October 26, 2015
Lecture 6 Principle of Rule of Law
Provincial Court Judgement
-Lamer: he had to combine several justifications
-remarkable: judges themselves as litigants advancing their own [financial] interests
in front of courts, other judges: deficit controls, cuts to public services
- Chief Judge: judges are not Public Service they dont provide them same role as
civil servants.
-civil servants are supposed to be bound to neutrality in order to better serve
the ruling party.
-but that is not what we require of judges: something more than legal
interpretation of legal principles
Issues:
- s. 96 100 of Const Act 1867
-provincial superior courts; these provisions are under Judicature
-S.92(14) legislative authority of the provinces in relation to the
administration of justice
in the province including the establishing of provincial courts: ie. Court of Quebec.
(Lower courts)
-statutory jurisdiction established by statute (like the SCC and
the SC Act but is argued that that the SCC entrenched itself, perhaps a new )
-Judges of Superior courts are appointed by federal gov (GG) under
S.96
-this way the superior courts are one step removed from the
provinces in which they sit; more independence in decision making.
-SCs have inherent jurisdiction
-S. 101: the Parliament of Canada has the legislative authority to
create legal instruments. Parliament also has ability to create
-law reform in 1960s federal court act: trial division; appeal
court; Canadian tax court
-Supreme Court Reference: Nadon Reference
- S.11(d) Const Act, 1982
Question: whether these judges ought to benefit for the same or similar range of
protection
-provincially appointed judges benefited from the same constitutional principle of
independence as Superior Court judges.
-Courts have already said that they dont have the status of public servant:
-Separation of power: judges are part of the judicial branch; civil servants are
part of the executive branch.
-Chief Justice is going explore whether section 11(d) guarantees financial security,
and whether other cases will influence how decides the matter of provincial court
judges
-he says he is going to rely on a different source for judicial independence:
the Preamble of 1867.
-I am of the view that judicial independence is at the root of the unwritten const
principleexistence of principles is recognized and affirmed by preamble
-written constitution provides legal certainty Justice Laferate in his dissent
the power of the courts to review and invalidate legislation from democratic
bodies; point to the provisions of this supreme law concern is that Chief justice is
that he using unwritten principles for invalidation. We are shifting the ground and
also attributing with supremacy and values that arent even present in UK const
-Lamer: although Preamble is part of the constitution, it is not a source of provisions
or positive law. Principles can be found, purpose can be found to help clarify
ambiguous language and meaning in statutes. Preamble is not only a key to
interpreting provisions, but also filling in gaps.
-gives example of how the SCC has used preamble for gap-filling.
- paragraph 133: general principles he wants to put forward as constitutional
principles. Judges shouldnt be collectively bargaining like a union; yet judicial
remuneration needs to be sufficient not too little, but not too much.
flows from the constitution
-however any changes to remuneration requires recourse to a special process
which is independent and objective: compensation commission.
-governments are constitutionally bound to go to the commission process
though the results may not be binding. The executive of legislature would need to
justify rejection.
-paragraph 148: separation of powers
-need to be depoliticized remuneration commission
-page 246: relationships of power should have a particular character.
Conclusion that the relationships must be depoliticized
-paragraph 167: doesnt want to dictate design of commission; but gives
general guidelines.
-Hogg on this case: doesnt see these principles in the constitution
-lamer says s.11(d) doesnt require for commission to be binding, but there is
a requirement of justification of rejection simple rationality.
-para 185: contradiction in lamer doesnt want to solidify rules, but sort of
does. Summarizes principles again
-Judges compensation is constitutionally protected thats why we need to
carefully consider how many judges, administration of judges, has a bearing on how
the court considers the principle of judicial independence.
Laforez para 300 +
- para 302: concerned for the court getting into this debate with judges who have
their own economic interest in this.
-Not that preamble doesnt have a role or effect; but (para 303) unwritten rules find
their origin in specific provisions of the constitutions in light of... concerned of
attaching meaning to preamble or using it as a way to limit powers of legislative
bodies
-NB case: similar principle
- that notion of constitutionality doesnt deal with constitutional validity
-para 314: more about nature of judicial review.
-We need focus on Canadian constitutionalism
-para 319: drowning of democratic will, provisions are the constitution.
Preamble is just a means of assisting the interpretation of those provisions.
Provisions of the constitution have primacy
-although chief justice argues under s.11(d), laforette says the argument relies
more, incorrectly so, on the preamble.
-court of appeal of BC committed clear error of law. (pg. 329, para 19 of case)
para 20: absent const constraints is determined by the statute which creates
it. It is the parliament or provincial legislature to decide relationship between diff
bodies, not common law cases
-Laforette raises these issues rhetorically
-Blakey case: court extended guarantee of English and French use in tribunals. In
this case the chief justice doesnt go there for reasons of principles one of the
considerations must have been cost issues.
para 23: this principle reflect difference between tribunals and courts
explains the fundamental distinction. Para 24 administrative tribunals exist for
purpose of implementing policysaying tribunals are part of the executive branch,
established by the legislative branch but their primary function falls under
executive branch (instruments of policy, not judicial function)
-in these circumstance, it is up to the legislature to determine the degree of
independence BC case.
-limitation on the principle of the judicial independence in this
context
Imperial Tobacco Case (BC)
-no levelled playing field for them they argue that they are not going to get a fair
trial
-invoke three principles to invalidate BC legislation: separation of power,
judicial independence, and rule of law
-Chief justice for court says that this legislation does not affect the
fundamental function of judicial function. P. 376 (para 56) judges only interpret
and apply law. It is not the role of judiciary to do what the companies charges they
do misconstruing. No judicial governance
-cites Mclaghlin , it is well within the power of the legislature to enact
law as long as it doesnt interfere.
-rule of law: embraces three principles: law is supreme over all; must
be a body of law to sustain a province; relationship between state and individual be
regulated by law, ultimately the action of every government official needs to find its
source in law
para 59: the legislation was validly enacted. Tobacco company hasnt
been able to cite any charter provisions breached.
You cant invalidate legislation just because you think its bad law.
para 62: advocates tend to read into rule of law, what they think law
should be .
para 65: attempt to amend const without amendment process
para 66: several principles go the other way, favouring the upholding
of legislation
para 67: not mean to be trivialized.
-legislation cant be retroactive as well.
Dugall Christie Case
-though court is sympathetic, but is not willing to impose a tax
-court gives instance of where there is access to justice and references BCSGU (para
16)
-para 20: the rule of law embraces at least 3 principles.
-para 21: access to legal services is not part of these principles, we are not there
yet. References tobacco case.
-Court concludes that this is not the case to expand access to justice to impose on
taxing power
BC Trial Lawyers Association focus on dissent if you dont read whole thing the
issues is sharpened
-About whether and to what extend legislature of BC may impose trial hearing fees,
and whether those fees impede access to justice
S. 96 has to be read in light of the rule of law which itself posits access to justice.
-but if you read this it is simply power to create
-but is being expanded
-they say that 96 protects Superior Courtsthey expand 96 to include control
access to justice and to invalidate supreme court civil rules that restrict access to
justice (hardship in paying the hearing fees)
-Dissent: you found a means of invoking a principle in this provision but that
provision has never been interpreted in this way (para 84) novel readings of s.96
-access to justice is a laudable goal, but not up to courts (87)
-para 88 merely limits access to superior courts.
-court reiterated in succession principle that the courts cannot use unwritten
principles this way.
-95+: tobacco case: limitations on the way rule of law can be exercised. Rule of law
is an unwritten principle and cannot be used to strike down fees
-Rule by law idea.
-99: another caution: would render many const rights redundant
-this reading introduces uncertainty into our reading of our const.
-Shows the way we are changing our way of talking about the underlying principles
-what is your legal philosophy?
-begs the nature of constitutionalism the difference between American style and
british style.
