exam Flashcards

Question

Simeon’s “funnel of causality” (1976)

Answer 1

Macro level: Socioeconomic environment- demography, geography, industrialization Meso level: fundamental political variables- power, ideas, institutions Micro level: decision- making process (interests, agenda, behaviour)

Answer 2

Rational choice- Historical- Sociological-

Answer 3

intuitive, everyone has fixed preferences, a goal you want to achieve, your preference does not change, example- finishing a degree- you need 20 credits to graduate uni- you will take the courses you absolutely need and then easier courses that will benefit you and be easier Actors behave instrumentally to advance preferences Preferences are fixed Cost-benefit Institutions are rules of the game

Answer 4

structures matter Rules of the game- under which actors all must play, and/or Shapes goals of actors

Answer 5

Two members of a gang of bank robbers have been arrested and are being interrogated in separate rooms No other witnesses: must convince at least one of the robbers to betray their accomplice and testify to the crime Each bank robber is faced with the same choice: cooperate with their accomplice and remain silent or to defect and testify for the prosecution Both co-operate (remain silent): the authorities will only be able to convict on a lesser charge (1 year of jail each = 2 years total) One testifies and the other does not: defector will go free and the other will get five years (0 years for the defector + 5 for the convicted = 5 years total). Both testify against the other: each will get two years in jail (4 years total jail time) If you trust that the other person wont testify against you, then you remain silent, but you never know so both people should testify against each other- this is the best outcome for both people Person 2 Silent: Silent; 1 year each (1,1), Defect; No jail time for defector, 5 years for the other (5,0) Defect: Silent; No jail time for defector, 5 years for the other (0, 5), Defect; Some jail time for each (2, 2)

Answer 6

judges motivated to pursue preferences - legal explanations form of rationalization - predict votes through characteristics of judges (partisan affiliation, gender, etc.)- assuming they want to advance their own agenda Attitudinal model Measurement of ideology and decisions - Process of judicial decision-making: collegial? Unanimous decisions? institutional relationships (deference)- government has relationships with different courts

Answer 7

- judges motivated to pursue preferences- but less obvious and more strategically - interested in how judges strategically behave - bargaining within judiciary- maybe they are constrained by them and they want their decision to be the main decision - influence of external institutions- maybe they want to use their preferences but the case might be too public so they act according with restraint

Answer 8

❖Interest group mobilization - actors motivated to pursue preferences - will use judiciary as another venue for policy change ❖ Brodie (2002)

Answer 9

Institutions reflect and embed power asymmetries- doesnt affect everyone equally Institutions define interests and goals- its not a thought you already had Institutional stability: path dependency (once you go down a specific path, it is hard to change courses,example- where the keys are on the key board), feedback effects- policy may changes but the institution does not Institutional change: critical junctures- french revolution- once in a life time moment Critical juncture: missing or catching the subway Path dependency: different “routes” that cannot be reversed Importance of sequencing Locked-in after critical juncture Issues: only retroactively know the critical juncture- its only in retrospect, the person does not know before it happens - counterfactual can be difficult to prove Institutions and actors shape each other Institutions shape preferences and roles of judges (Macfarlane 2013) - role of the institution - individual role within institution - consideration of other institutions/actors

Answer 10

- legislative sequels to judicial decisions Missing mechanisms explaining stability and change - can court decisions be critical junctures? - path dependency? - feedback?

Answer 11

Scripts and symbols- for example raising your hand in a classroom Logic of appropriateness, satisficing Institutional context creates norms and culture- acts as the structure Police “culture”- once individuals enter the police course, there are different and unspoken norms, want to help the community and before entering, they score higher in ethics than s regular college student Recruits are optimistic, strong sense of ethics (Raganella and White 2004; Blumberg et al. 2015) Training: bootcamp atmosphere Police “culture” Organizational pressures: see job as risky/dangerous, repression of emotion, moral distance Regardless of individual’s qualities, the institution changes them

Answer 12

Discursive effects of judicialization: social movements (Smith) and political action (Turner 2004) Ideas and norms within judicial decisions - Aboriginal rights (Woo 2011) - Federalism (Schertzer 2016) Internal judicial decision-making (DV) and judicial impact on politics (IV) Consider judiciary alongside other important political variables

Answer 13

Explaining the rules or standards to settle a dispute 5 steps: 1) Issue: what is being debated? 2) Rule: what rules govern the issue? 3) Facts: what facts are relevant to the rule? 4) Analysis: apply the rule to the facts 5) Conclusion: the outcome ❖Rules vs. standards ❖Application of rules influence future decisions ❖Substantive doctrines -Statutory Interpretation -Constitutional review ❖Procedural doctrines (standing, ripeness)

Answer 14

“rules and principles of constitutional law ... that are capable of statement and generally guide the decisions of courts, the conduct of government officials and the arguments of counsel.” (Charles Fried) ❖Rules, steps, tests to guide decision -making; mediating principles (Baier 2006)

Answer 15

❖like cases treated alike ❖Lower courts more bound by precedent ❖SCC: create precedent for the future ❖Stability comes from the idea of precedent, predictability ❖When to change? Precedent reversed under very specific conditions -law is out of date, unworkable, confusing -new legal issue or new evidence emerges -social facts; important source of new evidence

Answer 16

❖What did the drafters intend? ❖Legislative history, debates, committees ❖Out of touch law? ❖Conflicting intentions?

Answer 17

❖Analyze the text ❖Words in their plain meaning ❖Golden Rule; if the literal rule would lead to inconsistent conclusion, reading of rule should be disregarded ❖Mischief Rule; judges ask what common law was before legislation was passed and what type of mischief parliament tried to correct with this statute

Answer 18

❖Controlled Drug and Substances Act ❖cannabis could onlt be consumed Medical purpose and in dried form (smoking, vaporizer) ❖policy issue; some people can not consume cannabis in this way; Health risks and ineffective ❖Cannabis Buyers Club of Canada (in BC) sold both edible and topical cannabis products Arrested because violated act ❖Trial: regulation caused harm in an arbitrary way, violated s.7, SCC ruled act was contradictory ❖The effects of the prohibition contradicts its objective (health and safety) ❖Importance of social facts; court relied on social facts to reach this conclusion

Answer 19

❖No rights are absolute ❖No hierarchy of rights ❖Rights may not extend as far as claimed ❖Context, facts, and constitutional values ❖Extent of interference ❖Core of a right is more protected than periphery ❖Respect the importance of both rights ❖Statutory defences may restrict rights of one group and give rights to another

Answer 20

❖Guides judicial decision-making pre-and post-Charter ❖Developing law through precedent may require changing the law ❖Changing laws is not “activist” ❖Issues with the term “activism” ❖Political mirror ❖No evidence of agenda-driven judging ❖Judicial consistency

Answer 21

❖Legal positivism: law is not inherently good or bad, law is a human construct, and is legitimate if produced by a legal authority ❖David Beatty’s definition: law is naturally objective and neutral (natural law) ❖Can help courts get to the correct outcome (consistent vs. principled) -law is perfectible ❖Comes from internal logic of the constitution ❖Constitution has basic elements that other laws are developed from -Modification -Concurrency ❖Can have very normative presumptions about the law and judges’ abilities to reach the correct law ❖Conflicting values or principles are found in law, making it difficult to “perfect”

Answer 22

1.Federalism 2.Democracy 3.Constitutionalism and the Rule of Law 4.Protection of Minorities

Answer 23

❖Draws on Patrick Monahan (legal realist) ❖Doctrine simply disguises political choices ❖Contrary elements and principles in constitution ❖Primacy of political processes ❖Courts continue to intervene in political issues (political actors seek courts’ intervention) ❖Lack of protections for the weakest players without legal accountability

Answer 24

❖Mediating principles ❖Provides constraints ❖Legal tradition ❖Constrain ideological behaviour ❖Constrain lower courts (avoid reversal) Judicial Doctrine Case facts > Judges > Decision

Answer 25

❖Speaking about U.S. Supreme Court ❖Structure decision-making and case analysis -Relevant case factors -Levels of scrutiny or balancing ❖Law as a cognitive structure ❖Institutionalist perspective ❖Policy goals still exist but are constrained ❖Regimes have coordinative functions between different courts (consistency) ❖Factors that influence justices’ decisions vary across regimes ❖Identify regimes through iinterpretive process ❖Does not explain why regimes change ❖Votes are assumed to be independent -Conference after oral arguments ❖doesnt explain Interaction between variables

Answer 26

❖Institutional culture ❖Norms of collegiality ❖Strategic bargaining ❖Formal and informal interactions

Answer 27

❖Decision structures -understand the calculus behind choices ❖Model of judicial mind -socialization, psychological aspects ❖Judicial hierarchies ❖Political saliency

Answer 28

“[T]he reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies” (Hirschl 2008) Judicialization of politics (Hirschl 2008) Spread of legal discourse- public discourse affected everybody but now with legal discourse, it displaces public discourse and thus excludes certain perspectives and carries legal opinion Judiciary determining policy administrative review rights jurisprudence Reliance on courts to resolve mega- political issues- the fact that their cleavages exists is not going to help - judges can potentially weigh the cost and benefits of certain things opposed and calls it an inappropriate use of their time (for example east vs west or french vs english, these are the types of questions that courts should not answer) core political controversies that define policies

Answer 29

1. Democratization- as countries do this, they adopt powerful courts and adopt judicial review but he debunked this 2. Evolutionist theories 3. State expansion

Answer 30

Reducing decision costs- the only reason why actors would give up their power, is because theres something else they will gain Electoral market thesis insurance to prospective electoral losers in transitioning democracies- not corrupt, people should think highly of the judges

Answer 31

Political, economic, and judicial elites- scrutiny to public elites, will share power with the courts if that means they will be safe Judiciary has high public reputation- although they share the power Judicial appointments controlled by political elites- they still have some power Political elites: Insulate policymaking from democratic politics - limits imposed on rivals outweigh self-imposed limits - control judicial appointments Economic elites: certain rights may promote more freedom for trade - property, mobility, occupational rights - limit state regulatory power Judicial elites: expand scope of power - prestige Realist, strategic assumptions about behaviour Reflection of social, political, and economic struggles in a polity All the elites want to enhance their own power Top-down explanation- nothing to do with collective society, its what the elites want

Answer 32

Quebec’s Quiet Revolution (60’s, wanted to challenge anglo dominance in politics, french people were treated like second class citizens) and powerful provinces Counter with national unity- canadians are canadian before they are ontarians or quebecers etc Canadian interest in bill of rights Trudeau’s unilateral action Case of Canada (Russell 1983) Charter’s unifying effect 1. Transform discourse of issues 2. Uniform national standards 3. Federal apex court making binding decisions

Answer 33

Poorly defined term (McLachlin 2001) Judges are more willing to strike down legislation- contested judicial activism Consider broader social implications of law- some say its inappropriate to their role Charter Revolution (Morton and Knopff 2000)- dont think judicial power has stayed the same, they have more power because they are broadly doing it Judicial discretion is not constrained - core values - textually mandated change - original intent, traditional understanding, purposive analysis New powers under Charter

Answer 34

Relaxation of standing and mootness - more parties are getting standing, those rules have relaxed after the charter tho Role change: create constitutional standards for broader society, less interested in specific dispute Obiter dicta (words in passing, does not actually answer the legal dispute properly) and ratio decidendi (actual rule of law and sets of legal rule), they want the law to be ratio decidendi Facilitates interest-group litigation- courts are being seen as a new way to create social change Strategic assumptions: judges interested in increasing their own powers The judicial elite is accompanied by bottom-up processes as well The “partisans” of the court 5 groups: national unity advocates, civil libertarians, equality seekers, social engineers, and post materialists Elitism but bottom-up Court party also acts strategically Uses new venue (courts) to advance goals (social change) Courts are one of many avenues for change- most critiqued Ideological Equality-seeking groups as anti- democratic? Missing role of elected officials: have own interests to maintain judicial review

Answer 35

how the public sees the courts and how they see themselves No satisfactory way to evaluate “activism” Post-1982: court monopoly over constitutional interpretation - now factored into political decision- making - debilitating consequences for politics no evidence they even wanted this power, huscroft says just because they didnt ask for it doesnt mean they arent fully embracing it 1. Need for judicial interpretation 2. Judicial review is democratic 3. Living tree Constitutionalism 4. Court’s decisions = the Charter itself 5. Popularity of the court Same-sex reference case: political strategy No meaningful debate on rights issues Court’s exclusive role means diminishment of legislatures’ roles to resolve rights conflicts Court’s actions have strategic impacts Implications Judicial Activism and “Juristocracy” Assume strategic behaviour - different groups of actors strategically want courts to have more power (varies in literature) - courts welcome more power and seek to maintain it Judicial Activism and “Juristocracy” Assume courts are powerful Few constraints on court power - legal doctrine, popularity

Answer 36

❖Same-sex reference case: political strategy ❖No meaningful debate on rights issues ❖Court’s exclusive role means diminishment of legislatures’ roles to resolve rights conflicts ❖Court’s actions have strategic impacts

Answer 37

❖Assume strategic behaviour -different groups of actors strategically want courts to have more power (varies in literature) -courts welcome more power and seek to maintain it ❖Assume courts are powerful ❖Few constraints on court power -legal doctrine, popularity “Juristocracy” Judicialization of politics (Hirschl 2008) ❖Spread of legal discourse ❖Judiciary determining policy -administrative review -rights jurisprudence ❖Reliance on courts to resolve mega -political issues -core political controversies that define polities

Answer 38

Whether quebec as a distinct french nation is diff from rest of the country Lead-up to secession reference ❖QC never signed Constitution Act, 1982 ❖Failed constitutional amendments, did not amend constitution to make quebec want to sign -Meech Lake Accord (1987); failed -Charlottetown Accord (1992); failed ❖PQ in Quebec, BQ in House ❖QC secession referendum (1995) ❖Extremely close victory for “no” side -No: 50.58%, Yes: 49.42% ❖Failed federal proposals -Calgary Declaration -Prospect of another secession referendum ❖Constitutional dispute about federalism ❖QC’s place in federation ❖Status of other provinces ❖Political issue defines Canada

Answer 39

1.Quebec cannot secede unilaterally ❖Clear majority on a clear question ❖Negotiations between federal government and other provinces ❖Constitutional obligations more important than democratic majority 4 underlying principles of the constitution 1.Federalism 2.Democracy 3.Constitutionalism and the Rule of Law 4.Protection of Minorities

Answer 40

2. Quebec cannot unilateral secede under international law ❖QC not subject to colonial rule, alien subjugation, domination or exploitation ❖Can exercise self-determination within the state

Answer 41

❖federal gov win; No unilateral secession ❖quebec win; But negotiations would be required if QC won a referendum vote ❖Clarity Act (2000) and Bill 99 (2000); contradicting acts Two acts exist side by side -secession questions remain -referendum questions remain

Answer 42

❖62% vote yes to remove equalization from the constitution ❖Premier Kenney: expect federal government to negotiate ❖Turnout: 39% of voters ❖Outcome: probably nothing, prime minister trudeau did not engage, politically not important

Answer 43

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

Answer 44

1.Is the Proposal within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent? 2.If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry two persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent? 3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? 4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

Answer 45

❖Questions have political underpinnings ❖Political considerations provide the context, rather than the substance, of the questions ❖Reference the Secession Reference 1. s. 1 of the Proposed Act is within Parliament’s jurisdiction (intra vires), but s. 2 is not (ultra vires) 2. s. 1 is consistent with the Charter 3. s. 2 of the Charter is broad enough to protect religious officials 4.Declined to answer ❖Relied on living tree doctrine of constitutionalism -progressive interpretation -accommodation modern life

Answer 46

❖Why did federal gov’t resort to SCC? -issue already decided in many lower courts ❖Political contestation among and within parties -many Liberal MPs oppose (free vote) -Conservative opposed ❖Political strategy in aftermath of 2003 Halpern decision (OCA) ❖Pending election, divisive issue (among public, among Opposition and Gov’t, within Gov’t) ❖Second question: “feign caution where courage is lacking” (pg. 258) ❖Fourth question: gov’t should have appealed Halpern to get this answer -federal law at stake -remedial discretion ❖Gives objectors to same-sex marriage an answer without gov’t appealing ❖Clear strategizing happening ❖Against the use of the reference: stifles political debate on rights -based issues ❖Court should use discretionary powers to not answer certain questions -SCC has high docket control -must be more aware that they create incentives/disincentives for political actor

Answer 47

❖Political advantages (short-term, immediate problem) ❖Circumvent a resource-and time-intensive litigation process, respond to uncertainty in legislation, or negotiate with another gov’t ❖Contributes to increasing judicial power

Answer 48

❖Questions about jurisdictional authority (mega-political) ❖Courts are political; can’t simply ask courts to act with restraint ❖Courts should facilitate political negotiations between conflicting parties

Answer 49

Judicial decision-making is a “function of what [judges] prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (Gibson 1983), acknowledging judges have preferences, but care about norms and are constrained by feasbability Judicial decisions are not absolute ❖ Political actors can respond to judicial rulings Judicial decisions are not made in a vacuum ❖ Political environment ❖ Internal constraints

Answer 50

Political actors can respond to judicial rulings (Legislative sequels) Charter establishes a two-way exchange between the judiciary and legislature Section 33: Notwithstanding clause ❖Legislative override (5 years) ❖Applies to s. 2, 7-15 Section 1: Reasonable limits ❖Applies to all sections of Charter ❖Alternative law could satisfy s. 1 Qualified Rights (not absolute) ❖Standards of reasonableness and fairness -s. 7: life, liberty, and security of the person … except in accordance with fundamental justice -s. 8: unreasonable search and seizure -s. 9: arbitrary detention What counts as dialogue? ❖Any legislative action ❖Found that 80% of decisions have a response ❖Legislatures use Charter-speak

Answer 51

❖Everything constitutes “dialogue” -is it dialogue or compliance? (Macfarlane 2012) capturing compliance rather than dialogue -hard to distinguish; genuine agreement and begrudging acceptance look the same (Hennigar 2004)

Answer 52

❖Canada Election Act prevents all incarcerated persons from voting ❖Gov’t argued it violates s. 3 but it is ultimately saved by s. 1 ❖SCC rules that the provision fails the proportionality test, fails minimally impairing part Struck down, parliament must respond

Answer 53

❖Parliament amends the Canada Election Act ❖now Prevents incarcerated persons serving sentences of two years or more from voting, in order to be more minimally impairing -reasonable limit

Answer 54

Case is relitigated ❖SCC doubles down, finds amendment violates s. 3, not saved by s.1 ❖SCC talks about dialouge theory in judicial decision, Dialogue does not mean deference, does not automatically mean courts will accept any government response, just because they responded -is not a rule of “if at first you don’t succeed, try, try again”. (para. 17) ❖Deference may be appropriate in decisions involving competing social and political policies; but this case is about fundamental rights (para. 13) ❖courts said s. 3 is not a qualified right, its a fundamental right (Manfredi 2007) ❖s. 33 does not apply to s. 3 (Manfredi 2007) This case shows dialouge theory does not accurately portray legislative decisions ❖Dialogue means neither courts nor legislatures hold monopoly over values ❖Courts may hold monopoly over constitutional interpretation

Answer 55

❖Legislatures are equal partners with courts in constitutional interpretation ❖Legislatures and courts can legitimately come to different interpretation of rights -reasonable disagreement -cases that are not unanimous or close ❖Courts are not the only branch that can interpret the constitution s. 52 (1) of Charter: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Answer 56

❖Court allows the defence of extreme intoxication in sexual assault trial ❖Otherwise, is a violation of s. 7 and 11(d) of Charter (not saved under s. 1) ❖Ordered a new trial Parliament responds: Bill C-72 33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Answer 57

❖Drug overdoses, tried to kill himslef, ended up stabbing elderly mother ❖Struck down s. 33.1 of Criminal Code ❖Violates s. 7 and 11(d) of the Charter ❖Apply to intoxication? Will this open a case for automatism to be used as defence for alcoholism ❖Gov’t appealed to SCC (granted leave) R. v Brown (did mushrooms, breaking and entering and assault) and R. v Sullivan (May 2022) ❖SCC upholds acquittal (2) and new trial (1) ❖s. 33.1 of Criminal Code violates s. 7 and 11(d) of the Charter ❖Intoxication akin to automatism: means person has no will to control actions Intent to become intoxicated is not the same as the intent to commit a crime like assualt ❖they clarify that Alcohol alone extremely unlikely to support the defence of automatism ❖Recognize value of Parliament’s objectives (public safety) ❖Stand alone offence of criminal intoxication ❖Legal standard for criminal negligence requires proof that risks (loss of control and subsequent harm) were reasonably foreseeable ❖s. 33.1 of Criminal Code amended ❖Individuals who consume drugs and/or alcohol in a criminally negligent manner are held criminally responsible if they harm others while extremely intoxicated

Answer 58

❖Catholic bishop from B.C. found guilty of sex crimes in 1991 ❖Disclosure of medical/counselling records; argued crown failed to provide records of psychologists ❖Court is divided on appropriate test to release records (5 to 4) Court upheld right to view records ❖Truth seeking/full answer vs. privacy and interest in encouraging reporting Applicant must establish records as relevant and then judge views records and establishes if records are necessary for truth seeking ❖Parliament passes new law adopting language of the dissenting opinion -Bill C-46, introduced ss. 278.1-278.91 in Criminal Code; rape shield laws; these limit the ability of the accused to introduce sexual history, more in interest of upholding privacy

Answer 59

❖Court upholds new law ❖Court uses dialogue principle “The courts do not hold a monopoly on the protection and promotion of rights and freedoms” Follow up case to connor R. v. Mills (1999); accused and charged w sexual assualt, council obtains medical records Trial judge agreed with mills ❖Case moves up to SCC, Court upholds new law (rape shield), agrees with parliament ❖Court uses dialogue principle; saying “The courts do not hold a monopoly on the protection and promotion of rights and freedoms”; parliaments approach is legitimate, court agrees to learn from them Parliament is useful when courts are not unanimous

Answer 60

❖Does constitution require sex work to be decriminalized? ❖Gov’t criminalizes prostitution (in terms of buying) Canada (AG) v. Bedford (2013); argued canadas prostitution laws are unconstitutional, forced to work in secret, said it violates right to security, forces them into dangerous situations Court agreed but delayed striking down of laws for 1 year to let parliament respond ❖Does constitution require sex work to be decriminalized?; courts did not answer this question, vague outcome ❖parliament response; Gov’t criminalizes prostitution (in terms of buying) Because courts left question open, it gave space for parliament to respond in this way, therefore legitimate response Another reason parliament does have legitimate role in judicial decision making Some evidence legislative response can put some constraints on what judges do, but most of the time they are compliant

Answer 61

❖SCC upholds acquittal (2) and new trial (1) ❖s. 33.1 of Criminal Code violates s. 7 and 11(d) of the Charter ❖Intoxication akin to automatism: no will to control actions/ can not be held criminally responsible ❖Alcohol alone extremely unlikely to support the defence of automatism ❖Recognize value of Parliament’s objectives (public safety) ❖Stand alone offence of criminal intoxication ❖Legal standard for criminal negligence requires proof that risks (loss of control and subsequent harm) were reasonably foreseeable, can be held criminally responsible if risks are reasonably forseeable Parliament’s Response: Bill C-28 (June 2022) ❖s. 33.1 of Criminal Code amended Justices make statement; ❖Individuals who consume drugs and/or alcohol in a criminally negligent manner are held criminally responsible if they harm others while extremely intoxicated Daviult case; parliament getting it right Compliance? Parliament passing bill/policy alternative to appease courts

Answer 62

❖Political actors can respond to judicial rulings Judicial decisions are not made in a vacuum ❖Political environment ❖Internal constraints

Answer 63

❖Ideal triad (Shapiro 1981) ❖About perception from other actors ❖Judicial decisions need to be sensitive to the perception of others -public opinion; important to maintain -almost have to rely on government compliance, ultimately need government to support decisions

Answer 64

❖Political context ❖Perception of other actors ❖Coalitions between judges ❖Norms from institutional culture

Answer 65

❖SCC acts strategically to cultivate legitimacy ❖courts Constrained by broader political context in which they make decisions ❖Constrained by reactions of others ❖Example: Quebec Secession Reference (1998); demonstration of these dynamics ❖High visible case ❖QC already highly suspicious of courts taking on this decision, assume they are going to promote federal gov perspective ❖Focus on duty to negotiate ❖Non-decisions; silent on alot of important factors to do with legality of succession, very vague, did not answer what duty to negotiate looks like or implications for indigenous people ❖Moderated judicial activism; strategic decision not to answer, long term benefit Radmilovic (2010) opinion; ❖Legal doctrines and jurisprudence is flexible; dont have legal hold on judges, courts massage these docs to get outcome they need ❖Used to accommodate political context and manage conflict

Answer 66

Institutions shape preferences and roles of judges (Macfarlane 2013) ❖Role of the institution ❖Individual role within institution ❖Find that justices had respect for the roles of other institutions “[W]hen you’re telling the legislative or executive through a judicial outcome or decision, that they’re offside of the Constitution, you want to lower the temperature. ... There’s going to be tension, but I don’t think it helps anybody’s role–legislature, executive, or judiciary– to say that somehow there is this adversarial nature to the functioning of each of the branches of government.”

Answer 67

When political decisions unduly influence; *Judicial decision-making *Functioning of the courts Key considerations *Elected v. appointed judges *Partisan appointments *Ideological decision-making *Legitimacy, the courts, and public trust Judicialization of politics *Juristocracy

Answer 68

*Impacted by individual judge’s politics and partisanship *Ideological and/or personal preference guide judicial decision-making US courts are politicized at all levels *Inherent within the structure of US courts *Many judges are *elected officials *obvert political actors Canadian courts are less politicized than US courts

Answer 69

President nominates at their discretion Generally aligns with political or philosophical goals Senate holds public hearing and confirms Rare for senate not to confirm No term limits Appointed for life Only removed by impeachment E.g., Justice Samuel Chase William; debates around whether he was fit as SCJ, seen as bringing own politcal stance in, it was ruled he could not be impeached based on bias on political stance

Answer 70

Most known for... Longest serving US Supreme Court Justice (1939-1980) Controversial professionally and personally Supporter of freedom of speech Experienced “debilitating” stroke in December 1974 Remained on the court until November 12, 1975, depsite “debilitating cognitive decline”, wife had to convince him to sign letter of resignation US Supreme Court Justices put off cases in which he would have a deciding vote

Answer 71

SCC Shortlist Created by Minister of Justice and Prime Minister (PM) Governor General appoints W/ advice of PM Often thought to have no political elements May serve until 75 years of age May be removed by Senate and House of Commons misconduct or incapacity The Court has “managed to safeguard its institutional legitimacy as evident by the high degree of support it enjoys among the Canadian public” (Hausegger & Riddell, 2004 as cited in Radmilovic, 2010, p. 843)

Answer 72

*Institutional legitimacy *Legitimacy cultivation How do the courts and judiciary establish and promote institutional legitimacy? The ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges. The Right Honourable Beverley McLachlin

Answer 73

*Indispensable to impartial justice under law *Uphold and exemplify judicial independence in both its individual and institutional aspects Integrity *Strive to conduct themselves with integrity *Sustain and enhance public confidence in the judiciary Diligence *Be diligent in the performance of their judicial duties Equality *Conduct themselves and proceedings before them so as to assure equality according to law Judges must be and should appear to be impartial with respect to their decisions and decision making.

Answer 74

General Conduct maintains/enhances confidence in their/judiciary impartiality Conduct their personal and business affairs so as to minimize disqualification from hearing cases Impartiality is to be assessed from the perspective of a reasonable, fair minded, and informed person Judicial Demeanour Maintain firm control of the process and ensuring expedition Treat everyone before the court with appropriate courtesy Civic and Charitable Activity Judges are free to participate in civic, charitable, and religious activities Conditions include avoiding certain activities/associations, soliciting funds, involvement in certain causes or organizations, and/or giving legal or investment advice Conflicts of interest Self-disqualify if potentially not impartial or with any suspicion of conflict

Answer 75

Refrain from conduct that undermines confidence in judicial impartiality *E.g., Consider group/organizational membership, participation in public discussion. All partisan political activity must cease upon appointment Judges should refrain from: *Political party membership and fundraising *Attendance at political gatherings/fund-raising events *Contributing to political parties or campaigns *Taking part publicly in controversial political discussions (some exceptions) *Signing petitions to influence a political decision Family members political involvement/partisanship *May adversely affect the public perception of a judge’s impartiality

Answer 76

1) Judicial disposition of individual cases will tend to accord with the state of specific support. 2) Judges will tend to avoid overt clashes and entanglements with political actors. 3) Judges will tend to moderate judicial activism. 4) Jurisprudence will tend to be informed by the tenor of the extent of political involvement.

Answer 77

Populism Judicial independence Decision-making Strategic judicial decision-making Strategic sensitivities (e.g., public opinion) QS & duty to negotiate Specific v. diffuse support Determinants of diffuse support Institutional legitimacy

Answer 78

Based on the rule of law Ensure decisions and the legislature are fair, reasonable, and lawful Government officials/administrative bodies are subject to the law Courts can nullify unlawful actions

Answer 79

Administrative acts Constitutionality of legislation What are potential links between judicial review and institutional legitimacy?

Answer 80

*Alternative to politics, political negotiations, and (a)political decisions *Expands beyond political and civil rights *Substantive equality and equity for Indigenous peoples 5 key Indigenous rights *Fishing and hunting rights *Institutional representation *Welfare policies *Land rights *Self-governance Constitutional recognition of specific Indigenous rights Law’s Indigenous ethics (John Borrows) How is love relevant to regulation and dispute resolution–particularly when considering treaties? What is the role of relative truth in law–especially considering law’s so-called foundational sources and force? Is bravery a constitutional value, and can it be applied in an Aboriginal rights context? Does humility have a place in helping us understand Aboriginal title’s relationship with private property? Can wisdom be specifically invoked to require more holistic approaches to learning that take us outside of the classroom and onto the land? Can honesty assist us in acknowledging Canadian law’s syncretic nature–and can this affect how we teach law? Can respect be activated to inculcate mutual responsibilities for Indigenous-settler relations–especially when residential schools and other assimilatory pressures are at issue? (Borrows, 2019, pp. 26-27)

Answer 81

Aboriginal peoples First Nations ”Indians” in Constitution and Indian Act Status and non-status Métis Inuit Indigenous peoples Settler-colonialism- you don't want to exploit the people living on the land, you want to eliminate them and have their land Erasure is goal (assimilation) Not an event, but a structure (Wolfe 2006) Erase Indigenous rights to pursue their dispossession- key way to gain land and put your own population, this is done over time Doctrine of discovery, terra nullius- this justified the erasure of indigenous peoples Indigenous peoples were never conquered

Answer 82

Treaties- revisited and reopened, the individuals in the treaties all had relationships with one another, revisited all the time Kin-like relationships “fictive kinship”- in order to be close enough to have treaties Ceremonies- to celebrate the treaties Treaties with Newcomers Trade- wanted to trade furs, for beaver felt top hat Indigenous protocols Diplomacy- although they had the EU supporting them, the european knew that they had to do it the way of the Inidigenous

Answer 83

1613 agreement between Haudenosaunee and Dutch Purple beads: 2 vessels- the indigenous and the europeans White beads: peace, friendship and mutual respect Represents co-existence- british were successful in dominating

Answer 84

“...the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds”- indigenous peoples did not sign or partake in this Only the Crown can purchase lands from Indigenous peoples; this exchange is often understood as one between governments or between nations- not regular settlers, crown understands the relationship with Indigenous peoples The exchange of lands must be done explicitly, thus beginning the treaty making process

Answer 85

indigenous peoples did sign and have a say in this, part of our constitutional law (the wampum belt) Exchange of Wampum Belts between the British representatives and First Nations- shows one person and the other person linking hands (indigenous peoples and europeans), also there are numbers- adding in a english perspective

Answer 86

Aboriginal title is “dependent on the goodwill of the Sovereign” Aboriginal title resembles a “personal and usufructuary right”

Answer 87

The decision: Aboriginal title exists independently of the Royal Proclamation Aboriginal title: a burden on underlying Crown sovereignty Extinguishment of title must be explicit and justified The indigenous people in BC have never given away their rights and thus should be able to govern that land and the people on it This was first a mistrial

Answer 88

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” “‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada”

Answer 89

Fishing net restriction Net restriction infringed s. 35 rights s. 35 provides constitutional protection from legislative power Gov’t regulation that infringed s. 35 rights requires justification R. v. Sparrow (1990) 1. A Valid Legislative Objective 2. Infringement Is Minimally Impaired 3. The Indigenous group has been consulted 4. There has been compensation, in the case of expropriation

Answer 90

Commercial fishing restriction Test for evaluating an Aboriginal right 1. the right must be considered integral to the distinctive culture of the Aboriginal group 2. the right must show continuity with customs that existed before first contact with Europeans Reconciliation between Indigenous perspective and common law

Answer 91

Aboriginal title: right to exclusive use and occupation of land for a variety of purposes - sui generis right Title use must not irreconcilable with the nature of the groups’ attachment to that land Infringement must be justified Infringement must be justified - agriculture - forestry - mining - hydroelectric power

Answer 92

Aboriginal title The land must be occupied before Crown asserted sovereignty There must be some continuity between pre-sovereignty and modern times Occupancy must be exclusive at the time of sovereignty

Answer 93

Promise: can challenge gov’t actions Perils: colonial interpretation limits decolonizing potential of rights Do courts contribute to the elimination of Indigenous sovereignty

Answer 94

Unifying/centralizing effect (Russell 1983) - impose binding decisions on lower (provincial) courts s. 33: effective compromise?

Answer 95

Gurbaj Singh Multani is an orthodox Sikh; must wear kirpan at all times Accidentally dropped kirpan School board accommodation: sealed inside clothing Governing board: refused to ratify agreement s. 2 freedom of religion - sincere belief - severe infringement Orthodox, kirpan must be metal Violation considerable: leave public school s. 1 test Objective: school safety is reasonable Proportionate: failed this test - means is rationally connected - not minimally impairing, no proportionality between infringement and objective Backlash/debate in Quebec Justice Charron - QC appeal court disrespectful to believers of Sikh religion - did not take into account Canadian values based on multiculturalism

Answer 96

Perception: Muslims arrived and demanded menu alterations and interrupted the dance hall to recite their prayers; everyone else was expelled Mont-Saint-Grégoire sugarhouse Facts: representative of Muslim association met with owners to discuss menu changes Members prayed for less than 10 minutes and no one was expelled Hérouxville: “Life standards” Town council passed code of conduct No immigrant population Forbade carrying of weapon (even if symbolic) Forbade covering one’s face Stated stoning women, burning them alive and female genital cutting is prohibited Backlash: based on racist stereotypes About rural/urban divide? Code of conduct revised after a delegation of Muslim women met townspeople

Answer 97

High media coverage Lack of knowledge Partial perception of practices on the ground Political consequences: - 2007 QC election: Action démocratique du Québec (ADQ) became official opposition

Answer 98

No accommodation crisis QC: cultural insecurity - minority in Canada, majority within province emphasize reasonable accommodation stems from concerns about equality - treatment can be differential without being preferential Interculturalism model of integration 1. French is the common language 2. Pluralism with protection of rights 3. Creative Tension Between Diversity And French-speaking core 4. Emphasize Integration 5. Emphasizes Interaction Limited ban on wearing religious symbols Apply to officials with “coercive” powers - judges, prosecutors, and peace officers - Taylor no longer supports this position Crucifix must be removed from National Assembly - removed in July 2019

Answer 99

Quebec Charter of Values (Bill 60): introduced in 2013 by the Parti Québécois gov’t- did not pass An Act to foster adherence to State religious neutrality (Bill 62): passed in 2017 by Liberal gov’t

Answer 100

Affirms religious neutrality of the state Religious symbols prohibited for public service employees - public employee who carries a weapon - Crown prosecutors, gov’t lawyers and judges - School principals, vice-principals and teachers Prohibition when receiving public services - Municipal services (public transit) - Doctors, dentists, midwives in public institutions - Subsidized daycares - School boards Invokes s. 33 to avoid legal challenges Amend Quebec Charter of Human Rights and Freedoms - “state laicity” is of “fundamental importance” - avoid lawsuits under Quebec law 4 different lawsuits, 3 heard together 1. Civil rights groups v. Quebec Ultra vires Alters unwritten principles of Canadian constitution Vague definition of “religious symbols” 2. Coalition Inclusion Québec v. Quebec Incoherent law Violates freedom of religion found in the Quebec Act, 1774 Ultra vires Violates s. 28 of Charter, must affect men and women equally, argued it disproportionately affects women 3. English Montreal School Board v. Quebec Violates s. 23 of Charter Violates s. 28 of Charter 4. Teachers Union v. Quebec Contest use of s. 33 Should have rules to account what rights are being overridden Violation of s. 2(d) by altering duly signed collective agreements

Answer 101

Superior Court of QC: upheld the bill Struck down provisions affecting English- language school boards and members of the provincial legislature Both parties are appealing the decision Federal gov’t will intervene if the case reaches the SCC

Answer 102

❖Should s. 33 be respected under all conditions? ❖Have the courts considered federalism when upholding Charter rights? (Hiebert 2019) -Federalism: one of four principles of the constitution

Answer 103

❖In Quebec, Charter can undermine federal governance: provincial autonomy ❖s. 33 as “thick” federalist response: -protect provincial autonomy or cultural objectives from Charter constraints -rejection of conforming to norms about justifying restrictions on Charter rights in areas of provincial jurisdiction ❖s.33 mostly used pre-emptively and not as a reactive response to a judicial ruling- QC: 15; SK: 2; AB and YK: 1 -11/19 uses: federalist responses ❖Protesting the 1982 constitutional changes: -QC re-enact all legislation passed before the Charter was enacted (omnibus fashion) ❖Disagree with a SCC ruling: -QC (1988): Bill 101 (Ford 1988) -AB (2000): Bill 202 (Marriage Amendment Act) -SK (2018): Bill 89 (Parental choice in schooling) ❖Disagree with a SCC ruling: -QC (2019): Bill 21 (religious symbols) -protecting collective and cultural objectives over judicial norms about freedom of religion ❖Provincial legislatures may pass Charter-vulnerable legislation without s.33 -timeframe: new gov’t or time to entrench voter base -Westminster gov’t: executive powers to pass legislative agenda (discipline, etc.)

Answer 104

why s. 33 is important despite being controversial ❖Neither legislatures nor courts should have the final word on identifying limits on rights ❖How to balance majority/minority rights should not be solely determined by the SCC ❖Important political debates happen after an SCC ruling “I would add that it is extremely doubtful that the unity of Canada could survive an insistence by the rest of Canada that Quebec's legislature be denied a continuing role in deciding what is necessary to preserve Quebec's French character.”

Answer 105

Changes to ❖Constitution Act, 1867 1) Quebecers form a nation 2) French shall be the only official language of Quebec ❖Use of s. 33 to shield the bill ❖Education; capping English speakers who can choose cjep ❖Commerce and signs; predominant French writing ❖Workplace; more than 25 employees must operate in french completely ❖Unilateral constitutional change? Constitutional change shielded by s. 33 -can amend provincial constitutions - does it affect other constitutional rights? Only affecting french constitution is contestable ❖Support from major parties and provinces timed right before the federal election, need Quebec votes

Answer 106

❖QC (2019): public ban on wearing religious symbols ❖ON (2021): legislation restricting third-party spending in elections ❖QC (2021): French language requirements ❖ON (2022): use and subsequent withdrawal of s. 33 to prevent a teachers’ strike ❖SK (2023): used to pass Parental Inclusion and Consent policy, students need parent permission to change pronouns in school ❖ did it to Bypass injunction (court intervening on party decision to fix damages done by party) from trial judge: pause policy until its constitutionality is tested in court, because of this s. 33 was invoked “It (Section 33) was meant to be a last word for a legislature to exercise parliamentary sovereignty. If it’s used at the beginning, it guts Canadian democracy, it means the charter doesn’t exist.” Using it preemptively without dialogue is illegitimate

Answer 107

❖Concern: rather than correct judicial excess, now s. 33 used pre-emptively to stop debate between courts and legislatures ❖Disallowance powers (not used since 1943) ❖Ask a reference question to the courts

Answer 108

❖s. 33: a law shall operate notwithstanding one or more Charter rights ❖Does not preclude judicial review: court can still declare that the law violates rights ❖Judicial scrutiny ensures no gov’t is above the law (even for laws with s. 33) ❖Declarations respect parliamentary supremacy 1.Can better hold the gov’t to account after hearing court weigh-in 2. Another avenue for minorities to make voices heard 3. Judicial review may alter the law’s political standing

Answer 109

SCC, judiciary, parliament, the crown

Answer 110

Parliament does not always adequately safeguard rights, ex; internment camps and orders for deportation WWII, residential schools, sterilization of disabled people

Answer 111

”A constitutional Bill of Rights would modify even further the concept of parliamentary sovereignty in Canada. Once fundamental rights are guaranteed, they will be beyond the reach of government at all levels. This will confer new and very important responsibilities on the courts, because it will be up to the courts to interpret the Bill of Rights, to decide how much scope should be given to the protected rights and to what extent the power of government should be curtailed.” –P.E. Trudeau (1967)

Answer 112

s.33(1): “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” S. 33 preserves parliamentary supremacy

Answer 113

a democracy which puts its faith as much in its politically active citizenry as in judges to be the guardians of liberty is stronger than one that would endeavour to vest ultimate responsibility for liberty and fundamental rights exclusively in its judiciary. - Russell 1991, p.309

Answer 114

A recent use of the notwithstanding clause Bill 21 “The court notes that the evidence undoubtedly shows that the effects of Bill 21 will negatively impact Muslim women first and foremost… In one way, by violating their freedom of religion, and in another, in doing the same in regards to their freedom of expression, since clothing constitutes both pure and simple expression, and also the manifestation of a religious belief.” - Justice Marc-Andre Blanchard, Quebec Court of Appeal (2021)

Answer 115

1. “Notwithstanding Act” (van Ert and Attaran, 2023) *Use of disallowance for legislation that violates Canada’s international treaty obligations. 2. Permit judicial review despite s.33 (Webber, Mendelsohn, Leckey, 2019) *s.33 does not allow legislation to “override” rights; it shields the operation of law the violates certain Charter rights. What is attractive about these proposals? What would be their political or legal consequences?

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