POLS 3651/ MIST 3651
November 25th, 2013
Lecture 10 – Week 12
Issues in Canadian Public Law
Role of Courts:
• Dispute resolution, prevent abuse of power
• The role of the judiciary has been evolving, developing in the Canadian context. Up until 1949, judiciary
in Canada mainly dealt with minor issues. Major appeals had to be handled in Britain.
When the charter was introduced, as it revolved, we have this notion of judicial review. Meaning, that
judicial looks into the constitutionality and addresses these conflicts.
Gradually assumed significant power and has gone beyond the realm of legal and it has in fact to a
large extent become politize.
• Peter Russell: “It has become the final arbiter ‘not only of the division of power between governments
but also of the line between powers of both levels of government and the rights and freedom of citizens.’
• Parliamentary sovereignty vs. judicial supremacy.
According to the Canadian constitution, the parliament should be supreme and have the final say in
matters of law, acting laws and different aspects of Canadian society. But, we have seen that in practice
the judiciary has come to have the last word. This is because the judiciary has the power to crush the
laws, acts passed by the parliament.
When we have the charter of rights and freedoms, it gives the judiciary to look into the parliament
because they are the only power that can interpret the law.
Parliamentary sovereignty should be the essence of Canadian democracy.
The Courts and Democracy:
• Legal limitations on the actions of government officials
• Dialogue vs. monologue
Certain legal scholars who try to address this apparent conflict between the judiciary and the
parliament. Peter Hall vs. Morton
In reality the judiciary intervenes in political process.
• Politicization of the role of supreme courts judges. (one problem in public law)
The Charter and the Criminal Justice System:
• The relationship between crime and race or ethnicity has important implications for Canada.
• Has the Charter made a difference?
▯To what extent has the Charter made a difference? Or has it made any difference?
There is a gap between the law and justice.
Issues of race, crime and law become particularly important because of this aspect of Canadian
society, this cultural mosaic has given rise to this hierarchy of interactions of different cultures and
values in the Canadian context.
Certain groups have been unjustly treated by the Criminal justice system.
Administrative law and the courts:
• Legal limitations on the actions of government officials.
• Administrative law is the body of law that focuses on the activities of the government agencies. It is
about the relationship that exists between the state and society. Laws and statue passed by parliament
would guide the government in developing Canada and managing this sys