January 8, 2008 Ian Greene & Richard Haigh

Course expectations Introductions Electronic resources Introduction to public law and the Canadian legal system

Seminar Presentations Analysis of Federalism Assignment Case analysis Major Essay Seminar participation Plagiarism

Name How did you get interested in public administration? How does your work (current or past) relate to constitutional and administrative law?

access to most course readings and powerpoint presentations. (There will be some handouts.) Links to videostreamed lectures will be mounted on the MPPAL (QuickPlace) web site a few days after the lecture Excerpts from Greene’s The Charter of Rights will be posted on

“Adjudication” is the dispute- resolution system used in courts. Characteristics? Law applied to facts Judge makes final decision Reasons presented for judgment How is adjudication different from arbitration and mediation? Arbitration: standards agreed to by disputing parties applied, but not usually the whole body of law Mediation: assistance in listening, understanding, and resolving (contract) What are "legal persons?“ People, corporations, and governments What's the difference between negative and positive law? Negative law: prohibited from certain behaviours (crim. law) Positive law: positive incentive to change behaviour (tax deductions for donations to political parties)

Main sources of law : statute law (laws created by legislatures) case law (created by judges) Other (informal) sources: Ten Commandments, Magna Carta, canon law, writings of legal scholars (eg. Coke ~ 1630, and Blackstone ~ 1770), community standards (eg. obscenity cases), Hogg's text. primary and subordinate legislation ratio decidendi; obiter dicta common = general common law judges "find" the law Parliamentary sovereignty or legislative supremacy. Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone. Constitutional convention

Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada. NB & NS: 1758 Quebec: 1759: French civil law. 1763: English public law PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: Federal gov't : date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont Imperial statutes remained in force until Statute of Westminster, Development of common law courts and courts of equity. Preamble to BNA Act: implied Bill of Rights Barristers and Solicitors Judicial Committee of the Privy Council (JCPC); per curiam vs. seriatim England: specialized appeal j's; Canada: generalist appeal j's.

____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 27 js | | 47 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

common law stare decisis adversary system circuit judges: “assizes.” Why don’t judges have to retire until 70 or 75? County and District courts now merged with superior courts judicial independence: purpose to promote judicial impartiality Valente decision (1985) security of tenure financial security judicial control over adjudicative matters judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. - Hryciuk)

Trial Courts: Improvisors (~10%) no single process, but for most outcomes would be the same Strict Formalists (~ 20%) particular process followed, and always leads to the same conclusion. Pragmatic formalists (~45%) particular process followed (check list, shifting balance, water rising), but judges might decide differently. Intuitivists (~25%) “gut feeling” Appeal courts : Panel process different Supreme Court of Canada a public law court (~100) leave to appeal (~600 apps) Problems with justice system for some litigants and lawyers, a game delay in client’s interest (about half of trial lawyers) judges limited by adversary system re control of caseflow Role of courts: dispute resolution, prevent abuse of power, official const. philosophers, pawns in other peoples’ battles

Minor appeals heard by a single judge in a higher court (summary conviction appeals) Major appeals heard by the provincial Court of Appeal Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5) The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3. Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9. per curiam (or per coram) vs. seriatim decisions

1867: Canada independent re its internal affairs Balfour Declaration (1926) and Statute of Westminster (1931): Canada recognized as an independent state re foreign relations BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament : many failed constitutional conferences. Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Alberta, and Quebec premier couldn’t get cabinet to agree. Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.