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Law Politics and Judicial Process.doc

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Political Science
POLS 3130
Dennis Baker

Law Politics and Judicial Process POLS*3130 2013-01-09 1. Definitions and Types of Law Opitz v. Wrzesnewskyj (2012)  Intersection of Law and Politics Clash of legal and political values: - Proper procedures (due process) – “These rules must be applied fairly and consistently if the right is to have meaning.” - Normative political values – “The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves. Rather they should be treated as a means of ensuring that only those who have the right to vote may do so. It is this end that must always be kept in sight.” - New evidence and appellate courts (para 81). o Appellate courts almost never hear new evidence, usually just the transcript o Appellate courts hear questions of law, not questions of fact ”If you’re going to vouch for someone, you actually have to live in the same riding as them.” Law and Politics  Magna Carta (1215), s. 39, rule per legem terrae (‘according to the law of the land’). The ‘Rule of Law’ is a fundamental tenet of Canadian government  The judicial process is at the centre of the tensions inherent in self-government  What role do the Courts play? How does law interact with politics? How do legal actors (and the legal process) differ from political actors (and the political process)?  Politics is bound by law… - Primacy of legal norms - Constitutional supremacy (Legal rules can be inhibiting ‘argument’-stoppers; must be careful about law-politics interface).  But the law is shaped by politics (and occurs in a political context)… - Statutory law - Politics of judicial appointments - Judicial decision-making can be political Basic Definitions  David Easton: Politics = ‘the authoritative allocation of values’  Law is… (very contested) - Basic ‘positivist’ definition has four elements o Body of Rules o Enacted and applied by public officials o Formulated by legitimate means o And backed by state force  Role for Natural law? - Fuller: prospective, precise and “like cases treated alike” = Rule of Law - Dworkin: underlying moral principles Judicial Process (in theory)  Core of the judicial process is dispute resolution  Courts are one method of resolving disputes (coercive) - Courts adjudicate disputes by applying the law to the facts of the dispute - Accepted by both parties because Court is impartial 2013-01-11 Judicial Process  “Judges as neutral adjudicators of disputes applying law to facts” is much more complicated than first appears - Role of the judge (adjudicator vs. mediator) - Fact finding (determining “truth” and “historical” facts vs. “social” facts) - Rule interpreters or rule makers? - What is a ‘dispute’? o Standing (right to be in court, right person to bring this forward), mootness, intervenors (third parties, i.e. gay rights groups, church groups etc.), ‘political questions’ Judicial Branch  Judicial system is a branch of government- in other words; judges make authoritative allocations of values  Many issues surrounding the courts have political implications; For example: - How many judges selected? - How easy it is for interest groups to take a case to court? - How much independence should judges have from politicians (salaries, etc?) - How do judges make decisions? - How are judges held accountable? - How involved should the courts be in making decisions about controversial policy issues - Should provinces and the federal government have separate systems of courts as they do in the US? Systems of Law  Civil Law (Continental Europe, Asia, Quebec and Scotland partly)  Common Law (UK, Canada, US, number of other former British colonies)  Civil Law = someone doing something in advance, single author, figured out law logically (Proactive; designed)  Common Law = based off experience, figure out law through experiences, over time rules become solidified and based off the experience is how laws come about, many variations (Reactive; experiential)  Civil Law is only used in Quebec for private law  If its public law it does not matter where you are in Canada it will be the same Distinguishing the two systems Common Law Civil Law Sources of Law Organic, and Experiential. Comprehensive Case law (judge made law, Codification. Written common law); Legislation; Codes; Written Written and unwritten Constitutions Constitution Legal reasoning Stare Decisis – ‘deciding Deductively applying like cases alike.’ principles in code to dispute before the court Categories of Law  Private (civil) law – rules that govern relationships and disputes between individuals/business  Public law – rules that govern relationships and disputes with a ‘public’ dimension - Criminal law: because all criminal cases have the state as a side [Note: both private and public law have procedural laws (rules about evidence, juries, etc.) and substantive laws (actual rules)] Public Dimensions of Private Law  Skwarok v. Werbenuk Estate (2010) - Private law (wills and estates) - Lower court (single judge), subject to appeal - Common law rules supplemented by statutory rules Categories of Law  Categories of private law: - Tort – an actionable wrong committed against the person, property or reputation of another for which a remedy is provided o Assault and battery, trespassing, defamation, kidnapping or negligence - Contract law – binding legal agreements made by mutual consent o Offer, acceptance and consideration - Family law – marriage and divorce, custody, support payments - Property law – laws relating to rights ‘in’ something (ownership). Can be ‘real’ property (land), ‘personal’ property and more (‘intellectual’ property) - Duty of Care: reasonably foreseeable - E.g. Ginger Beer o Originally plaintiff wanted to sue because a contract was breached, but there was no contractual relationship to the actual beer company o To sue for tort, you need a duty of care, the beer company said they didn’t owe her duty of care, they owe it to the café o Reasonably foreseeable that the product was going to be made to drink o Beer company stated that they only owe the café, and that the café was to inspect the bottles, but there was no way they could, because of the opaque bottle  Categories of public law - Administrative law: provides legal standards to govern the actions of governmental officials (bureaucrats) and provides remedies to those aggrieved by an improper, illegal, or unauthorized act by government or one of it agencies (telecommunications, immigration, transportation, welfare, labour, etc. –law administered by various tribunals and reviewed by courts). - Criminal law – rules about wrongs committed against property, persons, or state that are considered to be detrimental to society as a whole. All offences are statutory - Constitutional law – supreme law (outlines branches of government, state/citizen relationships, division of powers in a federal country, etc.) Constitutional law – division of powers (federal and provincial) and Charter of Rights and Freedoms Public Law Federal Provincial (Common Law – legislation - criminal law - quasi-criminal (traffic and/or judicial decisions) - administrative law laws) (immigration, environment, - administrative law telecommunications, (education, labour, aeronautics, etc.) environment, etc.) - tax law - tax law Private Law - family law (marriage and - family law (custody, (Common Law – legislation divorce, custody support) access, support, property and/or judicial decisions) - copyright law division) (Civil Law – code— - commercial law - tort law Quebec) - [private claims against the - contract law crown] - commercial law Scenarios  What type of system of law is at work, what category or categories of law are at work in the following scenarios? - A person slips on a wet floor in a department store in B.C. and sues o Private Law, common law, tort, and provincial - A person is charge with assault in Newfoundland o Public Law, common law, criminal law and federal - A person takes a (former) friend to court for not upholding a contract entered into in Quebec City o Private Law, civil law, contract law and provincial - A person goes before the Ontario Rental Housing Tribunal saying that her landlord violated her rights as a tenant o Public Law, common law, administrative law and provincial - A person in Montreal is convicted for possession of cocaine o Public Law, common law, criminal law and federal - The Canadian Food Inspection Agency is sued by a car company for allegedly not paying the lease on a vehicle o Private Law, common law, contract law and provincial - A company argues that the Canadian Radio and Telecommunications Commission unfairly decided how to award satellite radio licenses o Public Law, common law, administrative law and federal 2013-01-14 Crookes v. Wikimedia Foundation Inc. (Newton), 2011 3 S.C.R. 269  Whether a hyperlink, linking to something constitutes as a liable R. v. J.A.A., [2011] 1 S.C.R. 628.  Brings forth fresh evidence after trial Definitions for paper Joining – joining another judges opinion wholeheartedly Concurring – agree with result, but different reasoning Dissenting – disagrees with both the reasoning and result  Use one distinguished in and one followed in for part 2  HeinOnline – Canadian Journal of Law and Society  2013-01-21 Structure of Canadian Judiciary  Which level of government administers courts? FEDERAL  Which level of government appoints judges? FEDERAL  What kinds of cases (and from what locations) can courts hear (what is their jurisdiction)? Territorial, Hierarchical and Subject matter (types of cases)  How much discretion do courts have in hearing cases?  Three types of courts: - Section 92 courts (‘provincial courts’) o Created, administered and judges appointed by the provincial government - Section 96 courts (‘superior courts’) o Administered by the provinces and judges are appointed by federal government - Section 101 courts (‘federal courts’) o Created, administered and judges appointed by the federal government Structure of Canadian Judiciary:  s. 92 courts have no jurisdiction, no appeals, just one level Number of Judges Structure of Canadian Judiciary: Alberta Court System: US Court Structure: Differences between Canada and US Judicial Structures  No “mixed” courts in the US where both levels of government have involvement in administration/appointment (i.e. no equivalent of s. 96 courts in Canada)  In the US federal courts, including the Supreme Court, in the US only hear cases involving federal law (state laws are only dealt with if they might violate US Constitution or in a complex case involving state and federal law)  ‘Dual’ system in U.S. (but some ‘track jumping’)  In Canada, situation is more complex - Supreme Court hears cases involving both provincial laws (i.e. Ont. Education Act, Newfoundland Liquor Control Act) and federal laws (i.e. Criminal Code, Income Tax) - S. 96 (mixed) courts and s. 92 (provincial) courts hear cases involving both provincial and federal law - S. 101 Federal Court hears cases primarily involving federal administrative law (immigration cases, telecommunication cases, and so on) s. 92 Provincial courts  Courts are created and administered by the provinces and judges are appointed by the provinces  Located in numerous communities in each province  “Workhorses” of the judicial system - most criminal law (including young offenders) - many tort and contract law disputes (up to a dollar value) (e.g. less than $10 000) - many family law issues (maintenance, adoption, etc.) that are provinvial jurisdiction - most criminal law cases o summary offences (causing a disturbance (federal Criminal Code), provincial offenders under provincial legislation, such as traffic laws) o hybrid offences under Criminal Code (impaired driving, theft under $5000) o many indictable offences (except for the most serious, such as murder) where the accused chooses to be tried before a provincial court judge (instead of choosing to be tried in a s. 96 court) o offences under (federal) Youth Criminal Justice Act o also, preliminary inquiries for indictable offences to be tried in s. 96 court s. 96 courts  Administered by the provinces, judges appointed by the federal government  ‘Inherent’ jurisdiction within each province - unless otherwise stated in legislation, courts have capacity to hear most public and private law cases  Trial court level - have different names in different provinces (eg. Court of Queen’s Bench [Alberta], Superior Court of Justice [Ontario], Supreme Court (Trial Division) [Nova Scotia])  Appeal court level (20+ judges, 3 or 5 on panel - (Alberta Court of Appeal, Ontario Court of Appeal, Supreme Court (Appeal Division [PEI]) - Only 2% of cases actually make it to the supreme court, this is the usually the last spot for 98% of cases  Hears appeals from s. 92 courts and from provincial administrative tribunals  Serious criminal law charges  Torts and other private law matters over a certain dollar figure (i.e. $10, 000)  Family law (divorce, custody and support, etc.) - Note: some provinces, such as Ontario, are creating “unified” family law courts at s. 96 level s. 96 Jurisdiction  Supreme Court has protected s. 96 jurisdiction from the Federal Court - e.g. ruled that Federal Court does not have a monopoly on determining constitutional validity of federal laws  Provinces wishing to invest decision-making authority in provincial tribunals have to pass at least one prong of a “test” developed by the Supreme Court  Reference Re Residential Tenancies Act (Ontario) (1981) - Historical inquiry – is the provincial court or commission or tribunal going to be exercising functions that s.96 courts have historically done? - Judicial function- is adjudicating disputes according to legal principles a core function of the commission or tribunal? - Institutional setting- what is the nature of the legal relationship? o And, “core jurisdiction” of s.96 courts could not be taken away (MacMillan Bloedel v. Simpson (1995)) o New court has to pass 1/3 tests, in this case this court failed all three Federal Court of Canada  Established in 1971  Hears trials and appeals - headquarters in Ottawa, but hear cases in various parts of the country  Jurisdiction - reviews cases from federal administrative boards (CRTC, immigration, competition, human rights commission etc.), citizenship matters, federal provincial relations - shared jurisdiction with s.96 courts for civil claims by and against the (federal) Crown o Federal government can sue another party in Federal Court if the federal government has legislated in the area. o Federal government can be sued in s.96 or s.101 court. o Federal Court does not exercise “ancillary” or “pendent” jurisdiction Supreme Court of Canada  Created by legislation passed by Parliament in 1875, why not 1867?  Did not become Canada’s final court of appeal until 1949 (abolition of appeals to the Judicial Committee of the Privy Council).  Nine judges appointed by the federal government – By law– 3 from Quebec – By custom– 3 from Ontario, 2 west, 1 Atlantic Can. Functions of the SCC  Primarily an appellate court  Hears both private and public law cases  Hears cases involving both federal laws (Criminal Code, Income Tax Act, Agricultural Products Marketing Act, Employment Insurance Act, etc.) and provincial laws (Education Act (Ontario), Highway Traffic Act (Alberta), Family Law Act (Newfoundland), etc.)  Decisions are binding on all courts in the country.  Supreme Court is ‘unifying’ or ‘centralizing’ force Supreme Court docket  Since 1975, SCC has much more control over what cases it will hear. (Appeal by right eliminated – almost!). SCC Stats Current Trends and Issues  Creation of “specialized” courts (problem-solving courts) – Examples o Aboriginal courts (i.e. “Gladue” court in Toronto, Nunavut court of justice) o Drug courts o Domestic violence courts o Mental health courts o Youth justice courts – How are “specialized” courts different?  Greater emphasis on arbitration and mediation alternatives to courts – Controversy over allowing arbitration of family law according to Sharia law in Muslim communities in Ontario Questions  What are some of the legal, administrative and political implications of the way in which Canada’s courts are organized?  What are some arguments for and against specialized courts and tribunals? 2013-02-01 Judicial Selection Recruitment, Selection and Independence  Method of selection must be linked to purpose of judges… - Professionalism? - Representation? - Independence? - Adjudicator or policy-maker?  Empirical question: How do we select judges; normative question: How should we select judges. Politics and Professionalism?  The ‘political influences’ on judicial selection are often seen as inappropriate - Usually taking ‘politics’ to mean ‘partisan’ (Problem of patronage) - But Warren selection for CJ of USSC is a notable counter-example  Non-partisan political influences - regional representation - group (gender, ethnicity) representation - Ideology? Gender on the Bench A Rough Comparative Continuum  France – Civil System – “Professional” model - Civil servants like any other… - separate schools for judges  Britain – Common Law – “Adjucatory” model - political selection of PM and Lord Chancellor - selection from pool of experienced barristers  US – “Representative” model - Federal judges (Presidential nomination, Senate confirmation) - State judges (generally committee system with confirmation vote) s. 92 Selection  Until the 1990s, in most province judges were appointed by Attorney-General (Minister of Justice) or Premier - Patronage played a large role in the appointment process - Allegations of patronage continue (L’Affaire Bellemare)  Provinces now use judicial appointment committees to help in the process - Committees usually composed of member nominated by chief judges in the province, member nominated by law societies (i.e. Law Society of Upper Canada in Ontario), law members nominated by the government - Rules vary from province to province about what kinds of rankings are given and the degree to which governments are bound by the rankings  Committees in different provinces look at a variety of criteria, including: - Professional experience (most provinces have a minimum number of years at the bar [such as 5 or 10 years]) - Personal traits (ethics, work ethic, etc.) - Community awareness - Reasons for wanting to be a judge - Demographics o “The Judiciary of the Ontario Court of Justice should be reasonably representative of the population it serves. This requires overcoming the under-representation in the judicial complement of women, visible, cultural and racial minorities.” Provincial Differences 2013-02-04 s. 96 Selection: Evolution  Up to mid-1970s - direct appointment by Minister of Justice  Mid-1970s-1988 - Special Advisor for Judicial Affairs would collect information on potential candidates to give to Minister - Canadian Bar Association (CBA) offered to evaluate potential candidates  New system an improvement, but still deficiencies: – Special Advisor on Judicial Affairs closely tied to Min. of Justice worked on a contract basis – Min. of Justice did not have to listen to Special Advisor- Justice Min. experienced pressure in cabinet, overrode Advisor’s recommendations – Advisor did not have to consult with provinces – The Min. of Justice did not have to give names to the Canadian Bar Association’s “Committee on the Judiciary”- occasionally bypassed – CBA Committee did not review promotions (from s.92) only new appointments  Deficiencies highlighted by the “Saskatchewan Judges Affair” 2013-02-06 s. 96 Selection: Evolution  RUSSEL and ZIEGEL study MULRONEY APPOINTMENTS 1984-1988 - 228 appointments made, some were promotions from s.92 to s.96 trial level to appear level - 39 (17%) to Courts of Appeal - 116 (51%) to s.96 trial level (Court of Queen’s Bench, Supreme Court trial division) - 6 to Federal Court (3 trial, 3 appeal) - 3 to the Supreme Court  Who were these people? - 82.5% men, 17.5% women (40/228) - 45% of the appointees had been 20-30 years experience, 60% came from private law firms  What were their political affiliations? - Major Conservative supporters -24.1% (55) - Minor Conservative affiliation – 23.2% (53) - No Affiliation – 45.6% (104) - Major Opposition supporter – 5.3% (12) - Minor Opposition Affiliation – 1.8% (4)  1988 – process changed (though did not go as far as CBA and CALT recommendations)  Special Advisor to Justice Minister changed to Commissioner for Federal Judicial Affairs (given rank of Assistant Deputy Minister, more arms length)  Commissioner collects names of potential candidates and sends them to Screening Councils in each province  Councils: - nominee of Chief Justice of the Province - nominee of the provincial law society - nominee of the provincial branch of the CBA - nominee of the provincial Attorney-General - nominee of the Minister of Justice (federal), since 1994 Min. allowed to add another two persons to commission  After some modifications in the early 1990s, Councils rate applicant as “highly recommended”, “recommended” or “not recommended” and give reasons why - do not rate promotions from s.96 trial courts to appeal and do not rate s.92 judges who want to be s.96 judges  Professional Competence and Experience (must be a member of bar for 10 years), Personal Characteristics, Social Awareness s. 96 Selection Post-1988  Improvements: - Commissioner now arms length - Provincial influence in the process - More systematic screening process  Drawbacks: - Still only screening committee, not a nominating committee like CBA had recommended - Does not formally review promotions from s. 92 - Lack of transparency - Government does not have to choose most highly recommended candidates (old system) - Data and anecdotes suggest that patronage still a factor  Examples of recent controversies, including over patronage, to s.96 courts Supreme Court Appointments  Officially appointed by the Governor- General, on advice of Minister of Justice/Prime Minister - Practicing lawyer f
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