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Flashcards in Final POLI 342 Deck (50)
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1
Q

Borowski, Thorson, McNeil (Late 70’s Early 80’s)

A

Asks whether a citizen can challenge the abortion law for being too lax.

  • SCC finds that if there is a serious issue, must show genuine interest as a citizen in the validity of the legislation AND that there is no other reasonable and effective manner in which the issue would come before the court.
  • Any law subject to Charter challenge, standing only applies until it makes a challenge impossible
  • No longer need personal interest
  • SCC grants standing to Thorson, federal civil servant seeking declaratory judgement that new bilingualism legislation invalid even though not personally impacted
2
Q

Problems with Citizens Challenging Legislation

A

Not many can: expensive, need lawyer, campaign of cases leads to bigger impact.

3
Q

US Civil Rights Litigation

A
  • National Association for the Advancement of Colored People (1909) and Legal Defense Fund (1939) are the exemplary cases.
  • Southern Democrats blocked desegregation the LDF litigates against segregated education in colleges and universities then in public school.
  • They did this by sponsoring test cases to overturn legal precedent of ‘separate but equal’ (out of 1896 Plessy v. Ferguson)
  • mid 50’s see success Brown v. Board of Education
4
Q

Canadian Interest Groups

A
  • In Canada, interest groups sponsor cases but it is more common for them to be intervenes in court (amici curiae or friend of court)
  • Heard in someone else’s case but has implications for adjudicative model
  • Partly funded by the government (almost unique to Canada)
  • Examples of interest groups: Canadian Civil Liberties Association , Criminal Lawyers Assn, BC Civil Liberties Assn, LEAF, Canadian Labour Congress
5
Q

NAACP Type Story

A
  • Interest group litigation as: a government oppressing someone’s rights vs a citizen group trying to defend itself from oppression
  • In the US, the government was enforcing oppressive laws and a group of citizens banded together in reaction.
  • Interest group pluralism as a moral force to it.
6
Q

Trudeau and Interest Groups in Canada

A
  • 1970’s Trudeau was pushing the court towards policy making (creative judges, docket control and the CCRF)
  • CCLA founded in 1964 in Toronto. Bora Laskin was a founding members
  • CCLA is a traditional civil liberties group that opposes overly powerful police, defends criminal due process rights and upholds free speech principles
  • Pressured court to allow more interveners because unwise to allow government and not advocacy to intervene. Governments would instinctively oppose broad readings of rights so need to hear countervailing opinion. Interveners submit factums to court
  • In the 1970’s they opposed the War Measures Act, hate propaganda laws, new wiretapping powers and promoted legal aid.
  • Funding OLMG, french language groups outside Quebec, English language groups inside Quebec
  • Starting in 1970’s- women’s and multicultural groups
7
Q

Threat to the Canadian Regime 1976

A
  • Quebec elects Parti Quebecois
  • 1977 Bill 101 makes French official language of QC and restricts English language education rights
  • Trudeau government worries that this will become a challenge to bilingualism and that other provinces will restrict French language education rights and eventually Quebec will vote on separation
  • Trudeau government considers disallowing it or challenging it in court but it is popular
  • Instead encourages English language groups to challenge it and push ahead with Charter of rights with new language rights enshrines.
8
Q

Bill 101

A

-To encourage English groups to challenge Bill 101, 1978 creates Court Challenges Program (access the courts for the litigation of test cases of national significance. language, human rights,
-BNA Act 1867 S.133- English or French may be used in debates of the Legislature of QC and in courts. Manitoba Act 1870 same.
-Court Challenge Program funds three cases in QC, three outside QC
-

9
Q

Charter of Rights and Language

A
  • Section 16-20 includes existing language rights
  • Section 23: any Canadians education in French have the right to French education for their children outside QC and if in English, English education for their children in QC
  • Court Challenges Program expands accordingly
  • Equality rights section comes into effect, Court Challenges Program expands to fund those cases too (LEAF, disability cases, AFN, EGALE)
10
Q

Interest Group Pluralism

A
  • In Canada, interest group litigation does not always follow the NAACP model
  • Whereas in the US, the government is enforcing oppressive laws and a group of citizens band together in reaction, interest group litigation was encouraged and funded by the federal government.
11
Q

Hein Brodie Debate Setting

A
  • Trudeau got a policy-making judicial system and a CCRF that anchors unlimited judicial power plus a constellation of interest groups to invoke that power
  • By 2000, SCC well established locus of politics
12
Q

Hein and Judicial Policy Making

A
  • Thinks this is good for democracy because judicial policy making is used by judicial democrats: left feminists, disability groups, labour, new left groups (progressives) to counter-balance corporate interests
  • Judicial power balances are an inherently unfair political process
13
Q

Brodie and Judicial Policy Making

A
  • Does judicial power re-balance an inherently unfair political system?
    1. are the courts more diverse than Parliament or the Alberta Legislature or Cabinet. Decision are made by judges and lawyers.
    2. what do you need to have to succeed in court? The same resources you need to succeed in legislature or regulatory politics
    3. Interest group litigation is not a group up process, it is driven by the state
  • More we make the judicial system like the rest of the political process, the farther it is from the original triad structure and the more it becomes like the rest of the political process— except the courts are second guessing the rest of the political process
14
Q

Weiler + 50

A
  • Now that we have policy making courts,
  • Better realization, policy making is damned complicated
  • Competing goals or objectives, imperfect means of implementation
15
Q

Hausegger and Farm Worker Rights

A
  • Long policy debate. In 1970’s minimum wage and 90’s unionization
  • All of which end up in court, to this day NDP Bill 26 and UCP repeal. Extend workplace legislation to farms and ranches.
  • Government trying to protect family farms and new push for local food but there is a competitive and cost trade off. Farmers argue that family farms are unique.
16
Q

Judicial Impact on Ability to Unionize

A
  • CCRF Section 2 everyone has the right to freedom of association but does that include the right to form a union and bargain collectively?
  • At first, 1987 SCC decided no but gradually has changed the law so now everyone has the right to form a union and bargain collectively.
17
Q

Sliding Scale of Implications for Judicial Policy

A
  • Administrative law: clarify and make new rules, cabinet or Parliament can changes these rules
  • Statue law- clarifying statute and filling in gaps, Parliament can change the statute
  • Constitutional Law: impossible to reverse, judicial policy making needs more serious think.
  • Wide open remedies clause and a wide range of rights and freedoms
18
Q

Smiley

A
  • How balance judicial v.s legislative policy making
  • Not following the will of the people (elected officials)
  • How far should judges go in policy making? Can’t use the ‘when rights are at stake’ justification because:
  • judges are not isolated from politics, rights violations aren’t always clear and who does the balancing: S.2 freedom of expression v.s equal protection without discrimination: race, national ethjnic origin, colour, religion, sex. Hate literature or porn?
  • Can’t use ‘should intervene when public opinion is inflamed’ Crisis or passing panic?
  • Good legislative debates on capital punishment, divorce, abortion, hate speech, bilingualism, euthanasia, gay marriage
19
Q

McLachlin on Constitution

A
  • Unwritten constitutional principles, how are judges better at finding them if they aren’t written down.
  • Judges are guided by their own personal views shouldn’t be they elected before they make policy?
20
Q

Morton on the Charter

A
  • Why do we have one?

- Trudeau hoped it would help nation building to emphasize what we have in common.

21
Q

Morton and Knopff on Judicial Policy Making

A
  • Critical of judicial policy making under charter
  • Anti democratic because it undermines democratic culture
  • Polarizing and puts issues outside the democratic debate
  • Builds unwillingness to engage in political deliberation (seeing policy making as a constantly shifting coalition of minorities)
  • Populism and Charter advocacy are similar attacks on deliberation and democracy requires deliberation and deliberation depends on virtues.
  • Democracy can fall victim to tyranny of the majority, can also fall victim to ‘fatal conceit’ that society can be engineered to perfection.
22
Q

Brodie’s Advocacy for Triad Structure

A
  • Universal, impartial third party inherently legitimate meaning adjudication is inherently legitimate
  • Policy making risks legitimacy- policy disputes are divisive
23
Q

Women’s Legal Education and Action Fund Birth and Evolution

A
  • three year moratorium on S.15 equality rights, time to mobilize and apply for funding.
  • Started with Charter of Rights Educational Fund and Charter of Rights Coalition, education activities.
  • LEAF scheduled for birth right after moratorium
  • 3 Features recommended in Women and Legal Action included:
    1. est of a single national fund
    2. direct sponsorship of cases
    3. Education and lobbying
  • Concerns had to arise from CCRF or QC Charter, strong facts, important to women (particularily interested in double disadvantaged women)
  • First two cases: right of married women keep own name and attack requirement for welfare recipients live single to qualify
  • Attractive to funders but alienated from feminist community, not diverse. Seaboyer/Gayme, reminder to consult feminist community
24
Q

LEAF Princinples

A
  1. Women experience widespread and pervasive discrimination compared to men
  2. Women oppressed based on race, class, sexual orientation, religion, disability experience inequality different in degree/contexts
  3. Law effective tool for egalitarian social change
25
Q

Manfredi Reading LEAF

A
  • Did legal mobilization change or preserve legal rules in the manner desired?
  • Did legal mobilization strengthen the movement?
  • Did not necessarily strengthen doctrine but made a difference in type of evidence: impacted legal culture in Charter litigation.
  • Most success in strengthening abortion movement, success in sexual orientation cases
  • Mixed success in reducing violence in areas of sexual assault and porn, organizational benefits for feminist movement but divided on the question of porn as obscenity in criminal code.
26
Q

Manfredi Reading LEAF

A
  • Did legal mobilization change or preserve legal rules in the manner desired?
  • Did legal mobilization strengthen the movement?
  • Did not necessarily strengthen doctrine but made a difference in type of evidence: impacted legal culture in Charter litigation.
  • Most success in strengthening abortion movement, success in sexual orientation cases
  • Mixed success in reducing violence in areas of sexual assault and porn, organizational benefits for feminist movement but divided on the question of porn as obscenity in criminal code.
27
Q

Manfredi Reading LEAF

A
  • Did legal mobilization change or preserve legal rules in the manner desired?
  • Did legal mobilization strengthen the movement?
  • Did not necessarily strengthen doctrine but made a difference in type of evidence: impacted legal culture in Charter litigation.
  • Most success in strengthening abortion movement, success in sexual orientation cases
  • Mixed success in reducing violence in areas of sexual assault and porn, organizational benefits for feminist movement but divided on the question of porn as obscenity in criminal code.
28
Q

Epp. Conclusion

A

Charter influence is overrated, judicial liberals gained control of Court too late to have done more than encourage already existing developments
Changes resulted from
1. shift to discretionary docket in 1975
2. development of a support structure for legal mobilization.

29
Q

Songer, Do Constitutions Matter?

A

YES

  • critiques Epp’s methodological choices
  • combines criminal appeals in civil liberties category and uses data points from every five years
  • impacts his data, in reality sharp increase in number and proportion of cases after the Charter
  • no linear trend towards increasing judicial review thesis is wrong. from final two pre charter to first two post Charter, tripled
  • only considers challenges to constitutionality of statues, when consider all constitutional challenges, judicial review post charter increases even more.
30
Q

Epp, Legal Mobilization

A
  • not self activating so need individuals to mobilize the law but mobilization depends on capacity which depends partly on access to resources
  • Need: organized group support, financing and structure of legal profession
  • Group litigants more successful, ‘repeat players’
  • government sources of financing necessary condition for presence on the agenda
  • Rights advocacy organizations: develeopment 60’s-90’s. left leaning and cultivated by liberal national government.
  • Government sources of financing: Court Challenges Program, set of funds to finance test cases on language and other equality rights. Began prior to passage of charter
  • Shift from apprenticeship system (dominated by conservative bar) to law schools. Young, and more diverse. Institution for critical scholarship
31
Q

Epp. Conclusion

A

Charter influence is overrated, judicial liberals gained control of Court too late to have done more than encourage already existing developments
Changes resulted from
1. shift to discretionary docket in 1975
2. development of a support structure for legal mobilization.

32
Q

Songer, Do Constitutions Matter?

A

YES

  • critiques Epp’s methodological choices
  • combines criminal appeals in civil liberties category and uses data points from every five years
  • impacts his data, in reality sharp increase in number and proportion of cases after the Charter
  • no linear trend towards increasing judicial review thesis is wrong. from final two pre charter to first two post Charter, tripled
  • only considers challenges to constitutionality of statues, when consider all constitutional challenges, judicial review post charter increases even more
33
Q

Gayme and Seaboyer

A
  • Both accused of sexual assault, argue that prior sexual conduct and sexual reputation should be permitted but violates S.276 and 277 of criminal code (rape shield provisions)
  • Argue unconstitutional violation of S.7 and 11d. CCLA supports.
  • LEAF, necessary to prevent irrelevant evidence that was prejudicial to the victim
  • SSC struck down S.276, kept S.77 (reputation)
34
Q

Political Disadvantage Theory and Interest Group Strategy

A
  • unable to penetrate other branches of government, litigation when all else fails
  • Wide following civil rights era
  • Now, only partial explanation, groups using courts are wealthy and established political insiders. Still need resources to go to court.
  • Litigate in response to opponents
  • Litigate to protect gains and defend previous wins
  • Organizational identity conditions litigation
  • Can also educate public
  • Lobby the law reviews to get favorable articles published
  • Write articles for law reviews
  • Influence who sits on the courts (mostly US).
  • Sponsor cases
  • Or intervene
35
Q

Court Party

A
  • Pushed for rights revolution
  • political minority made up of networks of individuals and groups that want to contitutionalize policy preferences not easily achieved through the legislative process.
  • SCC use them as cover for judicial activism to portray themselves as defenders of disadvantaged groups
  • Hein thinks they are judicial democrats who enhance democracy
36
Q

Five Ways Governments Appear in Court

A
  1. Prosecution of Offences
  2. Defendant in Civil Suit
  3. Plaintiff in Civil Suits
  4. Reference Cases
  5. Third Party Intervention
37
Q

Why do governments sometimes prefer to lose?

A
  1. wants to change the law but also wants to avoid political responsibility for it. wants court to do it
  2. silent dissent or criticisms within cabinet
  3. mobilize supporters, reap political gains from appearing to go down fighting
  4. challenge the legitimacy of the judiciary or the larger political system
  5. cut losses and not appeal to prevent or delay the issue from reaching a higher court where there would be wider application and more media coverage
38
Q

Prosecution of Offences and Defendant in Civil Suit

A
  1. Federal government prosecute some crimes if province refuse, drugs income tax fraud illegal fishing, terrorism. S.92 administrative of justice to provinces but not exclusive monopoly over prosecution.
    - AG serves as check on weak evidence and improper investigation, prosecutorial discretion allows for flexibility
    - Crown guidelines for prosecution encourages vigorous prosecution of spousal abuse
  2. government getting sued for damages or unfair treatment
    - settle out of court or ADR but there are various options:
  3. full charter defence: government argues law does not violate rights and if court disagrees then Section 1 reasonable limit.
  4. limited charter defence: concede rights violation and no S.1 or context rights violation and no section 1
  5. full concession
39
Q

Plaintiff in Civil Suits Reference Cases and Third Party

A
  1. Government sue business or another government. civil litigation to influence public policy
  2. advisory opinion on any question of law or fact, given themselves through legislation. initially to policy federal division of power but then provinces gave themselves references as well. political advantages: agenda management, position legitimization, transferring of political responsibility
  3. cost effective way to lobby courts to adopt particular legislation. particularly interested in due process rights post Charter. right to intervene only in constitutional law cases, statutory. AGs must be informed of constitutional challenges
40
Q

Government Appeals

A
  • weigh cost, case important, prospect of winning, change that SCC will grant leave to appeal
  • ideology, party in power, lower court invalidates law null factors
  • Department guidelines recommend appeal only when public interest requires it: widespread importance, lower court differing issues, impair enforcement of policy, benefit outweigh cost, public expressions of concern
41
Q

Attorney General Debates

A
  • lawyers under supervision of AG are government lawyers
  • AG is simultaneously Minister of Justice
  • Now creation of Director of Public Prosecution to handle prosecution at arms length from AG
  • Edwards: AG special duty to protect constitution and rep public interest even if at odds with government
  • Huscroft: independent but only to the extent necessary for AG to adhere to will of legislature. constitutional interest in defending legislative process
  • Jai: AG ignores non legal factors
  • Pluralistic public interest
  • AG’s not only guardians of public interest, and AG’s assessment of public interest not only assessment within government
42
Q

Net Advantage, Party Capability Theory, Lawyer Capability Theory and Government Success

A
  • Governments most successful class of litigants
  • Net advantage: appeal courts tend to affirm rather than to reverse the lower court
  • Party Capability Theory:
  • repeat players, well resourced haves who litigate frequently develop expertise, long term strategy and institutional credibility so more successful
  • Lawyer Capability Theory:
  • experience matters, gives government an advantage but if other side also experienced, less of an advantage.
  • Kritzer: government advantage because they make the rules, are selective about which cases to appeal, norm of deference to other state agencies
43
Q

Interstitial Rule Making

A

interpreting how the law applies to a particular situation

44
Q

Dunmore Case

A
  • Ontario gvt repeals law extending trade unions and collective bargaining rights to agricultural workers
  • Dunmore and United Food and Commercial Workers International union argued it violated S.2 and s.15 of Charter.
  • Similar to mushroom worker’s case pre-charter
  • SCC found s.2 right to freedom of association was violated , struck down clause in legislation, minimum right to organize
45
Q

Non-Constitutional Cases Blackstone v.s Bentham

A
  • Blackstone declared that common law judges act as oracles to declare pre existing rules grounded in reason, they did not create common law principles. skeptical of legislature, thought that parliament should create statutes to fill laws in common law.
  • Bentham- parliament = chief law maker. laws should be codified. precedent could easily usurp legislative power.
46
Q

Policy-Making Functions of the Court

A
  • policymaking function in overseeing decisions made y administrative tribunals, procedural and substantive
  • policymaking function in non constitutional cases, forge policy in the aggregate over time
  • policymaking function in clarifying the law or filling in gaps when applying common law precedents
  • policymaking function in creating new rules by deviating from applying legal rules. most controversial. Harrison v. Carswell picketing at a grocery store mall s part of strike, fined for trespass and the Justice Laskin v.s Justice Dickson debate. Laskin: court should recognize new social reality of shopping malls, should balance shopping mall owner and public labour interests. Dickson: adjudicatory perspective, only ‘legislate’ interstitial on the basis of existing legal principles
47
Q

Moore v. British Columbia

A

Human Rights Codes

  • apply to private business, orgs individuals
  • Moore serious learning disability, diagnostic center offer intensive assistance, provincial government closed the center, so less intensive assistance
  • filed discrimination complaint
  • BC Court of Appeal upheld superior court that Jeffrey was discriminated against
48
Q

Oakes Test

A

on a balance of probabilities, government must establish
1. the law has a pressing and substantial objective in a free and democratic society
2. that the law is proportional to the objective
-means rationally connected to ends
-means impair right as little as possible
means proportional to the objective, are the costs to the individual outweighed by collective legislative benefit

49
Q

Chaoulli 2005

A
  • CLaimant said prohibiting private health care insurance in QC violated S.7, doctor Chaoulli was not allowed to establish private clinic to give the claimant the hip replacement.
  • Court rules that QC prohibition violated rights, s.7 violation not justified under oakes test
  • some allowance for private medical care would not destroy the public system.
50
Q

Judicial Impact

A

Produce Social Change
-if there is ample legal precedent
-there is support for change from Congress and exec branch
-support or little public opposition
Alternative
-constitutive, judicial decisions as shaping norms and goals that guide behavior