impartiality is what confers legitimacy

• However, impartiality is not to have no opinions or no identity but rather to have an open mind to hear and understand the arguments of all parties.

Legitimacy is earned

• Responsiblity of the government and of the court to reflect constantly on the maintaining legitimacy

• Only way to ensure respect for the laws.

Judiciary… …the branch of government charged with interpreting the law

• Functions of judiciary:

– Adjudicating private disputes

– Adjudicating cases in public law

– Judicial review of the Constitution

– Commissions of Inquiry (ie. Gomery Commission)

Adjudicating private disputes:

• Collective action problems & credible commitment

• Need for 3rd party enforcement

• Private law a provincial matter

– Quebec: Civil Code (Napoleonic Code)

– ROC: Common Law

• Precedent

• Stare decisis (“It stands decided”)

Adjudicating cases in public law:

Public law regulates government-society relations

1. Criminal Law

2. Administrative Law

• Regulatory legislation not involving criminality

– Workers’ Compensation

– Immigration Board

– CRTC

Judicial Review of Constitution:

• Interpret constitution

– Federal-provincial disputes: limits of S. 91 & S.

92

– Violations of Charter

• Not done on Court’s initiative!

– Private litigants

– Reference by government actor

Impartiality and Judicial Independence:

• Valente vs. Queen (1985): – establishes judicial independence in Canadian context & defines

impartiality vs independence:– Impartiality: state of mind of the tribunal in relation to the issues

and the parties in a particular case.– Independence: involves both individual and institutional

relationships: • the individual independence of a judge as reflected in such matters

as– i) security of tenure – ii) security of salary

• the institutional independence of the court as reflected in its institutional or administrative relationships to the executive and legislative branches of government, e.g., Courts’ control of its own administration (not entrenched)

http://csc.lexum.umontreal.ca/en/1985/1985rcs2-673/1985rcs2-673.html

Supreme Court

Court of Appeal

Inferior Courts

(Small civil matters, e.g., landlord-tenant disputes, etc.)

Superior Courts

(Criminal Matters)

Canada’s Hierarchical Court Structure

The Supreme Court...

...the apex of the Canadian judicial system

The Supreme Court of Canada is Canada's final court of appeal,

the last judicial resort for all litigants, whether individuals or governments.

Its jurisdiction embraces both

the civil law of the province of Quebec and

the common law of the other provinces and territories.

• Application for leave: permission from the Supreme Court to appeal the decision of a lower court

• Decided by a panel of 3 justices• Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/

• Many applications for leave concern matters that have little direct effect on the average citizen

• Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/

How the Supreme Court Decides Cases?

– Leave sought and granted for about 10-20% cases

– Heard by panels of 5 – 9 justices

– Two types of decisions:

• Unanimous

• Majority

– dissenting opinion

– concurring opinion

Retrieved from http://www.scc-csc.gc.ca/vis/gal/ju-eng.asp

Fundamental Principles of the Judiciary

1. Impartiality

2. Judicial Independence

3. Equality before the Law

Chief Justice’s Office

Chief Justice’s Office

Issues in the Appointment Process

• Prerogative of the Crown (on advice)

• Politicizing the Judiciary

• Need to Balance:– Accountability

– “Representativeness”

– Expertise

– Impartiality

• Should appointments be non-partisan?

• Provincial input or cross-party hearings a la US Senate?

• Should judges be elected?

“Today I would like to talk to you about the role of the courts - in particular the court on which I sit - the Supreme Court of Canada.

I can already see you turning off.

We all know what courts do, you're saying to yourself. They hear cases. They decide whether people accused of offences are

guilty or not. And they settle disputes between citizens. …”

Remarks of the Right Honourable Beverley McLachlin, Chief Justice of Canada

Wednesday, November 6, 2002UWO Faculty of Law

http://www.law.uwo.ca/mainSite/info-news/Chiefspeech.htm

“…But they do much more.

And it's important that we, as Canadians,

understand what they do.”

Quotation cont’d

Rule of Law

• A cornerstone of civilized life

• Laws: institutionalized rules

– Discourage arbitrary use of power

• role of the judiciary in a democracy - to maintain constitutional governance.

• Court System: extension of rule of law

“In the Reference Re Succession of Quebec, [1998] 2 S.C.R. 217, para. 70, the Supreme Court of Canada said this about the rule of law:

"[a]t its most basic level, the rule of law vouchsafes to the citizens

and residents of the country a stable, predictable and ordered society in which to conduct their affairs.

It provides a shield for individuals

against arbitrary state action". Remarks of the Right Honourable Beverley McLachlin,

Chief Justice of CanadaWednesday, November 6, 2002

UWO Faculty of Law

“there can be no rule of law without a judiciary that is

independent of the legislative and executive branches of the state.”

Rule of law

• Governments can only exercise powers given to them from a sovereign legislative body—a legislature

• All laws must be adhered to• Laws themselves must conform to

procedures and substantive provisions found in them

• All decision-making of G must be consistent with the law

Question

How have the concepts of

content, context, and time

affected other nations’ legal traditions?

Legal Traditions:A Cultural Perspective

The cultural perspective reflects historical attitudes about the following issues:

Nature of the law .

The role of law in society.

How a legal system should be organized and operated.

The way law is or should be made, applied, or perfected.

Indigenous Laws

Native laws of persons who originate

from or live in a particular area –

independent of outside influences, i.e.,

aboriginal or native populations.

Indigenous laws have influenced legal systems throughout the world.

Constitution Act, 1982• Subsection 35(1) of the Constitution Act, 1982

states:• “The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and affirmed.”

• Defines who Aboriginal peoples are:• Indian (First Nations);• Inuit; and• Métis

• Protects Aboriginal and treaty rights including rights already established or which may be asserted.

Purpose of Section 35 of the Constitution is:

• To ensure Indigenous Peoples survive as unique Peoples with their own culture and traditions.

• To address the history of injustice against Indigenous People through the denial of Aboriginal Title, Rights and Treaty Rights.

• To protect the “cultural security and continuity” of Indigenous societies.

• The recognition of the treaty and aboriginal rights of Aboriginal peoples in s. 35 of Canada’s new constitution in 1981 led to a rethinking of the place Aboriginal people and their rights held in the Canadian political and legal systems.

“The fundamental objective of the modern law of Aboriginal and treaty rights is the reconciliation of

Aboriginal peoples and non-Aboriginalpeoples and their respective claims, interests and ambitions. The management of these relationships

takes place in the shadow of a longhistory of grievances and misunderstanding.

The multitude of smaller grievances created by the indifference of some government officials to

aboriginal people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and

more explosive controversies.”

Justice Binnie, Mikisew Cree decision (2005, Supreme Court of Canada), para.1

Indigenous Law vs Western Law

• Indigenous laws and relationships to land differ from Western notions of land as “property.”

• Land is not a possession or commodity to exploit or sell.

• “Our Land is Our Culture” (UBCIC) affirms that Indigenous relationships to land are inseparable from Indigenous culture and must be reflected in law.

Indigenous Homeland

• ‘Ownership’ for Indigenous people involves understanding the connection to their homeland. The connection to homeland is demonstrated through cultural practices and Indigenous language.

• Homeland is not simply ‘land’ but everything in one’s world: land, water, air, stars, people, animals and the spirit world.

• Philip Paul discusses colonization and the differences between native and non-native attitudes to land (1975)

http://www.archive.org/download/LandistheCulture_0/The_Land_is_the_Culture_002.wmv

Indigenous Law and Expression

• Indigenous laws and systems of land ownership are unique to each Nation’s customs, and oral traditions.

• Each Nation has its own expressions of laws.

• Laws are not written into statutes, rules, and regulations. Laws are understood through custom, legend, ceremony and oral tradition.

Indigenous Law Is Realized As:

• Land and water are respected and Indigenous people have a responsibility to conserve resources for future generations.

• Laws about land, living and the supernatural world are expressed and recorded through song, dance, story, carving and/or ceremony.

• Laws are carried forward through Indigenous languages and speeches at feasts, longhouses, potlatches, and collective ceremonial gatherings.

Aboriginal Title

• The Supreme Court of Canada said that Aboriginal Title protects the relationship between Indigenous Peoples and their territories.

• Aboriginal Title is more than the right to practice specific activities (hunt, fish) on the land. It is a right to the land itself.

• Aboriginal Title exists from the fact that Indigenous People were the Original People on the land now known as Canada.

September 12, 2006 Lawyers' Roles & Responsibilities 53

Indigenous Bar Association• Non-profit professional association for Indigenous people (i.e. First Nation,

Métis and Inuit) trained in the field of law• Objectives:

1. To recognize and respect the spiritual basis of our Indigenous laws, customs and traditions.

2. To promote the advancement of legal and social justice for Indigenous peoples in Canada.

3. To promote the reform of policies and laws affecting Indigenous peoples in Canada.

4. To foster public awareness within the legal community, the Indigenous community and the general public in respect of legal and social issues of concern to Indigenous peoples in Canada.

5. In pursuance of the foregoing objects, to provide a forum and network amongst Indigenous lawyers: to provide for their continuing education in respect of developments in Indigenous law; to exchange information and experiences with respect to the application of Indigenous law; and to discuss Indigenous legal issues.

6. To do all such other things as are incidental or conducive to the attainment of the above objects.

Social Context Program for Judges

Led to a recognition that the profound failure of the educational system, including law schools, to educate people about the other side of the colonizing experience, left lawyers, judges, and members of the public with the false belief that where Aboriginal people were concerned, Canada’s political and justice systems had done and could do no wrong.

~Justice Murray Sinclair

Aboriginal Social ContextProgram

• What is systemic racism?– You could get rid of the racists and still have a problem

with racism in the justice system.– refers to the way the system goes about its business.

• Increasing resort to litigation by Aboriginal people led to a need for judges to become familiar with the special issues those cases raised such as evidence from tribal elders,oral histories etc.

• Judges expressed dissatisfaction with their ability to deal appropriately with Aboriginal cases.

• Interaction by the judges with the Aboriginal community was part of the approach.

Changes in our midst...• The use of the circle as a judicial and educational tool.• Recognition that law has a culture reflective of the

people within it.• A new appreciation of Aboriginal people and

constitutional law.• Child welfare reforms.• A new approach to sentencing.• Changes to the trial processes.• 4 models of Aboriginal courts across Canada: the Tsuu

T’ina First Nation Court in Alberta; the Cree-speaking Court in Saskatchewan; the Gladue Court in Ontario; and the First Nations Court in British Columbia.

Gladue (Aboriginal Persons) Court in Ontario (“Gladue Court”)

• Gladue Court started in downtown Toronto at Old City Hall in October 2001. The purpose of the Gladue Court is to implement the Supreme Court of Canada’s decision in R. v. Gladue, and to fully realize section 718.2(e) of the Criminal Code.– The judiciary, staff, lawyers, and workers of the Gladue Court give full

consideration to the unique circumstances of adult Aboriginal accused and Aboriginal offenders.

– The Gladue Court offers bail hearings and variations, remands, trials, and sentencing

– It is voluntary and open to First Nations, Metis, or Inuit who identify themselves as such.

• Each caseworker presents an indepth “Gladue report” on the accused’s childhood, family, education, discrimination, and addictions for the court to consider

• Will not excuse criminal behaviour, but it provides valuable information to the court in making a sentence that is fit, proportionate, and unique to the Aboriginal offender with emphasis on rehabilitation where the community safety is not at risk.

Canadian Administrative Law-legal dimensions of public policy and

government decision-making-whether the exercise and application of

state power in particular policy fields has been accomplished in a

legally proper and just manner-delineates entitlements, protections, and

obligations indivs., groups, and corporations affected by administrative

arm of the state.-establishes rights and obligations

Legal framework for decision-making

-propriety-fairness-justice

…of all government d-mkg…

Courts play pivotal role in administrative law process

Principles and Problems

• Independence

• Efficiency

• Consistency

• Cost

“Judicial independence is expressly or impliedly guaranteed

by the constitutions of virtually every country. It is also

recognised in international instruments expressing

fundamental human rights.”

Michael Kirby, Speech to YALE LAW SCHOOLTHE GLOBAL CONSTITUTIONALISM SEMINAR

16 SEPTEMBER 2000COURTS & POLITICS: JUDICIAL INDEPENDENCE

Federal Cuts in 2006

The Court Challenges Program ($5.6 million) was used to help provide money for special interest groups to challenge government laws, with a focus on language and equality rights.

The Law Reform Commission of Canada, which was set up to advise the Parliament on how to modernize laws, was eliminated after its $4.2 million in funding was pulled.

The Law Reform Commission of Canada

• The LRCC recommended improvement, modernization and reform of some federal laws and deletion of others, as well as providing a basis for philosophical inquiry into legal issues.

• The LRCC was intended to act as a stable body that would keep federal laws up to date and analyze key public policy issues.

• The commission established links with government ministries, the judiciary, the legislative assembly, legal academics and others in order to create the knowledge necessary to develop fully considered recommendations for law reform.

• The commission was permanently disbanded in 2006.

LEAF: October 4, 2006  Dear Prime Minister,

We write today to ask you to reinstate the Court Challenges Program. Only by reinstating the Program can you demonstrate that your government intends to respect the human rights of Canada’s people.

... The Court Challenges Program, by providing modest contributions to the cost of important test cases dealing with language and equality rights, has made these constitutional rights accessible to Canadians.

Without the Court Challenges Program, Canada’s constitutional rights are real only for the wealthy. This is unfair. And it does not comply with the rule of law, which is a fundamental principle of our

Constitution. ...

Basic Steps of Strategic Litigation Canadian Advisory Council on the Status of Women

• Defining a goal in terms of the desired principle of law to be established

• Plotting how the principle of law can be established from case to case in incremental, logical and clear steps

• Selecting winnable cases suitable for each stage taken to achieve the goal

• Consolidating wins of each stage by bringing similar cases to create a cluster of cases in support of the principle established

• Legal Education and Action Fund (LEAF)– Abortion; employment opportunities; protection against

violence– Sponsored– Intervened

Alexis de Tocqueville, in his classic nineteenth-century study

"Democracy in America," argued for allowing judges to moderate the

legislative excesses of a democratic majority through the "antidemocratic"

means of judicial review

“This highly politicized culture in which the American judiciary operates has generally been

absent in Canada. None of our judges are elected, or must run for re-election. None of our judges have their appointments subjected to confirmation votes by a majority of elected

politicians. And political attacks on judges and their courts, by politicians or by

the media, are generally regarded as improper attempts to influence the process of

impartial adjudication.”Michael Code,

Political and media bias about the Supreme Court of Canada:Dispelling the big lie that the court is “soft on crime”

Bertha Wilson, the first woman to be appointed to the

Supreme Court of Canada, stated in a 1985 speech that

the new role of judges following the adoption of the Charter entailed

"a fundamental reordering of the political balance of power."

Charterland• Charter of Rights and Freedoms (1982)

• To advance the rule of law in a liberal democracy

– Prevent governments, no matter how strong their majority support, from trampling on rights of minorities or individuals

– Extensive transfer of decision-making power from legislatures to the courts

• Ultra vires

Courts and the Charter

• The Charter incorporated a new set of constitutional limitations on the legislative and executive branches of government.

• Citizens could now go to court to challenge laws and government acts not only on the ground that they exceeded the grants of power, but also on the ground that they violated fundamental rights. Canadians

• Swamped

central problem

interpreting a Charter which is of necessity very vaguely

formulated

social context

The courts discharging their constitutional role do not function as secondary legislatures. Judges are not

politicians. They are not principal players in the game. They are not even like a head referee or umpire,

directing traffic and passing moral judgment on the playing field. They are more like linesmen in a football

game, measuring the play and calling in or out, enforcing the boundaries of democratic governance. To properly

perform this function, they must be impartial and objective. They cannot be beholden to one team or the

other, one segment of the electorate or the other.

Their role is to mediate the divergent interests, not to

vote for one side or the other. Right Honourable Beverley McLachlin, Chief Justice of Canada, November 2002

“Judges in the contemporary world must rest their decisions on reason, not on force, fear or the deployment of state

power. Thus, the ultimate foundation for judicial independence lies not in the

words of international instruments nor even of domestic constitutions. It lies in

the manifest integrity of the judiciary itself and the general acceptance of that

integrity by the communities whom the judges serve.”

Michael Kirby, Speech to YALE LAW SCHOOLTHE GLOBAL CONSTITUTIONALISM SEMINAR

16 SEPTEMBER 2000COURTS & POLITICS: JUDICIAL INDEPENDENCE

Political theorist Joseph Heath: those on the left and those on the right ignore the importance of institutions in

fostering political unity and identity. In particular, the cultural nationalists mistakenly assume pluralistic societies such as Canada require

shared values to avoid falling apart. They fail to understand that our pluralism reveals intractable

conflicts on basic values, and what ultimately hold societies together is the institutions -

Parliament, the courts and the Charter of Rights - that mediate those conflicts.”

Ottawa Citizen, Nov. 3, 2002, A5

Think of the odyssey as a long journey.

It is more a maze than a labyrinth:

a labyrinth has just one path,however winding it is, with basic choices

of direction and pace

a maze has unknown, multiple crossroads and uncertain

choices of adventure or misadventure