Fase 4: Actividades de reflexión
3.8 ACTIVIDADES DE DIVULGACIÓN y DIFUSIÓN
Chapter 6: The Courts and the Judiciary
4 Levels of Courts in Canada:
1. Provincial/ Territorial Courts – handle the majority of cases that come into system
2. (i) Provincial/ Territorial Superior courts – deal with more serious crimes and also take appeals from provincial/ territorial judgements /(ii) Federal Court – same level as above, but responsible for different issues (even though administered by provinces, judges app and paid by federal gov)
3. Provincial/ Territorial courts of appeal and the Federal Court of Appeal – usually a panel of three judges, hear constitutional questions raised in appeals by individuals, governments / agencies
4. Supreme Court of Canada – final court of appeal from all other Cdn courts, jurisdiction in disputes in all areas of law including, consti, admin, criminal and civil law
• Consists of a CJ and 8 other judges, all appointed by federal government (8 from across country)
• Before a case can reach SCC, must have exhausted all other avenues of appeal
• Leave to appeal at the SCC is only granted if case concerns a question of public importance or raises an important issue of law or fact or if for any other reason significant enough to be heard by SCC
• BUT, leave is sometimes automatic (ie: in criminal cases where judge on the panel of a court of appeal has dissented on how law should be interpreted; or where CA has found someone guilty who was acquitted at original trial)
• Also plays role of advisor to Federal government Judicial Appointments:
• Cdn judges are selected by the executive branch, often following a short‐listing process involving an advisory committee
• For provincial/ territorially appointed judges, the process of choosing varies,
• Basic Model: an advisory committee composed of a mixture of members from the legal community and laypersons, the committee accepts applications from candidates before submitting a list of
recommendations to the provincial attorney general
• Federal Judicial Appointments o Non‐SCC Appointments
1. Expression of interest and eligibility – qualified lawyers and persons who wish to be
considered for appt as judge of a SCC must apply to Commissioner for Federal Judicial Affairs 2. Provincial and Territorial court judges – must also submit application to committee
3. Judicial Advisory Committees – responsible for assessing qualifications for appts of applicants
4. Assessments and Confidentiality – professional competence and overall merit are the primary qualifications
5. Duration of assessments – once assessed, last 2 years if committee feels candidate is –
‘recommendable’ or ‘highly recommendable’ – must wait for an opening on the bench 6. Commissioner for Federal Judicial Affairs and Executive Director, Judicial Appointments –
Commissioner FJA has overall responsibility for the administration of appointments process on behalf of MJ
7. Appointments – Federal Judicial appointments are made by the GG acting on the advice of the federal Cabinet, recommendation for appointment is made to Cabinet by the MJ wrt to
appointment of puisne judges and the PM wrt to CJ, recommendation to cabinet is made from amongst the names which have been previously reported by the committees to the minister
• Criticisms:
o Too much discretion in the hands of the government – power to appoint from the list?
o No transparency or accountability – candidates face no formal scrutiny and no information is made public to support choice of appointee
o Patronage appointments ‐ allegations have been made that appointments are tainted by political
considerations and that candidates who contributed to political parties are appointed
• Supreme Court Appointments
o 2006 Harper announced hybrid selection procedure o Nominated a candidate from list
o Before appointment, a special committee comprising members of parliament and including new MJ questioned him in a public and televised conference
o Some criticized this as interfering with judicial impartiality because would be forced to answer questions relating to certain issues
o But, it was conducted well and everyone seemed happy
• Judicial Independence – TEST: whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status
o Thus independence includes both (i) a requirement of actual independence; and (ii) conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well‐informed person
o 3 Core Characteristics: security of tenure, financial security, and administrative independence o 2 Dimensions: individual judge / institutional or collective
Chapter 7: Statutory Interpretation
• If legislation wanders beyond constitutional limits, it must be subordinated by the courts to the constitution
• Courts must do 2 things:
o Determine the exact nature and scope of the constitutional limits, by interpreting the written constitution and discerning unwritten constitutional principles by which the legislature must abide o Decide whether a given statute has exceeded the constitutional limits determined through
interpretation
o If it has they provide a remedy – normally that offending legislation is invalid and has no force or effect
Sources of Interpretation Law (3)
1. Interpretation Acts – every Canadian jurisdiction has an Interpretation Act that contains various rules
applicable to statutes in general
2. Interpretation Rules in Acts and Regulations – Individual acts and regulations often contain definitions,
application provisions, purpose statements, etc. Definitions tell interpreters how particular words used in the legislation are to be understood; application sections indicate the scope of the legislation in terms of space, time, persons affected and subject matter.
3. Common Law Rules – statutory interpretation is a body rooted in principles, presumptions and conventions
known as the ‘rules of statutory interpretation’. Not binding in like CC, but operate as guidelines, offering interpreters a checklist of relevant considerations, suggesting various lines of inquiry and ensuring that no possibility has been overlooked
Range of Interpretation Issues
Type of Problem Type of Argument in Response
Ambiguous, vague or incomplete Disputed meaning
Evolving context Static v Dynamic inter (original language v current
understanding)
Overinclusive text Non‐application – interpreter identifies a reason not to
apply a provision to facts even though, given ordinary meaning, it would apply
Underinclusive text Incorrigible gap in legislative scheme – interp claims
leg as drafted cannot apply to facts, even though given purpose, it probably should apply; Supplementation with CL rule of remedy‐ interp concedes leg doesn’t apply but claims CL does so to supplement the underinclusive leg (relies on inherent jurisdiction to control its own process)
Contradictory or incoherent text Corrigible mistake – interp claims provision in question contains drafting mistake, w must be corrected before determining w provision applies to the facts, must clearly est w leg intended
Overlapping Provisions No conflict:
‐ Overlap – any law, w CL or leg, which could apply is presumed to apply in the absence of evidence to the contrary
‐ Exhaustive code – interp concedes that overlap b/w leg prov or b/w leg and CL does not create a conflict, but claims that a particular Act or prov was meant to apply exhaustively, to exclusion of the other
Conflict:
‐Paramountcy rule – interp claims that there is a conflict b/w 2 prov or b/w a prov and CL and that one takes precedent over the other (for reason)
Overview of the Rules of SI
A. Meaning
• Ordinary meaning rule – that which comes to mind
• Technical meaning rule – presumed leg uses words in their popular, non‐technical sense, unless leg is very specific to terms
• Shared meaning rule – shared meaning should be adopted
• Original meaning rule – meaning of words used in a legislative text is fixed at time of enactment, but its application to the facts over time is not fixed
• Plausible meaning rule – if ordinary meaning is rejected to give effect to the actual or presumed intentions of the leg, meaning adopted must be one capable of bearing
B. Presumptions Relied on to Analyse the Meaning of a Text
• Straightforward expression – leg chooses clearest, simplest and most direct way of stating its meaning
• Uniform expression – leg uses same words and techniques to express same meaning and different words to express different meanings
• No tautology/no redundancy – no superfluous words in legislation, every word is there for a reason
• Internal coherence – all provisions of a text fit together logically and work together coherently to achieve purpose of leg
Maxims of Interpretation
• Implied exclusion – if something not mentioned in leg, it is impliedly excluded
• Associated words – meaning of word or phrase is affected by other words/phrases with which it is linked in a sentence
• Limited class – when a list of things that all belong to one class are followed by something of a more general class, general term will be read down to include only other things w/in identifiable class
• Legislature would have said ‘x’ – a legit basis for rejecting a proposed interp is to point out that had the leg intended proposed leg, it would have framed the leg in a different way
C. Purpose and Scheme Analysis
• Legislative purpose – adopt an interpretation as per the intended purpose of the legislation
• Interpretation Acts – include provisions that direct interpreters to give every enactment ‘such fair and large and liberal construction and interpretation as best ensures attainment of its objects’
• Legislative scheme – provisions of an act are presumed to work together as parts of a coherent scheme designed to implement the legislature’s goal
D. Mistakes and Gaps in Legislative Field
• Corrigible Mistakes – courts can correct mistake, unless mistake amounts to a gap in legislative field
• Incorrigible Gaps – courts almost always deny jurisdiction to cure gaps in a leg scheme or to otherwise cure underinclusive provisions by making them apply to facts outside the ambit of language of the text (reading in)
• Supplementation legislation by reliance on CL – although courts cannot cure underinclusive legislation by expanding its scope beyond what the text allows, it can rely on supplemental sources of law to complement what the legislative scheme provides
E. Presumptions of legislative Intent
• Formal expressions of evolving CL norms, courts must determine whether they should apply the same rules and techniques to all legislation, regardless of its subject matter or purpose
• Legislation that interferes with individual rights or freedoms is considered ‘penal’ and attracts a ‘strict’
construction
• Legislation that cures mischief or confers benefits is considered ‘remedial’ and attracts a ‘liberal’
construction F. Avoiding Absurdity
• Presumed legislature does not intend its legislation to produce absurd consequences
• Thus, an interpretation that avoids such consequences is preferred over one that does not
• The clearer and more precise a text appears, the greater the absurdity required to depart from its ordinary meaning
• The greater the absurdity that flows from a particular interpretation, the more justified an interpreter is in rejecting it
• EX: irrational distinctions, irrational/contradictory or anomalous effects; defeating the purpose of the legislation; undermining efficient application of legislation
G. Relation to other Legislation and Other Sources of Law
• Constitutional Law – presumed that legislatures intend to enact constitutionally valid law and in particular to comply with any limitations on their jurisdiction set out in various constitution acts; but must not be used to defeat purpose of legislation (ie: justified under s.1)
• Regulations – must be read in light of their enabling provisions and their enabling legislation as a whole
• Related legislation – statutes dealing with the same subject matter must be read together and are presumed to offer a coherent and consistent treatment of the subject
• The statute book –
• Common Law – provincial legislation sometimes incorporates CL concepts or terms; and federal legislation sometimes incorporates both CL and civil law concepts or terms
• International Law – presumed legislatures, provincial and federal, intend to comply with international law, both customary and conventional
H. Extrinsic Aids
• Legislative Source – consists of agreements that the legislation in question is intended to implement or of legislation on which the legislation has been modelled in whole or in part
• Legislative history – consists of material formally brought to the attention of the legislature during legislative process, including misters statements, committee reports, recorded debates and tabled background material
• Legislative Evolution – consists of the successive amendments and re‐enactments a provision has undergone from its initial enactment to the time of application
• Expert opinion – consists of precedent, administrative opinion and scholarly legal publications, as well as expert testimony
Chapter 8: Constraints on Legislative and Administrative Action