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Lecture 4

3nn6 week 4-judiciary.doc

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McMaster University
Political Science
Greg Flynn

THE JUDICIARY AND THE RULE OF LAW 1. THE RULE OF LAW Roncarelli v. Duplessis: case where government official went beyond his authority and revoke license when his power didn’t allow him too. i. Known and Enacted Laws ii. Government Action Authorized by and in Accordance with Law iii. Everyone is Subject to Law 2. JUDICIAL BRANCH a. Purposes: Resolve disputes according to law and to interpret and develop the law. Set up to provide fair procedure and reconsideration, authoritative, enforceable and decisive results, independent and impartial decision-making and rule oriented decisions. However the judiciary does tend to be slow, formal and expensive with limited evidentiary scope. Legal reasoning limited by precedent and post facto problem solving, outside electoral controls and winner- loser oriented is also some of the pitfalls. b. Independence: judicial independence is a foundational princple of the Constitution reflected in section 11(d) of the charter. And in the both ss. 96-100 and the preamble to the Constitution Act. It serves to safeguard our constitutional order to maintain public confidence in the administration of justice. It consists essentially in the freedom to render decisions based solely on the requirements of the law and justice. It requires that the judiciary be left free to act without improper interference from any other entity. Re: Remuneration of Judges: Below are the core characteristics of judicial independence referenced from the remuneration of judges case. It is a precondition of judicial independence that they must be maintained and be seen by a reasonable person who is fully informed of all the circumstances to be maintained c. Methods of Ensuring Independence i. Tenure ii. Financial Security iii. Administrative Independence iv. Immunity from Prosecution d. Attitude – Activism vs. Restraint: How active a role should the courts play in Canadian public law? There are different aspects however three are of special interest here: Intervention, innovation and contextualism. Intervention: to what extent should a court assess the legality of go
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