What is law?
Study Guide: Public Law I, Fall 2005
Public Law I: First Class
What role is played in our legal system by
Discretion of lawyers?
Interpretation by public servants and elected politicians?
Interpretation of the law by ordinary citizens?
We need to understand the system of justice in order to be able to resolve problems arising from it.
Schools of jurisprudence
Judicial positivism (John Austin, A.V. Dicey)
The only law that exists is the written law
Good judges can always interpret the positive law correctly
Natural law (John Locke, John Rawls, Ronald Dworkin)
There are “higher” laws that positive law ought to emulate. These higher laws might be created by religion, logic, or ethical principles.
Judicial realism (Karl Llewellyn)
Even if judges try to be impartial, the law can never be perfectly clear. What makes judges decide the way they do?
Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.
Preliminary Observations on the Law
“Adjudication” is the dispute-resolution system used in
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)
Terms and Concepts
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) [NOT same sense as judicial positivism]
Critical Legal Theory
Speluncean Explorers (Lon Fuller of Harvard)
-Four men trapped by cave-in. One suggested
They chose the victim with a game of chance. The one who
cannibalism changed his mind. Nevertheless, he was chosen and
-The three remaining men survived, and were charged and convicted of murder. They appealed to a panel of five judges.
-one judge: convict (positivist)
-second judge: acquit (natural law adherent, and also a judicial "activist")
-third judge: uphold the conviction, but appeal for clemency (parliamentary supremacy)
-fourth judge: withdrew because he couldn't decide
-fifth judge: heard clemency route won’t work; consider the natural law approach.
If there’s a right in one person, there’s a duty for someone else.
If there’s discretion, there’s no right.
Divisions of law:
Positive law: domestic and international
Domestic: substantive and procedural (adjectival)
Positive domestic law: public and private
Public law: criminal, administrative and constitutional
Private law: contracts, property and torts (private wrongs)
Can you compare the common law system with the civil law system?
Sources of Law
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.
-Constitutional amending formulas in Canada: Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone.
-convention or custom
British Legal Tradition
Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792.
Imperial statutes remained in force until Statute of Westminster, 1931.
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); 1949.
per curiam vs. seriatim
England: specialized appeal j's; Canada: generalist appeal j's.
-next week, include Gall Ch. 7 in readings
Basic Principles (cont’d)
court structure: p. 20 of course kit: in figure, the box showing Provincial Courts should be a box with no colour
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 (1981)
security of tenure
judicial control over adjudicative matters
judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. - Hryciuk)
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.
Panel process different
Supreme Court of Canada
a public law court (~100 cases decided per year)
leave to appeal (~600 applications considered per year by panels of 3 judges)
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
Roles played by courts: dispute resolution, prevent abuse of
official constitutional philosophers, pawns in other peoples’ battles
The Constitutional Basis of Legislative and Judicial Authority
-Canada Act, 1982 (British statute that makes CA, 1982 law and declares that no British statute will in future extend to Canada)
~30 statutes and orders listed in the schedule to the Schedule to the Const. Act, 1982, most importantly the Constitution Act, 1867 (formerly called the BNA Act; contains division of powers), and the Constitution Act, 1982 (contains the Charter and the constitution’s amending formulas)
-Other statutes & orders established new provinces, and amended the BNA Act.
-Rule of law
-cabinet responsible to the legislature
-Gov Gen and Lieut Gov’s must act according to the advice of the first minister, unless that advice is unconstitutional
-The leader of the group in H of C or prov leg that can command the support of the majority of members becomes first minister and chooses cabinet. First minister tells GG or LG when to call election, unless another group can form gov’t
-The “ratio” in the judicial decisions about
meaning of the constitution (eg. The cases we’ll be studying in
You don’t need to know about the Charter of Rights (other than it’s basic structure) until Public Law II
See “Highlights of the Canadian Constitution”on class web page
See “Canadian Court Structure” on class web page
The role of courts in Canada
Why do we have “open” courts?
What are some exceptions to open courts?
Application to a judge for a closed hearing
Sexual assault trials
Preliminary hearings in notorious cases – to permit fair jury selection
Are they justified?
Does open court concept impact presumption of innocence?
Dignity and decorum
Gowns, address to judge
Reforms in Ontario
U.S. & Canada: Constitutional amendment
Major Can. amendments:
1940: unemployment insurance added to federal list of powers
1951: old age pensions added to federal list of powers (concurrent power; provincial legislation paramount)
1964: old age pensions broadened to include supplementary, survivors, disability (led to CPP)
1982: Charter and amending formulas
1983: S. 35.1: must be a constitutional conf including native peoples before native rights amended
1987-1998: 3 amendments to denominational school rights in Nfld
1997: denominational school rights Quebec
1993: equality of Fr & Eng in New Brunswick
Impact of court decisions on amendment:
-1940, 1951 amendments in Canada a reaction to court decisions
-Civil war amendments in U.S. a reaction to court decisions
-1918: Suprmee Court of US decision led to amendment to prohibit child labour. 1938: Roosevelt threatened to “pack” court. Court overruled 1918 decision.
Informal constitutional amendment
-Feds assume they have power to do something under POGG, or provinces assume they have power to do something under 92(13)
-After 1995, fed legislation passed to prevent cabinet ministers from proposing amendments under 7-50 without support of Quebec, Ont, B.C., 2/3 prairie provinces, 2/4 Atlantic; Quebec recognized as distinct society
-Clarity Act (2000)
Was Dicey right in arguing that in the United States, the difficulty of constitutional amendment means that judges have the last word as to what the constitution means? If so, does the same apply to Canada?
Quebec and Civil Law Approach
• Codification of laws
– Coutume de Paris (1580)
– Confusion after 1759
– Royal Proclamation (1763)
– Quebec Act 1774
– Codification: 1866: CCLC
– 1994: CCQ
Inquisitorial System (not in Quebec)
Code, la doctrine, precedent
• Quebec courts:
– Court of Appeal (s.96)
– Superior Court (s.96)
– Court of Quebec (provincial)
– CCQ: ten books.
Role of Judges and Lawyers
Officer of court
Codes of Ethics (see Gall)
-Avoid conflicts of interest
Inter-provincial law firms -- since Black Case involving Charter of
Judges: interpreters or legislators?
-Federal (see link on web page)
-Provincial (see link on web page)
Judicial Ethics (see link on web page)
Qualities of a good judge
Discipline of Judges (Canadian Judicial Council for S. 96 & S. 101 judges; Provincial Judicial Councils for S. 92 judges)
Prov. Court Judges remuneration decision 
-Background: budget cuts of 1990s
-Gov’ts in PEI, Man & Alta reduced salaries of Prov Ct judges as part of general salary reduction plan, but failed to follow correct procedures, according to many judges, who thought govt’s violated jud ind.
-Prov gov’t’s sent reference questions to their Prov. Courts.
-What is a reference question?
-Holding: judicial compensation commissions must be established to protect judicial independence (11(d) of Charter and convention). The JCCs act as a “buffer” between governments and judiciaries re salary issues. Governments are not required to implement the recommendations of the JCCs, but are required to take the recommendations seriously. The govt’s of PEI, Man and Alta acted unconstitutionally by not going through JCCs to reduce judicial salaries.
-Consider La Forest's dissent. Do you agree with him that the Court read too much into the meaning of judicial independence both in S. 11(d) of the Charter, and the preamble to the BNA Act?
-This may be the most activist decision ever made by the Supreme Court of Canada.
- Stare decisis: a rigid form of doctrine of precedent
- Ways around stare decisis:
– Ratio is really obiter
– Per incuriam
– Emphasize different majority opinion
- Hierarchy of courts determining application of stare decisis
- SCC can choose not to follow precedent. Ont CA: policy: follow
- What if conflicting precedents?
Natural Justice & Fairness
• Natural Justice
– Nemo judex in sua causa
– Audi alteram partem
• Functions of Admin. Agencies:
– Judicial or quasi-jud.
• Judicial review
– Abuse of power
– Natural justice
• Jud or quasi-jud
– Doctrine of fairness
• Privative clauses
– Can’t hide behind priv clause if const issue, or patently unreasonable
Rules of Statutory Interpretation
• Why are rules needed?
• Intent of legislature
• “reasonable person” test
• 1.Plain meaning rule
• 2.“golden rule”: avoid absurdity & inconsistency
• 3.What was the mischief & remedy?
• Specific words help explain general ones nearby
• Express inclusion of some items implies exclusion of items not mentioned
– Interpretation statutes
– Definition sections of statutes
• More Aids:
– Context in statute
– Other similar statutes
– Legislative history
• Minimal weight. Why?
• Books on rules of interpretation, & legal dictionaries
• French & English text
• International conventions & treaties (sometimes)
• Preamble (but not marginal notes)
• Headings (except in Ontario – excluded by statute)
• Criminal law: in favour of accused
• Taxation law: in favour of taxpayer
• Against alteration of common law
• Mens rea (guilty mind), unless express absolute liability
• Against retroactivity
• Against ousting jurisdiction of courts
• For crown immunity (now mostly replaced by statutes allowing suits against crown)
• Every word is deliberate
• Specific given precedence over general
• More recent > older
• Leg. did not intend drafting error (cts can correct)
McCormick: Courts, Law & Society
Stevenson: Origins & Objectives of Confederation
Russell v. The Queen, 1882
• Impugned legislation: Canada Temperance Act, 1878
-Certiorari; rule nisi
• ¼ of electors in a “county or city” may petition for a plebiscite on prohibition.
• Fredericton went dry
• Charles Russell: Fredericton pub owner, convicted
• Previous SCC decision: City of Fr. v. Queen: intra vires under T&C (91-2)
• JCPC decision: Sir Montague Smith.
• Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. Legislation says GG “may” …
• “cubby hole” doctrine
• Is subject-matter of impugned legislation in s.92? If so, is it also in 91?
• If not in s. 92, it must be in s. 91
• Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16
• “pith and substance”
• Smith: Nearly anything could fall under 92(13); what is p&s?
• Central subject matter is public order & safety, not T&C
• Not local because of local option. (analogy: health orders)
• Therefore, not under s.92.
• No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG
• Gap (residual) branch of POGG
Local Prohibition Case, 1896
• Impugned: Ont’s Local Prohibition Act (1890)
• Applies to Townships, towns, villages (& cities)
• Appeal from SCC reference
• Lord Watson
• Feds (under POGG) can trench on s.92 only if incidental to a legit fed purpose
• otherwise, all of s.92 falls in s. 91.
• s.94 issue (unify common law in anglophone provs)
• Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument
• Pith & sub: vice of intemperance at local level
• 92(16): (local) yes.
• 92(13): no; the law prohibits rather than regulates
• if conflict: fed. law is paramount
• conflict of laws: no conflict if strictest obeyed
• “double aspect” doctrine: a legislative subject-matter can fall under s. 91 for one purpose, and s. 92 for another.
• National dimension or national concern doctrine hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.
Board of Commerce & Combines & Fair Practices Acts (1922)
• Impugned legislation: fed anti-profiteering &
legis. after WW I (1919)
• Board stated case to SCC re Ottawa clothing stores
• Appeal from SCC: Duff (BC) vs. Anglin (judges evenly divided)
• Viscount Haldane for JCPC
• Pith & substance: combines & hoarding in peace-time
• Cubby-hole: 92(13)
• S. 91 too?:
• Crim power? No – not like incest (important decision for those writing about criminal power in writing assignment)
• T&C: no; T&C is supplemental to other federal powers
• POGG? Only in “highly exceptional circumstances” [emergency doctrine] (see p. 66)
• Ultra Vires
• 3 aspects of POGG: national concern (obiter in
Prohibition), emergency (B of C), residual (Russell)
TEC v Snider (1925)
• Impugned legislation: federal Industrial Disputes
• Viscount Haldane wrote for JCPC
• Haldane says labour legislation clearly falls under s. 92(13)
• In this case, the procedure is applied to a municipal transportation agency (TEC, forerunner of TTC, 1923)
• Does subject-matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no.
• POGG can be used as residual, or emergency power.
can’t be residual because 92(13) applies. As well, there’s no
• Rule of interpretation: specific takes precedence over general. See Haldane’s discussion of specific words, p. 76.
• How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878:
“…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster”