(1) It is often said that under our constitutional system, the role of the legislature is to make the law, the role of the judiciary is to interpret the law, and the role of the executive is to apply the law. In practice, does this theoretical understanding always unfold?
The following areas is where the separation of powers starts to blur:
(a)The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative branch, to which the executive is made subordinate (an introductory example)
(b) The parliamentary system contemplates an overlapping of personnel between the legislature and the executive. The PM and members of his/her Cabinet, who comprise the executive council “advising” the head of state, are elected members of the legislature. This is not the case in the US (another introductory example) --- The following would be more suitable for the body of the essay:
(c) Legitimacy of Constitutional judicial review: SCC’s interpretation of the “vague” Charter and vague language in the Constitution Act, 1867 leads to concern is that when judges give concrete shape to the rights provided in the Charter, and invalidate laws that do not conform to their interpretation of these requirements, the rule of law may become subtly transformed into the rule of unelected judges
(d) Forms of administrative justice or adjudication have grown out of the development of executive functions (tribunals verge on being courts in some circumstances – see, e.g. Human Rights Tribunal, p. 241), and rule making of admin bodies (delegated legislation) blurs the role between the executive and legislature; see also the leniently interpreted difference between delegation of power Parliament/legislature power and abdication (re Gray)
(e) There is a considerable degree of integration between the Legislature and Government (i.e. executive) – it is the same individuals, on a practical level, who control the legislative and executive branches of government. Talk about idea of responsible government here.
(f) The ability of the SCC to “enforce” executive decisions creates a tension between the appropriate relationship of judiciary and executive (see Doucet-Boudreau case) (g) SCC ability to give “advisory opinions” to the federal government (the government may ask the Court to consider questions on any important matter of law or fact, especially concerning the interpretation of the Constitution.
(2) Discuss cases cited in the Craik book that demonstrate the blur between the separation of powers and/or the problems that result as a result of the blurred roles of the legislature, executive and judiciary:
(3) Critique the role of international law in Canadian domestic law:
(a) What is the approach? Dualist tradition re: treaties (i.e. needs to be “implemented” in legislation);
customary international law (no special approach) (b) Advantages about Canada’s approach re: international law:
(i) Democratic participation in the international law making process
(ii) Keeps in check separation of powers (ie. Prevents executive from “law making”) (c) Problems:
(i) Implementation issue: Baker’s approach too strict (why can’t there be “implied” implementation?); hesitancy after baker to treat international law as binding (generally treated as merely persuasive) – this weakens the fabric of law – on the verge of becoming “optional” law to be applied at judge’s discretion – this would weaken international respect for us
(ii) Courts’ use (or lack thereof) of presumption of legislative intent (see article): uncertainty of the effect of that presumption in context of Charter
interpretation; unclear, thanks to Baker, as to whether presumption applies equally to Canada’s international obligations and non-binding international norms;
particularly suspect in context of interpreting customary international norms – Baker = “values” of international instruments may help inform contextual approach to statutory interpretation if dealing w/ unimplemented norm, but what about presumption? Although int.
instrument in that case was unimplemented, it was binding on Canada (via ratification) and SCC should have appealed to presumption
(iii) Suresh approach of allowing unimplemented treaties aid interpretation of legislation (potential problem)
(iv) Unclear what SCC’s position is re: customary international law: There is no unequivocal statement on whether custom is part of Canadian law or not. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more.
(4) Unwritten constitutional principles
Positives include: (1) These are fundamental concepts about which everyone can agree, so it makes sense that they will affect judicial decision making (even the highest court of India has recognized almost identical unwritten principles, with the addition of one more); (2) Problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive definition for our system of government; (3) They are only resorted to when the express wording of the Constitution is insufficient to solve a problem (which is a valuable limit on the doctrine, and prevents it from
being used inappropriately); (4) We are used to unwritten legal principles (that’s what our common law system is built on)
(b) Negatives include: (1) by swaying away from written text, we get into a realm of uncertainty, ambiguity;
(2) they are so broad that they can be found to apply to any issue; (3) To recognize these principles can be seen as an unauthorized judicial expansion of their power in the constitutional sphere; (4) A written
constitution promotes certainty and predictability.
(5) Constitutional conventions - what are they? Give some examples?:
a. See book for definition b. Examples include:
(i) Selecting a governor general: the Queen follows the Canadian PM’s recommendations (based on an “instrument of advice”); in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet of their respective government
(ii) Selecting members for the Senate: the governor general follows advice of the PM
(iii) The governor general calls Parliament into session on the advice of the PM (i.e. summoning Parliament)
(iv) Parliament can be prorogued through a speech by the governor general in the Senate Chamber
(v) PM to resign his or her government or seek parliamentary dissolution after a “no confidence”
vote by the House
(vi) Responsible government (and all of its understood “rules”)
(vii) The individual commanding the confidence of the House of Commons (that is, the majority) is appointed PM
(viii) Only privy councillors who are in the Cabinet are entitled to exercise the powers of the Privy Council
(ix) The PM, leader of the Cabinet/government, possess authority to exercise so-called personal
prerogatives, e.g., he/she may select people to fill some important appoints that are technically made by the governor general
(x) Formal executive bodies are limited to the governor general and lieutenant governors, federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers, including the civil service
(6) Bijuralism
(7) Advantages and disadvantages of precedent
a. Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature;
(v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (talk about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive)
b. Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t
access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution)
(8) Is the Parliament of Canada truly “supreme”? Discuss:
a. Arguments for: Consider that the scope of Parliament’s law-making jurisdiction is endless, so law is it conforms to the Constitution (rules governing division of powers between fed and prov legislatures), and constitutionally protected individual rights and liberties found in the Charter (this goes back to
parliamentary supremacy); Consider that Parliament is free to pass careless or bad laws; Consider that even if the ministry tricks Parliament into passing a law, that alone is insufficient for a court to strike it down (see Turner v Canada); Consider that Canadians aren’t entitled to due process or procedural fairness in the law-making process (so long as the procedures in the Constitution have been met); Consider that there can be expropriation without compensation by way of legislation that makes such an intent clear (Authorson v Canada)
b. Arguments against: Consider the division of powers found in ss 91 and 92 which identify certain subjects in respect of which Parliament cannot legislate; consider the limitations put on it by the Charter;
(9) Critically analyze the limits on delegated legislation
(10) Do you think there needs to be a reforming of the judicial appointment process? Why/why not?:
a. Strengths? A number of filters exist before judges are selected; flexibility in appointing allows for ability to tailor bench to needs of society at the time
b. Concerns? Political patronage; abundance of discretion; lack of transparency/accountability;
the appointment process is simply policy, and cannot be legally enforced, which gives rise to concerns that it may be manipulated in individual rather than societal favour;
c. What should be done?
d. Note: discuss both times of federal appointments – non Supreme Court and Supreme Court (and note the unique concerns w/ Supreme Court appointments)
(11) Discuss, and give examples demonstrating, the significance of the rule of principle in Canadian society and law (12) Do you think Canada should abolish prorogation?
(13 ) Aboriginal rights/s 35 question