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Public Law II - Jan. 16, 2014

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Political Science
POLS 3136
Jennifer Dalton

Two themes of today: judicial review and rights protections (pre and post charter – most apparent theme of course) -first big question you want to ask yourself is what is judicial review? -in essence, judicial review is (point 1 on slide) -pre 1982 judges called upon to evaluate statutes and legislation for the most part in keeping with federalism (i.e. the principle that you’ve got provincial and federal gov’t with various areas of jurisdiction) -prior to the charter judges dealt primarily with s. 91 and 92 of CA 1867 (which are places for federalism) -post 1982, power of judicial review expanded -with implementation of charter, judges started to be called upon to ensure that gov’t laws would be consistent with so-called supreme Canada (mandated in section 52 of CA 1982) and the supreme law of Canada then needed to be defined, and it was expanded to include the charter -what that means ultimately is that gov’t laws and actions have ot be consistent with the charter, and protections and rights included in the charter and that’s to ensure that charter rights are not infringed -now, that doesn’t mean that courts go out of their way looking for cases to deal with, issues to rule on; issues have to be brought to courts -in that sense, you could say the power of the judiciary is more passive, on the other hand, once those cases come to them depending on how significant politically charged the issues may be that are brought to the courts, judges may then be asked to weigh into political matters and can potentially then, overstep their boundaries as appointed officials who are supposed to interpret the law, and this is where judicial review can move into the more sticky area, so to speak, of judicial activism -this is where there’s a really big debate concerning the role of judges in as much as the extent to which judges should be involved in the policy making process and a law making process – debate over proper role of judges -post 1982, role of judges expanded (S. 52 of CA 1982), judges had to start looking at various issues to ensure constitutionality upheld, judges looking at much wider range of issues -result has been that some think judges more activist than they should be, and instead of interpreting the law, they are shaping the law -on the other hand: judges are merely keeping step with societal norm values and in some instances are willing to tread where elected officials dare not because they do not want to lose their voter base -judges expected to be independent from political process, question of independence is again sticky, because in prof’s opinion, it is somewhat unacceptable to expect judges to be entirely separate from the political process – they are one of the branches of gov’t, yes they are supposed to be independent and unbiased but they are still people and that’s where the whole activism debate comes into play -you can compare that with the notion of parliamentary sovereignty (next slide) -parliamentary sovereignty core of constitutional law pre 1982, this is where you bring federalism back into play -CA 1867 has two primary features that are most notable in context of judicial review: parliamentary sovereignty and federalism -both of these qualities were passed down to Canada, inherited from UK tradition -parliamentary sovereignty is premised on the notion that it is up to parliament to create laws and elected rep’s are there to make these law and to engage in the political debates that are ideally put forward by their constituents, obviously how that plays out is a little more complicated than that, but the key there is that parliament is the appropriate law-making body and judges are there simply to interpret the laws or to shed light on how the laws should be viewed -in that sense, judges are bound by the doctrine of stare decisis, which simply means that judges are to look to previous cases to form their rulings -even when a case is contentious that is brought before them, it is expected that they will look to previous cases that are similar to the case at hand and use those rulings to build upon and to give life to rulings they’ll make at the time (do not have freedom to rule however they wish – they could technically, but it’d be called into question) -the question of how a judge will be perceived in terms of being too activist, or not activist, etc., depends largely on how much the judge will rely on the doctrine of stare decisis and whether they might sort of ease away from different interpretations, and each judge will have their own interpretation -because the law is very grey, judges are able to usually with great ability use precedent to shape and form an argument the way they see fit, and this is what you see lawyers doing as well because they’re able to look to this huge body of common law that suits their preference best and then use them to move forward -in this context, stare decisis and how judges are expected to rule based on past precedent, it also has to be recognized that society changes over time, so the values and norms that societies have say now, are not going to be what they were 40, 50, 60-100 years ago, and in that sense it’s also understood that judges will embrace the notion of common law or the constitution and interpret it as something that evolves over time – sort of like a living tree -so-called living tree doctrine, that a lot of people use to describe the common law tradition -whether or not judges embrace that living tree doctrine is directly related to how far judges may or may not exercise their powers of judicial review -in that context, federalism is the other important constitutional principle that’s sort of the other foundation of the CA 1867, which lays out division of powers of provincial and federal gov’t -fed. Gov’t has specific powers under section 91 of CA and s. 92 covers provincial powers, then there are a couple other sections following that that lay out other jurisdictional issues Moving onto human rights then… -pre-charter: basic rights protections have been a fundamental part of constitution -there’s a historical basis in our (Canada’s) historical make-up to recognize human rights -for the most part, rights protections have been supported through statutes, common law (judicial rulings), etc. -most significant historically pre-charter: freedom of expression and religion, and various democratic principles have been around for a while -these democratic principles include issues such as representative gov’t, responsible gov’t, citizenship participation – these are all historic protections that recognize at least these components of human rights -in that context, prime example is clash between French and English Canada and historically the need to recognize and protect minority languages (i.e. French minority outside of Québec, and English minority inside of Québec), the recognition of minority religious education rights (that’s where we see the Catholic school board come into play, recognized in CA 1867), as well as rights for cultural minorities and undergirding these basic principles are unwritten constitutional principles -these are the conventions prof was talking about a minute ago, these conventions include the proper recognition of democracy as well as recognition of respect for minorities and the basis of democracy is what you see connected to notions of parliamentary sovereignty, and notions of responsible and representative government -this is historically within Canada, domestic context – if you go internationally, we also have recognition of human rights for decades within the UN, specifically there’s the UN Declaration of Human Rights & the International Covenant on Civil and Political Rights -these are examples of international legal mechanisms that Canada and other countries across the world have signed onto, therefore it is expected that they will adhere to those principles -there is a difference though because some international legal mechanisms automatically apply, so if a country signs onto them they are automatically enforced and binding; while others are not automatically enforced and they instead need to be given life through some sort of legislation that is passed by the states -ex. You have the bill of rights, given life through charter -Canadian bill of rights 1960 – lots of comparisons between it and charter, bill of rights was simply a statute, did no have constitutional authority that charter has, it’s not entrenched within the charter, therefore doesn’t have supremacy of law to ensure that government won’t be able to run rough shot -additionally, it only applied to federal legislation, and because it was ordinarily enacted through parliament, could be repealed – considered toothless remedy, something that could not provide protections for human rights as would be hoped -thus, you bring in the charter, which the purpose was to provide and entrenched bill of rights that had strength to give various disadvantaged groups the protection that they needed Turning back to question of judicial review post-charter… -because judicial powers expanded with section 52 and also connected to entrenched rights and freedoms in the charter (which are entrenched according to supreme law of Canada), judges must now decide on issues that are not purely legal, and are not simply dealing with federalism issues -instead, they are also dealing with issues that can have very contentious political ramifications and that brings us back to this whole debate of judicial activism and review and whether judges have the moral authority to engage in that sort of political involvement -so, according to Kent
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