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Department
Political Science
Course
POLSCI 3NN6
Professor
Greg Flynn
Semester
Fall

Description
Started on: 11/23/2013 Angie © McMaster University E XAM R EVIEW FOR : POLITICAL S CIENCE 3NN6 – P UBLIC L AW QUESTION SHEET McMaster University, Fall 2013 Please answer the following question sheet and then look at the answers in the ! (A) Identify, explain and give the significance of the following terms, with reference to relevant cases where appropriate (choose one/two out of four): 1. Judicial Independence 2. Judicial Review 3. National Concern Doctrine 4. Emergency Powers Doctrine 5. 6. Parliamentary Supremacy 7. AudiAlterum Partum 8. (B) Identify, explain and give the significance of the legal principle arising from the following cases (choose two/one out of four): 1. Citizens Insurance v. Parsons 2. Re: Board of commerce and Combines and Fair Prices Act 3. Ontario V. Canada Temperance Federation 4. Re:Anti-Inflation Reference 5. R. v. Crown Zellerbach 6. General Motors of Canada V. City National Leasing 7. FACTS: CNL brought a civil action against GM under S.33.1 of the combines act, which GM argued was unconstitutional because the bringing of civil causes of action was a matter of provincial jurisdiction under property and civil rights. 1 Fall 2013 Started on: 11/23/2013 Angie © McMaster University 8. Baker v. Canada ANSWER SHEET JUDICIAL INDEPENDENCE Week of September 30,2013 Sourcebook – Chapter 4 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! Relevant cases: FACTS: CNL brought a civil action against GM under S.33.1 of the combines act, which GM argued was unconstitutional because the bringing of civil causes of action was a matter of provincial jurisdiction under property and civil rights. JUDICIAL R EVIEW Level of defense October 8 & 15 Lecture notes Chapter 4 – Readings, pg.71 -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. substantive review) -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. Relevant cases:  Metropolitan Life: The Ontario legislature amended the law to permit the board to do what the Supreme Court had said it could do.  Baker Two kinds of Judicial Review (sliding scale of protections)  Procedural Review: concerned with the PROCESS by which an administrators decision is made o Natural justice  AudiAlterum Partum: it presumes that a person affected by an administrative decision will be given an opportunity to be heard on his or her behalf. 2 Started on: 11/23/2013 Angie © McMaster University  Bias: It presumes that no administrator will or can be a judge in his/her own cause. (The test for bias is ) 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) N ATIONAL C ONCERN D OCTRINE -Local or provincial issues could go beyond the scope and become of importance to the entire country -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 Johannesson v. West St. Paul Munro v. N.C.C R. v. Crown Zellerbach (TEST) E MERGENCY P OWERS D OCTRINE It is a power that would allow the federal government to intervene in provincial affairs when there is a matter of emergency. The use of the emergency power doctrine gives the federal government jurisdiction to do what it wants! Intervention does away with the division of POWERS during the emergency! Associated with Lord Haldane Relevant Cases Re: Anti-Inflation Act After theAnti-Inflation case FederalAct 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. Anti-Inflation Reference • 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 3 Fall 2013 Started on: 11/23/2013 Angie © McMaster University • 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. R ULE O F LAW (RO L) Roncarelli v. Duplessis FACTS: 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. VERDICT: 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 them. - **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 Roncarelli v. Duplessis I. Known and Enacted Laws 1. We must know what is being passed II. Government action authorized by and in accordance with Law 1. IF the law does not say that the Government can do something; the GOVERNMENT can’t do it. 2. Government action must be authorized and carried in accordance with the law III. Everyone is subject to law 1. Including the government; from the highest to the lowest individual; no exceptions to the rule of law. P ARLIAMENTARY SUPREMACY LEGISLATIVE AUTHORITY: Parliament supremacy; legislature has the authority to make or unmake any law whatsoever, it can change the law as it sees fits; there are no restrictions on legislative authority; it means that the other levels of government; judicial and executive; are subordinate to the legislative branch of government; o It has never existed in Canada o What are the limits to Parliamentary Supremacy?  Federalism 4 Started on: 11/23/2013 Angie © McMaster University • We divide between two levels of government; the constitution itself divided legislative authority between the two; In these systems and depending on the constitution; one level of government is precluded from making laws in specific areas; • Bound only to the areas permitted by the constitution; sovereign within those jurisdictions; free to make laws within those jurisdictions as they see fit; constrained by other factors; charter of rights and freedoms; list set of rights that governments shouldn’t interfere;  Charter • Limits to what parliament can do; • Reasonable Limits Clause; were permitted to violate the charter of rights and freedom because of section 1. • Notwithstanding clause: government has the authority to do so if it’ll violate our rights;  Amending Formulae • Prior to 1982 if wanted to change the constitution, had to go to the queen and ask her to do so; • Amending formulas that provide for some supremacy to affect matters in the constitution that are in the jurisdiction;  Extraterritoriality; • Can parliament make laws that apply in Canada to acts of Canadian citizens outside of the country? o Yes. Statue of Westminster; o R. v Bakker  ‘Bakker’– tried for committing crimes under the Canadian criminal code; took place in foreign jurisdiction; underage children; decided to Vietnam and Cambodia to have sex with prostitutes under the age of 13  Video taped; advertised on the web about sex tourism; o Haven’t tended to do so; is because then other people will make laws that apply inside borders in Canada; asserting extraterritoriality in foreign jurisdiction; • If unlawful events occur outside of the border; can be persecuted; o E.G exploitation of women and children; • Extraterritorially of the provinces; do not have jurisdiction o Provinces have power within the provinces; o Provinces can only pass laws with what occurs within those boundaries; o Incorporations act in Canada; corporation made in Ontario, it can carry its business anywhere it wants;  Province creates the entity and allowed to carry out its work; power of parliament to make or unmake laws;  Delegation; • Can the delegation it’s law making to other bodies? Yes;ANYTHING BUT TAXATION; • Hodge v. Queen 1883; The issue was whether the province could delegate its authority to make laws around the sale distribution and prohibition of alcohol to a board of license commissioners; • ONLY POWER THAT THE DELEGATE CANNOT DELEGATE is the ability to LEVI taxes; (Taxes; exist in the hands of federal government alone) 5 Fall 2013 Started on: 11/23/2013 Angie © McMaster University o RE: Ewing State o Fees on probate to the court? If it’s necessary to prove that will and dispense the will through the court; then fees are applies; courts set out a percentage of the state as the fees to probate; section 53. That taxes can only be levied by the house of commons; cannot delegate authority to any other body;  Self-imposed limits (Can bind future governments) • Imposing ties on a future government’s ability to do what they’d like; balancing of budgets? Let governments off the hook; “had to cut off this spending because of the budget” Governments can impose restraint on themselves; self-imposed restraints can be restrictive; • RE: Cap Agreement o Cap agreement that federal government would fund Welfare programs funded by the Government on 50% basis and would increase the amount at rate of inflation; o Mulroney limited increase at 5%; BC, Alberta, Ontario; others were allowed to let their social welfare budget to increase; o Provinces took it to the court; could change the legislation or could leave it as such; changed the legislation; and it was no longer bound by agreement; • Wells V. Newfoundland o 1999  Globalization • Can Canada opt out of World Bank and NAFTA; the government can withdraw from these trade agreements if it wants to; REALITY: Can it really do any of these? Dichotomy between what the law says we can do, but no government would take this because of the consequences; A UDI A LTERUM P ARTUM Readings on pg. 73 IT ISARULE of NATURAL JUSTICE -- UnderAdministrative Law / Natural Justice  Part of the Natural Justice/Procedure; Where courts developed procedures to protect the rights; concerned about the potential imbalance of powers between the state and society. --Natural Justice exists because you are a human, an individual ---Apply regardless of citizenship ---“Non” Canadians are entitled to the protection of the state, even if they’re not Canadian  Hear the Other Side 1. Aperson who is affected by the decision has the right to be heard in the process 2. There is a sliding scale of protection 3. You need to figure out how much protection an individual is entitled to; and see where they would fall! 4. It’s not talking about the decision, but concerned with the PROCEDURAL aspect*** ---Under the audi rule, the requirement most likely to be required is that NOTICE of the decision or action contemplated be given to the person affected*Also, the courts require that the person affected be able to make some kind of representation on their behalf. ---The content of the natural justice tends to resemble a sliding continuum from the most minimal to all of the ordinary protections a court can bestow! See below.  Possible Protections underAudi Alterum Partum (From least to greatest) 1. *Notice (Nicholson; duty of Fairness) tells us that they’re entitled to a hearingAND a notice 2. Make representation; to know that a hearing is being held and to attend! 6 Started on: 11/23/2013 Angie © McMaster University 3. Disclosure 4. Oral Hearing 5. Reasons for Decisions 6. Right to cross-examine 7. Right to counsel 8. Legal trained decision makers 9. Full court rights Related Cases Baker Nicholson v. Haldimand Singh v. Canada Consolidated-Bathurst - The Ontario labour relations board’s hearing panel consulted with the full board on a policy matter before reaching a final decision. Because the consultation occurred in the absence of the parties, there were major allegations of a breach of the audi rule R EASONABLE A PPREHENSION OF B IAS Readings on pg.73-74 -Bias or lack of impartiality includes cases of actual bias, as where the decision maker has a direct monetary interest in the outcome of the decision he or she is adjudicating. -Courts require that “Justice should not only be done; but should manifestly and undoubtedly be seen to be done.” -An appearance of bias may result from non-monetary interest in the outcome of a decision because of a special connection to one of the parties or issues, or from comments by the decision maker that suggest a closed mind or stereotyping in regard to a party or issue in question! --The reasonable apprehension of bias is part of the Natural Justice / Procedure (IT ISATEST) ---It is not concerned about independence, but impartiality, and it is predicated on whether these decision makers will make decisions on the case before them, or make decisions BASED on other FACTORS. Do they stand to gain from the decisions that they make? 1. Includes not only the circumstance where there is clear conflict; 2. But also those where there is no apparent conflict a. People can question the partiality of the member; 3. Apprehension of Bias (TEST) a. Whether a reasonable person aware of all of the facts would have a reasonable concern that the decision maker was biased, not neutral, or was making their decision based on irrelevant factors; b. Degree of the connection between the decision maker and the biased factor; c. Sliding Scale; one that will depend upon the circumstances; i. Go through the baker to determine the degree of impartiality d. Example; i. Member of the law society and subject to disciplinary hearings; might not always want a complete degree of impartiality; -- better to have lawy
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