Study Guide:  Public Law I, Fall 2005

Public Law I:  First Class

What is law?
Is law a set of rules intended to govern behaviour?
What makes law legitimate in a democracy?
Can you understand law from a purely linguistic perspective?

What role is played in our legal system by
Judicial discretion?
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 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)

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 cannibalism.  They chose the victim with a game of chance.  The one who suggested cannibalism changed his mind.  Nevertheless, he was chosen and sacrificed.
-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.

Hohfeldian Scheme:

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.
-crown prerogative
-convention or custom

British Legal Tradition

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:  1870.

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.

September 18/03

-next week, include Gall Ch. 7 in readings

Basic Principles (cont’d)

common law
stare decisis
adversary system
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
financial security
judicial control over adjudicative matters
judicial discipline:  Canadian Jud Council & prov. Jud. Councils (eg. - Hryciuk)

Judicial decision-making
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 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 power, official constitutional philosophers, pawns in other peoples’ battles

The Constitutional Basis of Legislative and Judicial Authority

Canada’s constitution:
    -Written parts
    -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.

    -Unwritten parts:   constitutional conventions
        -Rule of law
        -Judicial independence
        -Responsible government
        -cabinet responsible to the legislature
        -Ministerial accountability
        -Cabinet solidarity
        -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 the meaning of the constitution (eg. The cases we’ll be studying in this course)

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?
Young offenders
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
Dress codes
Adversary system

Reforms in Ontario

Zuber report (1987)
Create administrative regions
Give judges, lawyers, and public more input into court administration
AG Ian Scott (1989)
Created 7 regions to administer superior and inferior courts
Merged High Court and County/District Courts to form Superior Court of Ontario
Provincial Court renamed Ontario Court of Justice, Provincial Division, with criminal & family divisions
Eventually, merge the Provincial Division and Superior Court into one trial court.  Give all provincial court judges S. 96 appointments.
Unified trial court idea abandoned by NDP and Conservatives.  Will it be revived after Oct. 2?
Canadian Constitutional Amendment
In Canada, there are 5 amending formulas for the constitution:
1)  Unanimity formula (Queen, GG, LGs, composition of SCC, senate floor rule, federal language rights, amending formulas
2)  “some but not all” (eg. language within province, denominational school rights, change in prov. borders)
3)  Provinces can amend own constitutions
4)  Fed gov’t can amend its internal constitution
5)  General amending formula (seven-fifty):  the rest of the constitution (incl div of powers & Charter) can be amended with Parliament, 7 out of 10 provinces representing 50% of pop.  Dissenting provinces may opt out, and get reasonable compensation if amendment affects culture or education.

U.S. & Canada:  Constitutional amendment

Congress proposed amendments (2/3 of both houses)
Proposals have to be ratified by ¾ of state legislatures, or ¾ of state constitutional conventions
U.S. constitution amended 17 times in 21 decades (rate .08/year)
Canadian constitution amended 32 times in 13 decades (23 to 1982, and 9 after) (rate .24/year)
Canada’s constitution is more flexible

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

Amendment failures
1927-1982:  six failed attempts to find a domestic amending formula
1971 – Victoria charter came close
1982:  success achieved after SCC decision (discussed later in course)
Meech Lake & Charlottetown Accords (discussed later)
U.S.:  6 amendments proposed by Congress but not ratified by states, including ERA (equal treatment of women in all legislation)

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

United States
-George Washington:  cabinet has an advisory role only, and is responsible to president (became a constitutional convention)
-Jefferson:  declared that U.S. could purchase new territory; never challenged in court
-Political parties developed without constitutional amendment
-Congress assumed vast powers over economy in 1930s and 1940s

-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
  Deductive Reasoning
  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 Rights
Judges:  interpreters or legislators?
Judicial appointments:
-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 [1997]

-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

 - Stare decisis:  a rigid form of doctrine of precedent
 - Ways around stare decisis:
  – Distinguish
  – Ratio is really obiter
  – Per incuriam
  – Emphasize different majority opinion
  – ignore

 - 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:
  – Legislative
  – Administrative
  – Executive
  – Judicial or quasi-jud.
 • Judicial review
  – Jurisdictional
  – 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
 • Aids:
  – 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)


-Law is “a continuing process of attempting to solve the problems of a changing society,” not just a set of rules.
-Law is both academic and practical
-Ignorance is no excuse (necessary fiction)
-Differences between “justice” and the law
-Should judges try to get around stare decisis to avoid bad results?  “Hard cases make bad law.”
-The rule of law.  Should public officials be allowed to act outside the law?
-Rationality vs. consistency
-Providing reasons promotes rationality & consistency
-Can a judge ever be impartial?
-Judicial independence leads to jud. Isolation
-Public policy is an “unruly horse, dangerous to ride”
-Like cases should be decided alike (eg. - academic dishonesty precedents)
-Harrison v. Carswell (1976):  Dickson (majority) v. Laskin (minority)
-Conflict between individual and group rights
-Social change:  law cannot lag far behind, or get too far ahead, of social change.  (marital property)
-Law reform commissions

McCormick:  Courts, Law & Society

-McCormick presents a social science study of courts
-Judicial power = impact & discretion.  Existed before 1982
-Western conception of law:  lawyers have a distinct way of thinking.
    -Abstraction:  legal process  filters out “irrelevant” details, simlifies
    -Focus on general rules:  the punishment fits the rule (not the crime)
    -Reasoning by analogy to fill in gaps in rules (whoever picks the examples wins the argument)
    -Legal system is highly procedural, with severe consequences for breach of procedure.  Hence, delays, technicalities.
-Lawyers & judges “shape” rather than “discover” outcomes
-“economy of judicial resources” (Should highly-paid appeal court judges hear sentence appeals?  Or should sentencing be carried out by sentencing boards, not judges?)
-The legal/judicial system is “a serious attempt, administered in the main by conscientious individuals, to deal with intractable problems.”

Stevenson:  Origins & Objectives of Confederation

-A good explanation of the conflicting forces leading to confederation, and hence the unique & sometimes confusing wording of the BNA Act.
-1841-1867:  united province of (Upper & Lower) Canada – a response to Durham’s report.
    -Didn’t work, so Canadians sought other political solutions.
    -U.S. Civil War, & Fenian raids of 1866, were a catalyst for union in Canada & Maritimes, and supported Macdonald’s centralist approach
    -Economic motives
    -1840s:  responsible government
-Because the united province of Canada existed, it was easier to develop a provincial list of powers, and leave residual power to central gov’t (different from U.S.)
-Macdonald’s experience as a crim lawyer made him aware of U.S. problems giving crim law to states
-Because Quebec had to control private law, all provinces had to have control over “prop & civil rights.”
-K.C. Wheare:  Canada not “federal” on paper, but is in practice.
-Natural resources not too important, so provinces got control over them
-“National policy”:  railways, immigration, industrialization (tariff):  general gov’t responsibilities
-Francophones:  most focused on Quebec
-No thought of need to have confederation approved by popular support

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 & anti-hoarding 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 Local Prohibition), emergency (B of C), residual (Russell)

TEC v Snider (1925)

 • Impugned legislation:  federal Industrial Disputes Investigation Act
 • 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.  Here, can’t be residual because 92(13) applies.  As well, there’s no emergency.
 • 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”