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Academic Year 2017 – 2018
Faculty of Law
SPECIALIZED TOPICS:
POLITICAL LAW
Course LAWG – 518 / ST-8
CROSS-LISTED WITH
Department of Political Science
SPECIALIZED TOPICS IN
CANADIAN POLITICS
Course POLI - 427
Syllabus updated to 13-8-2017
Lecturer:
Gregory Tardi, B.A. (Hons.), B.C.L., LL.B., DJur.
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COURSE DESCRIPTION
For purposes of the formal designation of courses in the Faculty of Law and in the Department of
Political Science, this course is one of the Specialized Topics. This is McGill’s only version of a course
dealing with law and politics. The approach intended for this course is based on the more thoroughly
integrated concept of “political law”. In democratic societies such as Canada, Québec, the other
provinces and territories, as well as in like-minded democracies, law is the fundamental and
indispensable element of governance. In this context, the purpose of the course is to provide an
interdisciplinary and comparative perspective on law in the structure of the state and in the processes of
governing. The course deals with law in the context of its interaction with public administration and
politics, as well as of its evolution through the constant three-way dialogue among the legislature, the
executive and the courts. In complement to traditional courses on constitutional law that emphasize the
rule of law, federalism and the protection of human rights, and those on administrative law which focus
on judicial review, the essence of this study is on the role of law in the conduct of public affairs.
Political law is the interdisciplinary study of the role of law in statecraft. As an instrument of
democratic governance, law functions in conjunction with public policy and administration, and with
politics. In this context, the course is predicated on the notion that the rules on governance are not
disparate, self-standing instruments, but that they constitute a comprehensive, cohesive and coherent
body of law, supplemented by other types of rules, each of which is also binding in its respective ways.
This body of instruments should be viewed as the vehicles for democratic governing, rather than merely
as constraints on the use of power. The advent of the Charters in Canada and in Québec has both
intensified the linkages among the various types of instruments and blurred the distinctions among them,
making their study as a unified body of rules both worthwhile and timely. This development has also
increased the interaction, influence and the impact of law in and on the democratic conduct of governing.
The course on political law is an examination of the evolving body of principles, binding rules and
practices dealing with the degree of mutual effects among law, public administration and politics. It is
also an analysis of the influence of law on the conduct of public affairs. The themes running through the
study of political law involves consideration of a) an understanding of Democracy as a political system, b)
the definition of the legal components of Democracy, c) the choice of instruments for governing, d) the
balance of law and politics in the legislative process, e) the precedence of law and its accommodation with
the other types of instruments in government management, f) the relative weight of legal and political
influences in the litigation and adjudication of judicial disputes on issues of public governance, g) the
legalization of political life, and h) the legal aspects of democratization. The conclusion to be drawn from
the study of political law is the demonstration that legal accountability to democracy in the conduct of
public affairs is the necessary counterpart to constitutionally and legally protected human rights, in
particular civil and political rights.
This course aims to provide lawyers (and other current and future professionals in government) a
new, interdisciplinary dimension to our understanding of law in its real-life context. It is directed at
giving students both specific areas of knowledge, as well as enabling them to use specific analytical tools
in assessing law as the fundamental and indispensable component in democratic governance and
administration. Every year, the course on political law is varied so as to reflect the latest trends of
interest in domestic and international public life. This year, a newly added topic will deal with the
accountability to law of heads of state and government.
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POLICYCONSTITUTIONAL
LAW
ADMINISTRATIVE
LAW
LAW OF PUBLICADMINISTRATION
PUBLIC LAWPUBLIC LAW PUBLIC ADMINISTRATIONPUBLIC ADMINISTRATION
POLITICAL SCIENCEPOLITICAL SCIENCE
POLITICAL LAW
AND THE RELATED SOCIAL DISCIPLINES
POLITICAL LAW
POLITICS
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COURSE INFORMATION
Term: Fall, 2017
Location: Room 201, NCDH / New Chancellor Day Hall, Faculty of Law
Dates and times: September 5 to November 28, 2017;
Tuesdays, 18:00 hrs. - 21:00 hrs. [6 pm – 9 pm]
Academic Credits: 3
Maximum enrolment: - 35 law students; 25 undergraduates plus 10 graduates
- 15 political science students, including undergraduates
and graduates
Prerequisites: For law students: undergraduate study of political science, and / or
law school courses entitled Administrative Process and Judicial Review
of Administrative Action are useful for this course, but not required.
Language /langue: The first working language of the class will be English.
Chacun est invité à s'exprimer ou à écrire dans sa langue préférée.
Teaching methods: The course will be conducted through a blend of lecturing,
seminar-style class discussion and the participation of specialists as
guest speakers.
Method of evaluation: Effective class participation and presentation:….….........…10%;
Lessons-learned document, due November 21, 2017..……...15%;and
Paper due on Faculty / Department schedules…………..….75%.
Paper: Students should select a paper topic from among those listed at the
end of this syllabus, or one similar in nature to these topics. The
instructor’s approval of each topic is necessary. No topic may be
selected by more than one student; approvals are discussed on a first-
come-first-served basis. The instructor will help students arrange
interviews for original material. Target dates are: topic selection:
Oct. 10; outline and bibliography; Oct. 24; first draft: Nov. 14; final
version varies according to Faculty. The deadline for submission of
the final version is December 15 at 15:00 hrs. for all students. Law
students see: http://www.mcgill.ca/law-studies/courses-registration-
exams/deadlines. Notwithstanding any other rule, the same deadline
will apply to Political Science students. All students should identify
themselves by both name and student number on the paper.
Lecturer contacts: e-mail: [email protected]
Meetings with students: By arrangement.
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McGILL POLICY STATEMENTS
The following statements are addressed to all McGill students:
1. Academic Integrity Statement
"McGill University values academic integrity. Therefore, all students must understand the meaning and
consequences of cheating, plagiarism and other academic offences under the Code of Student Conduct
and Disciplinary Procedures (see www.mcgill.ca/integrity for more information).
(approved by Senate on 29 January 2003)
2. Right to submit in English or French written work that is to be graded
“In accord with McGill University’s Charter of Students’ Rights, students in this course have the right to
submit in English or in French any written work that is to be graded.”
(approved by Senate on 21 January 2009)
3. In the event of extraordinary circumstances beyond the University’s control, the content and/or
evaluation scheme in this course is subject to change.
4. Use of Text-matching software
"Instructors who may adopt the use of text-matching software to verify the originality of students' written
course work must register for use of the software with the ICS Service Desk (http://www.mcgill.ca/it/)
and must inform their students before the drop/add deadline, in writing, of the use of text-matching
software in a course.
(approved by Senate on 1 December 2004)
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REQUIRED COURSE MATERIAL
- Textbook I : Gregory Tardi
The Theory and Practice of Political Law, 2nd ed.
(Toronto: Carswell, 2016) (Tardi; TPPL)
SUGGESTED COURSE MATERIAL
- Textbook II: Richard Balasko and Gregory Tardi, eds.
The Informed Citizens’ Guide to Elections
Le Guide du citoyen averti aux élections
(Toronto: Carswell, 2015) (Tardi; Elections)
- Textbook III: Gregory Tardi The Law of Democratic Governing: Vol. I: Principles
(Toronto: Carswell, 2004) (Tardi; Principles)
- Textbook IV: Gregory Tardi The Law of Democratic Governing: Vol. II: Jurisprudence
(Toronto: Carswell, 2004) (Tardi; Jurisprudence)
- Textbook V: Gregory Tardi The Legal Framework of Government: A Canadian Guide
(Aurora: Canada Law Book Inc., 1992) (Tardi; Framework)
- Specialized Journal: The course will take into account as teaching material a number of texts
published in the Journal of Parliamentary and Political Law / Revue de droit
parlementaire et politique.
(Journal)
- Additional Material: See the short bibliography at the end of the syllabus. From time to time,
separate handouts containing additional or background information of use in
the course will be distributed in class, without charge. (Additional)
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SUMMARY COURSE OUTLINE AND SCHEDULE
FOUNDATIONS OF POLITICAL LAW
1. Sept. 5, 2017.........…..The Linkages among Law, Public Administration and Politics
2. Sept. 12, 2017….........The Legal Elements of Democratic Governance and Democratization
THE LEGISLATIVE BRANCH
3. Sept. 19, 2017…….….The Electoral System and Elections
4. Sept. 26, 2017…..........The Institutions of the Legislative Branch
5. Oct. 3, 2017…….….....The Preparation of Legislation and the Public Legislative Process
THE EXECUTIVE AND JUDICIAL BRANCHES
6. Oct. 10, 2017…….…… The Justice Portfolio; Legal Advice and Opinions
7. Oct. 17, 2017…….….…The Executive Branch and Democratic Public Administration
8. Oct. 24, 2017…………..Litigation and Adjudication of Political and Politicized Issues
DEMOCRATICALLY RESPONSIBLE GOVERNMENT
9. Oct. 31, 2017……............Access to Information as a Vehicle to Democratization
10. Nov. 7, 2017…...……….The Role of Lawyers in Democracy and Democratization
11. Nov. 14, 2017……….....The Accountability to Law of Public Institutions and Officials
12. Nov. 21, 2017…….........The Issues and Dilemmas of Democracy
………………………....Deadline for submission of the “Lessons Learned” Paper
13. Nov. 28, 2017…..……..Democratic Politics, Reform and the Search for New Remedies
Deadlines for submission of the final version of the major paper, in lieu of examination:
Dec. 15, 2017, 3 p.m.: Political Science students please submit a paper copy to Leacock 414
Dec. 15, 2017, 3 p.m.: Law students please submit electronically to [email protected]
In addition to the foregoing, all students should submit a paper copy to the instructor.
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September 5, 2017
1. THE LINKAGES AMONG LAW,
PUBLIC ADMINISTRATION AND POLITICS This class will be an introduction to the concept of political law, the substantive and methodological perspective which forms the basis
of the course. The course will first examine a body of public law other than constitutional and administrative law, and develop its
specific characteristics. It will then address the linkages between this component of the legal system and other types of instruments
used in democratic governing. The subject-matter will be analyzed first at the systemic, macro level, dealing with the relationships
among a ) constitutional / administrative law; b) public policy and administration; and c) political science / politics. The subject
matter will also be examined at the micro level, characterizing the legal, policy-based and politics-based types of instruments of
governance as established ways of studying particular aspects of government. The focuses of examination will include questioning of
the boundary between law and politics in the modern state; emphasis on their linkages; evolution of the traditional notion of the rule of
law into that of the role or law in the modern state and; development of the notion that the role of law in democratic governance is
determined by a comprehensive and coherent body of rules. This analysis distinguishes between the study of binding rules within the
legal system and the study of the interaction between legal and other (quasi-legal) types of instruments in the functioning of
Democracy. Toward this goal, specific analytical methodologies will be introduced.
CORE READINGS
- Tardi; TPPL………………...Chapters 1 and 7
- Tardi; Elections……………..Chapter 3
- Tardi; Principles………........Chapters 1 and 2
- Tardi; Jurisprudence……….Chapters 1, 2 and 3.4
- Tardi; Framework……….…Introduction, Chapters 1 2, 3 and 4
- Additional……………….. – Tardi, Gregory. The Cartesian Path to Political Law (2008) 1 JPPL 43
……………..…………….…..- Commonwealth (Latimer House) Principles on the Three Branches of Government, 2003
……………………………….- Hughes, Dr. Patricia, Canada: The Rule of Law, JPPL, Issue VII: 3
CONSTITUTIONAL TEXTS, STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
FEDERAL
- Constitution Act, 1867, Preamble
- Constitution Act, 1982, Preamble
- Interpretation Act, R.S.C. 1985, c. I-21
- 40th P., 3rd Sess., Bills C-224, 307, 238, 375, 457 & 470
- 41st P., 1st Sess., Bill C-7,
An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits
- 41st P., 1st Sess., Bill C-208,
An Act to amend the Parliament of Canada Act (members who cross the floor)
- 42nd P., 1st Sess. Bills S-213, 221
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SPECIFIC ISSUES
§ Democracy
- Raoul Wallenberg Institute. Rule of Law: A Guide for Practitioners
(Lund, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, 2012)
- European Commission for Democracy through Law (Venice Commission). Report adopted by the
Venice Commission at its 86th plenary session: Venice, 25-26 March 2011. CDL-AD (2011) 003 rev. Or. Eng.
- United Nations. Declaration of the High Level Meeting of the General Assembly on the Rule of Law at the
National and International Levels. A/67/L.1, 19 September 2012
§ Law
- Quebec North Shore Paper v. Canadian Pacific (1976) 71 D.L.R. (3d) 111
- Constitution Act, 1982, ss. 1, 52(1)
- Re Ontario English Catholic Teachers' Association (1987) 36 D.L.R. (4th) 116
- Douglas / Kwantlen Faculty Assn. v. Douglas College (1988) 49 D.L.R. (4th) 1
- Constitutional Question Act, R.S.B.C. 1996, c. 68, s. 8(1)
§ Policy
- Angus v. Canada (1990) 72 D.L.R. (4th) 672
- Ainsley Financial Corp. v. Ontario (Securities Commission) (1994) 121 D.L.R. (4th) 79
§ Politics
- Regina v. CFRB Ltd. (1976) 30 C.C.C. (2d) 386
- Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defense) (1990) 3 F.C. 381
§ Rule of Law and Role of Law
§ Nature and Characteristics of Canada
- McAteer v. Canada (Attorney General) 2014 ONCA 578
- Blais c. Canada (Vérificateur général) T-1589-12; dossier incomplet
§ Government
- RWDSU, Local 580 v. Dolphin Delivery (1986) 33 D.L.R. (4th) 749
- McKinney v. University of Guelph (1987) 46 D.L.R. (4th) 193
§ Law and Policy
- Kàlmàn Kulcsàr, Political Culture – Legal Culture: Conflicts and Harmony, Acta Juridica, Vol. 31, No. 1 & 2, 1989, p. 3
- Julie Chai, Policy, Politics and Law; Changing Relationships in Light of the Charter, (1998) 9 N.J.C.L. 1
- Canadian Wildlife Fed. Inc. v. Canada (Minister of the Environment) (1989) 3 F.C. 309
- Yhap v. Canada (Minister of Employment and Immigration) (1989) 29 F.T.R. 223
- Yhap v. Canada (Minister of Employment and Immigration) (1990) 1 F.C. 722
§ Law and Politics
- Canada (Attorney General) v. Inuit Tapirisat of Canada (1980) 2 S.C.R. 735
- Operation Dismantle Inc. v. Canada (1985) 18 D.L.R. (4th) 481
- Paul Craig, Public Law, Political Theory and Legal Theory, [2000] P.L. 211
§ Public Purpose
- Ontario Cattlemen’s Association v. Thomas Sales Yard Ltd. [2002] O.J. No. 1473
§ Policy Decisions
- R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42; July 29, 2011
§ The Political Law Environment
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September 12, 2017
2. THE LEGAL ELEMENTS OF DEMOCRATIC GOVERNANCE
AND DEMOCRATIZATION “Democracy” is one of the most undefined expressions in the language of public affairs and law. There is thus an inherent need to
define and understand it as a global concept and as a set of political legal components. The most appropriate occasion to do this is
immediately following the introduction to the linkages among law, policy and politics. This lecture and seminar will thus focus on the
conception of the state as a legal entity, with emphasis on the legal components of Democratic government; the distinction of
Democracy from other types of government; application of the notion of the role of law to Democratic governance; questioning of the
generally accepted notion that Democracy consists only of elections which meet internationally accepted standards and explanation of
the consequent difference between Democracy and democracy; broad analysis of the legal requirements and optional elements other
than elections, that serve to render a state Democratic, by contrast to those that are based on authoritarian or ideologically motivated.
This class will also explore the concept of the dilemmas inherent to Democracy, the linkages between Democracy and legitimacy, and
the legal aspects of democratization.
CORE READINGS
- Tardi; TPPL………………...Introduction, Chapters 1 and 6
- Tardi; Principles………..…..Chapter 3, 5, 6 and 8 section 3.1, 4.1
- Tardi; Jurisprudence……….Chapters 3.5, 3.6, 4.6, 5.1, 5.2 and 5.3 and 8
- Tardi; Framework………….Chapters 7 and 11
- Additional…………...……- The Hon. Sir John Laws, Law and Democracy, [1995] P.L. 72
- Inter-Parliamentary Union, 1989, Democracy: Its Principles and Achievements (extracts)
- The Document of the Copenhagen Meeting of the Conference on
the Human Dimensions of the Conference on Safety and Co-operation in Europe, June 29, 1990
- The Inter-Parliamentary Union Universal Declaration on Democracy, 1997
- The Charter of Fundamental Rights of the European Union, 2000
- Summit of the Americas, Québec City, April 22, 2001
Declaration and Plan of Action to Strengthen Democracy
- The Treaty of Lisbon, a Constitution for Europe, 2007
- The United Nations Declaration of the High Level Meeting of the General Assembly on
the Rule of Law at the National and International Levels, 2012
- The Annual Reports of the Secretary General of the United Nations to the General Assembly
on Strengthening and Coordinating United Nations Rule of Law Activities
- The Commonwealth Charter on Democracy, 2013
- European Commission: Communication from the Commission to the Parliament and Council:
Anew EU Framework to strengthen the Rule of Law COM (2014) 158 final 2 with Annexes
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
- Constitution Act, 1867, Preamble
- Constitution Act, 1982, Preamble
- 41st P., 2nd Sess., Bills C - 208, 241, 263, 276, 279, 320, 323, 373 together with article in JPPL IV: 3, 445, 457, 469, 470, 537,
553, 564, 569, 618 & 645
- 42nd P., 1st Sess., Bill C - 296
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SPECIFIC ISSUES
§ Definitions of Democracy
- Terminological Difficulties and Distinctions
- Distinctions of “Democracy” and “democracy”
- Declaration of Parliamentary and Political Law
§ New Variations on Democracy
§ Alternatives to Democracy
§ Democracy in Canada
- Constitution Act, 1867, Preamble
- Reference re: Secession of Quebec (1988) 161 D.L.R. (4th) 385, in particular paras. 61-78
- Warren Newman, The Quebec Secession Reference: The Rule of Law and the Position of the AG Canada
- Lalonde v. Ontario (Commission de restructuration des services de santé) (2001) 208 D.L.R. (4th) 577
- Citizenship and Immigration Canada. Discover Canada: The Rights and Responsibilities of Citizenship, 2012
§ Consensus on the Political / Legal Régime
- Roach v. Canada (Minister of State for Citizenship and Multiculturalism) (1994) 2 F.C. 406
- McAteer v. Canada (Attorney General) 2014 ONCA 578
- Motard et Taillon c. Canada (Procureur général) Cour Supérieure du Québec, No. 200-17-018455-139
§ Statehood
- Definition of a “state” in international law
- Reference re Secession of Quebec (1998) 161 D.L.R. (4th) 385
§ Linkage of Democracy to the Rule of Law
- European Commission For Democracy Through Law (Venice Commission).
Report on the Rule of Law: Study No. 512 / 2009 CDL – AD (2011) 003 rev. Or. Engl.
§ Sovereignty: States / Nations / Peoples
- Bertrand v. Bégin (1995) 127 D.L.R. (4th) 408 and (1996) 138 D.L.R. (4th) 481
§ Component Elements of Democracy
- International Covenant on Civil and Political Rights http://www.unhchr.ch/html/menu3/b/a-ccpr.html
- Refah Partisi (Welfare Party) and Others v. Turkey (2002) 35 E.H.R.R. 3
- The Economist, July 17, 24 and 31, August 7, 14 and 21, 1999;
Politics Briefs on Democracy in Transition
- The Economist: The World in 1999, The Empire of Democracy
- Larry Diamond, The Globalization of Democracy, from 2001-2002 Casebook for
Public Administration and Democracy, PPA – 755; Maxwell School of Citizenship, Syracuse University
§ Representative Democracy
- Dixon v. British Columbia (Attorney General) (1989) 59 D.L.R. (4th) 247
- Reference re Prov. Electoral Boundaries (Sask.) (1991) 2 S.C.R. 158
- Haig v. Canada (1993) 2 S.C.R. 995
§ Loyal Opposition Within Democracy
- Case of Karacsony v. Hungary, ECtHR, May 17, 2016
§ International Declarations of Democracy
§ Dilemmas of Democracy
§ Current and Potential Methods of Ensuring Democracy
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September 19, 2017
3. THE ELECTORAL SYSTEM AND ELECTIONS The federal electoral system is one of the fundamental elements of the “democracy” recognized as a characteristic of Canada by the
Supreme Court in the Québec Secession Reference case. This system is based primarily on a statute which expresses a political
consensus regarding the organization and conduct of elections. It also incorporates recent legislation enabling popular consultation on
constitutional issues of national importance. This class, the first of two consecutive ones focusing on the major domestic political law
process and event of the year, will lay emphasis on the specific characteristics of electoral administration as an aspect of independent
administration of the law. This will be a platform for the exploration of the interaction among constitutional and legal principles, the
power relationships of political life and the statutory and discretionary requirements of public administration. Election legislation is
based on a first-past-the-post system, on a constituency-by-constituency basis. This country is now also the scene of a lively debate on
whether the introduction of elements of, or the outright adoption of, proportional representation, would render elections and the
parliamentary bodies resulting from them more democratic. This debate is ultimately tied to the constitutional principle of the right to
vote, flowing from s. 3 of the Charter and from the jurisprudence based on that provision. A general election is a political process
sculpted by constitutional rights and expressed by legal provisions. This is the best example of the reality that the rule of law is
implicit in, and vital to, democratic politics. This class will first explore the fundamental principles and the substance of federal
election law. It will also focus on the major steps comprising the electoral process: when are elections constitutionally mandated to be
held, when, how and why are they initiated, what does the law require to happen in the course of an election and what does it merely
authorize to be done, what is the law designed to prevent, what constitutes elections that are “free and fair”, in particular in the
determination of results, and what political-legal outcomes does election law set out to accomplish? The result of a democratic
election is thought to be a legitimate parliamentary body. Is that expectation met in Canada and in its constituent jurisdictions?
Reference will be made to recent electoral events, legislative reforms and proposal as well as jurisprudence in Canada.
CORE READINGS - Tardi, Principles………..….Chapter 3, 5, 6 and 8
- Tardi, Framework………….Chapters 7 and 11
- Tardi, Jurisprudence……….Chapters 3.5, 3.6, 4.6, 5.1, 5.2 and 5.3 and 8
- Tardi, Elections…………….Chapters 3, 4, 5, 7, 8, 9, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 35, 36 & 38
- Additional - Elections Canada The Canadian Electoral System
- Elections Canada Estimates, Part III (yearly)
- Report of the Chief Electoral Officer of Canada on the 42nd General Election of October 19, 2015
- http://www.elections.ca
- http://www.dgeq.qc.ca/fr/index.asp
- http://www.electionsontario.on.ca/
- Compliance Review: Final Report and Recommendations, by Harry Neufeld
http://www.elections.ca/res/cons/comp/crfr/pdf/crfr_e.pdf
- Wood, Tim Reinforcing Participatory Governance Through International Human Rights
Obligations of Political Parties (2015) Vol. 28 Harvard Human Rights Journal 145
- Tardi, Gregory. Legal Portrait of the 2003 Ontario General Election
in Provinces: Canadian Provincial Politics, 2nd ed. (Peterborough: Broadview Press, 2005)
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS FEDERAL
- Constitution Act, 1867, Preamble, ss. 41, 50, 51, 51A, 52, 128
- Constitution Act, 1982, ss. 3, 4, 5, 41(b), 42(1)(a)
- Electoral Boundaries Readjustment Act, R.S.C. 1985, c. E-3
- Canada Elections Act, S.C. 2000, c. 9, with amendments
- Referendum Act, S.C. 1992, c. 30
- Reform Act, 2014, S.C. 2015, c. 37
- An Act to amend the Constitution Act, 1867, S.C. 2011, c. 26. (election reform, electoral boundaries reform)
- 42nd. P, 1st Sess., Bills C- 33, 50, 213, 237, 279, 295, 297, 298, 327, 340; Bill S- 239
QUÉBEC - Election Act, R.S.Q., c. E-3.3
- Referendum Act, R.S.Q., c. C-64.1
ONTARIO - Election Act, R.S.O. 1990, c. E.6
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SPECIFIC ISSUES § Principal Characteristics of the Canadian Electoral System
- Relative Equality of Voters: Reference Re Provincial Electoral Boundaries (1991) 2 S.C.R. 158
- Informed Choice: Libman v. Québec (Attorney General) (1997) 3 S.C.R. 569
- Meaningful Participation: Figueroa v. Canada (Attorney General) (2003) 1 S.C.R. 912; 2003 SCC 37
- Level Playing Field: Harper v. Canada (Attorney General) (2004) 1 S.C.R. 827; 2004 SCC 33
- Rational Voting: Thomson Newspapers Co. v. Canada (Attorney General) (1998) 1 S.C.R. 877
- Informational Equality: R. v. Bryant (2007) 1 S.C.R. 527; 2007 SCC 12
§ Representative Democracy
- Dixon v. British Columbia (Attorney General) (1989) 59 D.L.R. (4th) 247
- Haig v. Canada (1993) 2 S.C.R. 995
§ Requirements of a “free and fair” election
- Bush v. Gore, 148 L Ed 2d 388 (2001)
- May v. CBC, 2011 FCA 130, April 8, 2011
§ Democracy in the Electoral System
- The Electoral Process: A Driving Force and Reflection of Democracy. Speech by Mr. Marc Mayrand, Chief Electoral
Officer of Canada at a conference entitled Democracy: A Universal Value; Casablanca, July 8-9, 2007
http://www.elections.ca/content.asp?section=med&document=jun0807&dir=spe&lang=e
- Constitutional Court of Austria, July 1, 2016: decision on the 2016 presidential election
§ Most Recent Federal General Election
- Report of the Chief Electoral Officer on the 42nd General Election of October 19, 2015
- OSCE/ODIHR Election Assessment Mission Final Report: Canada Parliamentary Elections October 19, 2015
§ Voter Identification Requirements
- Henry v. Canada (Attorney General) 2014 BCCA 30
- Council of Canadians v. Canada (Attorney General) ongoing: OSCJ file CV-14-513961
§ Voting Abroad and Overseas
- Frank and Duong v. Canada (Attorney General) 2015 ONCA 536
- Schindler v. Secretary of State for Foreign and Commonwealth Affairs, 2016 EWHC 957 (Admin.)
§ Political Advertising
- British Columbia Freedom of Information and Privacy Association v. British Columbia (Attorney General) 2015 BCCA 172
§ Integrity of Elections and Election Fraud
- Commissioner of Canada Elections, Summary Investigation Report on Robocalls, April, 2014
- McEwing v. Canada (Attorney General) and Chief Electoral Officer 2013 FC 525
- R. v. Sona 2014 ONCJ 365; 2014 ONCJ 606
- R. v. Del Mastro 2014 ONCJ 605, 2016 ONSC 2071
- Opitz v. Wrzesnewskyj 2012 SCC 55
§ Technical Advances in the Electoral System
- British Columbia Independent Panel on Internet Voting Recommendations Report, February 2014
http://www.internetvotingpanel.ca/
§ The Effects of the Fixed-date Elections Scheme
- Conacher v. Canada (Prime Minister) 2008 FC 1119, 2009 FC 920, 2010 FCA 131
§ Government Advertising
- Government Advertising Act, 2004, S.O. 2004, c. 20
- Reference re Elections Act (British Columbia) 2012 BCCA 394
§ 2015 Major Campaign Organization Issues of Interest in Political Law
- Federal Public Servants as Candidates: Taman v. Canada (Attorney General) Federal Court file T-60-15
§ Recount; Judicial Recount
§ First-Past-the-Post Electoral Boundaries and Proportional Representation
- Reference re: Electoral Divisions Statutes Amendment Act, 1993 (Alta.) (1994) 119 D.L.R. (4th) 1
- Société des Acadiennes et des Acadiens du Nouveau Brunswick v. Canada (1997) 188 N.B.R. and 480 A.P.R. 330
- Raîche v. The Queen 2004 FC679
- Gibb c. Québec (Procureur Général) [2005] J.Q. No. 17524
- Daoust c. Québec (Directeur général des élections) 2011QCCA 1634
§ A Rule of Law Platform for Election
§ Significant Comparative Elements from the U.S.
- Citizens United v. Federal Election Commission 588 US 310 (2010)
- Shelby County, Alabama v. Holder, 133 S.Ct. 2612 (2013)
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September 26, 2017
4. THE INSTITUTIONS OF THE LEGISLATIVE BRANCH This class addresses the questions of what is Parliament from the constitutional and institutional perspectives. What are its component
elements and its institutions? Parliament is the focus of the Legislative Branch of Government. What are its functions and powers in
the particularly Canadian setting of a democratic and federal constitutional monarchy with an entrenched Charter of Rights and
Freedoms? There is a body of constitutional principles and provisions, laws, quasi-legal instruments, policies, as well as customs and
traditions which clarify these points. These questions relating to Parliament are both legal and political in nature and must therefore be
examined in an interdisciplinary fashion. What are Officers of Parliament? Many of the issues touched on here are also applicable in
the political systems of the provinces and territories. Considering the many recent controversies relating to the composition of the
Senate, to its powers, to its relationship with the House of Commons, and flowing from the actions of a number of senators, this class
will also devote attention to the Upper Chamber and its potential reforms. In the current political environment, an increasing number
of the issues relating to the Legislative Branch are the subject of litigation. We will examine these court actions and examine whether
changes to the legislature are best carried out through litigation, or by alternative means.
CORE READINGS
- Tardi; TPPL……………………………Chapters 2 and 4
- Tardi; Principles……….…….………...Chapter 8
- Tardi; Jurisprudence…………….…..…Chapter 8
- Tardi; Framework………………………Chapters 5, 6 and 7
- Additional……………………………..- O’Brien & Bosc, House of Commons Procedure and Practice, 2nd ed.
(Ottawa: House of Commons, 2009), chapters 1, 2, 4, 5, 7 and 8
- explore: www.parl.gc.ca
- explore: http://publiservice.gc.ca/parliament/parliament_e.html
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
FEDERAL
- Constitution Act, 1867, ss. 17 through 57, 128, 133
- Constitution Act, 1982, s. 4, 5, 17(1), 18(1), 20(1)
- Parliament of Canada Act, R.S.C. 1985, c. P- 1
- Reform Act, 2014, S.C.2015, c. 37
- Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp.)
- 41 P; 1st S, Bill C-7; An Act respecting the selection of senators and amending the Constitution Act, 1867
in respect of Senate term limits
- 42nd P., 1st Sess., Bills C-212, 217, 248 and Bill S - 234
QUEBEC
- National Assembly Act, R.S.Q., c. A-23.1
- Legislature Act, R.S.Q., c. L-1
ONTARIO
- Legislative Assembly Act, R.S.O. c. L.10
15
SPECIFIC ISSUES
§ Legal Personality of Parliament, House of Commons, Senate
- House of Commons v. Canada (Labour Relations Board) (1986) 27 D.L.R. (4th) 481
- Reference re Legislative Authority of Parliament to Alter or Replace the Senate (1980) 102 D.L.R. (3d) 1
§ The Role of Parliament
- Public Service Alliance of Canada v. HMTQ (2000) 192 F.T.R. 23
§ Rules on the Functioning of the Senate
- Rules of the Senate
- R. v. Duffy, 2016 ONCJ 220
§ The Constitutional Role of the Senate
- Reference re Legislative Authority of Parliament to Alter or Replace the Senate (1980) 102 D.L.R. (3d) 1
- Renvoi sur un projet de loi fédéral relative au Sénat 2013 QCCA 1807
§ Current Vacancies in the Senate
- Alani v. Canada (Prime Minister) 2015 FC 649 and in progress FC file T-2506-14
§ Reform of the Senate
- Projet de loi federal relative au Sénat (Re), 2013 QCCA 1807
- Reference re Senate Reform, 2014 SCC 32
§ Plan of the Government of Canada for Senate Reform
- Hays, Senator Dan. Renewing the Senate of Canada: A Two-Phased Proposal, May 25, 2007
§ Rules on the Functioning of the House of Commons
- Standing Orders of the House of Commons
- Samara Canada. Welcome to Parliament: A Job with no Description. http://www.samaracanada.com
§ Self-Government of Parliament and Internal Management of the House of Commons
- Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 50-54
- By-Laws of the Board of Internal Economy and Manual of Members’ Allowances and Services
§ Citizens’ Introduction to the House of Commons
- Speaker of the House of Commons. Report to Canadians, published annually
- Speaker of the House of Commons / Speaker of the Senate. Inside Canada’s Parliament (Ottawa: Library of Parliament, 2002)
§ Institutional Audit of the House of Commons
- Office of the Auditor General, 1991 Audit of the House of Commons
- Office of the Auditor General, Report of the Senate and House of Commons on Matters of Joint Interest, 1992
http://www.oag-bvg.gc.ca/domino/reports.nsf/alb15d892alf761a852565c40068a492/f18
§ The Status of Parliamentarians
- R. v. Bruneau (1964) 1 O.R. 263
- Caroline Morris, On becoming (and remaining) a Member of Parliament, [2004] PL 11
- Fletcher v. Manitoba Public Insurance Corporation 2006 MBCA 62
§ The Role of the Member of Parliament
- Harvey v. New Brunswick (Attorney General) [1996].C.R. 876
- Parliamentary Government, Special Edition, February 2006 www.parlcent.ca
- Canadian Study of Parliament Group. Electoral Reform and its Parliamentary Consequences (Ottawa: February 24, 2004)
- Lincoln, Clifford, Rob Merrifield, Stéphane Bergeron, Lorne Nystrom and Bill Casey. Members Look at Parliamentary Reform
Canadian Parliamentary review, Vol. 24, No. 2, Summer 2004.
§ Governmental Influence on the Legislative Branch
- Reform Act, 2014, S.C. 2015, c. 37
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October 3, 2017
5. THE PREPARATION OF LEGISLATION AND
THE PUBLIC LEGISLATIVE PROCESS Parliament is a representative, deliberative and legislative body. In order to understand this fully, we must ask: how extensive is the
concept of “the legislative process”? How do public ideas progress to the doorstep of Parliament? What occurs within Parliament?
Within the overall legislative process, what does the work of parliamentarians as legislators actually comprise? How do they make the
laws of the country and how do they fulfill the other aspects of the mandate to which they are elected? This class will look primarily at
the parliamentary phase of the general legislative process within the context of the overall process of making rules of law. There will
also be discussion of the other work of parliamentarians. It will also examine the question of the linkage between politics and
legislation, one of the fundamental issues of political law. In recent years, there has been much deliberation about the ascendency of
the Executive Branch over the Legislative. There is a need to test this idea. In addition, the choice of instrument question must be
examined: in what circumstances is legislation necessary? Are laws made for the purpose of developing and improving the country
through better binding rules, do they represent an expression of political and / or partisan perspective seeking power and status, or is
the reality an inseparable and perhaps even indefinable combination of the two?
CORE READINGS
- Tardi; TPPL..........................................Chapter 8
- Tardi; Principles…………………….…Chapter 7
- Tardi; Jurisprudence…………………...Chapters 8 and 9.5
- Tardi; Framework………………….…..Chapter 12
- Additional………………………………O’Brien & Bosc. House of Commons Procedure and Practice, 2nd ed.
…………………………………………….(Ottawa: House of Commons, 2009), chapters 16, 17, 18, 19 and 20
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
FEDERAL
- Constitution Act, 1867, ss. 53, 57, 91, 92A (3), 94, 94A, 95, 132
- Constitution Act, 1982, ss. 33, 38(1)(a), 44, 52
- Acts to implement recent budget provisions: S.C. 2012, c. 19 and c. 31, S.C. 2013, c. 33
- Statute Law Correction Act, S.C. 2015, c. 3
- 41st P., 2nd Sess., Bills C- 512, 654
- 42nd P., 1st. Sess., Bill C - 217
QUEBEC
- Interpretation Act, R.S.Q., c.I-16 (some provisions)
ONTARIO
- Legislation Act, S.O. 2006, c. 21
17
SPECIFIC ISSUES
§ Executive Instructions on the Legislative Process
- Cabinet Directive on Law-Making,
http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Languuage=E&doc=Legislation
- Privy Council Office, Guide to Making Federal Acts and Regulations, 2nd ed.
http://www.pco-bcp.gc.ca/default.asp?Page=Publications&doc=legislation/lmgtoc_e.htm&Language=E
- Privy Council Office, Report on Law-Making and Governance: A Summary of Discussions
Held by the Deputy Ministers’ Challenge Team on Law-Making and Governance
http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&Page=Publications&Sub=ReportonLawMakingandGove
§ Phases and Aspects of the Legislative Process
- Coorsh v. Decker (1956) Qué. Q.B. 78 (C.A.)
- Sethi v. Canada (Minister of Employment and Immigration) (1988) 52 D.L.R. (4th) 681
- Reference re Constitutional Question Act (B.C.) (1991) 78 D.L.R. (4th) 245
§ Contestation of the Validity of the Legislative Process
- FECQ c. Québec 2012 QCCA 1311
§ Political Aspects of the Usage of Parliamentary Procedure
- The path of 41st P., 1st S., Bills C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012
- The path of the Marketing Freedom for Grain Farmers Act, S.C. 2011, c. 25, Canada (Attorney General) v. Friends of the Wheat
Board, 2012 FCA 183, and Oberg v. Canada (Attorney General) 2012 MBQB 64
§ Political Legal Work of Committees
- Tardi, Gregory. The Public Accounts Committee: A Lawyer’s View of a Political Process
Focus, Newsletter of the CBA National Constitutional and Human Rights Law Section, July, 2005.
§ Influences on the Development of Legislation
- R. v. Gallant (1949) 2 D.L.R. 425
- Iscar Ltd. v. Karl Hertel GmbH. (1988) 19 C.P.R. (3d) 385
§ Litigating the Legislative Process
- Turp v. Canada (Attorney General) 2012 FC 893
§ Reform of the Legislative Process
- http://www.institutions-democratiques.gouv.qc.ca/reforme-des-institutions/reforme-parlementaire.htm
- Legislative Procedure Review Act, R.S.B.C. 1996, c. 261
§ The Process of Undoing Legislation
- Recall and Initiative Act, R.S.B.C. 1996, c. 398
- The example of the 2011 undoing of British Columbia’s HST legislation
§ The Public Law Impact of Private Members’ Public Bills
- Bill C-30; 39 P; 1st S; An Act to amend the Canadian Environmental Protection Act, 1999, the Energy Efficiency Act
and the Motor Vehicle Fuel Consumption Standards Act (Canada’s Clean Air Act)
- An Act to ensure Canada meets its global climate change obligations under the Kyoto Protocol, S.C. 2007, c. 30
§ The Work of the Legislative Branch
- Bagehot, Walter, The English Constitution. (London: Oxford University Press, 1867 – 1968), chapter V
- Coorsh v. Decker (1956) Qué. Q.B. 78 (CA)
- 2003 Extra-Parliamentary Ontario Budget Process (Jurisprudence, § 8.6.6)
- Samara Canada. It’s My Party: Parliamentary Dysfunction Reconsidered. http://www.samaracanada.com
§ Royal Assent
- Galati v. Canada (Governor General), 2015 FC 91
18
October 10, 2017
6. THE JUSTICE PORTFOLIO; LEGAL ADVICE AND OPINIONS
This class will deal with the essence of the legal function within the democratic state and the application of legal principles, norms and
rules by the courts. The Department of Justice is the center of a cluster of institutions dedicated to legality in the state. It is therefore
the most fundamental institution dedicated to the application of law and accountability to law. It will explore the functions which
render the Department of Justice unique among government institutions; discussion of the relationship between the Department of
Justice and the Privy Council Office. There will be examination of the role of the Department vis-à-vis other institutions of
government; differentiation between political or institutional loyalty and professional application of the supremacy of legal norms;
analysis of the particular nature of the duties of government lawyers, both in the Department of Justice and in other forms of public
employment. The class will focus particularly on the pivotal role played by the Minister of Justice and Attorney General in
government in general and in Cabinet in particular. The other Executive Branch institutions and the specific tasks they fulfill in terms
of the rule of law and accountability to legality will be analyzed.
Litigation is presented as the primary type of instrument in striving for accountability to law. Seminar on the determination of
governmental, public and in particular political issues through judicial action, rather than through negotiation and compromise;
enumeration of the varieties of interaction between political matters and judicial proceedings; examination of the increased use of
litigation, as opposed to political negotiation, for the resolution of fundamentally constitutional and political differences; specifics of
litigating political matters; use of the courts for partisan political objectives. Discussion of trends and patterns in the pleading of such
cases; of the specifically political aspects of the constitutionally protected freedom of speech; definition of political speech and setting
out of various types of such speech; judicial treatment of political speech. Attention will also focus on the misuse of litigation and
prosecution in political contexts.
CORE READINGS - Tardi; TPPL …..……………………………Chapter 9
- Tardi; Principles……………………………Chapters 3.10, 3.11, 10 and 11.14
- Tardi; Jurispudence…………………….…..Chapters 3.10, 3.11, 10 and 11.14
- Tardi; Framework…………………….…….Chapters 8, 9, 10, 14 and 20
- Additional…………………………………..Gregory Tardi, Departments and Other Institutions of Government
Dunn, C., ed. Oxford Handbook of Canadian Public Administration, Chapter 2
(Toronto, Oxford University Press, 2010)
- Gordon F. Gregory, The Attorney General in Government, (1987) 36 UNB LJ 59
- Hon. Roy McMurtry, Q.C., The Office the Attorney General in The Cambridge Lectures 1979 (Toronto, Butterworths, 1982)
- Edwards, J.Ll. J., The Charter, Government and the Machinery of Justice, (1987) 36 UNB L J 41
- Ian Scott, Law, Policy and the Role of the Attorney General: Constancy and Change in the 1980’s,(1989)39 U of T L J 109
- Diana Woodhouse, The Office of Lord Chancellor, [1998] P.L. 617
- Documents arising out of the Kaufman Report; Review of the Public Prosecution Service of Nova Scotia, June 9, 1999
- Grant Hushcroft, The Attorney General and Charter Challenges to Legislation: Advocate or Adjudicator?(1995)5NJCL125
- A. Alan Borovoy, New Threats to Political Rights, (1999) 10 N.J.C.L. 453
- Justice Canada Estimates Part III (yearly) http://canada.justice.gc.ca
CONSTITUTIONAL, STATUTORY AND LEGISLATIVE MATERIAL FEDERAL
- Constitution Act, 1867, ss. 94, 129
- Department of Justice Act, R.S.C. 1985, c. J–2
- Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121
- Law Commission of Canada Act, S.C. 1996, c. 9
- Publication of Statutes Act, R.S.C. 1985, c. S-21
- Legislation Revision and Consolidation Act, R.S.C. 1985, c. S-20
- 42nd P., 1st Sess., Bills C – 51, 203, 262, 264 and 267
QUÉBEC
- Loi sur le Ministère de la justice, L.R.Q., c. M-19
ONTARIO
- Ministry of the Attorney General Act, R.S.O. 1990, c. M-17
19
SPECIFIC ISSUES
§ The Department of Justice
- D. Stephens, Management of the Law in the 1990’s, Inter Pares, Nov. 1990, p. 5
- N. LaBarre, The Department’s Role in Government, Inter Pares, Nov. 1990, p. 8
- Department of Justice; Strategic Plan 2001-2005 and Bijuralism, Of National Interest and Global Reach
§ The Minister of Justice and Protection of the Public Interest
- Ontario (Attorney General) v. Ontario Teachers’ Federation (1997) 36 O.R. (3d) 367
- J. Ll. J. Edwards, The Attorney General, Politics and the Public Interest (London, Sweet and Maxwell, 1984)
§ Link between the Attorney General / Minister of Justice and the Rule of Law
- Her Majesty’s Attorney General v. The Trustees of the British Museum, [2005] EWHC 1089 (Ch.)
- Schmidt v. Canada (Attorney General), 2016 FC 269
- Hansard, March 27, 2013, page 15,292
- R. v. Cowthorne 2016 SCC 32
§ Government Lawyers
- Tremblay c. Commission de le fonction publique (1990) R.J.Q. 1386
- Johnston v. Prince Edward Island (1989) 73 Nfld. & P.E.I.R. and 229 A.P.R. 222
- Venczel v. Assn. of Architects (Ontario) (1991) 45 Admin. L.R. 288
- Review of the Nova Scotia Public Prosecution Service (Kaufman Report), June 9, 1999
- Alfred Crompton Amusement Machines Ltd. v. Commissioners of Custom & Excise (No. 2) (1972) 2 All E.R. 353
- Debra McNair, The Role of the Federal Public Sector Lawyers: From Polyester to Silk (2001) UNB LJ 50: 125-65
§ Particular Duties of Government Lawyers
- Canada (Attorney General) v. Federation of Law Societies of Canada 2015 SCC 7
- Association of Justice Counsel v. Canada (Attorney General) 2012 ONCA 530
- Michael Morris and Sandra Nishikawa The Orphans of Legal Ethics: Why government lawyers are different -
and how we protect and promote that difference in the service of the rule of law and the public interest (2013) 26 CJALP 171
§ Analysis of a Recent Political Trial
- William Kaplan, A Secret Trial: Brian Mulroney, Stevie Cameron and the Public Trust
(Montreal & Kingston, McGill-Queen’s University Press, 2004)
§ Litigation About the Fundamental Nature of Canada
- Henderson and Equality Party v. Quebec (Attorney General) (2002) D.L.R. (4th) 691
- Hervieux-Payette c. Société St.-Jean Baptiste [2002] J.Q. no. 1607
§ Litigation About Generally Political and Partisan Issue
Traditional
- Currie v. MacDonald (1949) 29 Nfld. & P.E.I.R. and 82 A.P.R. 294
- Clark v. Canada (Attorney General) (1977) 81 D.L.R. (3d) 33
- R. v. Halpert (1984) 15 C.C.C. (3d) 292
Current: An Issue of the Architecture of the State – The Supreme Court
- Reference re Supreme Court Act, ss. 5 & 6 2014 SCC 21
Current: An Issue of Vital and Controversial Public Policy – Health Care
- Canada (Attorney General v. PHS Community Services Society 2011 SCC 44
- Canadian Doctors for Refugee Care v. Canada (Attorney General) 2014 FC 651
- National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, 132 S. Ct. 2566 (2012)
20
October 17, 2017
[NOTE: In the Faculty of Law, the week of October 16 – 20 is Focus Week, with no scheduled classes.
In the Department of Political Science, classes continue. Consequently, this class will be held.]
7. THE EXECUTIVE BRANCH AND
DEMOCRATIC PUBLIC ADMINISTRATION Public administration consists of a wide range of governmental and other state-based activity comprised in the setting of norms and
standards of public activity, together with the organization of society and the delivery of social and economic benefits to the citizenry
and the electorate. In the context of a capitalist society, this includes the organization of, and benefits for, corporate entities. These
activities necessitate the structuring of the state apparatus so that particular institutions can render specific services. Within these
institutions, public administration activities are carried out by the several Public Services of Canada, made up of specialized and
politically neutral officials appointed and granted tenure, to serve the government, whatever its political composition. The framework
of public administration includes ingoing reform of institutions and diverse forms of service-delivery structure, as well as the constant
evolution of instruments and diverse forms of process.
Public administration relies in large part on statutes and regulations. It important to denote that these instruments of a legal nature are
not disparate from each other. They comprise the law of public institutions and administration, a comprehensive and cohesive domain
of public law. In a wider perspective, public policy is made and public administration is carried out through a web of non-legal
instruments; these are entitled policies and bear a variety of similar designations. The philosophy underlying public policy and
administration is the public interest. The determining factors in public administration are generally held to be efficiency, effectiveness
and economy. The modern political and social environment also prompt that public administration be conducted in an environment of
accountability, transparency and probity. Whether the basis of administrative action is legal – regulatory or policy-based, Democracy
and the rule of law require not only these policy - based factors but even more so that public administration be constitutionally and
legally valid. In this sphere, the twin contributions of political law are to provide an overarching perspective on the law of public
institutions and administration and to analyze the influence and impact of legality on the policy instruments.
Among the issues of public administration, access has evolved as the touchstone of good government. Information on public
knowledge and evidence is the very basis of governmental action. There can be no system of democratic accountability without
transparency in the conduct of government. The kind of transparency aimed at by enlightened observers of democracy is that which
enables citizens not only to witness the processes and internal methodologies of governing, but also to apprise themselves of the
palpable results of governmental action, namely instruments. In recognition of this reality, in the early 1980’s, Canada adopted new
legislation for the purpose of revising what had until then been the standard regarding the disposition of information, namely
proprietary confidentiality. An elaborate structure of rules was cast and a regime for the administration of these rules was put in place.
Much of the history of the Canadian access to information legislation since then has been one of conflict between successive
governments on one hand and successive Information Commissioners on the other. The fundamental questions have to be framed in
the following manner: Is the publicity of government information more sensitive than the proper administration and disposition of
public funds? Is the publicity of government information more vital to society than the confidentiality of the information of private
individuals? Ultimately, key questions are to be addressed. First, whether, having enacted access legislation, governments are duty-
bound to observe these laws or to allow the dictates of policy or politics to apply them restrictively? Second, whether an informed
citizenry contributes to the democratic nature of society.
CORE READINGS
- Tardi, Principles……………….Chapters 5 and 6
- Tardi, Jurisprudence……….…..Chapters 6.5, 6.6 and 6.7
- Tardi, Framework……………...Chapters 7 and 11
- Additional …………………….A.H. Hammond, Judicial Review: the continuing interplay between law and policy, [1998] P.L. 34
Office of the Information Commissioner Annual Reports and Estimates Part III (yearly)
21
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS - Constitution Act, 1867, ss. 1 through 16 and 131
- various Departmental Statutes and - Ministries and Ministers of State Act, R.S.C. 1985, c. M-8
- Public Service Modernization Act, S.C. 2003, c. 22
- Access to Information Act, R.S.C. 1985, c. A-1
- Auditor General Act, R.S.C. 1985, c. A-17
- Statistics Act, R.S.C. 1985, c. S-19
- 42nd P., 1st. Sess., Bills C - 24, 220, 227, 248, 258, 259, 278, 293, 310, 326, 343, 344, 348, 354 and Bills S – 204, 205
SPECIFIC ISSUES
§ Legal Personality of Departments
- Westlake v. The Queen in right of Ontario (1973) 33 D.L.R. (3d) 256
- Ontario (Chicken Marketing Board) v. Canada (Chicken Marketing Agency) (1993)1 F.C. 116
§ Machinery of Government
- Saskatchewan Government Employees’ Union v. Saskatchewan (1991) 96 Sask. R. 22
- Rural Dignity of Canada v. Canada Post Corp. (1991) 78 D.L.R. (4th) 211
§ The Variety of Departments and Agencies ofGovernment
§ Public Service
- Canada (Attorney General) v. Public Service Alliance of Canada (1991) 80 D.L.R. (4th) 520
- B.C. Association of Private Home Care v. B. C. (Attorney General) (1997) 144 D.L.R.(4th) 425
§ Non-Partisan Public Service
- Osborne v. Canada (Treasury Board) (1991) 82 D.L.R. (4th) 321
- Wilhelmy v. Radiomutuel Inc., Québec Superior Court, judgments of Sept. 14, 22, 24 and 30, 1992
§ Rules on Ethics for the Public Service
- Treasury Board of Canada Secretariat, Values and Ethics Code for the Public Service, 2003
§ Implementation of Government Policy Within Law
- Sethi v. Canada (Minister of Employment and Immigration) (1988) 52 D.L.R. (4th) 681
- Hébert et al. v. Canada (Attorney General) FCTD file T-3035-91; filed Dec. 6, 1991, settled
- Re Marriage Commissioners Appointed Under the Marriage Act 2011 SKCA 3
- Rosemary O’Leary, Public Managers, Judges and Legislators: Redefining the “New Partnership”
Public Administration Review, July / August 1991, Vol. 51, No. 4
§ The Work of Ministers, Deputy Ministers and Heads of Agencies
- Privy Council Office, Governing Responsibly: A Guide for Ministers and Ministers of State
http://www.pco-bcp.gc.ca/default.asp?Language=E&Page=Publications&doc=guidemin/guidemin_e.htm
- Privy Council Office, Guidance for Deputy Ministers
http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=gdm-gsm
- Privy Council Office, A Guide Book for Heads of Agencies: Operations, Structures and Responsibilities in the Federal
Government, August 1999 http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=mog/cover_e.htm
§ Executive Instructions on Executive Government
- Privy Council Office, Final Report of the Good Governance Project: “Reformcraft”, June 5, 2000
http://www.pco-bcp.gc.ca/default.asp?Language=E&Page=publications&doc=reformcraft/cover_e.htm
§ Ministers
- Provincial Court Judges Association v. Saskatchewan (Minister of Justice) (1996) 2 WWR 129
22
October 24, 2017
8. LITIGATION AND ADJUDICATION
OF POLITICAL AND POLITICIZED ISSUES Litigation is the ultimate form of the resolution of conflicts in political law. First, it consists of adversarial use of legal process.
Second, it is perceived to be the method of producing final and definitive, that is binding, solutions. Litigation is also the most reliable
way of striving for accountability to law. In all of these senses, reliance on litigation indicates both a Democratic belief in legality and
societal acceptance of the role of the judiciary. It is necessary to examine the determination of governmental, public and in particular
political issues through judicial process and decision-making, rather than through negotiation and compromise. The examination
starts by setting out the ways in which political law litigation is distinct from other types of legal actions; what characteristics enable a
lawsuit to fall into the ambit of political law? We must then enumerate the varieties of interaction between political matters and
judicial proceedings; the increased use of litigation, as opposed to political negotiation; the resolution of fundamentally constitutional
and political differences; the specifics of litigating political matters; the use of the courts for partisan political objectives. The
combination of these factors can be said to amount to the legalization and the judicialization of politics. The counterpart, namely the
politicization of law, also comes into play.
The necessary complement to the analysis of litigation is comprehension of the role of the judiciary. Who is appointed to the bench,
why, and how? What are the criteria judges take into account in making their decisions? Are judges in some fashion, or to some
extent, inherently political? Do judges’ extra-judicial statements provide evidence of bias? Are the expectations of Democratic
constitutionalism and the rule of law that judges make decisions based exclusively on the law met? Do the members of the citizenry
and the electorate believe that the rule of law prevails among the members of the judiciary?
CORE READINGS
- Tardi; TPPL………………….Chapter 9
- Tardi; Framework…………….Chapters 10 and 20
- Tardi; Principles……………...Chapter 10
- Tardi; Jurisprudence………….Chapter 10
- Additional…………………….Grant Hushcroft, The Attorney General and Charter Challenges to Legislation:
Advocate or Adjudicator? (1995) 5 NJCL 125
Errol Mendes, Democracy v. the Rule of Law: in Canada? The Missing Issue, (1996) 7 NJCL 107
CONSTITUTIONAL, STATUTORY AND LEGISLATIVE MATERIAL
FEDERAL
- Department of Justice Act, R.S.C. 1985, c. J-2
- Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121
- 42nd P., 1st Sess., Bill C-203, 331, 337
- Hansard. Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices, October 19, 2011.
QUÉBEC
- An Act Respecting the Ministère de la Justice, R.S.Q., c. M-19
ONTARIO
- Ministry of the Attorney General Act, R.S.O. 1990, c. M-17
23
SPECIFIC ISSUES § The Supreme Court of Canada
- Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC21
§ Analysis of a Recent Political Trial
- William Kaplan, A Secret Trial: Brian Mulroney, Stevie Cameron and the Public Trust
(Montreal & Kingston, McGill-Queen’s University Press, 2004)
§ Litigation About the Fundamental Nature of Canada
- Henderson and Equality Party v. Quebec (Attorney General) (2002) D.L.R. (4th) 691
- Hervieux-Payette c. Société St.-Jean Baptiste [2002] J.Q. no. 1607
§ Litigation About Political and Partisan Issues
- Gregory Hein, Interest Group Litigation and Canadian Democracy IRPP Choices, March 2000, Vol. 6, No. 2
§ Litigating the Legislative Process
- Bill C-7, 37th Parl., 2nd Sess., eventually to be the First Nations Governance Act
- Federation of Saskatchewan Indians v. Canada [2003] FCT 306; March 13, 2003
§ Political Trials
- United States of America v. Houslander (1993) 13 O.R. (3d) 44
- R. v. Kevork et al. (1986) 27 C.C.C. (3d) 271 and 523 (1988) 29 O.A.C. 387
§ Political Involvement in Prosecutions
- Re Ouellet (Nos. 1 and 2) (1976) 72 D.L.R. (3d) 95
- R. v. Vermette (1988) 50 D.L.R. (4th) 385
- R. v. Appleby, Bélisle and Small (1990) 78 C.R. (3d) 282
§ Use of Litigation or Prosecution for Political Motives
- Ontario (Attorney General) v. Dieleman (1994) 16 O.R. (3d) 39
- Trinh v. Chan (1997) 34 C.C.E.L.(2d) 293
- R. v. Kormos (1988) 78 C.R. (3d) 282
- UNB Student Union Inc. v. Municipal Election Officer (1999) 217 N.B.R. (2d) 322
- Trotter v. Canada (Auditor General) 2011 FC 498
§ Political Discourse and Discourse about Politics and Political Figures
- R. v. Canadian Broadcasting Corporation (1992) 72 C.C.C. (3d) 545
- Rizutto v. Rocheleau (1996) R.R.A. 448
- Ammeter v. Perrier (1999) 10 W.W.R. 725
- Lafferty, Harwood & Partners v. Parizeau [2003] R.J.Q. 2758
- Foulidis v. Ford 2012 ONCA 7189
- Magder v. Ford 2012 ONSC 5615 and 2013 ONSC 263
§ Parliamentary Privilege: the Fundamental Concept
- Bill of Rights (United Kingdom) 1688, ss. 8, 9
- N.B. Broadcasting Co. v. Nova Scotia (Speaker, House of Assembly) (1992) 1 S.C.R. 319
- Speaker’s Ruling on the Nature of Parliamentary Privilege, Hansard, May 26, 2003, p. 6413
- Vaid v. Canada (House of Commons) 2005 SCC 30; May 25, 2005
- Page v. Mulcair 2013 FC 402, April 22, 2013
§ United States Political Litigation Issue
- Muslim Travel Ban Cases, inter alia: State of Washington v. Trump
https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
- Obamacare: King v. Burwell, Supreme Court of the United States, 576 U.S.____(2015)
§ United Kingdom Political Litigation Issue
- Brexit: Miller v. Secretary of State for Exiting the European Union 2017 UKSC 3
24
October 31, 2017
9. ACCESS TO INFORMATION AS A
VEHICLE TO DEMOCRATIZATION The prevailing political philosophy in Canada is Democracy. While, as a matter of principle, Democracy relies on the rule of law,
much of the public life of the Democratic state revolves around the conflict between legality and the exercise of unfettered political
will by those either in public office or seeking to achieve political success. In this conflict, a variety of legal regimes and ethical
standards come into play; among these are laws on audit, the avoidance of conflict of interests, public sector integrity and ethics,
lobbying and disclosure of wrongdoing. However, among such rules, no legal regime is more significant than access to information.
Information, that is a faithful recording and public disclosure of governmental conduct regarding policy-making, program delivery, as
well as other aspects of governance, is the life-blood of good government in the modern era. This topic has recently taken on an added
dimension with the contestation of legitimate reporting of news. Many jurisdictions, including Canada, its provinces and territories,
have adopted comprehensive statutory schemes to provide for the publicity of governmental information. Such basic legislation is now
complemented by a rich tapestry of jurisprudence, much pf it born out of contentious circumstances. Nevertheless, the issue of
rendering government information public involves one of the major constant struggles of Democracy. Notwithstanding legislative and
judicial pronouncements, the executive branch often attempts to achieve its political goals through opaque actions and practices.
Considering this trend, the Information Commissioner, the Officer of Parliament charged with administering the legislation, seeks
through the intended application of law and the power of public persuasion, to shed light on as much governmental information as
possible. In recent years, this has involved the systematic proposal for not only proper application of existing law but indeed for the
modernization of the legislative scheme. Political party platforms and election campaign promises often echo the need for greater
publicity, but once in office, governments become reluctant to meaningfully implement the intent of the legislation.
CORE READINGS
- Tardi, Principles………………………Chapters 5 and 6
- Tardi, Jurisprudence……….………….Chapters 6.5, 6.6 and 6.7
- Tardi, Framework………………….….Chapters 7 and 11
- Additional………………………….....Office of the Information Commissioner Estimates Part III (yearly)
Office of the Information Commissioner Annual Reports (yearly)
- Most recent Annual Report of the Information Commissioner: 2016-2017
http://www.oic-ci.gc.ca/eng/rapport-annuel-annual-report_2016-2017.aspx
- Platform of the Liberal Party of Canada for the 42nd federal general election, October 19, 2015
- Speech from the Throne at the beginning of the 42nd P., 1st Sess., December 4, 2015
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
FEDERAL
- Access to Information Act, R.S.C. 1985, c. A-1
- 41st P., 1st S., Bills C- 253, 301, 461
- 42nd P., 1st Sess., Bills C – 52, 58, 259, 335
QUÉBEC
- Loi sur l’accès aux documents des organismes publics et sur la protection des renseignements personnels,
L.R.Q., chapitre A-2.1
ONTARIO
- Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, with amendments
25
SPECIFIC ISSUES
§ The conceptual conflict between access as legality and political efficiency, effectiveness and economy
§ The fundamental purpose and principles of access to information as envisaged for Canada in the early 1980’s.
- Access to Information Act, ss. 2, 4
- Dagg v. Canada (Minister of Finance) (1997) 2 S.C.R. 403
§ The exceptions in the access regime
- Exemptions: Access to Information Act, ss. 13 - 23
- Statutory prohibitions: Access to Information Act, ss. 24 - 25
- Exclusions: Access to Information Act, ss. 68 – 69.1
§ The application of the access regime
- Access institution: Office of the Information Commissioner
- Access procedure
§ Public access to state records
- Canada (Information Commissioner) v. Canada (Prime Minister) (1993) 1 F.C. 427
§ The reach of access law into the political realm
- Canada (Information Commissioner) v. Canada (Minister of National Defence) 2011 SCC 25
§ The practical conflict between access on one hand and governing and politics on the other
§ A fundamental question: Should access legislation be applicable in the Legislative Branch?
§ Latest recommendations on modernization of access legislation: - Striking the Right Balance for Transparency, March 2015
§ Access, long-guns & retroactivity: In progress;
- Canada (Information Commissioner) v. Canada (Minister of Public Safety and Emergency Preparedness), Fed. Ct.T-785-15
- Québec (Attorney General) v. Canada (Attorney General),2015 SCC 14
§ Accountability impact of the work of the Information Commissioner
§ The application of the access regime
§ The practical conflict between access on one hand and governing and politics on the other
§ The influence of access legislation on the conduct of government over three decades
§ Ongoing efforts to reform and strengthen access legislation
§ Attempts to frustrate access through litigation: the Chrétien diaries
§ Attempts to deny access through political action: the Tognieri incident
§ Accountability Impact of the Work of the Information Commissioner
- Investigation into an access to information request for the Long-gun Registry: Investigation Report – 3212-01427
http://www.oic-ci.gc.ca/eng/registre-armes-depaules_long-gun-registry.aspx
§ The formidable array of legislation about information tending in the anti-access direction
- Canada Evidence Act, R.S.C. 1985, c. C-5
- Security of Information Act, R.S.C. 1985, c. 0-5
- Public Servants Disclosure Protection Act, S.C. 2005, c. 46
26
November 7, 2017
10. THE ROLE OF LAWYERS IN DEMOCRACY
AND DEMOCRATIZATION
The role of members of the legal profession is, fundamentally, to represent their clients and to advocate on their behalf, all within the
bounds of being officers of the court and therefore being required to act in a legally correct and ethical manner. A significant aspect of
this is the principle of solicitor-client privilege. The rules that implement this standard of professional conduct first evolved in respect
of private individuals as clients. Over the course of time, they expanded to also apply to lawyers representing corporate interests. This
class will address the question of how, and to what extent, such general rules can be applied to legal counsel acting for the modern
state or for state institutions, all in the context of Democracy? What guidance can be found in the study of political law to address the
issues of professionalism particular to government lawyers?
The bars of several provinces, as well as the Canadian Bar Association, address this issue in general. There are similar instruments in
like-minded jurisdictions. Basing ourselves on these general prescriptions, we must conduct our investigation along two paths. First,
rules of conduct that have been developed by the courts, for example in such fundamental matters as solicitor-client privilege, must be
understood as specifically applicable to the work of government lawyers. A current variation on this theme is money-laundering.
Second, there are topics that, by their nature, are applicable to government lawyers alone. For example, in application of the rule of
law, there are rules about the political neutrality and non-partisanship of government lawyers. An important aspect of this relates to the
considerations specific to government lawyers who may wish to seek public office.
The factor underlying the role of government lawyers is that they not only owe a duty to their respective clients. By distinction from
their private sector counterparts, they also play a role in the administration of justice and therefore in the sustainment of Democracy.
In consequence, they have a specific, public, accountability to law.
A closely related issue we must consider is the role of lawyers as parliamentarians.
CORE READINGS
- Tardi; Framework……………………….….pages 165-170
- Additional…………………………..….…...
CONSTITUTIONAL TEXTS, STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
FEDERAL
- Statement of Core Principles of the Legal Profession, Canadian Bar Association, 2006
- Canadian Bar Association Code of Professional Conduct, 2009
- Model Code of Professional Conduct, Federation of Law Societies of Canada
QUEBEC
- Code des profession L.R.Q., chapitre C-26
- Loi sur le Barreau, L.R.Q., chapitre B-1
- Code de déontologie des avocats, L.R.Q., chapitre B-1, r. 3-1
ONTARIO
- Rules of Professional Conduct of the Law Society of Upper Canada
27
SPECIFIC ISSUES
§ Government Lawyers
- Tremblay c. Commission de le fonction publique (1990) R.J.Q. 1386
- Johnston v. Prince Edward Island (1989) 73 Nfld. & P.E.I.R. and 229 A.P.R. 222
- Venczel v. Assn. of Architects (Ontario) (1991) 45 Admin. L.R. 288
- Review of the Nova Scotia Public Prosecution Service (Kaufman Report), June 9, 1999
- Alfred Crompton Amusement Machines Ltd. v. Commissioners of Custom & Excise (No. 2) (1972) 2 All E.R. 353
- Debra McNair, The Role of the Federal Public Sector Lawyers: From Polyester to Silk (2001) UNB LJ 50: 125-65
§ The Professional Work of State Lawyers in Democracy
- Schmidt v. Canada (Attorney General) 2016 FC 269
- The Legality of Legal Advising https:̸̸̸̸̸̸̸̸̸ ̸̸̸ablawg.ca̸̸̸2013̸̸̸01̸̸̸25̸̸̸the-legality-of-legal-advising
- Schmidt v. Canada (Attorney General) 2017 FCA 206
§ Lawyers Associated with the State in Dictatorships
http://www.newyorker.com/news/news-desk/the-russians-at-the-center-of-the-donald-trump-jr-e-mails
§ The Indispensability of State Lawyers
- Association des juristes de l'État c. Commission des services essentiels 2006 QCCA 1574
- Association des juristes de l'État c. Québec (Procureur général) et (Secrétariat du Conseil du Trésor) 2013 QCCA 1900
§ Core Principles for State Lawyers in Like-Minded Jurisdictions
- Charter of Core Principles of the European Legal Profession
- Code of Conduct for European Lawyers
§ The Limits of Solicitor – Client Privilege vis-à-vis the State
- Canada (attorney General) v. Federation of Law Societies of Canada 2015 SCC 7
- Canada (Attorney General) c. Chambre des notaires 2016 SCC 20
§ State Lawyers' Compensation
- Babcock v. Canada (Attorney General) 2002 SCC 57
- Association of Justice Counsel v. Canada (Attorney General) 2012 ONCA 530; AFLTA – SCC file 37014
§ Professional Development – Obligation to Know the Law
- Green v. Law Society of Manitoba2017 SCC 20
§ Lawyers' Behaviour vis-à-vis the Judiciary
- Doré c. Barreau du Québec 2012 SCC 12
§ Lawyers as Candidates for Elective Office
- Taman v. Canada (Attorney General) 2015 FC 1155
- Taman v. Canada (Attorney General) 2015 FCA 1
28
November 14, 2017
11. THE ACCOUNTABILITY TO LAW OF
PUBLIC INSTITUTIONS AND OFFICIALS
Current public discourse is highly focused on the notion of “accountability” as an element of democracy. However, political discourse,
party propaganda, media coverage and generic use of terminology are imprecise and therefore inadequate for specialized observers of
the current scene of politics and public law. The political class has not adequately defined the concept and that part of the citizenry
and of the electorate that is attentive often envisages accountability as no more than a political slogan, or as a state of affairs in public
life which is desired but unaccomplished. This session of the course will begin by clarifying the notion of “accountability” and
distinguishing it from “the rule of law”. It will then dissect the factors in the concept of accountability and examine it from two
particular perspectives relevant to the legal profession in public life. First, what is accountability to law as a principle applicable to the
institutions and officials of the state? Second, what mechanisms exist in political law to project accountability to law on public
officials? If democratic public life is a blend of rights, duties and responsibilities, can this form of accountability be properly seen as a
counterpart to the constitutionally entrenched and legally enforced civil and political rights? Is it justified to conceive of accountability
to law as part of the underpinning for the rule of law or for the role of law in democracy?
CORE READINGS
- Tardi; TPPL……………..………..……....Chapters 10, 11 and 12
- Tardi; Principles…………………..…..…..Chapter 11
- Tardi; Jurisprudence……………..…..……Chapter 11
- Tardi; Framework……………………….…Chapter 33
- Additional…………………………………- Rome Statute of the International Criminal Court
http://www.un.org/law/icc/statute/99_corr/cstatute.htm
- The Princeton Principles on Universal Jurisdiction
http://www.princeton.edu/~lapa/unive_jur.pdf
- The Responsibility to Protect
Report of the International Commission on State Sovereignty, December 2001
http://www.iciss-ciise.gc.ca/menu-e.asp
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
FEDERAL
- 40th P., 3rd Sess., Bills C-204, 297, 300, 334, 354, 438, 528 & 571
- 41st P., 1st S., Bills C-320, 334, 382
QUEBEC
- Public Administration Act, R.S.Q., c. A-6.01
29
SPECIFIC ISSUES
§ Balance of Rights and Obligations in Democracy
- International Covenant on Civil and Political Rights http://www.unhchr.ch/html/menu3/b/a-ccpr.html
- Refah Partisi (Welfare Party) and Others v. Turkey (2002) 35 E.H.R.R. 3
- The Economist, July 17, 24 and 31, August 7, 14 and 21, 1999; Politics Briefs on Democracy in Transition
- The Economist, The World in 1999, The Empire of Democracy
§ Constructing a Legal Doctrine of Accountability to Law in Democracy
- Reference re: Resolution to Amend the Constitution (1981) 1 S.C.R. 753 at 805-6
- Reference re: Electoral Divisions Statutes Amendment Act, 1993 (Alta.) (1994) 119 D.L.R. (4th) 1
- Dagg v. Canada (Minister of Finance) [1997] 2 SCR 404 at para. 61
- Tait, John. A Strong Foundation: Report of the Task Force on Public Service Values and Ethics (the summary)
Canadian Public Administration., Spring 1997, Vol. 40, No.1, p.1
§ Terminology
- Federal Accountability Act, S.C. 2006, c. 9
- Ontario Public Sector and MPP Accountability and Transparency Act, S.O. 2014, c. 13
§ Positive Obligations Flowing From Accountability to Law
- For Lawyers
- For Public Officials and Public Servants who are not Lawyers
§ Public Officials’ Attitude to Law and to Accountability to Law
§ Distinction Between Accountability to Law and Unjust Enrichment or Fiduciary Duty
§ Constitutional Boundaries of Accountability to Law
- Ontario Bill 66 of 2000: Judicial Accountability Act – not enacted
§ Various Applications of the Doctrine of Accountability to Law
- Bown v. Newfoundland (Minister of Social Services) (1985) 54 Nfld. & P.E.I.R. 258
- Canada (Information Commissioner) v. Canada (Minister of External Affairs) (1990) 72 D.L.R. (4th) 113
- Maclean v. Nova Scotia (Attorney General) (1987) 35 D.L.R. (4th) 306
- Charlottetown (City) v. Prince Edward Island (1998) 169 Nfld. & P.E.I.R. 188
- Clark v. The Queen in right of British Columbia (1979) 99 D.L.R.(3d) 454
- Mulroney v. Coates (1986) 27 D.L.R. (4th) 118
- Canadian Wildlife Federation v. Canada (1990) 31 F.T.R. 1
- Tetzlaff v. Canada (Minister of the Environment) (1991) 47 Admin. L. R. 290
- Bhatnager v. Canada (Minister of Employment and Immigration) (1990) 2 S.C.R. 217
- Jones v. Canada (Attorney General) and related cases arising out of the 1997 APEC Conference in Vancouver
§ Instances of Evasion of Accountability to Law by Government
§ Citizens’ Explanatory Literature on Accountability
- Henry McCandless, A Citizen’s Guide to Accountabilty, (Victoria: Trafford, 2002) http://www.accountabilitycircle.org
§ General Analysis of The Role of Law in a Democratic World
- Sands, Q.C, Philippe. Lawless World; America and the Making and Breaking of Global Rules (London: Allen Lane, 2005)
- Film of interest : Fair Game; The Story of Valerie Plame (USA) http://www.imdb.com/title/tt0977855/
30
November 21, 2017
12. THE ISSUES AND DILEMMAS OF DEMOCRACY
The purpose of this class is to engage in fundamental observations about the relationships of law, public policy and politics, as well as
the interactions that animate the current practice of Democracy in Canada and like-minded countries.
The investigative process for this topic must begin domestically, with the Canadian Charter of Rights and Freedoms, but must also
include various foreign and international declarations and other instruments. Political law analysis requires resort to fundamental
questions about the practice of Democracy in government and governing through systematic questioning:
- Is legality synonymous with the public interest?
- Is law the source of the consequence of the conduct of public affairs, or both?
- Is law the source of politics or the product of politics, or both?
- Is law a means to an end, a goal in itself, or both?
- Is law a barrier and restraint in the exercise of public power or a vehicle toward reaching public goals, or both?
- Is law the criterion of last resort in Democratic governing?
- Within the confines of Democracy, can there be alternatives to the rule of law?
In the post-World War II period, we have been living in an era in which the participation of members of the citizenry and of the
electorate is increasingly defined in terms of rights. This reality applies, in one sense to individuals, and in another to groups. The
question must be posed whether the world of politics with its emphasis on power and the conduct of public affairs with its focus on
policy and administration are amenable to being based on rights, even in a Democracy founded on the rule of law. It is necessary to
investigate what are the existing and potential rights of citizens and electors in these realms. Where do such rights arise from? Are
they inherent to one’s quality as a citizen and elector; are they granted by the power structure of the state; are they asserted and
ultimately assured by those claiming them? How are such rights enforced and what remedies can be provided for their breach? If free
participation in political life and the conduct of public affairs were not based on rights, what other ground might exist for their
existence? Do rights evolve and expand over time?
In the domain of political law, analysis of legality cannot be the same as within the legal system alone. In circumstances where what is
analyzed is the role of law, the best evidentiary standard available is res ipsa loquitur; the appearance of legality, of the absence of
legality or of illegality may need to be the best evidence leading to reasonable conclusions. The discussion of participation in politics
and the conduct of public affairs will necessarily lead to the notion of Democratic balance in society. If citizens and electors have
rights in political life and the conduct of public affairs, are there commensurate obligations owed to them? If so, by whom?
CORE READINGS
- A. Alan Borovoy, New Threats to Political Rights, (1999) 10 NJCL 453
- Ian Loveland, Freedom of political expression: who needs the Human Rights Act? [2001] P.L. 233
- Ian Loveland, The Constitutionalization of Political Libels in English Common Law? [1998] P.L. 633
- Enid Campbell, Investigating the truth of statements made in Parliament. The Australian Experience [1998] P.L. 125
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
- Constitution Act, 1982, ss. 2 (b), (c) and (d), 3, 4, 5, 16(1), 17(1), 18(1), 19(1), 20(1)
- Canada – European Union Comprehensive Economic and Trade Agreement Act, S.C. 2017, c. 6
- National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15
- 42nd P., 1st Sess., Bills C – 59, 267, 303 and S - 226
- Universal Declaration of Human Rights
- International Covenant on Civil and Political Rights
31
SPECIFIC ISSUES
Evidence demonstrates that the ongoing success of Democracy involves a constant struggle between the rule of law on one hand and
reliance on discretionary and/or arbitrary power on the other. Discretion is in the purview of public administration while arbitrary
power forms part of the methodology of politics. The difference between Democracies and authoritarian states or dictatorships is that
in the latter, to various degrees, the struggles is resolved in favour of the use of power. Only Democracies enable the rule of law to
flourish while combatting attempts to restrict or defeat legality. That is why the rule of law is the sine qua non of Democracy.
§ The Electoral Dilemma
The struggle between the rule of law and arbitrary power within Democracies gives rise to several fundamental dilemmas. The
broadest of these is the question od whether voters should be assumed to be applying Democratic standards and goals, and therefore to
be acting in the public interest, in electing their leaders. The election of a patently undemocratic leader gives rise to the question of
Democratic legitimacy: does the very fact of having been elected render a government leader Democratically legitimate even where he
is undemocratic?
§ The Electoral Result Dilemma
A closely related aspect of the struggle for Democracy and the rule of law relates to the interpretation of the meaning of electoral
results by an undemocratic winner: can electoral success be considered to displace the rule of law and can it justify undemocratic
governmental action?
§ The Internal Dilemma
The internal dilemma of Democracy deals with the degree of Democratic freedom that ought to be legitimately granted to those who
would aim to undermine or destroy Democracy from within.
§ The External Dilemma
The external dilemma of Democracy deals with the extent to which a Democratic state may seek to export its domestic norms and
values into other states, perhaps even by force.
§ The Cross-fertilization Dilemma
The cross-fertilization dilemma of Democracy is linked to the external dilemma. It addresses the question of whether one Democratic
state can serve as a model for another, and to what extent can the characteristics, institutions, processes or instruments of a Democratic
state be transposed into another one.
§ The Dilemma of Alternatives
All of the foregoing aspects of the struggle point in the direction of the broadest question of all alternatives: is the rule of any force in
public society other than law sufficient to provide for the Democratic nature of a state? In sum, if a state is guided by the rule of
power, can it be a Democracy? In turn, this raises the question of whether there exists a right to Democratic government, according to
the rule of law?
§ The Dilemma of the Link Between Democracy and Capitalism
Some citizens hold the view that one of the major roles of Democracy is to create ideal conditions for capitalism and to provide for
prosperity, as if Democracy and capitalism were synonymous. A consequence of this dilemma is the notion that the skills acquired in
business can be transposed into governmental practice. Empirical evidence allows for serious doubt of these notions, though they
continue to be persistently espoused.
32
November 28, 2017
13. DEMOCRATIC POLITICS, REFORM AND
THE SEARCH FOR NEW REMEDIES
The objective of this class will be to discuss and assess the current state of Democracy and the rule of law in Canada and in the world
at large, from both theoretical and practical perspectives. The theory has been evolving is a significant way. Without fanfare, the
Venice Commission of the Council of Europe and the United Nations are both continuing the work of defining Democracy, linking it
to the rule of law and setting the standards that governments must strive for in order to be genuinely designated as Democratic. In this
context, it is important not only to seek balance between the rule of law and the mandate of political action, but also to see if new
remedies have been developed to bolster the rule of law in the face of political imperatives.
In terms of practice, domestically, the 42nd Parliament has begun its legislative work and Prime Minister Trudeau has completed
approximately half his mandate. We must analyze whether the state of Democracy in this country is evolving only in appearance or if
there is a substantive rebalancing, following the previous decade. This is particularly true in terms of the constitutionality of legislation
and the relationship between the executive and the courts. On the global stage, resounding events have recently occurred and the
conflict between political will approaching extremism and the rule of law as the prime quality of democracy has been manifest. The
people of the United Kingdom voted Brexit on June 23, 2016 and on July 6, 2016 the Chilcot Inquiry reported. The defeat of the July
15, 2016 attempted coup in Turkey has led to reliance on defense of the so-called Democratic government; we need to examine
whether this is justifiable. On November 7, 2016, Americans elected as their President a politically and legally flawed individual. We
must ask both how this electoral process relates to Democracy and how the use of public power by the new chief executive fits with
Democratic usage? It is significant in terms of holding heads of state and government to account to the law that the former dictator
Hissené Habré was convicted. Perhaps of greatest long-term significance to Democracy and the rule of law in public life are the
currently ongoing changes in the European Union, perhaps especially in France.
CORE READINGS
- Tardi; TPPL…………………………….Chapter 9 and 14
- Tardi; Principles………………….….…Chapter 10
- Tardi; Jurisprudence……………….…...Chapter 10
- Tardi; Framework……………………….Chapters 12, 15, 18, 24 25
- Additional
- Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 2014)
- Venice Commission Report on the Rule of Law Study No. 512 / 2009 CDL-AD (2011) 003 rev.
- European Commission Communication from the Commission of the European Parliament and the Council
A new EU Framework to strengthen the Rule of Law COM (2014) 158 final/2
- Venice Commission Rule of Law Checklist Study No. 711 / 3013 CDL-AD (2016) 007
- The Declaration of the High Level Meeting of the General Assembly on the Rule of Law at the National and International Levels
of the United Nations, 2012 A / 66 / 749, March 16, 2012 and
- The Annual Reports of the Secretary General of the United Nations to the General Assembly on Strengthening and Coordinating
United Nations Rule of Law Activities and
- United Nations: Delivering Justice: Program of Action to Strengthen the Rule of Law at the National and International Levels,
- Human Rights Watch. World Report, 2016 https://www.hrw.org/world-report/2016
CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS
- The Rt. Hon. Beverly McLachlin, Chief Justice of Canada, Unwritten Constitutional Principles: What’s Going On?
(2006) 4 NZJPIL 147
- 42nd. P., 1st Sess., Bills C – 202, 262, 264, 325, 332,358 and S - 222
33
SPECIFIC ISSUES Dealing with the Architecture of the Canadian State
§ Revision of Election and Redistribution Law
§ Reform of the House of Commons
§ Changes to the Legislative Process
§ Abolition or Reform of the Senate
§ Changes to the Legislative Process
§ Ethics and Accountability in the Parliamentary Context
§ Modernization of the Process for Selection of Supreme Court Justices
§ Balance Among the Legislative, Executive and Legislative Branches
§ Litigation about the Fundamental Characteristics of Canada
Dealing with Substantive Domestic Issues
§ Consolidation of Federal – Provincial Relations, especially with Québec
http://www.saic.gouv.qc.ca/documents/relations-canadiennes/politique-affirmation.pdf
§ Role of Aboriginals in Canada
§ Carbon Taxation
§ Changes and Improvements in Health Care and Social Care
§ Litigation about Generally Political and Partisan Issues
Dealing with Substantive International Issues
§ The War on ISIS and Canada’s Role in It
§ Canada vis-à-vis the United States Presidential Election of 2016
§ Potential Fall-out for Canada of the U.K.’s Euro-Referendum and a proposed Bill of Rights
§ Canada’s Trade Alignments: Domestic, North America, European, Trans-Pacific and Global
§ Litigation about Canada’s Participation in Political, Economic and Military Ventures
Dealing with the Evolution of Political Law
§ Circumvention of the Rigidity of the Canadian Constitution
§ Balance Between Free Speech and Political Tolerance; the Charlie Hebdo Situation
§ Regulatory Reform / Deregulation / Privatization
§ Developing Definitions, a Coherent Body of Law and Remedies for Political Law Issues
§ Alternatives and Lesson Learned
United States Democracy Issues
§ https://www.whitehouse.gov/the-press-office/2017/05/11/presidential-executive-order-establishment-presidential-advisory
34
SUMMARY BIBLIOGRAPHY
CANADIAN CLASSICS FOR BACKGROUND
- Department of Justice Canada. The Constitution Acts 1867 to 1982.
- Hogg, Peter W. Constitutional Law of Canada, 5th ed. supplemented
(Toronto: Carswell, 2007) or loose-leaf edition, 2007, or student edition, 2007
- Mallory, J.R. The Structure of Canadian Government, Rev. ed. (Toronto; Macmillan, 1984)
- Ward, Norman. Dawson’s The Government of Canada (Toronto; University of Toronto Press, 6th ed., 1987)
DEMOCRACY
- Cartledge, Paul Democracy: A Life (Oxford: Oxford University Press, 2016)
- Crick, Bernard Democracy: A Very Short Introduction.
(Oxford: Oxford University Press, 2002) Also available on Kindle
- Dupuis-Déry, Francis, Démocratie: Histoire politique d’un mot (Montréal : Lux Éditions, 2013)
- Dworkin, Ronald Is Democracy Possible Here?: Principles for a New Political Debate
(Princeton : Princeton University Press, 2006)
CANADIAN POLITICAL LAW
- Aucoin, Peter, Mark D. Davis and Lori Turnbull.
Democratizing the Constitution: Reforming Responsible Government
(Toronto: Emond Montgomery Publications, 2011)
- Beatty, D. Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995)
- Bogart, W.A. Courts and Country (Toronto: Oxford University Press, 1994)
- Cheffins, R.I. and P.A. Johnson. The Revised Canadian Constitution: Politics as Law
(Toronto: McGraw-Hill Ryerson, 1986)
- Constitutionally Canadian: A Vancouver Lawyer's Musings on the Canadian Constitution
www.constitutionalcanadian.com<http://www.constitutionalcanadian.com
- Doerr, A.D., The Machinery of Government in Canada (Toronto: Methuen, 1981)
- Dyzenhaus, D., Recrafting the Rule of Law: The Limits of Legal Order
(Oxford: Hart Publishing, 1999)
35
- Greene, Ian
The Charter of Rights and Freedoms: 30+ Years of Decisions that Shape Canadian Life
(Toronto: James Lorimer & Company Ltd., 2014)
- Heard, A. Canadian Constitutional Conventions: The Marriage of Law and Politics, 2nd ed.
(Toronto: Oxford University Press, 2014)
- Issalys, P. et Denis Lemieux. L’Action Gouvernementale: Précis de droit des institutions administratives
(Cowansville : Les Éditions Yvon Blais Inc., 1997)
- Lemieux, V., Les Relations de Pouvoir dans les Lois (Québec : Presses de l’Université Laval, 1991)
- Mandel, M. The Charter of Rights and the Legalization of Politics in Canada
(Toronto: Wall & Thompson, 1989)
- Martin, Lawrence. Harperland: The Politics of Control (2nd. ed.)
(Toronto: Viking Press, 2012)
- Monahan, P. and Marie Finkelstein. The Impact of the Charter on the Public Policy Process
(Toronto: York University Press, 1993)
- Newman, Warren J.
The Quebec Secession Reference: The Rule of Law and the Position of the Attorney General of Canada
(Toronto: York University Press, 1999)
- Russell, P. Constitutional Odyssey: Can Canadians be a Sovereign People?
(Toronto: University of Toronto Press, 1992.
- Russel, P. and Lorne Sossin, eds. Parliamentary Democracy in Crisis
(Toronto: University of Toronto Press, 2009)
- Sossin, L. Boundaries of Judicial Review: The Law of Justiciability in Canada
(Toronto: Carswell, 1999)
- Tremblay, G. Les Tribunaux et les Questions Politiques: Les Limites de la Justiciabilité
(Montréal: Wilson & Lafleur Ltée., 1999)
CURRENT THEORIES OF LAW AND POLITICS
- Christodoulidis, Emilios and Stephen Tierney, eds.
Public Law and Politics: The Scope and Limits of Constitutionalism
(Aldershot: Ashgate Publishing Company, 2008)
- Christofferson, Jonas and Mikael Rask Madsen, eds.
The European Court of Human Rights between Law and Politics
(Oxford, Oxford University Press, 2011)
36
- Feldman, David, ed. Law in Politics, Politics in Law
(Oxford & Portland: Hart Publishing, 2013)
- Howard, Dick. The Primacy of Politics: A History of Political Thought from the Greeks to the French and
American Revolutions
(New York: Columbia University Press, 2010)
- Iancu, Bogdan, ed. The Law / Politics Distinction in Contemporary Public Law Adjudication
(Utrecht: Eleven International Publishing, 2009)
- Loughlin, Martin.
Sword and Scales: An Examination of the Relationship Between Law and Politics
(Oxford – Portland, Oregon: Hart Publishing, 2000)
- Stone, Matthew, Illan rua Wall and Costas Douzinas, eds.
New Critical Legal Thinking: Law and the Political
(Oxford: Rutledge. 2012)
- Whittington, Keith E., R. Daniel Kelemen and Gregory A. Caldeira.
The Oxford Handbook of Law and Politics
(Oxford: Oxford University Press, 2008)
- Zamboni, Mauro. Law and Politics: A Dilemma for Contemporary Legal Theory
(Berlin: Springer-Verlag, 2005)
PARLIAMENT
- Bejermi, John. How Parliament Works (Ottawa: Borealis Press, 5th ed., 2000)
- Bejermi, John. Le fonctionnement du Parlement (Ottawa : Éditions Borealis, 5e éd., 2000)
- Dodek, Adam and David A. Wright. Public Law at the McLachlin Court: The First Decade
(Toronto: Irwin Law, 2011)
- Forsey, Sen. Eugene. How Canadians Govern Themselves
(Ottawa: Public Information Office, Library of Parliament, 9th ed., 1997)
- Forsey, Sén. Eugene. Les Canadiens et leur système de gouvernement
(Ottawa : Service d’Information publique, Bibliothèque du Parlement, 9e éd., 1997)
- Franks, C.E.S. The Parliament of Canada (Toronto: University of Toronto Press, 1987)
- Greene, Ian and David P. Sugarman. Honest Politics: Seeking Integrity in Canadian Public Life
(Toronto: James Lorimer & Company, 1997)
37
- Jackson, Robert and Michael Atkinson. The Canadian Legislative System
(Toronto: Macmillan, 2nd, revised ed. 1980
- Joyal, Sen. Serge. Protecting Canadian Democracy: The Senate you never knew
(Montreal: McGill-Queen’s University Press, 2003)
- Joyal, Sen. Serge. Protéger la démocratie canadienne: le Sénat en vérité
(Montréal: McGill-Queen’s University Press, 2003)
- Maingot, J.P. Joseph. Parliamentary Privilege in Canada, 2nd ed.
(Ottawa and Montreal: House of Commons and McGill-Queen’s University Press, 1997)
- Maingot, J.P. Joseph. Le privilège parlementaire au Canada, 2ème éd.
(Ottawa and Montreal: House of Commons and McGill-Queen’s University Press, 1997)
- McTeer, Maureen. Parliament, Canada’s Democracy & How it Works
(Toronto: Random House, revised ed. 1995)
- McTeer, Maureen. Petit guide du système parlementaire canadien
(Montréal : Éditions Libre Expression, 1987)
- O’Brien, Audrey and Marc Bosc. House of Commons Procedure and Practice, 2nd Ed., 2009
(Ottawa: House of Commons and Montreal: Éditions Yvon Blais, 2009)
- O’Brien, Audrey and Marc Bosc. La procédure et les usages de la Chambre des communes, 2e éd., 2009
(Ottawa: Chambre des communes et Montréal: Éditions Yvon Blais, 2009)
- Pelletier, Réjean, Manon Tremblay et Marcel Pelletier. Le parlementarisme canadien
(Québec; Presses de l’Université Laval, 2e éd., 2000)
- Smith, David E. The People’s House of Commons: Theories of Democracy in Contention
(Toronto: University of Toronto Press, 2007)
- The Canadian Encyclopedic Digest (Ontario) Third Edition, Vol. 24, Title 104
Cited as 24 C.E.D. (Ont. 3rd) prepared by Christel Francis
Parliament and Legislatures
- Tremblay, Manon et Marcel L. Pelletier. Le système parlementaire canadien
(Québec : Les Presses de l’Université Laval, 1996)
TEXTS FROM LIKE – MINDED JURISDICTIONS
United Kingdom
- Bingham, Tom. The Rule of Law (London: Allen Lane, 2010)
38
- Blackburn, Robert and Andrew Kennon. Parliament, Functions, Practices and Procedures, 2nd ed.
(London: Thomson – Sweet & Maxwell, 2003)
- Flinders, Matthew. Defending Politics: Why Democracy Matters in the 21st Century
(Oxford: Oxford University Press, 2012)
- Halsbury’s Statutes of England and Wales. 4th ed., 2004 reissue, Vol. 32 Parliament
(London: LexisNexis UK, 2004)
- Halsbury’s Laws of England, 5th ed. Vol. 78 Parliament (London: Butterworths, 2010)
- Jack, Sir Malcolm. Erskine May’s Parliamentary Practice, 24th ed.
(London: LexisNexis UK, 2011)
- Mancuso, Maureen. The Ethical World of British MPs
(Montreal & Kingston: McGill-Queen’s University Press, 1995)
- Oliver, P. and Gavin Drewry, eds., The Law and Parliament (London: Butterworths, 1998)
- Paxman, Jeremy. The Political Animal (London: Penguin Books, 2002)
- Rosenblatt, Gemma. A Year in the Life: From member of public to Member of Parliament
(London: Hansard Society, 2006)
- Wade, EC.S. and A.W. Bradley
Constitutional and Administrative Law, 11th ed. by A.W. Bradley and K.D. Ewing
(Longmans, London & New York, 1993)
United States
- Ginsberg, B. and Martin Shefter. Politics by Other Means
(New York: W.W. Norton & Company, 1999)
- Goldsmith, Jack. Power and Constraint: The Accountable Presidency after 9/11
(New York: W.W. Norton & Company, 2012)
- Heymann, Philip B. and Lance Liebman.
The Social Responsibilities of Lawyers: Case Studies (Westbury: N.Y., The Foundation Press, 1988)
- Mann, Thomas E. and Norman J. Orenstein
It’s Even Worse than it Looks: How the American Constitutional System Collided
with the New Politics of Extremism
(New York: Basic Books, 2012)
- O'Brien, David M. Constitutional Law and Politics, 2nd ed.
Volume One: Struggles for Power and Governmental Accountability
(New York: W. W. Norton, 1991)
39
- Reich, Robert. Beyond Outrage; What has gone wrong with our democracy and how to fix it
(New York: Vintage Books, 2012)
- Rosenbloom, D.H. and J. D. Carroll. Toward Constitutional Competence
(Englewood Cliffs: Prentice Hall, 1990)
France
- Colas, Dominique, L’État de Droit (Paris : Presses Universitaires de France, 1987)
Comparative
- Amy, Douglas J. Behind the Ballot Box: A Citizen’s Guide to Voting Systems
(Westport, CT: Praeger-Greenwood, 2000)
- Cohen - Tanugi, Laurent, Le Droit sans l'État, Sur la Démocratie en France et en Amérique
(Paris, Presses Universitaires de France, 1985)
- Jacob, H., Erhard Blankenberg, Herbert M. Kritzer, Doris Marie Provine and Joseph Sanders
Courts, Law and Politics in Comparative Perspective
(New Haven: Yale University Press, 1996)
- Sajo, Andràs, Limiting Government: An Introduction to Constitutionalism
(Budapest: Central European University Press, 1998)
- Tate, N. and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power
(New York and London: New York University Press, 1995)
40
SELECTION OF TOPICS FOR THE ESSAY
The topics listed here are suggestions and recommendations. Students are free to select these or other topics on
the basis of discussion, on a first come first served basis. No topic should be selected by more than one student.
- The essence of political law I:
The interaction of law, policy and politics in the Canadian system of government.
- The essence of political law II:
The interaction of law, policy and politics in the system of government of Québec.
- The essence of political law III:
The interaction of law, policy and politics in the system of [select another Canadian jurisdiction].
- The essence of political law IV:
The interaction of law, policy and politics in the current workings of the Parliament of Canada.
- The essence of political law V:
The impact of law on the current conduct of democratic politics in Canada.
[or select another Canadian jurisdiction]
- The essence of political law VI:
The impact of current issues of constitutional development on national unity in Canada.
- The essence of political law VII:
The impact of law on the current conduct of democratic public administration.
- The essence of political law VIII:
The choice of legislation among available instruments of governance.
- The essence of political law IX:
The use of litigation to achieve political and/or partisan goals.
- The essence of political law X:
The justification of accountability to law as an aspect of Canadian democracy.
- The validity of anchoring proportionate representation among provinces on Québec.
- The interaction of law, policy and politics in the design of the Canadian electoral system.
- The issue of the under-representation of certain jurisdictions in the House of Commons.
- The particular characteristics of the Office of Chief Electoral Officer of Canada.
- The application and litigation of the Electoral Boundaries Readjustment Act.
41
- The initial political law analysis of the 2015 Canadian federal general election.
- The law, policy and politics of fixed-date elections across Canada.
- The impact of political expression and campaign promises on elections.
- The accountability of politicians for political and campaign promises.
- The current developments in financing of political parties and election campaigns.
- The impact of new media on the development of law.
- The law, policy and politics of federal by-elections.
- The current plan for reform of the electoral system of Canada [or select another Canadian jurisdiction].
- The interaction between law, policy and politics in Canadian referenda, in light of Brexit.
- The recent evolution of parliamentary privileges and immunities in Canada.
- The parliamentary privilege of unhindered speech in Parliament.
- The political history of the Parliament of Canada Act.
- The comparison of Parliamentary privilege to immunité des parlementaires.
- The recent treatment of parliamentary privilege in the Supreme Court and various courts of appeal.
- The current Canadian experience in the defamation of political figures
- The participation of Senators and Members of Parliament in the litigation of public issues.
- The law and politics of prosecuting Senators and/or Members of Parliament.
- The governance of Canadian parliamentarians’ ethics.
- The use of Private Members’ Public Bills for public purposes.
- The use of the Royal Recommendation in Canada.
- The right and ability of the House of Commons to expel its own Members.
- The impact of September 11, 2001 and consequential insecurity on Canadian parliamentarianism.
- The modernization and reform of the law on First Nations and their accountability to law.
42
- The use of litigation for partisan political advantage in Parliament.
- The use of legislation and litigation for greater environmental cleanliness.
- The impact of new media on the development of law.
- The current proposals for reform of the Senate; legislation, litigation and politics.
- The legal arguments for the political popularity of the Charter in Canada.
- The impact of litigation and litigiousness on the development of public policy.
- The independence of Officers of Parliament in Canada
- The accountability of Officers of Parliament to democratic norms.
- The legal benefit of the work of the Auditor General of Canada.
- The interaction between New Public Administration and legal controls in government.
- The current state of the balance between Parliament and the Supreme Court.
- The current state of the balance between Parliament and the Executive.
- The current state of the balance between the Supreme Court and the Executive.
- The law and politics of commissions of inquiry in Canada.
- The evolution of whistle-blowing legislation and practice in Canada.
- The politics of Canada’s legislation on access to information.
- The effect of the Access to Information Act on Canadian political life.
- The contribution of the Law Reform Commission and of the Law Commission of Canada to the
development of federal public law and politics.
- The legal utility of the Charter Challenges Program.
- The legal impact of balanced budget legislation in Canada.
- The policies and practices to promote the independence of the Canadian judiciary.
- The legalities of any of the provincial separatist movements in Canada.
- The reform of Canadian legislation on controlled substances through courts and Parliament.
43
- The organization of political resistance to new legislation: public policy, politics and economic interest.
- The comparison of Canadian and American legislative processes.
- The mutual influences of legality and public opinion & polling.
- The legal and political impacts of the Federal Accountability Act of 2006.
- The reform of federal official languages legislation.
- The reform of the federal spending power.
- The specific role of the Minister of Justice in Cabinet.
- The independence of the Director of Public Prosecutions in law and fact.
- The work of the Commissioner of Canada Elections: law and/or politics.
- The constitutional control of legislation enacted for political popularity.
- Recent evolution of Legislative – Executive – Judicial relations in Canada.
- The decisions to litigate, defend or settle, and appeal or accept, as political actions.
- Parliamentarians as litigators.
- Political law analysis of a recent major Bill enacted by Parliament.
- What is the national security – personal privacy trade-off resulting from domestic spying?
- Political law analysis of Canada – EU free trade.
- Political law analysis of NAFTA and its future under the new American administration.
- What is happening in Turkey since July 15, 2016 ?
- Discuss the reform of the pacifist clause in the Constitution of Japan.
- International Migration as an issue of political law
- Establish a legal, legitimate and equitable process for the separation of Scotland from the United Kingdom.
- Discuss the evolution of the power of the EU vis-à-vis Member States.
- Current problems with the rule of law in the United States.
§§§§§
44
Democracy: still under construction or falling into ruin?