Law, Politics, and the Judicial Process in Canada, 4th Edition

Ebook

Law, Politics, and the Judicial Process in Canada, 4th Edition

Since the first edition of this popular text was published in 1984, the Charter of Rights and Freedoms has transformed the role of the courts in Canadian politics. Newly revised and updated, Law, Politics, and the Judicial Process in Canada, 4th Edition provides an introduction to the issues raised by the changing political role of Canadian judges. It includes over 40 new readings, including two all-new chapters on the Harper Conservatives and Aboriginal Law.

Addressing current controversies, including the Canadian Judicial Council’s investigations into Justice Robin Camp and Lori Douglas and the Trudeau Government’s re-introduction of the Court Challenges Program, this book strives for competing perspectives, with many readings juxtaposed to foster debate. Taking a critical approach to the Charter of Rights and Freedoms and the growth of judicial power, editors F.L. Morton and Dave Snow provide an even-handed examination of current and ongoing issues.

Law, Politics, and the Judicial Process in Canada, 4th Edition is the leading source for students interested in the Charter of Rights and Freedoms and the growth of judicial power in Canada.

Table of Contents

Table of Contents
Front Cover 1
Half Title Page 2
Full Title Page 4
Copyright Page 5
Table of Contents 6
Preface to the New Edition 14
1. The Rule of Law in the Canadian Constitution 16
1.1 Roncarelli v. Duplessis 25
1.2 Of the Extent of the Legislative Power 30
1.3 The Declaration of Independence 33
1.4 The Rule of Law 33
1.5 Strong- and Weak-Form Judicial Review 37
1.6 Liberal versus Post-Liberal Constitutionalism: Applying the Charter to Civil Society (Updated) 38
1.7 Key Terms 52
2. Political Jurisprudence 54
2.1 Two Models of Judicial Decision-Making 63
2.2 Harrison v. Carswell 70
2.3 Will Women Judges Really Make a Difference? 73
2.4 Re Constitution of Canada, 1981: The Patriation Reference 79
2.5 The Exemplar of the Secession Reference 88
2.6 No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform 95
2.7 Key Terms 106
3. The Canadian Judicial System 107
3.1 The Role and Functions of Final Appellate Courts: The Supreme Court of Canada 115
3.2 Constitution Act, 1867, Sections 96–101 125
3.3 The Canadian Judicial System 126
3.4 The Criminal and Civil Court Processes 128
3.5 Key Terms 131
4. Judicial Recruitment and Selection 132
4.1 Patronage in Judicial Appointments 153
4.2 Exploring the Links between Party and Appointment: Canadian Federal Judicial Appointments from 1989 to 2003 157
4.3 Diversity Among Federal and Provincial Judges 166
4.4 The Politics of Judicial Appointment: Do Party Connections Impede the Appointment of Women to Canada’s Federally Appointed Courts? 172
4.5 The Honourable Malcolm Rowe’s Questionnaire 180
4.6 A Judge Unbound 185
4.7 Key Terms 187
5. Judicial Independence, Ethics and Discipline 188
5.1 The Independence of the Judiciary 201
5.2 The Berger Affair 207
5.3 The Meaning and Scope of Judicial Independence 214
5.4 The McClung Affair 220
5.5 Reference re Remuneration of Judges of the Provincial Court (P.E.I.) 226
5.6 A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas 236
5.7 The Inquiry into Justice Robin Camp 241
5.8 For Judge ‘knees together’ Camp: Education is power 252
5.9 Bad People Make Bad Judges 253
5.10 Key Terms 256
6. Interest Groups and Accessto Judicial Power 257
6.1 The Canadian Reference Power 270
6.2 Interventions and the Public Interest 277
6.3 The Women’s Legal Education and Action Fund 284
6.4 The Policy Consequences of LEAF’s Legal Mobilization 292
6.5 Interest Group Litigation and Canadian Democracy 301
6.6 Response to Gregory Hein 319
6.7 Defending the Court Challenges Program 321
6.8 The Court Challenges Program Rises Once Again 323
6.9 Do Bills of Rights Matter? 325
6.10 Do Constitutions Matter? 338
6.11 Key Terms 343
7. Precedents, Statutes and Legal Reasoning 345
7.1 Stare Decisis: The Use of Precedents 356
7.2 Architect of the Common Law 359
7.3 Boucher v. The King 366
7.4 Fact Finding in Adjudication 371
7.5 Stare Decisis and Social Facts in the Charter Era 376
7.6 Key Terms 384
8. Judicial Decision-Making 385
8.1 Decision-Making in the Supreme Court 392
8.2 The Charter by the Numbers 395
8.3 Studying Judicial Behaviour 404
8.4 The Three Waves of Post-Charter Supreme Court Scholarship 411
8.5 Key Terms 419
9. Judicial Review and Federalism 420
9.1 The Origins of Judicial Review in Canada 431
9.2 The “Living Tree” Approach to Interpreting the BNA Act 438
9.3 The “Watertight Compartments” Approach toInterpreting the BNA Act 438
9.4 The Anti-Inflation Case: The Anatomy of a Constitutional Decision 439
9.5 Does Federalism Review Matter? 451
9.6 Criminal Law, Federalism, and Assisted Reproduction 459
9.7 Key Terms 466
10. Aboriginal Law and Judicial Review 468
10.1 Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights 477
10.2 The Durability of Terra Nullius: Tsilhqot’in v. British Columbia 484
10.3 Is the Sky the Limit? Aboriginal Legal Rights in Resource Development 491
10.4 “Aboriginal-Crown Relations and the Duty to Consult in the Supreme Court” 502
10.5 Her Majesty’s Justice Be Done: Métis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building 510
10.6 Key Terms 517
11. The Harper Conservatives and the Canadian Judiciary 519
11.1 Stephen Harper’s Courts: How the Judiciary Has Been Remade 528
11.2 The Politics of Reforming Judicial Appointments 542
11.3 Packing the Supreme Court 551
11.4 Much Ado About Little 553
11.5 Harper’s Petard? The Relationship between the Courts and the Executive under the Conservative Government 555
11.6 Marc Nadon and the New Politics of Judicial Appointment 558
11.7 Stephen Harper v. Beverly McLachlin 567
11.8 Dissent From Within at the Supreme Court of Canada 570
11.9 Conservatives, the Supreme Court of Canada, and the Constitution: Judicial-Government Relations, 2006–2015 576
11.10 Key Terms 586
12. Reconciling Judicial Review and Constitutional Democracy 588
12.1 Courts, Legislatures, and the Protection of Human Rights 594
12.2 Unwritten Constitutional Principles: What is Going On? 597
12.3 Judicial Review and Civil Liberties 604
12.4 What’s Wrong with the Charter Revolution and the Court Party? 615
12.5 The Notwithstanding Clause: The Charter’s Homage to Parliamentary Democracy 620
12.6 Saskatchewan Uses the Notwithstanding Clause 626
12.7 Dialogue or Monologue? Hogg and Thornton versus Morton 631
12.8 Checking the Court: Justifying Parliament’s Role in Constitutional Interpretation 642
12.9T he Charter and Canada’s New Political Culture: Are We All Ambassadors Now? 649
12.10 Key Terms 664
Appendix A 666
Appendix B 673
Appendix C 676
Appendix D 689
Appendix E 691
Appendix F 697
Index 699
Untitled 714