POLI SCI 3NN6 TERMS 1
Independence Judicial Branch, methods for insuring independence, Remuneration of Judges
Independence = Judicial Model; so no outsider should interfere in a way in which a judge conducts
case and makes decisions, so conditions are required
The Judiciary (branch of Government) is set up to resolve disputes according to law and to
interpret and develop the law.
o Judicial Independence militates against political accountability.
In order to have a democracy, where the rule of Law functions, you must have a judiciary that
is FREE to render decisions. If not, then there is no democracy.
It has to be independent from any kind of influence
Free from other levels of government (legislative or executive)
Free from influence by parties of the action
No constraints or inducements other than from the law itself
If the judiciary has no choice but to go from one side to another; then it’s not free!
Re: Remuneration of Judges
1. Re: remuneration of Judges
1997 decision by the Supreme Court where the principles were affirmed included 3 provinces
(PEI, Manitoba, Alberta) sought to reduce salaries of all public sector employees.
-Section 11 of the charter states that all judges be independent and impartial; relied on earlier
-Textual recognition of judicial independence; there are 4 methods to ensure independence of the
Review -The level of deference affected to the actions of the legislative and executive branches of Government
-The process by which courts review the actions of administrative bodies using their inherent
jurisdiction (i.e. even though no appeal to courts is provided in the admin body’s enabling statute)
-It can be sought alleging a lack of procedural fairness (procedural review) or on the merits (i.e.
-Judicial review is only available from the higher “superior” courts. It is administered by the common
law superior courts in each province.
--- It is a form of interpretation, primarily statutory interpretation, subject to constitutional constraints.
Two kinds of Judicial Review (sliding scale of protections)
Procedural Review: concerned with the PROCESS by which an administrators decision is
o Natural justice
Error! Reference source not found.: it presumes that a person affected by an
administrative decision will be given an opportunity to be heard on his or her
Bias: It presumes that no administrator will or can be a judge in his/her own
cause. (The test for bias is Error! Reference source not found.)
o Contextual Factors of Natural Justice
Wording and context of the Statute
The court-like nature of the decision
The actions of the administrator
The importance of the decision to those affected by it
Substantive Review: deals more with the CONTENT of an administrator’s decision
o Substantive review is not a full reconsideration of a decision; it’s not a brand new case.
o STANDARD OF REVIEW – DUNSMUIR
o Relevant cases: Metropolitan Life, SEPQA, Dunsmuir (reasonableness / correctness)
o Existing standards: Agraira v. Canada (examining existing jurisprudence, then moving
on to the full contextual analysis Baker! (Pushpanathan)
Metropolitan Life: The Ontario legislature amended the law to permit the board to do what the
Supreme Court had said it could do. POLI SCI 3NN6 TERMS 2
Concern -Local or provincial issues could go beyond the scope and become of importance to the entire country
Doctrine -Where things become significant that might affect the entire country
-“National concern doctrine includes new national matters and matters which expand and become
national. To qualify, a matter must have singleness, directives and indivisibility that clearly
distinguishes it from matters of provincial concern and a scale of impact that demands federal
classification. Test: consider the effect on the national interest if one province fails to control the issue.
Act is valid, maritime pollution is of national importance and can’t be done by only regulating the sea.
Majority will to small intrusions into provincial powers for pragmatic reasons”
Relevant Cases (1)
Johannesson v. West St. Paul (2)
Munro v. N.C.C (3)
R. v. Crown Zellerbach (4)
Emergency It is a power that would allow the federal government to intervene in provincial affairs when there is a
Powers matter of emergency. The use of the emergency power doctrine gives the federal government
Doctrine jurisdiction to do what it wants! Intervention does away with the division of POWERS during the
emergency! *Associated with Lord Haldane
Re: Anti-Inflation Act
After the Anti-Inflation case
Federal Act establishes a system of price, profit and income controls that applies to private firms,
federal employees and allows provincial employees to opt in. Preamble declares inflation as a crisis
because it goes to the core of Canada’s monetary system.
- The Judicial committee never expressly repudiated the views in Russell, Aeronautics, Radio and
Canada Temperance. It left a divided inheritance on POGG, with these wider views paralleling the
strict mainstream approach.
It can be during war or peace / it does not have to be during war
Apprehension / Can act in apprehension does not have to wait
Temporary problem / Can be resolved
Temporary solution / Has to come to an end point
Explicit reference to emergency / It has to be explicitly mentioned
- AFTER The Emergencies Act now defines an emergency as an urgent and critical temporary
situation that endangers lives, health, safety or threatens the territory and sovereignty of the nation
that the provinces can’t deal with.
Rule of Law Roncarelli v. Duplessis
Duplessis is strong Roman Catholic; Roncarelli is a Jehovah’s Witness. Quebec is a non-secular
society; strong Roman Catholic Background in the 1950s
Jehovah’s Witnesses are running around the streets of Montreal; found to be a nuisance by many cities
and Jehovah’s witnesses are charged and incarcerated;
- Roncarelli; Relatively flush with cash; and bailed out the Jehovah’s Witness.
- Duplessis did not like this; and did not have a specific way of going against Roncarelli; Finally, he
figured out a way that he could get around; by taking away the liqueur license; and Mr. Roncarelli
business went under and lost it; sued the Government and Mr. Duplessis for abuse of power.
The Supreme Court ruled on behalf of Mr. Roncarelli and awarded him damages.
- The Supreme Court enunciated the Principles of RULE OF LAW; Duplessis had violated
- **If the three components of the rule of law are absence; then there’s no democracy.
-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 SHIELD from arbitrary state action!
There is no such thing as a DEMOCRACY if there is no rule of Law!
Relevant Cases POLI SCI 3NN6 TERMS 3
Roncarelli v. Duplessis