public law final exam

Question 1

Who has power to create courts

Answer 1

federal and provincial

Question 2

who has the power to appoint judges

Answer 2

provincial to all lowest provincial courts
federal to all other provincial and federally created courts
must be a lawyer for 5-10 years first

Question 3

highest court in ontario

Answer 3

ontario court of appeal

Question 4

what is an intervener

Answer 4

an individual or group that are not a party to the case but are allowed to provide legal arguments to the court on an issue related to the case

Question 5

composition of Canadian Govt: Legislative

Answer 5

house of commons and senate (fed) 
legislative assemblies (prov)

Question 6

composition of Canadian govt: executive

Answer 6

Prime minister, federal cabinet, governor general (fed) premieres, provincial cabinets, lieutenant governor (prod)

Question 7

composition of Canadian govt: judicial

Answer 7

supreme cour of canada, federal courts, military and tax courts(fed) courts of appeal, superior courts, lowest provincial court (prov)

Question 8

power to create courts what sections

Answer 8

sec 92 (14) for provincial
sec 101 for federal

Question 9

key functions of courts

Answer 9

resolving disputes
interpresting legislation
overseeing administrative decision-making
determining constitutionality

Question 10

key features of court system

Answer 10

formality and decorum, open court, adversarial system

Question 11

Provincial court order

Answer 11

court of appeal for ontario
ontario superior court of justice
ontario court of justice

Question 12

federal court order

Answer 12

supreme court of canada
federal court of appeal
federal court: tax court and military court

Question 13

trial court

Answer 13

hear facts of the case for the first time

Question 14

appellate court

Answer 14

sees if law has been interpreted correctly
court of appeal and supreme court are always appellate courts
superior court is a trial and appellate court ex murder has to go to appellate court

Question 15

appeal as of right vs appeal as of leave

Answer 15

appeal as of right you can pursue a further appeal without getting permission from court
appeal as of leave- need to get permission

Question 16

how many judges in trial court vs appellate

Answer 16

trial court is heard by one judge

appellate is heard by 3 5 7 or 9

Question 17

how many judges at scc

Answer 17

usually 7 or 9 can have 5

Question 18

how many women on scc

Answer 18

4 women

Question 19

what is process for provincial judges appointment

Answer 19

screening and recommendation by an independent committee, selection and appointment of candidate by a provincial executive

Question 20

what is process for federal judge appointment

Answer 20

screening by an independent committee, recommendation to the federal minister of justice, further recommendation to the federal cabinet, executive chooses who they want from that list

Question 21

judicial independence and ethics

Answer 21

guarantees of ethics: principle of judicial independence, security of tenure, adequate financial compensation, administrative independence

ethics: selections process, canadian/ provincial ethics council
professionalism: continuing education, codes of ethics

Question 22

judicial misconduct

Answer 22

complaint and investigation process
conducted by canadian/ provincial judicial council
sanctions: reprimand(express sharp disapproval), suspension, and removal
misconduct hearing is to discipline, appeal is to correct their mistakes

Question 23

Legal factors that influence decision making

Answer 23

precedents, legislative intent

Question 24

Role orientation and policy preferences affecting decision making

Answer 24

activist vs restraint

liberal vs conservative

Question 25

other influences of judicial decision making

Answer 25

personal attributes, influences inside the court (discussion with colleagues), influences outside court (media, public opinion,interest groups,legislature and executive)

Question 26

activist position

Answer 26

vigorous review of actions of other branches of government, willingly striking down laws that are unconstitutional, use of far-reaching remedies

Question 27

restraint position

Answer 27

deference to legislature or executive, correcting only what is absolutely necessary, reluctant to use far reaching remedies

Question 28

Lobbying vs Litigation

Answer 28

lobbying (directed at politicians, and civil servants): direct talks, indirect pressure through media and awareness campaigns, submissions to parliamentary committees Litigation: launching a case or participating as an intervener

Question 29

executives role in the legislature

Answer 29

executive drafts and introduces bills: most pf legislatures time in dedicated to govt bills MP/MPP vote according to party lines: easy passage of govt bills

Question 30

Legislature impact on executive

Answer 30

powers of many executive departments are granted and can be amended by legislation Accountability (executive to the legislature): daily question period, debate of the bills, vote of no confidence

Question 31

interaction of legislature and judiciary

Answer 31

structure and jurisdiction of most courts is set out by legislation and can be amended by legislatures courts check for constitutionality of legislation when legislation is found unconstitutional, legislature need to respond

Question 32

judicial/ legislative dialogue

Answer 32

when a law is challenged a court needs to consider arguments of both parties and take into account the intent of legislature courts overturn laws and need legislature to enact new laws

Question 33

limitations to the charter

Answer 33

sec 1 and 33

Question 34

section of remedies under charter

Answer 34

s 24 and 52

Question 35

does everyone enjoy charter rights

Answer 35

it differs for different rights ex only canadian citizens have the right to vote

Question 36

what is section 33

Answer 36

the not withstanding clause - only valid for up to 5 years

Question 37

what is section 1

Answer 37

reasonable limits prescribed by law as can be justified in a free and democratic society

Question 38

charter litigation- challenging legislation

Answer 38

does law infringe upon a charter right? | if yes is it justified under section 1, if no apply the oakes test

Question 39

principles of fundamental justice criteria

Answer 39

must be a legal principle must be sufficient consensus that the principle is fundamental to society notion of justice the principle can be clearly formulated and applied no exhaustive list determined contextually

Question 40

section 52 remedies

Answer 40

1) strike down the law 2) sever offending provisions 3) read in 4) read the provision down 5) provide a constitutional exemption 6) issue a declaration of invalidity (with a temporary suspenstion

Question 41

sec 24 (when govt authorities violate the charter

Answer 41

1) order a remedy as the court considers appropriate (ex damages, stay proceedings) 2) order exclusion of evidence obtained in violation of charter rights

Question 42

tried within a reasonable time

Answer 42

18 months for provincial | 30 months for federal

Question 43

impact of jordan

Answer 43

positive: pushes govt to improve system negative: cases being stayed/ thrown out

Question 44

exposing connections within system (judges staying cases)

Answer 44

judicial appointment- vacancies not filled- fewer judges on the bench- contributing to delays prioritizing criminal cases over civil

Question 45

R v Cody - presumptive ceiling

Answer 45

how to calculate the delay: total delay form charge to trial- delay caused by defence, compared to the number of presumpted ceilings if above presumpted ceiling rights violated

Question 46

how did the charter impact the role of courts

Answer 46

expanded the power of courts to scrutinize legislation and government action increased the role of courts in policy-making

Question 47

prior to the charter (judicial grounds)

Answer 47

judicial review and legislation only on jurisdictional grounds, checking if govt was acting within jurisdiction

Question 48

Positive and negative effects of the charter

Answer 48

positives: more refined understanding of individual rights, stronger rights protection, rethinking of relationship between the state and individuals Negatives: concerns about policy-making role of courts, socio-economic rights did not gain much protection, strengthening of accused'd rights, arguably made work harder for law enforcement

Question 49

Administrative law - controlling the government (non-judicial control)

Answer 49

parliamentary and electoral control (question period, no confidence vote) internal controls within the agency (reconsideration) the media (indirectly) public opinion and private interests ombudsman, public inquiries, auditor general

Question 50

Administrative law- controlling the government (judicial control)

Answer 50

constitutional (checking for consistency with the constitution) judicial review (checking if decision complies with enabling statutes) appeal (reconsideration of decision) action for damages

Question 51

Common features of administrative agencies

Answer 51

their scope of authority is prescribed in enabling legislation agencies perform various functions: decide on applications, monitor, regulate, investigate and resolve disputes decision makers are usually given discretion each agency is unique: subject matter, powers, volume of cases, nature of parties who appear before it

Question 52

What are the 2 main functions of administrative law

Answer 52

promote efficiency in government work | ensure decisions are made fairly

Question 53

Principles of administrative law

Answer 53

respect the limits of authority given by enabling legislation reasonable exercise of discretion fair procedure availability of recourses: appeal and judicial review

Question 54

What are the components of procedural fairness

Answer 54

right to be heard (to be informed of the case to be met and have an opportunity to respond) right to have a decision made by an independent and impartial decision-maker

Question 55

what is the procedure before administrative tribunals

Answer 55

notice disclosure participatory rights adversarial vs inquisitorial

Question 56

ways to contest administrative decision making

Answer 56

``` available avenues are outlined in enabling legislation typical recourses: reconsideration appeal judicial review ```

Question 57

Appeal of administrative decision

Answer 57

the scope is determined by statute often allows for reconsideration of the case appellate body may substitute the reviewed decision with its own or send it back for redetermination

Question 58

What is judicial review (administrative)

Answer 58

checking if decision was made in according to enabling legislation and or respected procedural fairness usually results in the decision being sent back to original decision maker for re-determination only check for mistakes that the previous decision maker made- only what has been decided prior no substituting prior decision

Question 59

What is procedural judicial review

Answer 59

scrutiny of how a decision was made fair process wasn't followed each party should be able to present their case

Question 60

what is substantive judicial review

Answer 60

scrutiny of what was decided | what was decided, how they arrived at the decision, their reason for decision

Question 61

Types of substantive review

Answer 61

standard or review: the degree of rigour with which a court scrutinizes the decision deference: respect for the expertise and reasons of the original decision-maker

Question 62

what is the correctness standard

Answer 62

there is only one correct answer, allows no deference, applicable usually to: questions of jurisdiction, constitutional issues, issues of law of special expertise

Question 63

what is the reasonableness standard

Answer 63

focusses on the reasons and outcomes, different way to reach correct answer as long as it is explained well, allows for some deference

Question 64

possible remedies if judicial review is successful

Answer 64

1) quashing a decision 2) issuing an order of mandamus 3) declaring that an agency acted contrary to the law 4) requiring a decision-maker to follow a fair procedure

Question 65

what is an ombudsman?

Answer 65

a body that is established by the executive | they are responsible for reviewing certain types of complaints and maladministration

Question 66

ombudsman general features

Answer 66

neutral and independent, usually reports to legislature main purpose: to investigate allegations of maladministration and recommend improvements or solutions powers: to investigate and recommend (does not have a power to enforce its decision or to prosecute/punish)

Question 67

Ontario Ombudsman

Answer 67

established by enabling legislations: Ombudsman Act | Paul Dube

Question 68

Public Inquiries- established by?

Answer 68

established for a specific purpose by the executive

Question 69

2 types of public inquiries?

Answer 69

policy and investigative policy: to study an issue and develop recommendations for new policy changes investigative: to investigate allegations of scandal and misconduct, which affect public confidence in the government

Question 70

what was the braidwood and motherisk commissions

Answer 70

braidwood- investigate tasers | mothers- investigate alcohol in hair

Question 71

who is the top executive

Answer 71

the prime minister

Question 72

__ will ask people to be members of the ___

Answer 72

PM will ask people to be members of the house of commons

Question 73

is the senate elected or appointed? house of commons?

Answer 73

the house of commons are elected and the senate is appointed by governor general on the recommendation of the pm

Question 74

what are the functions of the legislature

Answer 74

represent the electorate formally enact laws monitor the executive

Question 75

formal executive and political executive

Answer 75

formal: the queen, governor general and lieutenant governors political: the prime minister, federal cabinet, premiers and provincial cabinet

Question 76

head of canadas state

Answer 76

the queen