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Chapter 11

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Political Science
POLS 3130
Dennis Baker

Chapter 11 Courts, Policy-Making and Judicial Impact • public policy involves developing objectives to address issues or problems and selecting means to achieve those objectives. These include value considerations and effectiveness and efficiency considerations. • interstitial rule making- judges asked to adjudicate disputes, it is often unavoidable that they shape law and policy as a by product of interpreting how the law applies to a particular situation. • this is especially true for constitutional law- when judges are asked if ordinary laws are constitutional • activist decision- decision that requires the government to alter its policy • courts adopt a policy making model. This includes a greater willingness to relax the rules concerning standing, mootness and political questions; to allow interveners; to use social factors; and to shape the law. Courts and Policy Making • adjucative model of courts emphasizes that the judicial development of law should be limited and incremental and be based on existing legal principles in order to be legitimate • the police making model of courts is more comfortable with judges base in their decisions on promoting fairness, balancing interests and keeping the law in tune with the times. with less emphasis on the application of legal principles Non-constitutional cases • advocates for codification suggested that judges who made decisions on a case by case basis could easily avoid following established precedent by distinguishing the present case from the past ones, i.e. inserting personal biases. • opponents of codification suggested that law making by judges trained in the law was important bulwark against legislative bodies that might respond to the whims of the masses when making decisions • the accelerated growth of legislation and regulation coincided with the rise of the administrative state in which legislatures delegated rule making and adjudicative powers to various administrative agencies. • courts shape law and policy in four important non constitutional ways • 1. courts perform a policy-making function in overseeing decisions made by administrative tribunals. courts review procedural aspects of administrative tribunal decision making and assess the substantive decisions that tribunals make. The recent trend has been for courts to be somewhat decennial to decision made by administrative tribunals. Even some decisions that uphold administrative decisions contain seeds of judicial policy making. Moreover, even if judges review only the procedural aspects of administrative tribunal decision making rather than the substance, this an still have important policy implications. • 2.the second way that courts have a policy making role in non-constitutional cases is cumulatively. The decisions that judges make in routine cases when applying legislative or common law rules, which often leave room for discretion, can forge policy in the aggregate. Changes in those patterns can signal a change in judicial policy. Since most cases end at the trial court, they have an important part in policy making in the aggregate. • 3. clarifying the law or filling the gaps of law when applying common law precedents or legislation to specific cases. This task is necessitated by poorly drafted legislation or because rules cannot be written so precisely as to cover every possible situation that may give rise to a legal despite.Appellate courts have more leadership in this kind of policy making. • 4. to deviate from applying legal rules that are laid out fairly clearly in common law precedents or legislation. • there is not always a clear line separating an appropriate incremental change to the law to keep it abreast of new social or technological developments, and more wholesome creation of rules by judges, which is often considered to be outside the boundaries of the judicial function. • studies suggest closer to the adjudicatory model-- interpreting and applying the law with only incremental changes before the Charter. • some argue that the Charter has made courts move toward a policy-making model. • non constitutional decisions often do not generate the same sustained intense debate over legitimacy as do constitutional decisions, especially charters. 1)in some of the non constitutional law legislators appear to deliberately leave room for copious amounts of judicial discretion and policy making, such as in criminal sentencing and family law. 2)if a legislative body does not agree with a policy created by judges in a non=constitutional decision, then it has the option of passing a law to usher in its preferred rules. They do not have these powers in cases of federalism and the Charter. Constitutional Cases • Charter was added to the constitution, that gave judges clear legal authority to declare laws to be in violation of the constitution or to provide other remedies for violation of rights. The Bill of Rights was not considered by the majority of justices on the SCC to give them this power until 1997 Reumeration Reference. • federalism decisions can influence policy indirectly by constraining government options and distributing power between federal and provincial governments. • When the SCC has decided questions involving federalism and constitutional change, it has rather directly implicated itself in constitutional policy making. The Charter of Rights • it empowered them to review the constitutionality of provincial or federal government laws even if those laws were in accordance with the federal-provincial division of powers. • for the SCC to shape policy, it depends on factors: how broadly would he court define the rights to contain in the Charter, which side would have the bulk of the burden of proof in Charter cases, would the Charter apply to common law as well as legislation and what kind of remedies would the courts provide for rights claimants whose rights have been violated. Making a Charter Claim • Figure 11.1 on page 363 is a summary • 1. claim that a law or action by a state official violates one or more of the rights in the Charter • supreme court has relaxed the rules of standing and mootness so that there are lower procedural barriers to getting into court • they interpret highly political charter claims • they interpreted s.32 of the charter-- the section that states that the Charter applies to the Parliament and government of Canada. Defining Charter Rights • SCC favors rights claims, which increases the likelihood of them ruling in favor of the rights claimant. • the chances f a rights claimant winning a charter case depends on how broadly courts are willing to interpret the rights in the charter and whether the burden of proof in charter cases rests more with the rights claimant or the government • the court said charter rights deserve a board and purposive or large and liberal interpretation • tended to emphasize a living tree approach to rights interpretation rather than relying on framers intent. • s.7 of charter, courts are willing to look at substantive fairness and justice of the law rather than just whether the law has sufficient procedural safeguards, it has also included a certain degree of autonomy. • the court has been hesitant to find that governments are acting outside the boundaries of the principles of fundamental justice if they do not provide a certain level social welfare benefit Burden of Proof in Charter Cases and the s. 1 Reasonable Limits Clause • in addition to reading rights relatively broadly, the second way in which the court has made it easier for rights claimants is by shifting the burden of proof to the government to justify that limits on rights are reasonable under s. 1 of the charter. • oaks test-to justify limits on rights under s. 1. Is the law pressuring and substantial objective in a free and democratic society? 2. does the law have means that are proportional to meet the objective? --chart on page 366. • if applied strictly, the oaks test makes it very difficult for government actors to justify limitations on rights • minimal impairment test- was changed soon after oakes such that the means would have to impale the rights as little as reasonably possible • this policy-making potential is fuelled by the need to examine and analyze social-fact data to some degree in the s. 1 analysis An Example of a Charter Claim: The Chaoulli Decision • Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791, 2005 SCC 35, was a decision by the Supreme Court of Canada of which the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms. In a 4 to 3 decision, the Court found theActs violated Quebecers' right to life and security of person under the Quebec Charter. The ruling is binding only in Quebec. Three of the seven judges also found that the laws violated section seven of the Canadian Charter of Rights and Freedoms. Remedies under the Charter • a declaration that a law or regulation or administrative order violates the constitution is only one of various remedies that courts can provide to successful rig
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