April 1, 2008 Administrative Law, Principles of Natural Justice, & Standards of Review Ian Greene Canadian Constitutional & Administrative Law

Don’t forget On-line course evaluations:

Questions; class end get-together? Papers; Bonus assignment Administrative Law – Theory – Major issues Natural Justice & Standards of Judicial Review Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] Baker v. Canada (Minister of Citizenship and Immigration) – Presentation by Dennis Governor Greene (Chapter 6): – Presentations by Genevieve Thompson & Christina Richardson Morton/Knopff vs. Mandel and other interesting debates Schedule for tonight

A.V. Dicey Albert Venn Dicey - British jurist ( ) Oxford graduate & later professor & Oxford & London School of Economics Introduction to the Study of the Law of the Constitution – 1885 Refined idea of “unwritten constitution” – Constitutional conventions (generally recognized as mandatory practices – monarch should dismiss a government that clearly breaches a convention) Responsible government: cabinet responsible to legislature, cabinet solidarity, ministerial accountability

Basic principles of British constitution: Parliamentary (legislative) Sovereignty – Distinct from U.S. system of separation of powers The rule of law (law applies equally to everyone unless exceptions written into the law) – No need for a British bill of rights: judges who apply the rule of law properly safeguard human rights far better than having to apply a rigid bill of rights Judicial independence – Parliamentary supremacy means that the legislature determines the jurisdiction & organization of courts, but once appointed, judges are independent as protected by the Act of Settlement, 1701

British system vs. French Common law system ensures that all courts and administrative tribunals are supervised by superior court judges, who ensure liberty through properly applying the rule of law. The French and other civil law jurisdictions have separate administrative law courts. This can lead to abuse of power. Common law system is infinitely superior to civil law systems, and the British common law system is infinitely superior to the American common law system

Development of Administrative Law 1920s to 1940s: federal and provincial governments establish labour relations boards/tribunals – Superior court judges (S. 96 judges) were not doing a good job of adjudicating labour relations issues – Tribunals normally had 1 member with a labour background, 1 from industry, and 1 neutral Many early administrative law court decisions represented judicial review of labour relations board decisions

The s. 96 issue Do the administrative tribunals represent an erosion of powers of s. 96 judges? Are labour relations tribunals s. 96 courts? Prof. Bora Laskin: s. 96 courts should show deference to labour relations tribunals. The tribunals are better equipped to make good decisions. Standard of review should usually be “patently unreasonable.” Justice Bora Laskin: sometimes standard of review should be “correctness.”

Privative clauses In order to prevent appeals from tribunals to courts, governments often inserted “privative clauses” into tribunal legislation. “The decision of the tribunal is final; there shall be no appeal to any court.” S. 96 courts are skilled at getting around privative clauses: – Judicial review on jurisdictional grounds (acting outside legal jurisdiction, including division of powers)

Avoiding privative clauses Standard of “correctness” – The “correctness” standard has variations Strict: minute misinterpretations of the law by tribunals must be corrected by the courts More deferential: only tribunal decisions that are “patently unreasonable” need to be corrected by the courts. Legislatures have never intended administrative tribunals to make decisions that are “patently unreasonable.” – Strictness of courts depends on perceived expertise of tribunal

Judicial review of admistrative tribunal decisions Can occur regarding jurisdiction – Division of powers – Charter of Rights – Limits of the statute of the tribunal in question – Prodecure: violation of natural justice Nemo judex in sua causa (impartiality) Audi alteram partem (hear both sides) – Due process

Doctrine of Fairness Those aspects of natural justice that should reasonably apply to government agencies (eg. Canadian Radio Television and Telecommunications Commission) – Decision of cabinet overruling CRTC judicially reviewed for violation of due process

Decisions of public servants Judicial review of decisions of public servants can occur – Alleged violation of natural justice in quasi-judicial situations – Alleged violations of “doctrine of fairness” in other situations (extent to which principles of natural justice should reasonably apply) – Abuse of power (acting outside the law)

Pushpanathan v. Canada [1998] Pushpanathan claimed refugee status in Canada in 1985 (under UN Convention Relating to the Status of Refugees) Claim never adjudicated – allowed to stay under another program Later P was convicted of possession of heroin; sentenced to 8 years P renewed his claim for refugee status while on parole

Pushpanathan (2) Convention Refugee Determination Division decided P not a refugee because “guilty of acts contrary to the purposes and principles of the UN” (Art. 1F(c) of Convention) SCC: CRDD’s interpretation of 1F(c) is legally wrong. Standard of review: correctness. CRDD not made up of individuals skilled in legal interpretation. Privative clause in Immigration Act not strong.

Baker v. Canada [1999] Mavis Baker in Canada illegally; had Canadian-born children. Ordered deported Applied for exemption on H & C grounds Senior immigration officer turned her down. Notes were biased. No consideration of impact on children. SCC: ordered application for exemption re- considered, taking into account impact on children, and avoiding prejudice Presentation: Dennis Governor

Greene: Final Appeal Presentations: Genevieve Thompson & Christina Richardson – Court decisions have always had an impact on public policy. To what extent have these decisions promoted democratic values of inclusiveness & participation? Are courts representative of diversity of Can society? To what extent do they facilitiate appropriate participation? Are courts responsive to public demand for fair, impartial, expeditious dispute-resolution services?

Montesquieu’s description of separation of powers too simplistic. – Judges need appropriate control over court administration or executive could interfere with judicial impartiality – Courts need to be accountable for the quality of work they do – if accountabily means “ability to demonstrate publicly the quality of one’s work” – Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike down Elections Act prohibition of 3 rd pty adv – When the law is not clear, judges are necessarily “activist” – Judges are to resolve disputes fairly, impartially, expeditiously. They need to be able to demonstrate they are doing so.

Participation The courts exist to provide a public service; therefore lay persons need more effective input into judicial selection and court administration Effective public participation is hampered by unnecessary delays and adjournments Perhaps we could learn something from other jurisdictions, including civil law jurisdictions If jury system is to survive, it needs reform to prevent abuse Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & Morin)

Inclusiveness Law profession becoming more representative of Canadian diversity, but more work to be done. Similarly, judiciary and court support staff becoming more representative. Lack of access to legal representation a major problem – Should all lawyers be required to represent 100 cases a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)?

Institutional Responsiveness Most Canadians satisfied with quality of judicial decisions System of justices of the peace is problematic Some administrative tribunals problematic (lack of independence and expertise) Too much room for patronage in federal superior court appointments, & fed ct & SCC Complaint avenues re judges not widely known Lawyers should be prohibited from using delay as a tactical weapon in codes of ethics

Judicial decision-making responsiveness Courts perform an essential function by adjudicating disputes about basic democratic values, such as those in the Charter. Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society. Overall, SCC’s decisions since 1982 have advanced democracy Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, amendment “To limit the judicial role in democracy would be to limit democracy itself.”

Overall evaluation of courts Courts doing well in some areas of advanced reasoning – Contribution to understanding of independence & impartiality, interpretation of Charter Areas for improvement – Public participation in court admin & jud selection – Tackling unnecessary delay – Support for unrepresented litigants – Respectful treatment of juries, witnesses & litigants. Disrectful treatment is really abuse of power.

Knopff & Morton Charter Politics Ted Morton, MLA, Alberta (formerly Political Science Professor, University of Calgary)

Michael Mandel The Charter of rights and the Legalization of Politics in Canada » Michael Mandel, York University