Public Law I: September 30, 2005

1. 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

2. 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

3. 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

4. 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

5. 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]

6. 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

7. 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

8. 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

9. 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)

10. 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)

11. 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

12. McCormick presents a social science study of courts Judicial power = impact & discretion. Existed before 1982 Western conception of law: lawyers have a distinct way of thinking. Abstraction: legal process filters out “irrelevant” details, simlifies Focus on general rules: the punishment fits the rule (not the crime) Reasoning by analogy to fill in gaps in rules (whoever picks the examples wins the argument) Legal system is highly procedural, with severe consequences for breach of procedure. Hence, delays, technicalities. Lawyers & judges “shape” rather than “discover” outcomes “economy of judicial resources” (Should highly-paid appeal court judges hear sentence appeals? Or should sentencing be carried out by sentencing boards, not judges?) The legal/judicial system is “a serious attempt, administered in the main by conscientious individuals, to deal with intractable problems.” McCormick: Courts, Law & Society