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Chapter 3

LAWS 2502 Chapter Notes - Chapter 3: Party System, Department Of Justice And Correctional Services, Symbiosis


Department
Law
Course Code
LAWS 2502
Professor
Philip Kaisary
Chapter
3

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CH.3 NON-JUDICIAL AND JUDICIAL CONTROL
Control
Mechanisms for controlling the executive can be divided into those that are non-
judicial and those that are judicial non-judicial controls are administered primarily
outside the courts of law; judicial control is administered directly through the courts
of law
Internal controls operate within the executive branch of government itself
- Informal controls can offer a number of strengths have a wide potential
scope
o They can address positive concerns, such a meeting deadlines and
filling quotas, as well as more negative concerns, such as preventing
or remedying mistakes
o On the other hand, the very proximity that helps ensure expertise in
making a decision works against independence in controlling it
- Political executive control of independent administrative agencies is a special
form of internal review this kind of control is exercised either through
cabinet or ministerial regulations or directives that fill in gaps in an agency’s
statutory mandate, or through direct ex post facto cabinet or ministerial
review of specific agency decisions
A second group of controls is connected with the parliamentary and electoral
process
- At the heart of our system of parliamentary democracy is the notion that our
government is directed by those who represent the general wishes of the
public at large and are accountable to them through the electoral process
- Controls that are part of this system include the requirement of federal,
provincial, and territorial elections at least every 5 years; the party system,
and the role expected of opposition parties; the requirement that a session of
the federal, provincial, or territorial legislative assembly be convened at least
once a year; the want of confidence motion; the daily question period; the
doctrine of ministerial responsibility, by which a minister is answerable for
the policies and actions of executive departments and units under his/her
control; the requirement that administrative agencies, Crown corporations,
and other semi-independent institutions, such as the Auditor-General, submit
annual reports to Parliament; scrutiny by legislative committees
- Controls through the parliamentary and electoral process can result in major
changes through legislation
- Two of the greatest defects of legislatures as effective control on the
executive are
o Their domination by the political parties forming the government of
the time (which are dominated, in turn, by a cabinet and PM or
premier)
o Their crowded agendas, which tend to squeeze out issues without
nation-wide or province-wide concern

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The media serve as a control on executive and other government action in two ways
1. By making information about the decisions and actions of the executive more
widely available, the media contribute to the effectiveness of other forms of
control, such as the parliamentary and electoral process and public opinion
2. Through editorial campaigns and ombudsman-type columnists
The key strengths of the media are their special facilities for extracting information
and their access to publicity
Private and public interest controls are a diverse form of control whose strength lies
in numbers, persistence, and publicity
- They include general interest groups such as the Consumers Association of
Canada and specific interest groups, such as a neighbourhood seeking to
obtain a local bus route
o They include public interest representative techniques, wherein a
representative of a public or private interest is appointed to serve that
interest on a public authority
- One of the most powerful and unpredictable of public and private interest
controls is the poll, which purports to represent public opinion at a particular
time
The executive may be subject to a variety of miscellaneous controls, such as
ombudsman, auditors-general, the Privacy Commissioner, the Commissioner for
Official Languages, and access to information legislation
The general aim of judicial control is to help ensure that administrative action is
carried out fairly, without interfering unduly with administrative efficiency
- Judicial review, the main traditional form of judicial control, has the
additional aim of enforcing the intent of Parliament and the general mandate
of electorate
- Judicial control of administrative action is based on the principle that the
state should act only pursuant to law, and on the further notion that it’s the
courts’ responsibility to interpret this law
- For the first principle, the all-important source of state power is the statue
the principle assumes that all law is either formally enacted by elected
legislators, or can be changed by them
- The second principle, the courts are responsible for interpreting the law, is
intended to provide a relatively independent, authoritative means of
determining what the law means in individual cases, on an ongoing basis
- The courts exercise judicial control by examining an administrator’s decision
to determine if it’s consistent with the relevant (i) legislation or subordinate
legislation; (ii) constitutional provisions; and (iii) presumptions of common
law
- Courts must try to balance the needs of government efficiency with the need
to ensure fair and non-arbitrary treatment to specific groups
- Courts must adapt the law to new circumstances, but their law-making
powers are restricted by the doctrine of sovereignty of parliament, by the

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notion that justice requires that like cases should be treated alike, and by the
functional drawbacks of judicial law-making powers in comparison with
those of the executive and legislative branches
The immediate subject matter of judicial control of administrative action is the
decisions, actions, and omissions of the members of the administrative process
- The administrative process include the executive branch of government
together with certain private or semi-private bodied that also exercise public
statutory powers
- Within the executive, there is a central administrative process, which is
under the direct responsibility of a cabinet minister
- There is also an outlying administrative process, which is the part of the
executive that lies outside the direct responsibility of a cabinet minister
- Outside the executive branch lies the quasi-administrative process, an
assorted collection of institutions that exercise significant statutory powers
even though they are predominantly private in character
o Examples of quasi-administrative process include universities and
trade unions
- The administrative process consists of individual human beings, with widely
varying backgrounds, temperaments, and expertise
There are four basic forms of judicial control: judicial review, constitutional control,
judicial appeal, and the action for damages
- Judicial review is an examination of a decision of a public authority to
determine if it was authorized by a statute
- Constitutional control is an examination of a decision of a public authority
and its governing statute to see if they were authorized by the Constitution
normally, constitutional control assesses administrative action in relation to
the written portion of the Constitution
o Assesses the validity of enabling statutes as well as action under them
- Constitutional control has become much more important since 1982
- Judicial appeal, the third main form of judicial control, is a reconsideration of
a decision of a public authority its scope depends on what the legislature
has provided, and without an appeal statute there can be no judicial appeal
- An action for damages is the fourth basic kind of judicial control it can be
defined as a proceeding for monetary compensation for an unauthorized
common law or civil law wrong actions for damages are based on the
common law
o Normally the action for damages is only available where it’s shown
that the public authority lacks statutory power to perform the action
complained of
These four main kinds of judicial control are the main elements of virtually any
judicial control proceeding relief, grounds of control, and remedies
- Relief is the redress a complainant desires from judicial control, from
quashing to prohibiting to enjoining to receiving monetary compensation
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