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Canadian Public Law Comprehensive

Canadian Public Law Comprehensive

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 Positivism and Natural Law 
legal positivism
natural law
are descriptive theories, in that they are principally concerned with identifying whatlaw is, as opposed to what the law ought to be. Both positivism and natural law are concerned with concepts of law and justice, even if they diverge as to how the two relate to one another. Both are largely based on Western, liberal ideas aboutlaw and society.
Natural law
theory is aspirational, in the sense that laws, properly called, are not simply all those official rules and principlesthat govern us but only those that adhere to certain moral truths, most often of a universal and immutable nature; i.e. law’slegal authority depends upon an external moral standard (public policy) that holds across all societies. See
 Drummond Wren ,
and note how judge appeals to our moral conscience
Example – 
 Re Drummond Wren
 A piece of land has a restrictive covenant against being sold to Jews or other undesirable races. The current owners want tohave it declared invalid on public policy grounds.
the court agrees to find the covenant invalid and focuses on public policy issues, and the societal shift against discrimination following WWII. Specifically, the court brings up issues like theSan Francisco Charter, and the statements from Churchill and De Gaulle about the rights of minorities. This is a very naturallaw view of justice.
Legal positivism
reflects the belief that law is nothing more than the rules and principles that actually govern or regulatesociety (laws are made by human beings); Positivism insists on the separation between law and morality and as a resultfocuses on describing laws without reference to justness or legitimacy/fairness. Legal positivism is only concerned with whatis
valid, not what is morally valid. The common slogan of legal positivists is “the existence of a law is one thing; it’smerit or demerit is another”. Thus, on this view, the Nazis had a legal system used for evil ends and the British had a legalsystem used for good ends; both, however, were legally valid. See
 Noble and Wolf  
where the judge relies on the supposedcertainty of positive law.
Example -
 Re Nobel and Wolfe
Almost identical fact pattern to
 Drummond Wren
. This time, the court upholds the restrictive covenant on the basis that thecovenant is valid and enforceable. Criticizing the court in
, the court here talks about the proper role of the judiciary notto discuss public policy, but to only interpret those laws that are clearly present. In this case, there is no established legal principle to deny the validity of the restrictive covenant, and so it should be upheld. [courts role is to decide matters based onlaw and not public policy. Apply the law]
Feminist Perspectives on Law: critical legal theory
Feminist perspective on law reflects a critique and often a rejection of liberalism as a political ideology; laws that existedfrom 17
century did not normally respond to the needs of women and even aided in their oppression.
 Early Formalist Feminism
Early Feminist movements in law – centered on gaining the voting franchise for women, seeking women’s formal equalitywith men and reform of marriage laws.
. woman could not vote prior to 1916. In 1918 Parliament passed the
Women’sSuffrage Act 
= allowed female British subjects over 21 the right to vote as long as they possessed same qualification requirefor men-
Liberal laws often contributed to the gross inequality between genders-
Feminism takes issue with the liberal basis of law and its relationship to justice, and attempts to establish a different visionof what justice might be-
Early formalist feminism attempted to replace laws that favoured men w/ more gender neutral laws in order to seek equalitywith men
 Edwards v AG Canada
The Privy Councils decision is an example of early feminism in its approach to formal equality
s24 of the
 BNA Act 1867,
stated that only “qualified persons” were eligible to be appointed to the Senate. Gov’t arguedthat women would not have been considered “qualified persons” at the time that 1867 Act was passed.
Whether the words “qualified persons” include a woman and consequently whether women are eligible to besummoned to and become members of the Senate of Canada.
The word “persons” is ambiguous and in its original meaning would undoubtedly embrace members of theopposite sex. At the time of enactment “Persons” would refer to males because at common law woman were incapable of serving public office.
The SCC found that “qualified persons” did not include women, basing its judgment on a formulaic and traditionalinterpretation. They appealed to the JCPC. THE JCPC held that “qualified persons” included women and women are eligibleto be summoned to and become members of the senate.
Contemporary Feminism
The objective of feminist legal theory, consist of understanding and exploring the female experience, figuring out if lawand institutions oppose females, and figuring out what changes can be committed to. This is to be accomplished throughstudying the connections between the law and gender as well as applying feminist analysis to concrete areas of law-
Contemporary feminism consists of different sects with different beliefs. It is a more complex movement, relying onvarious disciplines such as criminology and sociology-
the general gist of feminism is that the legal system is seen as paternalistic and male-centred.-
“Liberal Feminists:
argue that it is possible to have gender equality within a liberal conceptual framework -
 Radical Feminists”:
not so sure as divisions between men and women are seen as fundamental and attributable to the verynotion of liberal society.-
Vague notions of “policy”, “common sense”, or “human nature” have found their way into law and been used by judges to preserve male privilege.-
Implicit in many of feminist’s central themes is that women given the ability to re-construct society could do better. Eg.The subject of abortion provides a good forum to examine how feminist theory may translate into practice
 R v Morganteler 
Justice Wilson, however, wrote a concurring opinion focusing on much more “feminist” topics, such as rights in a wider social context, the female experience, and far more emotional issues). Wilson J who agreed with the majority in the endresult, rendered a separate opinion. Her decision is an example of modern feminist approach to public law concerns.
3 doctors were charged with the offence of procuring a miscarriage contrary to s251(1) of the CCC
In 1998, the SCC was asked to determine whether s251 of the
Criminal Code
(criminalizing the procurement of anabortion unless properly authorized by a physician) was contrary to s7 of the charter. Whether a pregnant woman can, as aconstitutional matter be compelled by law to carry the fetus to term.
The majority of the court found that the provision offended the charter on procedural grounds.
The right to reproduce is an integral part of modern woman’s struggle to assert her dignity and worth as a human being. The right to liberty in s7 gives woman the right to decide for herself whether or not to terminate her pregnancy. s251asserts that a woman’s capacity to reproduce is not to be subject to her own control. This, deprives a pregnant woman of her right to security of the person as well as her right to liberty.
Critical Legal Studies: critical legal theory
CLS is a direct attack on traditional legal theory, scholarship, education.-
Legal decisions are a form of political decision, but not that it is impossible to tell judicial and legislative acts apart. Rather,CLS have argued that while the form may differ, both are based around the construction and maintenance of a form of social space. The argument takes aim at the positivist idea that law and politics can be entirely separated from one another 
Traditional CLS school is that far more often than is usually suspected the law tends to serve the interests of the wealthyand the powerful by protecting them against the demands of the poor and thesubaltern(women, ethnic minorities, theworking class, indigenous peoples, the disabled, homosexuals etc.) for greater justice.-
CLS adherents rejects that there is any kind of natural legal order discoverable by objective means.-
CLS not only denies the possibility of discovering a universal foundation for law through pure reason but sees the wholeenterprise of jurisprudence as operating to confer a false legitimacy on law and legal systems.
Law institutionalizes and legitimates the authority and power of particular social groups or classes. The rule of law is not arational, quasi-scientific ordering of society’s norms but is indeterminate, full of subjective interpretation and a large degreeof incoherency.-
CLS, like the feminist perspective, takes issue with the liberal basis of law and its relationship to justice, and attempts toestablish a different vision of what justice might be
The liberal belief that law should be certain and neutral is, for CLS scholars, illusory. Law reproduces the oppressivecharacteristic of contemporary Western societies
3 stages governing the application of CLS ideas to legal thought:
 Hegemonic consciousness
: Many, if not most Western laws are maintained by a system of beliefs that have their foundation in a liberal, market driven economy, which reflect interests of a dominant class(2)
: In the second stage the beliefs that maintain Western laws are presented as essential, necessary and objective(3)
Laws and legal thinking aid in the denial of real truths. E.g. denial occurs between the promise of a certain statelaw – equality – and the reality such as the vast amounts of discrimination or racism that can be found so readily in society.See
 R v R.D.S :
Compare how the judges in this case dealt with the issue of race and equality with the judges in
 Re Drummond Wren
 Re Noble and Wolf 
 R v R.D.S 
A white police officer arrested a black 15 year old who allegedly interfered with the arrest of another youth. The TJ,while delivering her reasons for acquittal of the youth commented that police officers had been known to misled the court inthe past, that they had been known to overreact particularly with non-white groups and that that would indicate a questionablestate of mind. She claimed her comments were not tied to the police officer testifying before the court.
Do the comments by the TJ in her reasons give rise to a reasonable apprehension of bias and that she was notimpartial between the Crown and the accused?
The SCC held that there was no reasonable apprehension of bias. The TJ acquittal of RDS was restored.
on one end
, Cory J
in middle and
on the other end
 Cory J: Majority (TJ comments were appropriate)
Agrees with Major J on the law and L’Heureux-Dube on the result-
It is dangerous for a judge to suggest that a particular person overreacted because of racism unless there is evidenceadduced to sustain this finding-
Findings of credibility cannot be made on the basis of generalizations i.e. because PO are racist against black therefore thisPO was a racist.-
A high standard must be met before a finding of reasonable apprehension of bias can be made re: a TJ comments. The judge’s remarks are worrisome and come close to the line. However, concluded that the comments taken in the wholecontext of the judgment did not give rise to a reasonable apprehension of bias [Test: a reasonable informed person aware of all the circumstances]
L’Heureux-Dube: Majoirity
While judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality-
Disagree with Cory J, saying that the comments were not close to the line, but rather an appropriate recognition of the factsof the case and the context in which they arose-
It is inevitable and appropriate that the differing experiences of judges will assist them in their decision-making process andwill be reflected in their judgments-
The comments made by the TJ were an appropriate recognition of the facts in evidence in this case and of thecontext within which this case arose- a context known to Judge Sparks and to any well-informed member of thecommunity.
As a member of the community, it was open to her to take into account the well-known presence of racism inthat community and to evaluate the evidence as to what occurred against that background.-
An understanding of the context or background essential to judging may be gained from testimony from expert witnesses inorder to put the case in context and from the judge’s personal understanding and experience of the society -
Major J: Dissent (Comments not appropriate)
Trial judges have to base their findings on the evidence before them (whether racism exists in society is not the issue)-
Whether there was evidence before the court upon which to base a finding that this particular PO’s actions weremotivated by racism-
Judges should avoid making comments based on generalizations when assessing the credibility of individual witnesses.-
The duty to be impartial does not mean that judges cannot bring to the bench many existing sympathies, antipathies or attitudes.-
It is open to the appellant to lead evidence that the PO was racist and that racism motivated his actions…
The TJCANNOT infer this based on her general view of the PO or society and the TJ did not judge based on the evidencebefore her.
Life experience is NOT a substitute for evidence
 Law and Economics(aka Public Choice Theory)
Law and economics theories look at law differently, less grounded in moral theory and more in ideas about efficiency (asopposed to feminism, which deals with producing equality); law and economics scholars have applied economic analysis toexplain various areas of law (Eg. Contract law, crime, torts, family law, property, legislation, abortion)-
traditional law and economics
approach applies economics methodology to legal rules in order to assess whether therules will result in outcomes that are efficient.-
“Pareto Optimality”
 – Efficiency tends to be defined in terms of an ideal where the welfare of each of the relevant partiescan no longer be maximized except at the expense of other parties.-
As such law and economics is sometimes criticized as ignoring questions respecting distributive justice-
Central to all economic analysis is the assumption that human beings are rational actors-
Justice and efficiency are interrelated. Gov’t have to consider the costs of providing and maintain the institutions of justice-
An economic approach can be used to understand policy goals in the public realm. The
economic theory of regulation, or  public choice theory
, applies basic economic theory in an attempt to understand
 public policy
. It attempts to explaingovernment intervention as a corrective to market failure. The theory seeks to understand why some government programsseems to run counter to the public good, or at least do not maximize the public good. This theory says that policy makers(e.g. legislators) act in order to maximize political support; they are not necessarily attempting to maximize social welfareand are motivated by self interest-
Proposition of public choice theory: diffused and fragmented groups are less effective than more focused and concentratedgroups in achieving success in the political arena and in influencing legislators and regulators
One of the themes in public law is to show common law has been displaced by policy formulation (ie legislation) as the primary means of social regulation.
 Duncan Estate v Baddeley
The D, trotfeasor, by his negligent acts caused injury and death to Mr. Duncan. The estate of Mr. D is claiming anaward of loss of future earnings.
Does a claim in tort for loss of future earnings survive the death of a victim? If so, how is the claim calculated?
A claim for loss of future earnings does survive the death of a victim
The loss of the ability and capacity to earn an income is an actual financial loss, which can be valued incommercial terms. There is no justice in a rule that the respondent need not offer compensation because Mr. D can no longer enjoy it.
it was the intent of the legislature in framing the
Survivor of Actions Act  
to eliminate the claim of a victim, who diedinstantaneously as a result of the tort of a wrongdoer, for damages for loss of expectation of life including the loss of futureincome. The judge could not agree that a victim who was killed instantaneously as a result of a tort had not suffered an‘actual’ as opposed to a ‘potential’ or ‘speculative’ loss,
While the court did not do any explicit calculations or economic reasoning, there was a clear subtext that the judge hadto consider the wider social-economic implications of allowing for recovery of future earnings or not
 Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology (Court of Appeal)
The main issue in the case was whether the human rights regime covers the entire field of anti-discrimination law.
B had applied for a number of job openings at the college. She was not granted an interview for any, although she hadthe requisite qualifications. She alleged this was because of her ethnic origin. She issued a claim for damages for discrimination. Alleged that the respondent was in breach of its CL and statutory duties not to discriminate against her.
Assuming the plaintiff can prove the allegations set forth in her statement of claim, do they give rise to a cause of action at common law and if they do not, do they give rise to a civil action under the
Ontario Human Rights Code?
The allegations give rise to a cause of action at CL for discrimination. Appeal allowed. Plaintiff awarded costs.
The interests of persons of different ethnic origin are entitled to protection of the law. The preamble to the codeis evidence of the public policy of the province respecting fundamental human rights. From this policy, the judge recognizeda new tort of discrimination. As such, if the P can make out that she has been discriminated against and has suffered injury asa result, the CL must afford her a remedy (
 Ashby v White ) Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology (SCC) 
Whether the SCC should affirm the recognition by the Ont CA of a new intentional tort. The tort was recognized to protect a P against unjustified invasion of his or her interest not to be discriminated against in respect of a prospect of employment on the grounds of race or national origin.
Appeal allowed. Previous judgment set aside. Action dismissed. No order as to costs.
This new tort is a species of an economic tort found on a statute enacted in an area outside a fully recognizedarea of CL. The code forecloses any civil action based directly upon a breach thereof but it also excluded any CL action basedon an invocation of the public policy expressed in the code.
public choice theory behind the Court of Appeals decision; the Court recognised, on public policy grounds, a new “tortof discrimination”. But, at the Supreme Court level, this idea of a new “economic tort” was rejected.
 Similarities/Differences in Theories
Natural Law
are concerned with concepts of law and justice, even if they diverge as to how the tworelate to one another. Both are also based largely on Western, liberal ideas about law and society.
In contracts,
Critical Studies
take issue with the liberal basis of law and its relationship to justice; bothattempt to establish alternative visions of what justice might be
Economics Theories
look at law from another perspective, ground less in moral theory and more in ideas aboutefficiency-
Public Choice Critique
Law and Economic Theory
echoes the complaints voiced by the CLS and feministscholars.
 Hill v Church of Scientology
Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common lawlibel action based on allegedly false statements the church made about him (that he misled a judge and sealed certaindocuments). Church argued that the principles of the CL ought to be interpreted, even in a purely private legal action, in amanner consistent with the Charter.
: Does the charter apply to the common law tort of defamation in a private individual matter? If so, is the common lawtort of defamation inconsistent with the Charter (s. 2b)?
Even though Charter doesn’t apply directly to this action, Common law should be interpreted with reference toCharter values (as per obiter in
). If common law is inconsistent with Charter values, and not justifiable, the commonlaw should be modified.
Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. Charter rights do not exist in the absence of state action. However, the CL must be interpreted in a way that isconsistent with charter values. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not extend in the absence of state action.
The most that the litigant can do is argue that the common law is inconsistent with Charter 
.NB: The party who is alleging that the common law is inconsistent with the Charter should bear the onus of provingboth that the common law fails to comply with Charter values.
 Societe de l’assurance automobile du Quebec v Cyr 
Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ), a provincial auto-insurance monopoly, entered into a contract with the Centre de vérification mécanique de Montréal (CVMM)to carry out the mechanical safety inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, wasdesignated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program
Cyr was mentioned inan appendix to the K but was not an actual party to the K but Cyr signed the appendix agreeing to comply with requiredinspection procedures. However, following notices of breach for failure to apply the appropriate standards during certaininspections, Cyr's accreditation was revoked by SAAQ. Cyr and CVMM filed a motion for judicial review of the decision torevoke the accreditation, claiming that SAAQ had not followed its obligation of procedural fairness under the Act respectingadministrative justice (AAJ).
Is the SAAQ bound by private K law or public administrative law?
Can a government body avoid public law dutieswhen delegating its functions by way of contract or other form of agreement?
Appeal dismissed and Cyr is entitled to procedure fairness. AAJ applies.
Superior Court:
held that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights, not public admin law, and dismissed the application based on the fact thatthe SAAQ fulfilled its obligation under the K.
Court of Appeal:
Majority set aside the decision, holding that the K was between SAAQ and CCVM not CYR and that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid theobligations codified by s. 5 of the AAJ.
Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considereda party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was grantinghim the authorization to act on its behalf.
Held that the parties are bound by contract. CYR as an employee of CCVM, is also bound by that K and K lawshould apply.
This case distinguishes between the applicability of public and private law.
 David Tanovich, “The Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian Criminal  Justice System” 
Has the Charter given any hope to Aboriginal and radicalized communities? While there is reason to be optimistic aboutthe possibilities for future reform, the Charter to date has had very little impact on racial injustice in Canada-
We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets flourishes
The utility of using litigation to address racial injustice in the criminal justice system
Oppression is far too deeply rooted to expect a document focused on individual rights and applied by largely white middleclass judges to make any meaningful structural change.-
Successful litigation brings with it considerable attention – media, community organizations, universities and law schoolsor at judicial conferences – and can help raise public consciousness, stimulate academic research and political action. Oneof the most important political responses could be the collection of data which will reveal the extent and scope of racialinjustice.-
Absence of any racial profiling legislation, and the passing of Anti Terrorism Legislation, and the Conservative CriminalCode amendments, has had a disproportionate impact on radicalized communities. So, Charter litigation remains asimportant means of addressing fundamental injustice.-
“While I place considerable reliance on Charter litigation to address racial injustice, there is no question that other legal andextra-legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigationfails. Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racistactors etc are all examples of strategies that can work together with litigation”
The problem is not with the Charter but with those who argue and interpret it
 Narrow approaches
to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter litigation on racial injustice.-
In a number of key cases addressing issues such as bail (because blacks are more likely to be detained as seen as a danger and flight risk:
 R v Hall 
), jury selection (because blacks are less likely to be found on juries as many blacks are immigrantsand under the
 Juries Act 
are not permitted [only citizens can]:
 R v Laws
, the use of peremptory challenges to excluderadicalized jurors:
 R v Lines – 
see also
R v Gayle:
and racial profiling, courts have refused to adopt critical race standards

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