Canadian Constitutional Administrative Law April 1 2008 Administrative

Canadian Constitutional & Administrative Law April 1, 2008 Administrative Law, Principles of Natural Justice, & Standards of Review Ian Greene

Don’t forget • On-line course evaluations: • http: //courseevaluations. yorku. ca/

Schedule for tonight • Questions; class end get-together? • Papers; Bonus assignment • Administrative Law – Theory – Major issues • Natural Justice & Standards of Judicial Review • Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] • Baker v. Canada (Minister of Citizenship and Immigration) – Presentation by Dennis Governor • Greene (Chapter 6): – Presentations by Genevieve Thompson & Christina Richardson • Morton/Knopff vs. Mandel and other interesting debates

A. V. Dicey • Albert Venn Dicey - British jurist (1835 -1922) • Oxford graduate & later professor & Oxford & London School of Economics • Introduction to the Study of the Law of the Constitution – 1885 • Refined idea of “unwritten constitution” – Constitutional conventions (generally recognized as mandatory practices – monarch should dismiss a government that clearly breaches a convention) • Responsible government: cabinet responsible to legislature, cabinet solidarity, ministerial accountability

Basic principles of British constitution: • Parliamentary (legislative) Sovereignty – Distinct from U. S. system of separation of powers • The rule of law (law applies equally to everyone unless exceptions written into the law) – No need for a British bill of rights: judges who apply the rule of law properly safeguard human rights far better than having to apply a rigid bill of rights • Judicial independence – Parliamentary supremacy means that the legislature determines the jurisdiction & organization of courts, but once appointed, judges are independent as protected by the Act of Settlement, 1701

British system vs. French • Common law system ensures that all courts and administrative tribunals are supervised by superior court judges, who ensure liberty through properly applying the rule of law. • The French and other civil law jurisdictions have separate administrative law courts. This can lead to abuse of power. • Common law system is infinitely superior to civil law systems, and the British common law system is infinitely superior to the American common law system

Development of Administrative Law • 1920 s to 1940 s: federal and provincial governments establish labour relations boards/tribunals – Superior court judges (S. 96 judges) were not doing a good job of adjudicating labour relations issues – Tribunals normally had 1 member with a labour background, 1 from industry, and 1 neutral • Many early administrative law court decisions represented judicial review of labour relations board decisions

The s. 96 issue • Do the administrative tribunals represent an erosion of powers of s. 96 judges? Are labour relations tribunals s. 96 courts? • Prof. Bora Laskin: s. 96 courts should show deference to labour relations tribunals. The tribunals are better equipped to make good decisions. Standard of review should usually be “patently unreasonable. ” • Justice Bora Laskin: sometimes standard of review should be “correctness. ”

Privative clauses • In order to prevent appeals from tribunals to courts, governments often inserted “privative clauses” into tribunal legislation. “The decision of the tribunal is final; there shall be no appeal to any court. ” • S. 96 courts are skilled at getting around privative clauses: – Judicial review on jurisdictional grounds (acting outside legal jurisdiction, including division of powers)

Avoiding privative clauses • Standard of “correctness” – The “correctness” standard has variations • Strict: minute misinterpretations of the law by tribunals must be corrected by the courts • More deferential: only tribunal decisions that are “patently unreasonable” need to be corrected by the courts. • Legislatures have never intended administrative tribunals to make decisions that are “patently unreasonable. ” – Strictness of courts depends on perceived expertise of tribunal

Judicial review of admistrative tribunal decisions • Can occur regarding jurisdiction – Division of powers – Charter of Rights – Limits of the statute of the tribunal in question – Prodecure: violation of natural justice • Nemo judex in sua causa (impartiality) • Audi alteram partem (hear both sides) – Due process

Doctrine of Fairness • Those aspects of natural justice that should reasonably apply to government agencies (eg. Canadian Radio Television and Telecommunications Commission) – Decision of cabinet overruling CRTC judicially reviewed for violation of due process

Decisions of public servants • Judicial review of decisions of public servants can occur – Alleged violation of natural justice in quasi-judicial situations – Alleged violations of “doctrine of fairness” in other situations (extent to which principles of natural justice should reasonably apply) – Abuse of power (acting outside the law)

Pushpanathan v. Canada [1998] • Pushpanathan claimed refugee status in Canada in 1985 (under UN Convention Relating to the Status of Refugees) • Claim never adjudicated – allowed to stay under another program • Later P was convicted of possession of heroin; sentenced to 8 years • P renewed his claim for refugee status while on parole

Pushpanathan (2) • Convention Refugee Determination Division decided P not a refugee because “guilty of acts contrary to the purposes and principles of the UN” (Art. 1 F(c) of Convention) • SCC: CRDD’s interpretation of 1 F(c) is legally wrong. Standard of review: correctness. CRDD not made up of individuals skilled in legal interpretation. Privative clause in Immigration Act not strong.

Baker v. Canada [1999] • Mavis Baker in Canada illegally; had Canadian-born children. Ordered deported • Applied for exemption on H & C grounds • Senior immigration officer turned her down. Notes were biased. No consideration of impact on children. • SCC: ordered application for exemption reconsidered, taking into account impact on children, and avoiding prejudice • Presentation: Dennis Governor

Greene: Final Appeal • Presentations: Genevieve Thompson & Christina Richardson – Court decisions have always had an impact on public policy. • To what extent have these decisions promoted democratic values of inclusiveness & participation? • Are courts representative of diversity of Can society? • To what extent do they facilitiate appropriate participation? • Are courts responsive to public demand for fair, impartial, expeditious dispute-resolution services?

• Montesquieu’s description of separation of powers too simplistic. – Judges need appropriate control over court administration or executive could interfere with judicial impartiality – Courts need to be accountable for the quality of work they do – if accountabily means “ability to demonstrate publicly the quality of one’s work” – Often, critics of “judicial activism” are critical only when a court makes a decision they disagree with. Harper is critical of activist judges, even though he used the courts to strike down Elections Act prohibition of 3 rd pty adv – When the law is not clear, judges are necessarily “activist” – Judges are to resolve disputes fairly, impartially, expeditiously. They need to be able to demonstrate they are doing so.

Participation • The courts exist to provide a public service; therefore lay persons need more effective input into judicial selection and court administration • Effective public participation is hampered by unnecessary delays and adjournments • Perhaps we could learn something from other jurisdictions, including civil law jurisdictions • If jury system is to survive, it needs reform to prevent abuse • Use of social science evidence in court open to abuse (eg court’s misuse of evidence in Askov & Morin)

Inclusiveness • Law profession becoming more representative of Canadian diversity, but more work to be done. Similarly, judiciary and court support staff becoming more representative. • Lack of access to legal representation a major problem – Should all lawyers be required to represent 100 cases a year pro bono? Should community legal clinics be expanded (and an effective public defender model implemented)?

Institutional Responsiveness • Most Canadians satisfied with quality of judicial decisions • System of justices of the peace is problematic • Some administrative tribunals problematic (lack of independence and expertise) • Too much room for patronage in federal superior court appointments, & fed ct & SCC • Complaint avenues re judges not widely known • Lawyers should be prohibited from using delay as a tactical weapon in codes of ethics

Judicial decision-making responsiveness • Courts perform an essential function by adjudicating disputes about basic democratic values, such as those in the Charter. • Charter decisions have resulted in greater inclusion of visible minorities, mentally & physically handicapped, gays & lesbians, and Aboriginals in Canadian society. • Overall, SCC’s decisions since 1982 have advanced democracy • Our constitution allows legislatures to counterbalance judicial decisions – s. 33, re-enacting legislation, amendment • “To limit the judicial role in democracy would be to limit democracy itself. ”

Overall evaluation of courts • Courts doing well in some areas of advanced reasoning – Contribution to understanding of independence & impartiality, interpretation of Charter • Areas for improvement – Public participation in court admin & jud selection – Tackling unnecessary delay – Support for unrepresented litigants – Respectful treatment of juries, witnesses & litigants. Disrectful treatment is really abuse of power.

Knopff & Morton • Charter Politics Ted Morton, MLA, Alberta (formerly Political Science Professor, University of Calgary)

Michael Mandel • The Charter of rights and the Legalization of Politics in Canada » Michael Mandel, York University