Canadian Constitutional & Administrative Law

Canadian Constitutional & Administrative Law March 25, 2008 Access to Justice Ian Greene

Schedule for tonight • Questions • Access to Justice • Judicial Impartiality and Independence • English background • Impact of American Revolution & Separation of Powers • Canadian issues • Judicial control over court administration • Charter of Rights: Valente (review); Beauregard; MacKeigan v. Hickman • Judicial Behaviour • Judicial discipline • Federally-appointed judges: Berger affair; Donald Marshall Jr. Inquiry; other cases • Provincially-appointed judges: Hryciuk; other cases • Treatment of litigants & witnesses • Presentations: Adil Dossa; Muhammad Gondal (their choice as to when to present during this first part of the class)

Schedule (continued) • BC. (Min of Forests) v. Okanagan Indian Band 2003 • The issues at stake: Calder, Sparrow, Delgammukw (review) • Presentations: David Rudoler & Lisa Peacock • Little Sisters (2007) • The issues at stake: Little Sisters (2000) • Presentations: Andrew Harper, Samina Esmail, Christina Richardson

Judicial Impartiality & Independence • English background • We expect judges to be as impartial as possible • John Locke (1690): rule of law requires “indifferent” judges so the law will “not be varied in particular Cases, but [there should be] one Rule for the Rich and Poor, for the Favourite at Court, and the Country Man at Plough.” • Glorious Revolution (1688) • Act of Settlement (1701): appointment of superior court judges for life during good behaviour (not pleasure), and establishment of salary by Parliament. • American Revolution & Separation of Powers • Influence of Montesquieu (The Spirit of the Laws, 1750) • Separation of powers: federal courts (dual court system) insisted on control over admin • Canadian Issues • Preamble to CA, 1867 – convention of judicial independence • S. 99 of CA, 1867: appointments to retirement during good behaviour • S. 100 of CA, 1867: salaries set by Parliament • S. 96 of CA, 1867: superior court judges appointed by Parliament; therefore provinces can’t tamper with their jurisdiction • McRuer Commission (1968) & issues of JPs; Ell case (2003)

Judicial control of Court Administration • Caseload crisis of early 1970s in Ontario led to Central West experiment of 1976. AG continued to administer courts. • Federally-administered courts: commissioner of federal judicial affairs; SCC became separate government agency – registrar to report to CJ • Jules Deschênes with Carl Baar: Masters in their own house (1981)

Judicial court administration issue • Martin Friedland: A Place Apart (1995): courts should be governed by a board similar to a university’s board of governors • Canadian Judicial Council: Models of Court Administration (Baar et al, 2005): limited autonomy for judiciary within budget set by legislature. Professional court administration. Independent commission to ensure accountability.

Impact of the Charter Valente (review) 1981: Walter Valente charged with dangerous driving; Valente wanted to stay out of jail Valente’s lawyer argued that provincially-appointed judges aren’t “independent” according to S. 11(d) of Charter because they don’t have the protection of Ss 96-100 of CA, 1867 The decision established that there are 3 “essential conditions” for judicial independence: • security of tenure: there must be impartial inquiry before a judge can be removed • financial security: legislated right to a salary • institutional independence: judges must control those aspects of case flow directly affecting adjudication

Beauregard (1985) • Marc Beauregard appointed to Quebec Superior Court in 1975 • Parliament created a compulsory contribution pension plan for judges in 1975 & increased salaries; retroactive application • Beauregard sued for violation of judicial independence • SCC (Dickson): No violation of either individual or collective independence of the federally-appointed judiciary

MacKeigan v. Hickman (1989) • Donald Marshall Jr. (Aboriginal) convicted of murder in 1971. 2 weeks later 2 witnesses said they’d lied but Marshall’s lawyer not told. • 1982: NS Ct of Appeal found Marshall innocent, but said Marshall partly to blame. A judge on Appeal panel had been AG in 1971. • Royal commission inquiry in 1986: wanted appeal judges to appear and explain how the former AG got on panel. Judges refused – therefore litigation. SCC: judges have immunity from testifying about administrative matters.

Provincial Court Judges Remuneration Decision (1977) • Early 1990s: PEI, Alberta and Manitoba reduced salaries of judges as part of salary cuts to all provincial employees • SCC: “judicial compensation commissions” must be established for all federally- and provincially-apointed judges. Gov’ts must give recommendations “serious consideration.” • Based on S. 11(d) of Charter and preamble to CA, 1867 (convention of judicial independence)

Judicial Behaviour • Judicial Discipline: federally-appointed judges • Removal by joint address: closest was Landreville case in 1960s (resigned by later exhonerated) • Canadian Judicial Council: 1971; since then, fewer than 10 inquires about possible misbehaviour • Berger case: 1981 • Donald Marshall Jr. inquiry: appeal judges made a legal error; not grounds for removal • Jean Bienvenue (1996) • REAL Women & Justice Bertha Wilson • “Buzz” McClung affair • Wells vs. Crosbie (Newfoundland)

Judicial Discipline • Provincially-appointed judges • Many more inquiries by Provincial judicial councils • Hryciuk (1993) • Richard Therrien (2001) – dating back to October crisis of 1970 • Some removed or resigned for being convicted of a criminal offence • How well is the system working?

Treatment of Witnesses & Litigants • Judges and courts generally trusted – much more than elected politicians • Expeditious justice the problem: 40% say courts do a poor job of providing justice quickly; 90% say system needs to be more sensitive and compassionate • What are the causes of unnecessary delays?

BC. (Min of Forests) v. Okanagan Indian Band 2003 • Background: Calder, Sparrow, Delgammukw (review from February 19) below

Calder (1973) • Calder (1973) • Nishga claimed 1000 sq. miles in northwest B.C. • Judson & 2 others: no title for Aboriginals. They are wards of state • Hall/Laskin & 1 other: Aboriginal people have usufructuary rights over lands traditionally occupied • Pigeon: Nishga can’t sue without crown’s permission • Calder’s near win encouraged aboriginal Canadians to lobby for constitutional changes that would protect treaty rights. Result: S. 35(1) of CA, 1982 and S. 25 of Charter.

Issue: Sparrow was fishing with drift net too big for regulations Court’s Decision: Regulated rights are not extinguished, therefore still exist under 35(1). Valid regulation must be justified as honouring trusteeship duty. Test: 1) Does impugned regulation interfere with aboriginal right? 2) Justification: Is the legislative objective valid? Is trustee relationship honoured? Is infringement as little as necessary? If expropriation, is compensation fair? Have aboriginals been consulted? Sparrow (1990)

Issue: Gitksan and Wet’suwet’en claimed 58,000 sq. km. of land in northern B.C. Questions to be resolved: 1) whether the claims were properly before the court. Yes, but new trial required. 2) whether the SCC can interfere with the trial judge’s factual findings: Yes. 3) what aboriginal title is protected by 35(1), and is infringement acceptable? Governments have a fiduciary duty toward aboriginal people. Infringement of title is acceptable only if demonstrably justified through reasoning similar to Oakes test Delgammukw (1997)

BC. (Min of Forests) v. Okanagan Indian Band 2003 • Four bands including Okanagan logged on Crown land without legal authorization. Claimed aboriginal title. Bands filed notice of constitutional question that they had title. Minister applied to have issue dealt with on Superior Court trial list (more complex and expensive. Bands argued that judge should order Crown to pay Bands’ legal fees in advance. Bands lost in Superior Court; won in Court of Appeal & Supreme Court of Canada (6-3).

Okanagan test for awarding interim costs • Party seeking costs is impecunious • Prima facie case of sufficient merit • Special circumstances making extraordinary exercise of court’s powers appropriate

Little Sisters (2000) • Little sisters: bookstore for the gay & lesbian community in Vancouver • Imported 90% of materials from the US; customs laws prohibited importation of “obscene” materials under Criminal Code • This decision relied on the decision in “Butler”

Butler (1992) Impugned: s. 163 of Crim Code: prohibits sale of obscene materials, i.e. where a dominant characteristic is the undue exploitation of sex, or sex and crime, horror, cruelty and violence. • Butler: convicted of selling & renting hard core video & magazines. Butler's Argument: s. 163 violates s. 2(b) of Charter. • Trial judge: obscenity restricted to materials that depict sex & cruelty, lack of consent, or dehumanization. Convicted on 8 counts only (he'd been charged with over one hundred offences) • Court of Appeal: All of S. 163 is a reasonable limit. Convict on all counts, not just 8. • SCC (unanimous 9-judge decision): clarified meaning of obscenity. S. 163 infringed 2(b), but SCC’s dn of obscenity can pass the Oakes test. Butler to be tried again.

Butler (2) • Sopinka (+6): The test for obscenity: Is exploitation of sex “undue” according to “community standards test”? This is not what Can’s would tolerate for selves, but what they’d tolerate others being exposed to re harm to society. • Consent is important, but not necessarily determinative. • Re works of art: “internal necessities” test: is the material required for serious treatment of a theme? • Judges apply the “reasonable person” test: what would a “reasonable person,” informed of the relevant facts, decide? • sex & violence: nearly always undue exploitation • sex that’s dehumanizing: undue if risk of harm substantial • sex that’s not violent or degrading is tolerated unless it involves children • “internal necessities” test: judge must determine whether material is really necessary, or the work is an excuse for exploitation. If in doubt, err on side of freedom of expression

Butler (3) • Oakes test passed: • I: Objective of preventing harm is pressing & substantial • II: a) rational conn exists between supressing obscene materials and preventing harm. Community standards test is sufficiently clear. • b) rights minimally impaired. Only potentially harmful material caught, and there’s an internal necessities test • c) good outweights harm • Dissenters: (L’Herueux-Dube & Gonthier): generally agree with Sopinka, but think that sometimes materials that don’t combine sex and violence, or sex considered dehumanizing, can be obscene because there’s a community consensus that the materials may result in harm by contributing to the “deformation of sexuality.”

Impugned: the section of the federal Customs Tariff Act that prohibits importation of obscene materials, and creates a “reverse onus” on importer to prove that materials are not obscene. Little Sisters bookstore: imported gay/lesbian erotica, and had materials confiscated by customs officials. Bookstore challenged the customs legislation as a violation of S. 2(b) of Charter: freedom of expression. SCC: 6-3: reverse onus provision is unconstitutional. However, the prohibition against importing obscene materials is constitutional. The CT Act is a prima facie violation of the Charter, but passes the Oakes test. Objective of legislation: prevent Canada from being inundated by obscene material from abroad I: Substantially important: yes II: proportionality: a) customs procedures rationally connected to objective. b) there’s minimal impairment if Butler test applied, and c) there’s an overall balance Butler definition of obscenity must be applied by customs officers. The wording of the Act allows for that. Customs officials delayed unnecessarily (30 days reasonable), and were “high-handed” in applying a stricter standard to homosexual than to heterosexual materials. Actions of public servants ruled unconstitutional, not the law. Little Sisters (2000)

Little Sisters (2000 - 2) • Dissenters (Iacobucci, Arbour & LeBel) • The Act is not minimally intrusive. The Act contains neither procedural safeguards, nor a guarantee that customs officers understand the Butler test. • Allowing appeals to a superior court rather than a specialized tribunal is “completely impractical” given the “sheer number of contested prohibitions.” • The defects of the impugned legislation outweigh its benefits. Some have been denied “important literature” (how to prevent AIDS), and some artists have their work labeled as “obscene” when it’s not obscene according to the Butler test.

Little Sisters (2007) • Case is important because bookstore owners felt that Canada Customs had not applied the Little Sisters (2000) decision and were still being “high handed.” Appealed Customs decision to ban import of four specific books. • Because of cost of appeal, bookstore wanted advance costs according to the Okanagan test • Majority on SCC did not think Okanagan test had been met. No evidence that the 4 books are likely to be acceptable. No general issue of great importance to Canadians. • No “special circumstances.” Not necessary to look at “impecuniosity.” • How does decision affect access to justice?

Canadian Constitutional & Administrative Law