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Public Law I 2005 Review Sept. 9/05: What is law?

Is law a set of rules intended to govern behaviour? What makes law legitimate in a democracy? Can you understand law from a purely linguistic perspective?. What role is played by Judicial discretion? Discretion of lawyers? Interpretation by public servants and elected politicians?

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Public Law I 2005 Review Sept. 9/05: What is law?

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  1. Is law a set of rules intended to govern behaviour? What makes law legitimate in a democracy? Can you understand law from a purely linguistic perspective? What role is played by Judicial discretion? Discretion of lawyers? Interpretation by public servants and elected politicians? Interpretation by ordinary citizens? Need to understand the system of justice Public Law I 2005 ReviewSept. 9/05: What is law?

  2. Schools of jurisprudence • Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart) • The only law that exists is the written law • Good judges can always interpret the positive law correctly • Natural law (John Locke, John Rawls, Ronald Dworkin) • There are “higher” laws that positive law ought to emulate. These higher laws might be created by religion, logic, or ethical principles. • Judicial realism (Karl Llewellyn) • Even if judges try to be impartial, the law can never be perfectly clear. What makes judges decide the way they do? • Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.

  3. Speluncean Explorers (Lon Fuller of Harvard) Four men trapped by cave-in. One suggested cannibalism. They chose the victim with a game of chance. The one who suggested cannibalism changed his mind. Nevertheless, he was chosen and sacrificed. The three remaining men survived, and were charged and convicted of murder. They appealed to a panel of five judges. • one judge: apply the established law literally & convict (positivist) • second judge: interpret the principles that ought to be behind the written law to acquit (natural law adherent, and also a judicial "activist") • third judge: uphold the conviction, but appeal for clemency (“restrained,” uphold parliamentary supremacy) • fourth judge: withdrew because he couldn't decide • fifth judge: heard clemency route won’t work; consider the natural law approach because it leads to a just result. (This judge is a “realist”)

  4. Hohfeldian Scheme: • If there’s a right held by one person, there’s a duty for someone else (usually a public official). • If there’s discretion, there’s no right. • Divisions of law: • Positive (written) law: domestic and international • Domestic: substantive, and procedural or adjectival • Positive domestic law: public and private • Public law: criminal, administrative, constitutional, tax • Private law: most important divisions are contracts, property and torts (private wrongs); many other types as well (see Gall) • Common law system compared with civil law system • deductive (civil) vs. inductive (common); weight of precedent; reports of framers & la doctrine (civil)

  5. Terms and Concepts • What are "legal persons?” • People, corporations, and governments • What's the difference between negative and positive law? • Negative law: prohibited from certain behaviours (crim. law) • Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) [NOT same sense as judicial positivism] • Critical Legal Theory • a branch of “critical theory,” which examines institutions from the perspective of class analysis.

  6. Public Law I:September 16, 2005 • Basic concepts regarding the Canadian Legal System • The Canadian court structure

  7. Main sources of law: Written constitution (s. 52(1) of CA, 1982 statute law (laws created by legislatures) case law (created by judges) Other (informal) sources that inspired both statute and case law: Ten Commandments, Magna Carta (1297), Roman law, canon law, writings of legal scholars (eg. Coke 1552–1634, and Blackstone 1723-1780), community standards (eg. obscenity cases), Hogg's text, constitutional conventions ratio decidendi and obiter dicta common = general common law judges "find" the law Constitutional conventions Parliamentary Sovereignty or Legislative Supremacy (same). Separation of powers Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone Crown prerogative: residue of discretionary power. Crown privilege: the claim that the crown my decide not to present documents ordered by judges, H of C or Senate. Sources of Law

  8. Terms and Concepts • primary (enacted by a sovereign legislature) and subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations) • Manner and form requirements for judges to recognize a law • What are "legal persons?” • People, corporations, and governments • What's the difference between negative and positive law? • Negative law: prohibited from certain behaviours (crim. law) • Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) [NOT same sense as judicial positivism] • Critical Legal Theory • a branch of “critical theory,” which examines institutions from the perspective of class analysis. (often very cynical about law)

  9. Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada. Date of reception based on when a colony established a legislature, or set by statute. NB & NS: 1758 Quebec: 1759: French civil law. 1763: English public law PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: 1870. Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792. “Imperial” statutes (Br laws applying to whole empire) remained in force until Statute of Westminster, 1931. Development of common law courts (king’s bench, common pleas) and courts of equity (remedies other than damages or punishment – writs, injunctions). Merged in 1880s. Preamble to BNA Act: implied Bill of Rights Barristers and Solicitors Judicial Committee of the Privy Council (JCPC); 1949. England: specialized appeal j's; Canada: generalist appeal j's. British Legal Tradition

  10. Canadian Court Structure • ____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 22 js | | 39 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

  11. Adjudication • Adjudication involves an independent, impartial and qualified judge authoritatively settling a dispute, according to law, with reasons. Usually, decisions can be appealed. • Other forms of dispute resolution: combat, negotiation, mediation, arbitration. (ADR refers to alternatives to the courts – especially mediation and arbitration.)

  12. Judicial Independence • Valente decision (1985) • Security of tenure (can’t be removed unless there’s been a judicial inquiry) • Financial security (a right to a salary high enough to discourage bribes that cannot be easily tampered with by gov’t) • Institutional independence (judges control administrative matters directly related to adjudication).

  13. Judicial discipline • For provincially-appointed judges: complaints can be sent to the Provincial Judicial Council (usually composed of the Chief Judges and Justices in the province) • For federally-appointed judges: the Canadian Judicial Council investigates complaints

  14. Appeal courts • Minor appeals heard by a single judge in a higher court (summary conviction appeals) • Major appeals heard by the provincial Court of Appeal • Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5) • The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3. • Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9. • per curiam (or per coram) vs. seriatim decisions

  15. Constitutional Crisis of 1981/82 • 1867: Canada independent re its internal affairs • Balfour Declaration (1926) and Statute of Westminster (1931): Canada recognized as an independent state re foreign relations • BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament. 1926-1981: many failed constitutional conferences. • Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Alberta, and Quebec premier couldn’t get cabinet to agree. • Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.

  16. Public Law I: September 23/05 • Court visit assignment • Topics for today: • Complete British Legal Tradition in Canada • Canadian court structure • Garth Stevenson article • Highlights of the Canadian constitution • Court reform in Ontario • Constitutional Amendment • Cases you need to start reviewing for Skeleton Outline • Quebec legal system

  17. circuit judges: “assizes.” Why don’t judges have to retire until 70 or 75? County and District courts now merged with superior courts judicial independence: purpose is to promote judicial impartiality Valente decision (1981 - 85) security of tenure financial security judicial control over adjudicative matters judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. – Hryciuk, suspended from Ont Ct of Justice after judicial inquiry) Trial Courts: Improvisors (~10%) no single process, but for most outcomes would be the same Strict Formalists (~ 20%) particular process followed, and always leads to the same conclusion. Pragmatic formalists (~45%) particular process followed (check list, shifting balance, water rising), but judges might decide differently. Intuitivists (~25%) “gut feeling” Interesting facts

  18. Appeal courts: Panel process different from single judges in trial courts Supreme Court of Canada Primarily a public law court (~100 cases / year; few pte) leave to appeal (~600 apps) Problems with justice system for some litigants and lawyers, a game delay in client’s interest (about half of trial lawyers) judges limited by adversary system re control of caseflow Role of courts: dispute resolution, prevent abuse of power, official const. philosophers, pawns in other peoples’ battles Canada’s constitution: 1. Written parts Canada Act, 1982 (British statute that makes CA, 1982 law and declares that no British statute will in future extend to Canada) b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule to the Schedule to the Const. Act, 1982, most importantly the Constitution Act, 1867 (formerly called the BNA Act; contains division of powers), and the Constitution Act, 1982 (contains the Charter and the five amending formulas) - Others: statutes & orders established new provinces, or amended the BNA Act. Courts and Constitution

  19. Garth Stevenson: “Origins and Objectives of Canadian Confederation” • An analysis of the motives behind the 1978 confederation from a political economy perspective • Sheds some light on the political compromises behind the division of powers in Ss 91, 92, 93 & 95 of the CA, 1867 • Strategic and economic motives • Opponents of confederation • Terms of union • Shortcomings of the written constitution from Stevenson’s perspective

  20. See “highlights on the Canadian Constitution” on www.yorku.ca/igreene • Memorize bolded parts of this document • CONSTITUTION ACT, 1867 • Ss. 56, 57 & 90:reservation and disallowance • 91.  the "preamble" to S.91 is the"POGG" clause (peace, order and good government):  It shall be lawful for [Parliament] to make laws for the peace, order and good government of Canada, in relation to all matters NOT coming within the subject-matters assigned exclusively to the Provinces inS. 92.  For greater certainty, Parliament may make laws with regard to matters covered by the following list.  However, this list merely provides examples, and these examples are not to be interpreted by courts as limiting Parliament's power. • 2.  Trade and Commerce2A.  Unemployment insurance (added in 1940)3.Unlimited taxing powers (direct and indirect)14.Currency & coinage15.   Banking24.  Indians, and lands reserved for Indians27.The Criminal Law

  21. 92.  The provincial legislatures have exclusive power to make laws regarding the following: • 92 - 2.Direct taxation10.  Local works and undertakings EXCEPT     a)  interprovincial railways & telegraphs     b)  international shipping     c)  any works that Parliament has declared are         within federal jurisdiction.  (“declaratory power”): eg. Grain elevators, local railways, canals, bridges, some mines, some factories. Used 470 times, but not since 1961.13.Property and civil rights (meaning private law) 14.The administration of justice in the province, including the establishment of all courts except the Supreme     Court of Canada and the Federal Court, and prosecution of criminal cases.16.  All matters of a merely local or private nature. 92A (added in 1982).  The provinces can regulate non-renewable natural resources, including forestry and electrical energy, and can even regulate exports.  However, the federal government can also regulate exports in this area, and federal laws are paramount.

  22. Education and concurrent powers • 93.  The provinces control education, except that the feds can intervene to protect Roman Catholic schools in Ontario and separate schools in any province that existed at the time the province entered Confederation. • 95.  Agriculture and Immigration are concurrent powers (both the feds and the provinces can legislate).  If there is a conflict, the federal legislation is paramount.

  23. Judiciary provisions • 96.  The federal cabinet has the power to appoint all superior court judges in the provinces. • 99.  Superior court judgescannot be removed except by joint address of the Senate and House of Commons.  Superior court judges hold office "during good behaviour" to the retirement age of 75 (to protect judicial independence). • 100.  The salaries of superior court judges are set by Parliament, not by the cabinet (to protect judicial independence). • 101. Parliament may establish a Supreme Court of Canada (which it did in 1875) and other courts to adjudicate federal laws other than the Criminal Code (eg. the Federal Court, which hears federal administrative law cases, and the Tax Court.)

  24. Other important provisions in CA, 1867 • 109.  The provinces own the natural resources within them. • 121. There shall be no customs duties or restrictions of trade between provinces. • 132. Parliament can make any law to implement British Empire treaties, even if the law invades provincial jurisdiction.  However, after 1931 the courts interpreted this section to mean that provincial approval is required for any non-British Empire treaty which affects matters under provincial control. • 133. English and French can be used in Parliament, and Canada's laws must be in both languages. Likewise, English or French may be used in Quebec's National Assembly, and Quebec's laws must be in both languages.  Either language may be used in the courts of Quebec, the Supreme Court of Canada, the Federal Court and the Tax Court.

  25. CA, 1982 • Ss 1-34: The Charter of Rights (you don’t need to know the content of the Charter until January – April course) • S. 35: Aboriginal rights (don’t need to know until January – April) • S. 36: commitment to equalization payments, so that poorer provices can provide adequate services.

  26. In Canada, there are 5 amending formulas for the constitution: Unanimity formula (Queen, GG, LGs, composition of SCC, senate floor rule, federal language rights, amending formulas “some but not all” (eg. language within province, denominational school rights, change in prov. borders) Provinces can amend own constitutions Fed gov’t can amend its internal constitution General amending formula (seven-fifty): the rest of the constitution (incl div of powers & Charter) can be amended with Parliament, 7 out of 10 provinces representing 50% of pop. Dissenting provinces may opt out, and get reasonable compensation if amendment affects culture or education. Canadian Constitutional Amendment

  27. AMENDING FORMULAS (more detail) • 38-40 & 42.  The 7-50 formula.  Most of the narrow constitution, including the Charter of Rights and the division of powers in ss. 91 and 92 of the C.A., 1867, can beamended with the agreement of seven provinces representing 50% of Canada's population and Parliament.  (That is, either Ontario or Quebec must be included.)  Up to3 provinces could opt out of such an amendment.  If they opt out of an amendment which transfers educational or cultural matters to Ottawa, these provinces shall becompensated financially by Ottawa (Ottawa must give to the opting-out provinces what they are spending, per capita, on the opting-in provinces).  • There is a 3-year timelimit which begins with the first resolution for amendment (which could be in any provincial legislature or Parliament).  No amendment may take effect according to this procedure until at least one year after the first resolution has passed (unless all governments have passed resolutions).

  28. 7-50 formula continued • No province can opt out of an amendment affecting: • a)  proportionate representation of the provinces in    the House of Commonsb & c)  the Senated)  the Supreme Court of Canadae)  the extension of existing provinces northf)  establishment of new provinces

  29. Amending forumlas (cont’d) • 41.  The unanimity formula.  Unanimous agreement of all provincial legislatures and Parliament is required for amendments affecting: • a)  the Queen, Governor General and Lieutenant-Governorsb)  the "Senate floor rule" (no province can have fewer MPs than Senators).c)  the use of English or French in S. 133 or the Charterd)  the composition of the Supreme Court, ande)  changes to the amending formulas. • 43.  The "some but not all" forumla:  Amendments which affect some but not all provinces need by approved only by the provincial legislatures affected and Parliament. • 44.  Parliament may amend parts of the constitution that affect only Parliament. • 45.  Legislatures may amend parts of their constitutions that affect only them.

  30. U.S.: Congress proposes amendments (2/3 of both houses) Proposals have to be ratified by ¾ of state legislatures, or ¾ of state constitutional conventions Comparison: U.S. constitution amended 17 times in 21 decades (rate .08/year) Canadian constitution amended 32 times in 13 decades (.23 to 1982, and 9 after) (rate .24/year) Canada’s constitution is more flexible Major Can. amendments: 1940: unempl ins 1951: old age pensions 1964: old age pensions broadened to include supplementary, survivors, disability (CPP) 1982: Charter and amending formulas 1983: S. 35.1: must be a constitutional conf including native peoples before native rights amended 1987-1998: 3 amendments to den school rts in Nfld 1997: den school rts Quebec 1993: equality of Fr & Eng in New Brunswick U.S. & Canada: Comparison of Constitutional amendment process

  31. Canada 1927-1982: six failed attempts to find a domestic amending formula 1971 – Victoria charter came close 1982: success achieved after SCC decision (discussed later in course) Meech Lake & Charlottetown Accords (discussed later) U.S.: 6 amendments proposed by Congress but not ratified by states, including ERA (equal treatment of women in all legislation) Impact of court decisions: 1940, 1951 amendments in Canada a reaction to court decisions Civil war amendments in U.S. a reaction to court decisions 1918: SCUS decision led to amendment to prohibit child labour. 1938: Roosevelt threatened to “pack” court. Court overruled 1918 decision. Amendment failures

  32. United States Washington: cabinet advisory & responsible to president Jefferson: declared that U.S. could purchase new territory; never challenged in court Political parties developed without constitutional amendment Congress assumed vast powers over economy in 1930s and 1940s Canada Feds assume they have power to do something under POGG, or provinces assume they have power to do something under 92(13) After 1995, fed legislation passed to prevent cabinet ministers from proposing amendments under 7-50 without support of Quebec, Ont, B.C., 2/3 prairie provinces, 2/4 Atlantic; Quebec recognized as distinct society Clarity Act (2000) Was Dicey right that in the U.S., judges are supreme because they declare the constitution? Does Dicey’s analysis apply to Canada? Informal constitutional amendment

  33. Unwritten parts of the constitution 1. Constitutional conventions        -Rule of law         -Judicial independence         -Responsible government         -cabinet responsible to the legislature         -Ministerial accountability         -Cabinet solidarity         -Gov Gen and Lieut Gov’s must act according to the advice of the first minister, unless that advice is unconstitutional         -The leader of the group in H of C or prov leg that can command the support of the majority of members becomes first minister and chooses cabinet.  First minister tells GG or LG when to call election, unless another group can form gov’t 2. The ratio in the judicial decisions about the meaning of the constitution (eg. the ratio in the cases we’ll be studying in this course)

  34. Why do we have “open” courts? There are some exceptions to open courts Young offenders Application to a judge for a closed hearing Sexual assault trials Preliminary hearings in notorious cases – to permit fair jury selection Is closing the court justified in these situations? Does open court concept impact presumption of innocence? Dignity and decorum Gowns, address to judge Dress codes Television Adversary system ADR (alternate dispute resolution) The role of courts in Canada

  35. Zuber report (1987) Create administrative regions Give judges, lawyers, and public more input into court administration AG Ian Scott (1989) Created 7 regions to administer superior and inferior courts Merged High Court and County/District Courts to form Superior Court of Ontario Provincial Court renamed Ontario Court of Justice, with criminal & family divisions Eventually, Scott wanted to merge the Ontario Court and the Superior Court into one trial court. Give all provincial court judges S. 96 appointments. Unified trial court idea abandoned by NDP and Conservatives. Will it be revived by AG Michael Bryant? Reforms in Ontario

  36. Meaning of “Peace, Order and Good Government (POGG) (some refer to federal criminal power): Russell v. the Queen Local Prohibition Case Re Board of Commerce Act Snider Employment and Social Insurance Act Reference (1937) A.G. Ont. v. Canada Temperance Federation (1946) Johannesson v. West St. Paul (1952) Reference re Offshore Mineral Rights (1967) Ref re Anti-Inflation Act (1976) Queen v. Crown Zellerbach (1988) Cases from course for mock trial(summaries on www.yorku.ca/igreene)

  37. Parsons Proprietary Articles Trade Assoc. Reference Natural Products Marketing Reference Ontario Farm Products Marketing Act Reference Chicken and Egg Reference Labatt Property & Civil Rights vs. Trade and Commerce

  38. -Aeronautics Case (1932) Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office. -Radio Case (1932) Section 132 is now obsolete. Therefore, the treaty-making and treaty-implementation powers are new, and fall under POGG. Labour Conventions Case (1937) Matters that fall under S. 92 can only be implemented by the provinces. Treaty-making cases

  39. Codification of laws Coutume de Paris (1580) Confusion after 1759 Royal Proclamation (1763) Quebec Act 1774 Codification: 1866: CCLC 1994: CCQ Deductive Reasoning Inquisitorial System (not in Quebec) Code, la doctrine, precedent Quebec courts: Court of Appeal (s.96) Superior Court (s.96) Court of Quebec (provincial) 1994 CCQ: ten books Civil and common law approaches coming closer together Quebec and Civil Law Approach

  40. Topics covered today: The role of courts in Canada Reforms in Ontario Courts Provincial court judges remuneration reference (1997) Stare decisis Natural Justice & Fairness Rules of statutory interpretation legal presumptions Articles by Waddams and McCormick Public Law I: September 30, 2005

  41. Why do we have “open” courts? There are some exceptions to open courts Young offenders Application to a judge for a closed hearing Sexual assault trials Preliminary hearings in notorious cases – to permit fair jury selection Is closing the court justified in these situations? Does open court concept impact presumption of innocence? Dignity and decorum Gowns, address to judge Dress codes Television Adversary system ADR (alternate dispute resolution) The role of courts in Canada

  42. Zuber report (1987) Create administrative regions Give judges, lawyers, and public more input into court administration AG Ian Scott (1989) Created 7 regions to administer superior and inferior courts Merged High Court and County/District Courts to form Superior Court of Ontario Provincial Court renamed Ontario Court of Justice, with criminal & family divisions Eventually, Scott wanted to merge the Ontario Court and the Superior Court into one trial court. Give all provincial court judges S. 96 appointments. Unified trial court idea abandoned by NDP and Conservatives. Will it be revived by AG Michael Bryant? Reforms in Ontario Courts

  43. Training lawyers (Quebec and elsewhere) Careers Officer of court Codes of Ethics (Gall) Honesty Avoid conflicts of interest Inter-provincial law firms Judges:  interpreters or legislators? Judicial appointments: Federal (see link) Provincial (see link) Qualities of a good judge Judicial ethics (see link) Judicial Discipline Provincial judicial councils (for provincially-app’d j’s) Canadian judicial council (for S. 96 & S. 101 judges) (see link on web page) Role of Judges and Lawyers

  44. Background: budget cuts of 1990s Gov’ts in PEI, Man & Alta reduced salaries of Prov Ct judges as part of general salary reduction plan, but failed to follow correct procedures, according to many judges, who thought govt’s violated jud ind. Prov gov’t’s sent reference questions to their Prov. Courts. What is a reference question? Holding (Lamer+5): judicial compensation commissions must be established to protect judicial independence (11(d) of Charter and convention). The JCCs act as a “buffer” between governments and judiciaries re salary issues. Governments are not required to implement the recommendations of the JCCs, but are required to take the recommendations seriously. The govt’s of PEI, Man and Alta acted unconstitutionally by not going through JCCs to reduce judicial salaries. La Forest dissent Prov Court Judges Remuneration Reference [1997]

  45. Stare decisis: a rigid form of doctrine of precedent Ways around stare decisis: Distinguish Ratio is really obiter Per incuriam Emphasize different majority opinion ignore Hierarchy of courts determining application of stare decisis SCC can choose not to follow precedent. Ont CA: policy: follow What if conflicting precedents? Stare Decisis

  46. Natural Justice & Fairness • Natural Justice • Nemo judex in sua causa • Audi alteram partem • Functions of Admin. Agencies: • Legislative • Administrative • Executive • Judicial or quasi-jud. • Judicial review • Jurisdictional • Abuse of power • Natural justice • Jud or quasi-jud • Doctrine of fairness • Privative clauses • Can’t hide behind priv clause if const issue, or patently unreasonable

  47. Rules of Statutory Interpretation (1) • Why are rules needed? • Intent of legislature • “reasonable person” test • 1.Plain meaning rule • 2.“golden rule”: avoid absurdity & inconsistency • 3.What was the mischief & remedy? • Specific words help explain general ones nearby • Express inclusion of some items implies exclusion of items not mentioned • Aids: • Interpretation statutes • Definition sections of statutes

  48. Rules of Statutory Interpretation (2) • More Aids: • Context in statute • Other similar statutes • Legislative history • Minimal weight. Why? • Books on rules of interpretation, & legal dictionaries • French & English text • International conventions & treaties (sometimes) • Preamble (but not marginal notes) • Headings (except in Ontario – excluded by statute)

  49. Presumptions • Criminal law: in favour of accused • Taxation law: in favour of taxpayer • Against alteration of common law • Mens rea (guilty mind), unless express absolute liability • Against retroactivity • Against ousting jurisdiction of courts • For crown immunity (now mostly replaced by statutes allowing suits against crown) • Every word is deliberate • Specific given precedence over general • More recent > older • Leg. did not intend drafting error (cts can correct)

  50. Law is “a continuing process of attempting to solve the problems of a changing society,” not just a set of rules. Law is both academic and practical Ignorance is no excuse (necessary fiction) Differences between “justice” and the law Should judges try to get around stare decisis to avoid bad results? “Hard cases make bad law.” The rule of law. Should public officials be allowed to act outside the law? Rationality vs. consistency Providing reasons promotes rationality & consistency Can a judge ever be impartial? Judicial independence leads to jud. Isolation Public policy is an “unruly horse, dangerous to ride” Like cases should be decided alike (acad dishonesty precedents) Harrison v. Carswell (1976): Dickson (majority) v. Laskin (minority) Conflict between individual and group rights Social change: law cannot lag far behind, or get too far ahead, of social change. (marital property) Law reform commissions Waddams

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