Anda di halaman 1dari 3


In Canada, individuals are free to practice their customs and traditions as long as they do not inappropriately
infringe upon others legal interests Canadas Charter of Rights and Freedoms guarantees individual rights to
democratic participation, mobility, due process, and equality. Section 27 of the Canadian Charter of Rights and
Freedoms guarantees that individual rights will be interpreted in a manner consistent with the preservation and
enhancement of the multicultural heritage of Canadians
Feminist perspective on law address how women are at disadvantage by legal rules/ institutions in societies and
fail to take into womens interests into account. Thus, while middle class valued view men as the dominant
person, the feminist perspective views the legal system as paternalistic and male centered. Contemporary
Feminism: Feminist analysis became more sophisticated through the 20th century. The subject of abortion
provides a good forum to examine how feminist theory may translate into practice. LIBERAL FEMINIST: Argue
that it is possible to have general equality within a liberal conceptual framework. RADICAL FEMINISTS: Are
unsure about the liberal feminists argument: as division between men and women are seen as fundamental and
attributable to the very notion of liberal society. It has been said that the Charter was enacted to guarantee the
rights reflected, however, the radical feminist view it to be inadequate to ensure and guarantee individual rights
and freedoms.
Critical legal studies is a legal theory that rejects that there is any kind of natural legal order discoverable by
objective means. Critical Legal Studies (CLS) main principle focuses on law to be far from symbolizing justice,
institutionalizing and legitimatizing the authority and power of particular social grounds or classes. How the rule
of law is not a rational, quasi-scientific ordering of societys norms, but is indeterminate, full of subjective
interpretation and a large degree of incoherency. CLR argues that the function of western legal systems (whether
conscious or not) is not to promote justice, BUT to institutionalize, legitimize and reproduce the privilege and
power of the already most privileged groups in society (for example; wealthy, white, male, heterosexual, etc.)
over the oppressed. Thus the problem is not in the merits or fault of the law but rather with the interpretation and
creators of the law. This was apparent in the article the Charter of Whiteness which argues that the Charter has
very little impact in promoting justice.
Judicial independence is a constitutional doctrine, closely tied to the separation of powers. It ensures judges, as
arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference. It
insulates judges from retaliation from other branches of government for their decisions and guarantees that the
power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this
capacity, courts act as a shield against unwarranted deprivation by the state of the rights and freedoms of
Also preserves separation of powers between the three branches: legislature and executive cannot exert political
pressure on judiciary, and conversely judiciary should refrain from speaking out publicly on issues of general
public policy that have potential to come before the courts, that are subject to political debate and which do not
relate to proper administration of justice.
Judicial independence draws its powers from section 96-100 of CA and section 11(d) of the Charter. Judicial
independence is at root an unwritten constitution principle, for it is exterior to the sections of the Constitution
Act (Reference re Renumeration). The Goal of judicial independence is the maintenance of public confidence in
impartiality of judiciary and maintenance of the rule of law. In Ell v. Alberta it was held that the principle must
be interpreted in light of the public interests it is meant to protect: a strong and independent judiciary capable of
upholding the rule of law and our constitutional order, and public confidence in the administration of justice. The
principle of judicial independence extends beyond the limited scope of the provisions in s. 11(d), and 96-100
(not limited to superior courts, or provincial courts that heard criminal offenses; respectively). It is now accepted

that all courts fall w/n the principle, not just superior courts. There are three core characteristics of this principle
(1) security of tenure; (2) financial security, and (3) administrative independence.
Part b - The crown
The third core characteristic of judicial independence is administrative independence, meaning, it requires courts
themselves to have control over the administrative decisions, that bear directly and immediately on exercise of
judicial functions, such as, assignment of judges, sittings of court, and court lists, allocation of court rooms,
direction of administrative staff engaged in carrying out these functions.
Requirement met in statutes creating courts, which assign to judges these admin roles. Parliamentary privileges
are those rights necessary to ensure that legislatures can perform their functions, free from interference by the
crown and the courts. Privilege means the legal exemption from some duty, burden, attendance or liability to
which others are subject. Section 9 of the Constitution Act, 1867 states: The Executive Government and
Authority of and over Canada is hereby declared to continue and be vested in the Queen. The Crown is a
reference to the executive itself. The Crown is the formal legal entity of government and, like other entities
possessing a legal personality, the Crown is the bearer of both legal rights and legal obligations. The
identification of the government with the Crown speaks only to the formal legal status of the executive. The
Queen herself does not exercise authority over matters of public policy in Canada. The Governor General is to
exercise all powers and authorities lawfully belonging to Us [the monarch] in respect of Canada. (letters Patent
issued by George VI in 1947). Thus the Crown falls under the executive branch of government.
By Crown having power to make judgments it would breach the separation of powers doctrine.
The Separation of powers doctrine refers to the division of governmental functions between the legislative (the
making of law), executive (the implementation of law) and judicial (the interpreting and applying the law)
branches of the state. Also each branch carries out its functions in a distinct manner.
Separation of powers serves two principal purposes: (1)A functional purpose of identifying the institutional
homes of the three major forms of public power; AND (2) A normative purpose of providing general boundaries
for the operation of each institution. Judicial independence is a constitutional doctrine, closely tied to the
separation of powers. It ensures judges, as arbiters of disputes, are at complete liberty to decide individual cases
on their merits without interference.

Part b - the Court/ Judges

The distinction of whether the Court or the judges own the judgments is relevant to the 2 dimensions of judicial
independence. (1) the individual independence of a judge, and (2) the institution or collective independence of
the court/tribunal of which that judge is a member of. Security of tenure refers to Judge may not be dismissed by
executive before retirement except for misconduct or disability. Can only be removed for reason related to his
capacity to perform his judicial duties. Institutionally, before removal, there must be a judicial inquiry to
establish cause exists, at which judge must be afforded an opportunity to be heard. Financial security relates to
pay judges receive for performing their job. Protects against government that could utilize its authority to set
judges salaries as a vehicle to influence course and outcome of adjudication.
If security of tenure and financial security were not in place the Court could influence the judges decisions and
or the government could influcen the judges decisions. That is judges alone would probably write judgements
with the government in power in mind. That is why it is based on a two tier system. The current system has the
institution as a whole holding the judgements which provides for well rounded decisions reflecting Canadian
societal values.

Since the decision has been made by a Minister who is a government decision-maker, Marco's claim will prima
facie be subject to judicial review. There are controlling features such as the duty to be fair that constrains
democratically elected legislatures in a way that judicial review of administrative action using ordinary legal
principles does not.

As a result, non-constitutional review by judges of the actions of administrative officials does not tend to raise
the same kinds of questions about the democratic legitimacy of judicial review that arise when judges engage in
the constitutional review of legislation. As enumerated in Baker v. Canada (Minister of Citizenship &
Immigration), the factors affecting the content of duty of fairness are (1) the nature of the decision being made
and the processed followed in making it: the more process required for function of tribunal, nature of decision
making body, the more likely that protections closer to trial model; (2) Nature of the statutory scheme and terms
of the statute pursuant to which body operates: greater procedural protections required if no appeal process w/n
statute or when decision is determinative of issue and further requests cannot be submitted; (3) Importance of the
decision to the individual(s) affected: the more important the decision is to the lives of people affected and the
greater the impact on that person, the more stringent the procedural protections will be mandated; (4) The
legitimate expectations of the person challenging the decision: if person has LE, this will affect content of duty.
If LE that certain procedure will be followed, then procedure will be required by duty of fairness. If LE certain
result reached in case, fairness will require more extensive procedural rights than would be otherwise accorded.
LE does not give rise to substantive rights, outside procedural domain (5) Take into account procedure made by
agency, particularly when statute leaves to decision-maker ability to choose its own procedures or when agency
has expertise in determining what procedures are appropriate in circumstances.
The principle is that should have opportunity to present case fully and fairly, have decisions affecting rights
made using fair and impartial process appropriate to context of decision. Given that Marco's livelihood and
family was at stake here he should have been afforded with full disclosure and he held a legitimate expectation
that he would be able to answer any doubts which he was not afforded.