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MPA - 869

LAW IN THE PUBLIC SECTOR

Summer 2020 Syllabus

Updated to 31-1-2020

Lecturer: Gregory Tardi, B.A. (Hons.), B.C.L., LL.B., DJur. 1

COURSE DESCRIPTION

The course on " in the Public Sector" is an adaptation specific to SPS students, of courses given in Canadian law schools dealing with "law and ". The novel approach specifically intended for this course is based on the more thoroughly integrated concept of “political law”. In Democratic societies such as Canada, Ontario, the other provinces and territories, as well as in like-minded states, 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 study of political law deals with in the context of its interaction with public administration and politics, as well as of its evolution through the constant three- way relations among the , the and the . In complement to traditional courses on that emphasize the , federalism and the protection of , and those on which focus on , the essence of this study is on the role of law in the conduct of public affairs.

Political law can be defined as the analysis of the role, of law in statecraft. The first aspect of this study is internal to the legal system. The range of constitutional / legal rules of governance should not be thought of as disparate, self-standing instruments. Rather, they constitute a distinct, comprehensive, cohesive and coherent domain of law, namely the law of public institutions and public administration. The second aspect of the study is interdisciplinary. As an instrument of modern Democratic governance, law functions in conjunction with public policy and administration, and with politics. Consequently, the constitutional / legal instruments are supplemented by other types of rules, namely policy instruments and political instruments. Each of these types of instruments is binding in its own way. Law, policy and politics are in constant interaction. Indeed, one of the features underlying governance is the constant struggle between and power. In addressing this dilemma of Democracy, the entire 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 of Rights in Canada and in several provinces 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.

This course is also 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 involve consideration of a) Democracy as a political system, b) the legal components of Democracy, c) electoral matters, d) 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 of judicial disputes on issues of public governance, and g) the legalization of public life, including governance and politics. and h) accountability to law as a factor necessary for Democracy. The conclusion to be drawn from the study of political law is that legal accountability to democracy in the conduct of public affairs is a factor necessary for Democracy. It is the counterpart to constitutionally and legally protected human rights, in particular civil and political rights, in more traditional law courses. This course aims to provide senior public servants and other current and future professionals, especially those interested in government, a new, interdisciplinary dimension to their understanding of law in its real-life context. It is directed at giving students areas of knowledge complementary to related courses, as well as enabling them to use specific analytical tools in assessing law as the fundamental and indispensable component in Democratic governance and administration. 2

PUBLIC LAW PUBLIC ADMINISTRATION

CONSTITUTIONAL LAW POLICY

LAW OF PUBLIC ADMINISTRATION

POLITICAL LAW ADMINISTRATIVE LAW

POLITICS

POLITICAL SCIENCE

POLITICAL LAW AND THE RELATED SOCIAL DISCIPLINES

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COURSE INFORMATION

Term: Summer, 2020

Location: Robert Sutherland Hall

Dates and times: Friday, April 24: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Saturday, April 25: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Monday, May 11: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Tuesday, May 12: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Wednesday, May 13: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Thursday, May 14: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Friday, May 15: 13:00 hrs. - 16:00 hrs. [1 pm – 4 pm] Monday, June 1: 08:30 hrs. – 11:30 hrs. [8:30 am – 11:30 am] Tuesday, June 2: 08:30 hrs. – 11:30 hrs. [8:30 am – 11:30 am] Wednesday, June 3: 08:30 hrs. – 11:30 hrs. [8:30 am – 11:30 am] Thursday, June 4: 08:30 hrs. – 11:30 hrs. [8:30 am – 11:30 am] Friday, June 5: 08:30 hrs. – 11:30 hrs. [8:30 am – 11:30 am]

Prerequisites: None

Teaching methods: The course will be conducted through a blend of lecturing, seminar-style class discussion, and possibly with the participation of specialists as guest speakers.

Method of evaluation: Effective class participation:….…...... …10%; Short written assignment:…………………………………...10%; Due on the second-to-last last day of class, June 4 Research Paper……………………………………………….90%. Due on Friday, June 26; Grades will be made available on Friday, July 10.

Paper: For the major paper of the course, students should select a 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. Students should identify themselves by name and student number on the paper.

Lecturer contacts: e-mail: [email protected] 4

REQUIRED COURSE MATERIAL

- Textbooks : Gregory Tardi The Theory and Practice of Political Law, 2nd ed. (: Carswell, 2016) Hereinafter referred to as TPPL

Gregory Tardi Anatomy of an Election: Canada's 43rd Federal General Election, 2019, Through the Lens of Political Law (Toronto: Irwin Law, 2020) Hereinafter referred to as ANATOMY

SUGGESTED COURSE MATERIAL

Richard Balasko and Gregory Tardi, eds. The Informed Citizens’ Guide to Elections Le Guide du citoyen averti aux élections (Toronto: Carswell, 2015)

Richard Balasko and Gregory Tardi, eds. The Informed Citizens’ Guide to Elections Le Guide du citoyen averti aux élections (Toronto: Carswell, 2019)

Gregory Tardi The Law of Democratic Governing: Vol. I: Principles Vol. II: (Toronto: Carswell, 2004)

Gregory Tardi The Legal Framework of Government: A Canadian Guide (Aurora: Canada Law Book Inc., 1992)

- 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.

- Additional Material: See the suggested readings for each class and the Comprehensive Bibliography at the end of the syllabus.

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USEFUL AND INFORMATIVE WEBSITES

The of Canada: https://thecanadaguide.com/government/the-constitution/

Parliament of Canada: https://www.parl.ca/

Hansard of the House of Commons: https://www.ourcommons.ca/documentviewer/en/35-2/house/hansard-index

Status of Bills in the House of Commons and the Senate: https://www.parl.ca/legisinfo/Home.aspx?ParliamentSession=43-1

Laws of Canada: https://laws.justice.gc.ca/eng/acts/D.html

Supreme of Canada: https://www.scc-csc.ca/

Court decisions: https://www.canlii.org/en/

The Cabinet: https://pm.gc.ca/en/cabinet

Mandate Letters of Ministers: https://pm.gc.ca/en/mandate-letters

Department of Canada: https://www.justice.gc.ca/eng/

Minister of Justice and Attorney General of Canada: https://www.justice.gc.ca/eng/abt-apd/min.html

Canadian : https://thecanadaguide.com/basics/legal-system/

The Canadian judicial structure: https://www.justice.gc.ca/eng/csj-sjc/just/07.html

The Canadian : https://cjc-ccm.ca/en

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SUMMARY COURSE OUTLINE AND SCHEDULE

FOUNDATIONS OF POLITICAL LAW

1. April 24, 2020...... ….. Introduction to Political Law 2. April 24, 2020…...... The Linkages Among Law, Public Administration and Politics 3. April 25, 2020………….. The Legal Components of Democracy and the Rule of Law 4. April 25, 2020………….. The Political Law Underpinnings of Democracy

ELECTIONS

5. May 11, 2020…...... The Electoral System and Elections 6. May 11, 2020……….…..The Conduct of a General Election 7. May 12, 2020…………...Participation, Political Speech and Campaign Promises 8. May 12, 2020…………...Case Study: Canada's 43rd Federal General Election

THE LEGISLATIVE BRANCH

9. May 13, 2020…….….…Parliament (and the Legislative Assembly) as Institutions 10. May 13, 2020…………..Lex Parlamenti and Parliamentary Privilege 11. May 14, 2020……...... The Legislative Proces 12. May 14, 2020……...... The Senate

THE EXECUTIVE BRANCH

13. May 15, 2020……...... The Law of Public Institutions and Administration 14. May 15, 2020…...……..The Cabinet and Machinery of Government 15. June 1, 2020………...... The Justice & Attorney General Portfolio 16. June 1, 2020…..…….... The Role of in the Public Sphere 17. June 2, 2020……………Case Study: The SNC – Lavalin Controversy 18. June 2, 2020……………Accountability to Law 19. June 3, 2020…..………..Accountability to Law of Heads of State and Government 20. June 3, 2020……………Access to Information 21. June 4, 2020……………Public Sector Leadership Through Ethics 22. June 4, 2019…..….….…Evolving Democratic Rights

THE JUDICIAL BRANCH

23. June 5, 2020…..…….…..Political Litigation and Prosecution 24. June 5, 2020…..………...The Judiciary and Judicial Decision-Making

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A NOTE ABOUT THIS SYLLABUS

This syllabus is designed not only to guide your study, but more generally, to engage your interest in public sector legal issues and hopefully to be of use to you after the course is completed.

The following pages, on which the study material for each of the components of this course are set out, deliberately contain far more material than can be expected of a student in this type of concentrated program. Therefore, the material outlined in support of each topic included in the course is designed to constitute an intellectual menu, broader than a list of reading requirements.

Each student should read as much as they can from the listed material, based on personal interests. Using this method, various students in the class are likely to have read every item and therefore the entire class will be able to engage in discussion and analysis of the entire material shown here.

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Friday, April 24, 2020; 1:00 pm – 2:30 pm 1. INTRODUCTION TO POLITICAL LAW

The first objective of this introductory class is to demonstrate the existence of "political law" as an autonomous and unique subject matter of public law, related not only to constitutional law and administrative law, but also to public administration, political science and politics, yet distinct from each of them. The point of departure of this analysis is anterior to the constitution; it is Democracy as a characteristic of public society and as the preferred form of public governance in Canada and in like-minded states. The assumption underlying this view of Democracy is that its most fundamental and irreplaceable component is the rule of law. Such a perspective leads to an examination of public life as being based on a multiplicity of types of rules, finding expression in the circumstances of the modern world as diverse types of instruments of governance. Specifically, a modern Democratic state is guided by instruments of governance of a constitutional / legal nature, as well as by policy and political instruments. The proper understanding of political law therefore requires that observers distinguish between the various types of instruments. In particular, it is necessary to look at which type of instrument prevails over the others, how, and in what circumstances. The setting for such analysis is the reality that Democracy and the rule of law comprise a constant struggle between legality, discretion and power. Going beyond traditional studies of law and politics, political law engages an integrated, comprehensive and interdisciplinary perspective on the rules of Democratic governance. It is vital to understand that in the context of this course, the expression "political" is used as a descriptive referring to the public sphere. Political law is strictly non-partisan; it involves analysis, not advocacy for one position or another. It is vital to understand that in the context of this course, the expression "political" is used as a descriptive referring to the public sphere. Political law is strictly non-partisan; it involves analysis, not advocacy for one partisan position or another.

CORE READINGS - Textbook……...- TPPL, Chapters 1 and 7 - Additional…… - Gregory Tardi, The Cartesian Path to Political Law (2008) 1 JPPL 43 - Martin Loughlin, Sword and Scales (Hart Publishing: Oxford and Portland, 2000) - David Feldman, ed., Law in Politics, Politics in Law (Hart Publishing: Oxford and Portland, 2013) - Paul Craig, Public Law, Political Theory and Legal Theory, [2000] P.L. 211 - Julie Chai, Policy, Politics and Law; Changing Relationships in Light of the , (1998) 9 N.J.C.L. 1

CONSTITUTIONAL TEXTS, STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Constitution Act, 1867, Preamble - Constitution Act, 1982, Preamble, ss. 1, 33 - Interpretation Act, R.S.C. 1985, c. I-21

SPECIFIC ISSUES

§ Democracy - Democracy (capitalized) distinguished from democracy (lower case) § Legal Instruments - The Full Extent of Constitutional Law - The Focus of Administrative Law - The Law of Public Institutions and Public Administration § Policy Instruments § Political Instruments § Methodology of Comparison of Law, Policy and Politics § Rule of Law and Role of Law § Relations Among the Three Branches of Government § Law and Policy and Politics § Comprehensive and Integrated Theory of Political Law - Definitions and Characterization - Compilation of Instruments - Migration of Issues - Linkages: Gaps and Overlaps - Life-Cycle of Instruments

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Friday, April 24, 2019; 2:30 pm – 4:00 pm 2. THE LINKAGES AMONG LAW, PUBLIC ADMINISTRATION AND POLITICS

After having established the existence and the parameters of political law, in the second half of this introductory session, the class will look at the principal characteristics and components of the subject matter. This also entails distinguishing the contribution of political law from that of the other, more traditional, methods of examining the conduct of statecraft. Finally, we will deal with the necessity for the study of political law in order to expand knowledge and interest in public affairs, as well as to reinforce Democratic norms among the citizenry and the electorate. The objective of political law is to offer a comprehensive perspective on the Democratic nature of governance. This requires, first, an understanding that Democracy (capitalized) is an entire system of governance, while democracy (in lower case) is a set of rules relating to freedom, fairness and transparency in elections, that form the basis of self- government by the people. Another significant contribution of this study is its particular form of analysis. In political law, the appropriate question is not "what does the law say or require to be done"? Rather, the focus is on the existence and use of legal instruments, either in conjunction or in conflict with policy and / or political instruments, to determine which prevails on the conduct of public affairs. The correct type of question to ask is therefore "is the law the right means to the end, is it the goal in itself, or is it a combination of the two"? Similarly, we must look at whether law is the criterion of last resort in Democracy? The logical consequence of political law analysis is the development of the doctrine of accountability to law. It is not sufficient to assert the rule, or the proper role, of law; we must see how it is achieved. The essence of this doctrine is to explain that, and explore how, Democracy entails a willful application of rule of law norms by the state, by its institutions and by its officials, even in the absence of constraint. In Democracy, a mandate to govern implies a mandate to govern legally. The conclusion of these matters is to portray alternatives to Democracy.

CORE READINGS

- Textbook……...- TPPL, Chapters 2, 3, 4 and 5 - Additional…… - Whittington, Kelemen & Caldeira, The Oxford Handbook of Law and Politics (Oxford: OUP, 2008) - David Dyzenhaus, The Constitution of Law (Cambridge: Cambridge University Press, 2006) - Gregory Tardi, The Institute of Parliamentary and Political Law Commonwealth Law Bulletin (2008) Vol. 34, 3.

CONSTITUTIONAL TEXTS, STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Constitution Act, 1867, Preamble - Constitution Act, 1982, Preamble, ss. 1, 33 - Interpretation Act, R.S.C. 1985, c. I-21

SPECIFIC ISSUES

§ Political Law Operations § Political Law Analysis - Analytical Observations - Analytical Questions § Democratic Governing - Mandate Flow § Democratic Politics § Accountability to Law - Components of Accountability - PR: Professional Responsibility - LSL: Law as a Second Language § Comparative Political Law § Domains of Practice of Political Law § The Need for Political Law in Democratic Society § Alternatives to Democracy and the Rule of Law § New Democratic Rights and Remedies

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Saturday, April 25, 2019; 1:00 pm – 2:30 pm 3. THE LEGAL COMPONENTS OF DEMOCRACY AND THE RULE OF LAW

“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 legal components of the political system. The most appropriate occasion to do this is immediately following the introduction to the linkages among law, policy and politics. This class will focus on the conception of the state as a legal entity, with emphasis on Democratic government as distinguished from other types of government; expression of a vision of Democracy through instruments of governance; fundamental importance of the notion of "the rule of law" as the core of Democratic governance; validation of the supremacy of law as a living tree ; questioning of the generally accepted notion that Democracy consists only of elections which meet internationally accepted standards; and explanation of the consequential difference between Democracy and democracy; enumeration and 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 Democratization.

CORE READINGS

- Textbook:………..- TPPL: Introduction, Chapters 1 and 6 - Additional………..- Paul Cartledge, Democracy: A Life (Oxford: OUP, 2016) - The Hon. Sir John Laws, Law and Democracy [1995] P.L. 72

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Constitution Act, 1867, Preamble and Constitution Act, 1982, Preamble, ss. 1, 33 and 52 - The Inter-Parliamentary Union Universal Declaration on Democracy, 1997 and 1989, Democracy: Its Principles and Achievements - The Charter of Fundamental Rights of the European Union, 2000 - The UN Declaration of the High-Level Meeting of the GA on the Rule of Law at the National and International Levels, 2012 - The Annual Reports of the Sec Gen of the UN to the GA on Strengthening and Coordinating United Nations Rule of Law Activiti - European Commission: Communication from the Commission to the Parliament and Council: A New EU Framework to Strengthen the Rule of Law COM (2014) 158 final 2 with Annexes - Council of Europe - Venice Commission Report on the Rule of Law: Study No. 512 / 2009 CDL – AD (2011) 003 rev. Or. Engl. and Rule of Law Checklist CLD – AD (2016) 007 - Wallenberg Institute, Rule of Law: A Guide for Politicians, 2012

SPECIFIC ISSUES

§ Definitions of Democracy - Terminological Difficulties and Distinctions - Distinctions of “Democracy” and “democracy” § Democracy in Canada - Black v. Law Society of Alberta, 1986 ABCA 68, upheld in (1989) 1 S.C.R. 591 - Reference re: Secession of (1988) 161 D.L.R. (4th) 385, in particular paras. 61-78 § 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 c. Canada (Procureure générale) 2016 QCCS 588 § Component Elements of Democracy, in Particular the Rule of Law - 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 § Current and Potential Methods of Ensuring Democracy § New Variations on Democracy; Alternatives to Democracy

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Saturday, April 25, 2020; 2:30 pm – 4:00 pm 4. THE POLITICAL LAW UNDERPINNINGS OF DEMOCRACY

The demonstrates that the ongoing life of Democracy, the rule of law and accountability to law involves a constant struggle between governing through legality on one hand and reliance on discretionary and/or arbitrary power on the other. Discretion is the purview of public administration while arbitrary power forms part of the methodology of politics. The difference between Democracies and authoritarian states or outright dictatorships is that in the latter two, to various degrees the struggles are resolved in favor of the use of power. According to this view, only Democracies enable he role of law to flourish, while combatting attempts to restrict or defeat legality. This is why legality is the sine qua non of Democracy. While this conflict between Democracy and the other forms of governing is patent, far less attention is usually paid to the struggles and difficulties relating to legality that are internal to Democracy. The rule of law is not easy to accomplish in the face of a variety of dilemmas. On this basis, 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, based on the current problems inherent in statecraft. Among the various difficulties legality encounters in its Democratic context, the one most vitally applicable to Canada is the Regime Change Dilemma: within states that are legitimately Democratic, there may occur secession movements that are also observe the norms and rules of Democracy. The dilemma arises first in determining how to accommodate the competing assertions of Democracy and second, whether and how to maintain the resolution of the dilemma on a legal plane, or to abandon the issue to politics. Another set of circumstances that is particularly timely for being increasingly relevant in a number of Democratic states is the Electoral Dilemma. The election in a Democracy of a patently undemocratic head of state or government gives rise to a question of Democratic legitimacy: does the very fact of having been elected render a government leader Democratically legitimate even in the face of his or her undemocratic plan of governing? Closely related to this is the Electoral Results Dilemma, in which the question relates not to the leader but to his or her governmental program: should the rule of law interpret the meaning of electoral results by an undemocratic leader as displacing the rule of law and therefore justifying undemocratic governmental action? In these and the other dilemmas that constitute the underpinning of Democracy, lawyers need to deliberate with the notion of how far law can extend its reach in solving situations that are to a large extent governmental and political in nature. Political law addresses a number of aspects of such dilemmas. What is the interaction between law, policy and politics in such difficult cases? Does genuine and complete Democracy require that all governmental and political circumstances be resolved in a constitutional-legal manner, through legal instruments? Alternatively, is there a limit to legality while still remaining within the bounds of Democracy? To gather documentation about these issues, both in Canada and abroad, it is necessary to observe state practice.

CORE READINGS - Additional:……- Amnesty International Report 2017-18 file:///C:/Users/Gregory/Downloads/POL1067002018ENGLISH.PDF - Human Rights Watch Report 2018 https://www.hrw.org/world-report/2018 - Freedom House Report 2018 https://freedomhouse.org/report/freedom-world/freedom-world-2018

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIA - Quebec Secession Reference [1998] 2 S.C.R. 217 - Constitutional Amendments Act, S.C. 1996, c. 1 - Clarity Act, S.C. 2000, c. 26 - An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, L.Q. 2000, c. 46 http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2000C46A.PDF - Constitutional Amendment Approval Act, RSBC 1996, c. 67 http://www.bclaws.ca/civix/document/id/complete/statreg/96067_01 - Constitutional Question Act, RSBC 1996, c. 68 http://www.bclaws.ca/civix/document/id/complete/statreg/96068_01

SPECIFIC ISSUES § The Definitional Dilemma § The Electoral Dilemma § The Electoral Results Dilemma § The Regime Change Dilemma § The Competing Democratic Notions Dilemma § The Bosporus Dilemma § The Central American Dilemma § The Dilemma of the Link Between Democracy and Capitalism § The Internal Dilemma § The External Dilemma § The Cross-Fertilization Dilemma § The Dilemma of Alternatives to Democracy 12

Monday, May 11, 2020; 1:00 pm – 2:30 pm 5. THE ELECTORAL SYSTEM AND ELECTIONS

The electoral system is one of the elements of the democracy recognized as a fundamental characteristic of Canada by the Supreme Court in the Québec Secession Reference case. This system is rooted in the constitutional principle of the right to vote, set out in s. 3 of the Charter. Several express the political consensus regarding the electoral system, the organization and conduct of elections and the evolving life of electoral politics. Canadian electoral systems are structured in a first-past-the-post method, on a constituency-by-constituency basis. The country is now 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. The system also incorporates modern enabling consultation of the people on constitutional issues of national importance. In respect of all these topics, jurisprudence measures the constitutional validity and rule of law quality of the law and of electoral activity. In this multi-layered context, the class will take a comprehensive perspective on the "free, fair and transparent" nature of Canadian electioneering. It will serve a platform for the exploration of the interaction among constitutional principles and legal provision; the legislated and discretionary requirements of the public administration of elections; and the power relationships of electoral politics. This examination should lay emphasis on the specific characteristics of electoral administration as an aspect of the Democratic autonomy of electoral bodies and the administration of , consequentially independent of government. In sum, the acceptance of electoral results gives the electoral system its democratic legitimacy, which in turn contributes significantly to Democracy.

CORE READINGS

- Textbook…………..- ANATOMY - Additional…………- Balasko & Tardi, 2015, 2019 - Elections Canada The Canadian Electoral System - Elections Canada Estimates, Part III (yearly) - http://www.elections.ca - http://www.electionsontario.on.ca/

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 ONTARIO - Election Act, R.S.O. 1990, c. E.6 - Election Finances Act, R.S.O. 1990, c. E.7

SPECIFIC ISSUES § Principles Underlying Canadian Electoral Systems and Major Current Issues - Right to Vote: Haig v. Canada (1993) 2 S.C.R. 995 - Equality of Voting Power: Dixon v. (Attorney General) (1989) 59 D.L.R. (4th) 247 - 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. Bryan (2007) 1 S.C.R. 527; 2007 SCC 12 - Integrity of Elections: McEwing v. Canada (Attorney General) and Chief Electoral Officer 2013 FC 525 - Electoral Irregularities: Opitz v. Wrzesnewskyj 2012 SCC 55 - Electoral Fraud: R. v. Sona 2014 ONCJ 365; 2014 ONCJ 606; R. v. Del Mastro 2014ONCJ605, 2016ONSC2071 - Fixed-date Elections: Conacher v. Canada (Prime Minister) 2008 FC 1119, 2009 FC 920, 2010 FCA 131 - Identification for Voting: Henry v. Canada (Attorney General) 2014 BCCA 30 - Canadians Voting Abroad: Frank v. Canada (Attorney General) 2019 SCC 1 - Public Servants as Candidates: Taman v. Canada (Attorney General) 2017 FCA 1 § U.S. Comparison: Requirements of a “free and fair” election: Bush v. Gore 531 U.S. 98 (2000) § U.S. Comparison: Election Expenses: Citizens United v. FEC 588 U.S. 310 (2010)

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Monday, May 11, 2020; 1:30 pm – 3:00 pm 6. THE CONDUCT OF A GENERAL ELECTION

Following the discussion on the electoral system, this class will concentrate on the political law framework of a federal or Ontario election. Reference will be made to the federal election of 2015, the Ontario election of 2014 and the ongoing electoral event in Ontario. A democratic general election is a political process sculpted by constitutional rights and framed through a combination of statutory provisions, legislative reforms and proposals, jurisprudence, the mandate of the election administration, as well as political and indeed partisan instruments. This is the best example of the reality that no matter how political the stakes, the rule of law is implicit in, and vital to, democratic politics. We will explore the application of all of the types of instruments and, significantly, the relations among them. We will focus on the major steps comprising the electoral process. When are elections constitutionally and statutorily mandated to be held? When, how and why are they initiated? Does the rule of law function within parties, for example in candidate selection? In campaigning, do parties observe legal norms? What is the sequence of statutorily-mandated events in a campaign? What does the law require to happen in the course of an election; what does it merely authorize to be done, and what is the law designed to prevent? How do political parties enunciate a world view and how do they treat specifically legal issues as part of their campaign? Does campaigning by litigation have an impact, and if so, what? It is necessary to examine what constitutes elections that are “free, fair and transparent”, in particular in the determination of results, and what political-legal outcomes does election law set out to accomplish? The ultimate political law questions are whether the campaign and the voting will have been conducted according to the rule of law or pursuant to some other standard. Does acceptance of the outcome by the population at large engender the legitimacy required for a party or a coalition to start forming government, and to what extent, if any, is the result legally contested or tainted. The result of a democratic election is thought to be a legitimate parliamentary body. Is that expectation met in Canada and in its constituent ?

CORE READINGS

- Textbook………...- ANATOMY - Additional……….- Balasko & Tardi, 2015, 2019 - Report of the Chief Electoral Officer of Canada on the 42nd General Election of October 19, 2015 http://www.elections.ca/res/rep/off/sta_2015/pdf/stat_report2015_e.pdf - OSCE/ODIHR Election Assessment Mission Final Report: Canada Parliamentary Elections October 19, 2015 - Report of the Chief Election Officer of Ontario on the 41st General Election of June 12, 2014 https://www.elections.on.ca/content/dam/NGW/sitecontent/2014/reports/Post%20Event%20Report%20- %202014%20General%20Election%20-%20Ready,%20Set,%20Go!.pdf - Gregory Tardi, 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

- Constitution of the Liberal Party: https://www.liberal.ca/wp-content/uploads/2016/07/constitution-en.pdf - Constitution of the Conservative Party: http://www.conservative.ca/wp-content/uploads/2016/07/Rkbk78LiR_jIdPW.pdf - Constitution of the : http://xfer.ndp.ca/2016/documents/NDP-CONSTITUTION-EN.pdf - Constitution of the Green Party: https://www.greenparty.ca/en/party/documents/constitution

SPECIFIC ISSUES § Timing and Duration of a Federal or Ontario General Election § The Effects of the Fixed-date Elections Scheme § Milestones of an Election Campaign § The Role, Functions and Activities of the Election Administration Authority § The Role, Functions and Activities of Political Parties; The Law on Campaigning - v. C.B.C. (1993) 106 D.L.R. (4th) 575; - Party of Canada v. C.B.C. (1993) 1 F.C. 580 - Peterborough (City) v. Ramsden (1993) 2 S.C.R. 1084; - Beaumier v. Brampton (City) (1998) 46 M.P.L.R. (2d) 32 § The Role, Functions and Activities of Third Parties § Election Financing and Election Expenses Limits § Leaders' Debates; Candidates' Debates; Public Opinion Polling § Government Advertising - Government Advertising Act, 2004, S.O. 2004, c. 20; - Reference re Elections Act (British Columbia) 2012 BCCA 394 § Recount; Judicial Recount; The Problem Inherent in By-elections

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Tuesday, May 12, 2019; 1:00 pm – 2:30 pm 7. PARTICIPATION; POLITICAL SPEECH; POLITICAL AND CAMPAIGN PROMISES

Democracy and democracy both depend on the participation of the citizenry and electorate. Alienation, apathy, laziness and mere inattention leading to lack of civic involvement rob the system of its legitimacy. The first target issue in this class will be the design of a regime of participation suitable to Canadian democracy. This includes the educational and vote-inducing role of the election authority. Apart from voting, the most significant aspect of participation is political and electoral speech. The class will look at the combination of the Charter s. 2 (b) right to expression with the Charter s. 3 right to vote. It must also be noted that freedom of speech is protected by s. 1 (d) of the Bill of Rights. The Canadian Human Rights Act can also be pertinent. The initial question is what is political or electoral speech in the view of the law? Closely related to this is the matter of when is speech electoral? We will continue by setting out the varieties of political / electoral speech: speech by candidates and political parties and speech by third parties. We will also look at the limitation of political / electoral speech by the law of defamation. A vital aspect of the study of political speech is the consideration of political and campaign promises. The class should consider whether political speech is different in substance or in degree from other forms of constitutionally and legally protected speech. Reporting, advertising, voter contact calling services (robo-calls) and polling are closely linked to this cluster of issues.

CORE READINGS

- Jamie Cameron. Horse of Another Kind: Libman, Thomson Newspapers and "Rational Choice" in 1998 Constitutional Cases Conference - 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 ? [1998] P.L. 633 - Enid Campbell. Investigating the truth of statements made in Parliament. The Australian Experience [1998] P.L. 125 - Tim Wood. Reinforcing Participatory Governance Through International Human Rights Obligations of Political Parties (2015) Vol. 28 Harvard Human Rights Journal 145

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Constitution Act, 1982, ss. 2, 3 - Canadian Bill of Rights, S.C. 1960, c. 44 - Canada Elections Act, S.C. 2000, c. 9, with amendments, ss. 17.1, 18, Parts 16, 16.1, 17, ss. 495, 495.1, 495.2, 496

SPECIFIC ISSUES

§ Political Discourse and Discourse about Politics - 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 - Parizeau et al v. Lafferty, Harwood & Partners J.E. 2000 – 73 and [2000] R.R.A. 417 - Bonneville v. Frazier (2000) 12 M.P.L.R. (3d) 236 - R. v. Brown 2001 PESCTD 6 § Campaign Speech by Political Parties and Candidates § Third Party Speech in the Course of a Campaign - National Citizens’ Coalition v. Attorney General of Canada (1984) 11 D.L.R. (4th) 481 - B.C. FOI and Privacy Assn. v. B.C. (AG) 2017 SCC 6 § Political Promises - Friesen v. Hammell (1997)28 B.C.L.R.(3d) 354, 47 B.C.L.R.(3d) 308, 45 B.C.L.R. 319 - Ruffolo v. Mulroney (1988) O.J. No. 2670 - Reclamation Systems Inc. v. Rae (1996) 27 O.R. (3d) 419 § Reporting on Politics and Political Figures - Vander Zalm v. Times Publishers et al. (1979) 96 D.L.R. (3d) 172 § Political Advertising - Reform Party v. Canada (Attorney General) (1995) 165 A.R. and 89 W.A.C. 161 - Somerville v. Canada (Attorney General) (1996) 184 A.R. and 122 W.A.C. 241

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Tuesday, May 12, 2019; 2:30 pm – 4:00 pm 8. CASE STUDY: THE 43rd FEDERAL GENERAL ELECTION, 2019

This is the first of two classes that will be the principal components of the effective class participation of the grading for this course.

Every student is presumed to have at least paid attention to the campaign leading up to the 43rd federal general election of October 21, 2019. Most (if not all) will also have given the necessary consideration to the issues in order to be able to cast what the calls "an informed vote". In addition, the course will already have devoted three classes to electoral matters. Based on this background, the objective of this class will be to conduct a rule-of-law analysis of the period leading up to the campaign, of the campaign itself, of the election as well as to its aftermath. Particularly bearing in mind that Law in the Public Sector is a course devoted to analysis from a legal perspective, the non-partisan nature of this class must be particularly emphasized. Rather than debating the merits of each party's platform and campaign performance, we will be discussing the positive and negative aspects of the electoral experience. What was done and said in conformity with the principles of Democracy and democracy? What needs to be reformed or otherwise revisited? What changes to election legislation would each student suggest?

CORE READING

- Textbook…………………….ANATOMY (or at least those parts that specifically interest each student)

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Canada Elections Act, S.C. 2000, c. 9; as amended through the Elections Modernization Act, S.C. 2018, c. 31 - 2019 Platform of the - 2019 Platform of the Conservative Party of Canada - 2019 Platform of the New Democratic Party of Canada - 2019 Platform of the - Programme électoral de 2019 du Bloc Québécois - all reports flowing from the 43rd federal general election that may, by the beginning of this course, have been published by the Chief Electoral Officer of Canada

SPECIFIC ISSUES

- To be the subject of discussion and recommendation by the students

LAWS AND RELATED RULES APPLICABLE TO THE MODIFICATIONS OR MORE EXTENSIVE REFORMS 43rd FEDERAL GENERAL ELECTION, 2019 THOUGHT NECESSARY, TO ACHIEVE A MORE DEMOCRATIC ELECTION

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Wednesday, May 13, 2020; 1:00 pm – 2:30 pm 9. PARLAMENT (AND THE LEGISLATIVE ASSEMBLY) AS INSTITUTIONS

This class addresses the questions of what is Parliament, and by analogy what is the Legislative Assembly of Ontario, from the constitutional and institutional perspectives. Using the language of Rousseau, Parliament is the focus of the legislative branch of the state. In the Westminster sense, Parliament has been referred to as the Grand Inquest of the Nation. Recent Canadian jurisprudence has indicated that the roles of Parliament are deliberation, legislation and holding the government to account. Basing ourselves on the combination of these standards, we shall examine the nature and functions of this body. Constitutional theory holds that sovereignty resides in Parliament, though that has recently been limited through the adoption of the Canadian Charter of Rights and Freedoms. A thorough understanding of the legislative branch must first take account of the institutional framework: what does Parliament consist of? Next, we must look at what are its powers and functions in the particularly Canadian setting of a Democratic and federal constitutional monarchy with an entrenched Charter? Parliament and parliamentary work are guided by the Constitution and related principles, customs and traditions, complemented by a plethora of laws, quasi-legal instruments, as well as policies. Within this framework of legal instrumentation, Parliament is an essentially political institution. Our perspective must therefore be interdisciplinary and comprehensive. One of the most basic concepts to retain is that of "parliamentary function". In the current political environment, an increasing number of the issues relating to the legislative branch are the subject of litigation. We will examine the most relevant of these actions and ask whether changes to the legislature are best carried out through legislation, litigation, or by alternative means. It is important to note the work of the Officers of Parliament.

CORE READINGS

- Textbook…………...- TPPL, Chapter 8 - Additional………….- Rob Walsh, On the House ( & Kingston: McGill-Queen's University Press, 2017) - O’Brien & Bosc, House of Commons Procedure and Practice, 2nd ed. (: House of Commons, 2009) - Samara Canada. Welcome to Parliament: A Job with no Description. http://www.samaracanada.com - 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 and Constitution Act, 1982, s. 4, 5, 17(1), 18(1), 20(1) - Act, R.S.C. 1985, c. P- 1 - Manual of Members' Allowances and Services; Policies - Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp.) - Conflict of Interest Act, S.C. 2006, c. 9, s. 2 - Conflict of Interest Code for Members of the House of Commons - Standing Orders of the House of Commons - By-laws of the Board of Internal Economy ONTARIO - Legislative Assembly Act, R.S.O. c. L.10 - Representation Act, 2015, S.O. 2015, c. 31, Schedule 1

SPECIFIC ISSUES § Legal Personality of Parliament and of the House of Commons - House of Commons v. Canada (Labour Relations Board) (1986) 27 D.L.R. (4th) 481 - New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (1993) 1 S.C.R. 319 - Public Service Alliance of Canada v. HMTQ (2000) 192 F.T.R. 23 - Canada (House of Commons) v. Vaid, 2005 SCC 30 § The Qualification and Status of Parliamentarians - Harvey v. New Brunswick (Attorney General) [1996] 2 S.C.R. 876 - Caroline Morris, On becoming (and remaining) a Member of Parliament, [2004] PL 11 - Fletcher v. Manitoba Public Insurance Corporation 2006 MBCA 57 Fletcher v. Govt. of Manitoba 2018 MBQB 104 § Institutional Audit of the House of Commons - Report of the Auditor General of Canada to the Board of Internal Economy of the House of Commons, June 2012 Administration of the House of Commons § The Work of Parliamentary Lawyers - Association des juristes de l'État c. Procureur général du Québec et Commission des services essentiels 2013 QCCA 1900

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Wednesday, May 13, 2020; 2:30 pm – 4:00 pm 10. LEX PARLAMENTI AND PARLIAMENTARY PRIVILEGE

The broadest definition of Lex Parlamenti refers to the constitutional position and functions of the Legislative Branch in the framework of Democratic government. Canadian parliamentary bodies all follow the Westminster model, having inherited the regime of parliamentary law, custom and usage that evolved in the UK. The core of this legal regime governing Parliament, the Senate, the Commons, legislative assemblies and individual parliamentarians is parliamentary privilege. This is a set of constitutional principles and rules that are necessary to enable Parliament to function both freely from interference by the Executive Branch and effectively. Parliamentary privilege is an intrinsic part of the Constitution, just like the Charter. Neither trumps the other, meaning that parliamentary bodies are inherently able to determine their own internal rules. In effect, there is a legal regime distinct from the general law, applicable only in the Legislative Branch. This entails that in respect of the functioning of parliamentary bodies, privilege takes the place of the rule of the general law. Parliamentary privilege is recognized in the Constitution Act, 1867in the Parliament of Canada Act. Specific privileges are recognized in the Ontario Legislative Assembly Act. Most other instruments of this law arise from rulings by the speakers of legislative bodies, parliamentary studies and decisions of the courts. The most fundamental privileges relate to the legislature's right to regulate its own composition and internal affairs, unfettered access to Parliament by parliamentarians, the right of Parliament to discipline its own members, freedom of speech within the legislative context and its corollary that proceedings in Parliament cannot be questioned in a court of law, as well as freedom from arrest in civil matters and freedom from having to testify in judiciary proceedings. The class will explore this intersection of law and politics and will look at its recent expansion and modernization through rulings of the Speakers of the House of Common and of the Legislative Assembly, with decisions of the courts. It will address whether Parliamentary Privilege contributes to, or detracts from, Democracy. There will also be discussion of the work of the Office of the Law Clerk and Parliamentary in both Houses, in the sense of the practice of parliamentary law.

CORE READINGS - Textbook……..- TPPL, Chapter 8 - Additional……- O’Brien and Bosc. House of Commons Procedure and Practice (Ottawa: House of Commons, 2nd. ed.), ch. 3 - Joseph Maingot. Parliamentary Privilege in Canada (Ottawa: House of Commons, 1997) - Senate: A Matter of Privilege: Canadian Parl. Privilege in the 21st Century, January 2015 - Peter Aucoin, Mark Jarvis, Lori Turnbull Democratizing the Constitution (Toronto: Emond Montgomery, 2011) - Heather McIvor, The Speaker's Ruling on Afghan Detainee Documents, Constitutional Forum, (2010)19-1, p. 129 - Hafetz, Josh. Democracy’s Privileged Few. Legislative Privilege.and Democratic Norms in the British and American (New Haven & London: Yale University Press, 2007) - UK Lords / Commons Joint Committee on Parl. Privilege Report of Session 2013-2014; July 3, 2013

CONSTITUTIONAL TEXTS, STATUTORY PROVISIONS; LEGISLATIVE MATERIALS FEDERAL - Bill of Rights (United Kingdom) 1688, ss. 8, 9 - Constitution Act, 1867, ss. 17 through 57, 128, 133 - Parliament of Canada Act, R.S.C. 1985, c. P- 1, s.4 - Speaker’s Ruling on a Question of Privilege, Hansard, April 27, 2010, pp. 2039 – 2045 ONTARIO - Legislative Assembly Act, R.S.O. c. L.10

SPECIFIC ISSUES § Parliamentary Privilege: the Fundamental Concept and Recent Interpretations - Canada (AG) v. Canada (EMR) [1989] 2 S.C.R. 49 - N.B. Broadcasting Co. v. Nova Scotia (Speaker, House of Assembly) (1992) 1 S.C.R. 319 - Vaid v. Canada (House of Commons) 2005 SCC 30 - Page v. Mulcair 2013 FC 402 - COMER v. R. 2016 FC 147 § Rule of Law and Autonomy - Carter v. Alberta 2002 ABCA 303 § Government, Cabinet & Party - Guergis v. Novak 2013 ONCA 449 § Respect for Parliament - Martin v. Ontario [2004] O.J. No. 2247 § Use of Resources of Parliament - Canada (BOIE) v. Canada (AG) 2017 43 § Use of Testimony Given Before a Commons Committee - Gagliano v. Canada (AG) 2005 FC 576 § Conducting Inquiries - RCMP Deputy Commissioner v. Canada (AG) 2007 FC 564 § Relying on Parliamentary Privilege - Makudi v. Baron Trieseman of Tottenham, 2014 EWCA Civ. 179 § Parliamentarians Testifying in Court - Ainsworth Lumber Co. v. Canada (AG) (2003) 228 D.L.R. (4th) 687 - Telezone Inc. v. Canada (AG) (2004) D.L.R. (4th) 719

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Thursday, May 14, 2020; 1:00 pm– 2:30 pm 11. THE LEGISLATIVE PROCESS

The Democratic state enacts rules for the conduct of society. The most prominent of these are laws. The choice of instrument question is examined first: in what circumstances is legislation possible, necessary or desirable? In order to understand law-making in perspective, we must ask how extensive is the notion of “legislative process”? What are the sources of legislation? How do public ideas progress to the doorstep of Parliament? The 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. Parliament is a representative, deliberative and legislative body. Within the overall legislative process, the core issue is what the work of parliamentarians, as legislators, actually comprises? What are the executive and legislative instruments applicable to making laws? What are the substantive and procedural rules in making laws, and what phases must Bills go through to become Statutes? The significance of the political law approach to the subject will be examination of the linkage between legislation, policy and politics. In recent years, there has been much deliberation about the ascendency of the Executive Branch over the Legislative. This idea will be tested. To what extent is the Legislative Branch its own master? Are laws the expression of Democratic public interest? 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 undefinable combination of the two? There will also be consideration of how parliamentarians fulfill the other aspects of the mandate to which they are elected, in particular Private Members' Public Bills.

CORE READINGS - Textbook...... - TPPL, Chapter 8 - 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 - Interpretation Act, R.S.C. 1985, c. I-21 - Law Correction Act, S.C. 2015, c. 3 ONTARIO - Legislation Act, S.O. 2006, c. 21, Schedule F

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 , 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 http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&Page=Publications&Sub=ReportonLawMakingandGove § 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 Volume in Law of Democratic Governing, § 8.6.6) - Samara Canada. It’s My Party: Parliamentary Dysfunction Reconsidered. http://www.samaracanada.com § 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 § 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 § Examination of a Recent Bill enacted into Law - Bill C-59 of 2015, which became S.C. 2015, c. 36 § Reform of the Legislative Process - Legislative Procedure Review Act, R.S.B.C. 1996, c. 261 § The Public Law Impact of Private Members’ Public Bills - An Act to ensure Canada meets its global climate change obligations under the Kyoto Protocol, S.C. 2007, c. 30 § Royal Assent - Galati v. Canada (Governor General), 2015 FC 91

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Thursday, May 14, 2020; 2:30 pm – 4:00 pm 12. THE SENATE

In the conferences leading up to the Constitution Act, 1867, it was decided to incorporate a Senate into the new country's constitutional architecture. This was partly in emulation of the British House of Lords, as a sign of the similarity in principle to the United Kingdom, partly as a reflection of the federal nature of Canada, needing provincial representation at the centre of power. In recent decades, the role of the Senate in the functioning of Parliament has been less evident. Numerous ideas have been developed as to the reform and modernization of the institution through the constitutional path, while a segment of the body politic and of public opinion believe the Senate is anachronistic. There has been particular dissatisfaction with the Senate among Western Provinces, based on sentiments of alienation due to inadequate representation. A so-called Triple-E formula has been developed there, to render the Senate elected, equal and effective. By contrast, the Atlantic Provinces do not agree to the reduction of their Senate deputation. In several rulings in which the Supreme Court was asked to analyze the constitutionality of various opportunities for limited reforms such as Senate elections, term-limtation and modernization of functions, or for abolition, it seriously restricted the margin of maneuver for change through constitutional revision. The sole viable option is therefore to enable the Senate to fulfill a constructive role in the country's public life, by means of political modification. The constitutional text and the statutes applicable to the Senate are unchanged. By contrast, institutional and political processes are now in play, as a result of initiatives of the current government. Vacancies in the Senate are now filled. A new procedure for the recruitment of Senators has been initiated. The now-governing Liberal Party of Canada has detached from its Caucus those Senators who used to form part of it; in fact, independent Senators now constitute the largest voting group. The combined effects of these reforms are just now evolving. The Senate is starting to exercise its independence of action, notably in the fields of legislative process and committee oversight of major issues of policy. These changes must coexist with constitutional requirements, most notably in the development of legislation that is voted ad idem by the two Houses of Parliament. This class will examine both the law and politics of the Senate and its most recent reforms and seek to understand the balance in this field among constitutional-legal, policy and political considerations.

CORE READINGS

- Textbook………………………- TPPL, Chapter 8 - Additional……………………..- A House Undivided : Making Senate Independence Work, A Report, 2016

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Constitution Act, 1867, ss. 21, 36, 39 - Constitution Act, 1982, ss. 42(1)(b), 44, 47(1) - Parliament of Canada Act, R.S.C. 1985, c. P- 1 - Constitutional Amendments Act, S.C. 1996, c. 1 - Clarity Act, S.C. 2000, c. 6 - Rules of the Senate - Conflict of Interest Code for Senators

SPECIFIC ISSUES

§ The Constitutional Role of, and Necessity for, the Senate - Re: Authority of Parliament in relation to the Upper House (1980) 1 S.C.R. 54; (1980) 102 D.L.R. (3d) 1 § Membership in the Senate - Reference re Appointment of Senators Pursuant to the Constitution Act, 1867, s. 26 (1991) 78 D.L.R.(4th) 245 - Re LeBlanc et al. and The Queen in right of Canada et al. (1991) 80 D.L.R. (4th) 641 - Weir v. Canada (1991) 84 D.L.R. (4th) 39 Duffy v. 2018 ONSC 7523 § Proceedings in the Senate - Southam Inc. v. Canada (Attorney General) (1990) 3 FCR 465 § Reform of the Senate - Renvoi sur un projet de loi fédéral relative au Sénat, 2013 QCCA 1807 - Reference re Senate Reform, 2014 SCC 32 § British Columbia Participation in Senate Reform - Constitutional Amendment Approval Act, R.S.B.C. 1996, c. 67 § Vacancies in the Senate - Alani v. Canada (Prime Minister) 2015 FC 649, 2015 FC 859, 2016 FC 1139, 2017 FCA 120 § Rules on the Functioning of the Senate - R. v. Duffy, 2016 ONCJ 220 - Canada (Office of the Information Commissioner) v. Canada (Prime Minister) 2017 FC 827 - Report of the Auditor General of Canada to the Senate of Canada: Senators' Expenses, June 2015 § Current Appointment Process of Senators: Independent Advisory Board for Senate Appointments - https://www.canada.ca/en/campaign/independent-advisory-board-for-senate-appointments.html

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Friday, May 15, 2020; 1:00 pm – 2:30 pm 13. THE LAW OF PUBLIC INSTITUTIONS AND 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 justice, 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 core institutions, public administration activities are carried out by the Public Service of Canada, made up of specialized and politically neutral officials appointed and granted tenure, to serve the government, whatever its political composition. Public administration includes the ongoing structuring of institutions and processes, the internal functioning of the government apparatus, the constant evolution of instruments and diverse forms of service-delivery. In large part, it relies on statutes and regulations. It is important to understand that the instruments of a legal nature are not disparate from each other. Together, they comprise the Law of Public Institutions and Administration, a comprehensive, cohesive and autonomous (though little-recognized) domain of public law. In a wider perspective, public policy is made and public administration is also carried out through a web of non-legal instruments, complementary to the law: policies and programs that bear a variety of designations. In a Democracy, the philosophy underlying public policy and administration is the public interest. The determining considerations in public administration are generally held to be efficiency, effectiveness and economy. The current political and social environment also prompt that public administration be conducted in an environment of accountability, transparency and probity. In this context, the twin contributions of political law are a) to provide an overarching perspective on the Law of Public Institutions and Administration and b) to analyze the law-policy-politics interactions and the influence and impact of legality on the policy instruments. The class will focus first on the parameters of this law and its distinction from the more traditional topic of Administrative Law. It will then look at the interaction between legal and other types of instruments in the functioning of the core of the Executive Branch; the conflict between institutional loyalty and observance of legal norms, and the struggle between legality versus efficiency, effectiveness and economy.

CORE READINGS - Textbook………...- TPPL, Chapters 6, 7 and 13 - Additional - Gregory Tardi, Departments and Other Institutions of Government, Chapter 16 of the Oxford Handbook of Canadian Public Administration, Christopher Dunn, Editor - explore http://publiservice.pco-bcp.gc.ca; http://publiservice.tbs-sct.gc.ca; http://www.tbs-sct.gc.ca/index_e.asp - Privy Council Office, Responsibility in the Constitution, 1993, http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=constitution - Kim Campbell, The Charter and Good Government, in Law, Politics and the Judicial Process in Canada, p. 423

CONSTITUTIONAL, STATUTORY AND LEGISLATIVE MATERIAL - Constitution Act, 1867, ss. 1 through 16 and 131 - Governor General’s Act, R.S.C. 1985, c. G-9 - Salaries Act, R.S.C. 1985, c. S-3 - Ministries and Ministers of State Act, R.S.C. 1985, c. M-8 - Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34 - Public Service Employment Act, S.C. 2003, c. 22 - Financial Administration Act, R.S.C. 1985, c. F-11 - Statutes on Income Tax, Government Expenditure & Budget Implementation - (Structure) the various Departmental statutes (examples: Department of Fisheries and Ocean Act, Department of Health Act) - (Process) Statutes on Official Languages, Auditor General, Access, Ethics & PS Disclosure - Shared Services Canada Act, S.C. 2012, c. 19, s. 711 - Department of Peace Act, Bill C-447, 1R: Sept. 20, 2009

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 § Public Service and Non-Partisanship - 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 - 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; unreported § 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 21

Friday, May 15, 2020; 2:30 pm– 4:00 pm 14. THE CABINET AND MACHINERY OF GOVERNMENT

This class will draw the legal map of government, exploring primarily the core of the Executive Branch of the state. The Law of Public Institutions and Administration serves as a guide, dealing comprehensively with the structure of government and the processes of governing. In the realm of structure, we first note the instruments providing for the monarchical form of government for Canada. Next, we examine the major institutional framework, that is Central Agencies, Line Departments, along with various other types of quasi-governmental bodies. The Prime Minister, the holder of a customary but statutorily-undefined position, orchestrates the functioning of both government and governing through this complex mélange of legal, policy and political instruments. He is assisted by the most senior portfolio-holders: finance, treasury, justice, foreign affairs. Simultaneously, we look at the establishment of ministerial portfolios and the state's ability to change ministerial and departmental tasks. Departments and ministers can function only with the help of a professional, non-partisan, public service, itself grounded in law. We then focus our perspective on the instruments that deal with the processes of governing on a government-wide basis. Some of the most important of these set out the state's dealings with money, the major tool of government: state income, financial management, expenditure, accounting. In the capitalist environment, the symbiotic relationship between taxation-expenditure and must be noted. In all of statecraft, the legal instruments must be complemented by ones of a policy and others of a political nature. The most intense interaction among these types of instruments occurs at the core of government, in Cabinet and within the PCO-PMO complex. In order that both governing and politics be Democratic in nature, the diverse types of instruments dealing with government management must not only tend in the same direction. Pursuant to the rule of law, they must be arranged so that the legal ones always have precedence. The question whether this is so, remains.

CORE READINGS

- Additional …………- Departments and Agencies of the http://www.canada.ca/en/gov/dept/index.html - Sharon Sutherland, The Role of the Clerk of the Privy Council, in Vol. 3, Gomery Commission Report, 2006 - Erika Chamberlain, Misfeasance in a Public Office, Toronto: Thomson Reuters, 2016 - Ian Greene and David Shugarman, Honest Politics Now (Toronto: Lorimer, 2017

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS - Constitution Act, 1867, ss. 1 through 16 and 131 - Constitutional Amendment Bill, Bill C-60, 1R: June 19, 1978 - Machinery of Government Changes, Nov. 2015 http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=docs&doc=mog-ag-eng.htm - Government of Canada, Mandate Letters of Ministers https://pm.gc.ca/eng/cabinet

SPECIFIC ISSUES § Executive Institutions - Privy Council Office, The Role and Structures of the Privy Council Office, February 1999 http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=Role/role_e.htm - Privy Council Office, The Responsibilities of the Privy Council Office http://www.pco-bcp.gc.ca/default.asp?Page=Publications&Language=E&doc=respons/cover_e.htm § 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 § Rules on Ethics for the Public Service - Treasury Board of Canada Secretariat, Values and Ethics Code for the Public Service, 2003 § 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 § 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

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Monday, June 1, 2020; 8:30 am – 10:00 am 15. THE JUSTICE AND ATTORNEY-GENERAL PORTFOLIO

This class will give priority to two issues vital to the professional life of every . First, what are the particular powers, duties and functions of the justice portfolio in government; and second, in Democracy, is justice the handmaid of political power or is it autonomous? In the context of the analysis of the Justice of Justice, is very important to note the differentiation between political or institutional loyalty, and professional application of the supremacy of legal norms. Within Cabinet, Justice is a portfolio unlike any other, not only because of the specific tasks it must fulfill, but also because it is vested with the government-wide obligation of keeping the state itself, as well as its various institutions, in line with norms of constitutionalism and the rule of law. On the basis of Democratic theory, constitutional principles as well as legislation, the holder of the Justice portfolio is charged with the administration of the justice system, with being the legal advisor to the state and all its entities, and with the preparation of legislation. In the Attorney General function, the Minister of Justice has the further role of coordinating the prosecution of criminal activity. We will therefore also deal with the specificity of the prosecutorial function. All these characteristics render the Department of Justice unique among institutions of government. There will be discussion of the relationship between the Department of Justice and the PCO – PMO complex; the role of the Department vis-à-vis other institutions of government; and portfolio mutations. The Department of Justice is at the centre of a cluster of institutions dedicated to legality in the state. These organizations should be mentioned, in particular that of law reform commissions. Analysis of the particular nature of the work of government lawyers both in the Department of Justice and in other forms of public employment is also relevant but, but is saved for the class dealing with the role of lawyers in the public sphere.

CORE READINGS - Textbook …..……- TPPL, Chapters 8 and 9 - Additional……….- Justice Canada Estimates Part III (yearly) http://canada.justice.gc.ca - 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 - 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 - Diana Woodhouse, The Office of Lord Chancellor [1998] P.L. 617

CONSTITUTIONAL, STATUTORY AND LEGISLATIVE MATERIAL FEDERAL - Constitution Act, 1867, ss. 94, 129 - Department of Justice Act, R.S.C. 1985, c. J–2 - Publication of Statutes Act, R.S.C. 1985, c. S-21 - Legislation Revision and Consolidation Act, R.S.C. 1985, c. S-20 - Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121 - 42nd P., 1st. Sess., Bill C-51 ONTARIO - Ministry of the Attorney General Act, R.S.O. 1990, c. M-17

SPECIFIC ISSUES § The Department of Justice - Department of Justice http://www.justice.gc.ca/eng/rp-pr/cp-pm/about-aprop/index.html - 2019 Mandate Letter of the Minister of Justice https://pm.gc.ca/en/mandate-letters/minister-justice-and-attorney-general-canada-mandate-letter - 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 - Speech by George Thomson, former Deputy Minister of Justice, January 5, 1999 - Speech by John Tait, former Deputy Minister of Justice, 1996 § 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, 2017 FCA 206, 2018 FCA 55 - Hansard, March 27, 2013, page 15,292 § Law Reform Commissions - Law Commission of Canada Act, S.C. 1996, c. 9 http://laws.justice.gc.ca/PDF/L-6.7.pdf; in force but not active - Ontario Law Reform Commission Act, R.S.O. 1990, c. O.4; https://www.ontario.ca/laws/statute/90o24; rep. Dec. 15, 2009 23

Monday, June 1, 2020; 10:00 am – 11:30 am 16. THE ROLE OF LAWYERS IN THE PUBLIC SPHERE

In the overall context of Democracy, the rule of law and accountability to law, this class will address the issue of the role lawyers can, do and should play in ensuring the public interest in the public sphere of Democratic society. Traditionally, the role of members of the legal profession is to advise their clients, represent them and 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. For lawyers in the public sector, these fundamental obligations apply, but they are supplemented by the necessity of adherence to the overarching goal of the public interest. What does this mean and how can a regime of professional responsibility originally developed in the private sector environment be applied in terms of concrete action in the public sphere, where a different and broader ideal prevails? What guidance can be found in the study of political law to address the issues of professionalism particular to legally trained public officials and to government lawyers? The bars of several provinces, as well as the Canadian Association, address this issue in general and somewhat vague terms. There are similar instruments in a number of like-minded Democratic jurisdictions. Basing ourselves on these general prescriptions, we must first consider the role of lawyers as elected parliamentarians: do lawyer legislators have duties different, or greater than, other Senators or MPs, or does being a parliamentarian supersede one's legal professionalism? Similarly, we must investigate the specific professional obligations of government lawyers: is the obligation to advise, represent and advocate for a public-sector client different from that work on behalf of a private-sector person? The distinctions, if there are any, apply in various circumstances: respect for Democracy, the rule of law and other fundamental but unwritten principles of constitutionalism; selection of the proper instrument of governance and the migration of issues; advice on legislative regimes, the preparation, enactment and application of legislation; advice on the interpretation of law in a political context; advice on litigation; -client and other types of privilege. Currently, specific governmental topics relevant to the are in play: global warming, the interaction of energy and environment, national security, cybercraft, money-laundering, the societal recovery of disadvantaged groups, and corruption in the public sector. 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 the state and therefore in the sustainment of Democracy. In consequence, they have a specific, public, accountability to law. Senior public servants should know how to integrate legal advice and legal advisors into their work.

CORE READINGS - Textbook……………- TPPL, pages 165-170

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 ONTARIO - Rules of Professional Conduct of the Law Society of Upper Canada

SPECIFIC ISSUES § Bar Independent of Political Influence Canada (AG) v. Federation of Law Societies 2015 SCC 7 § Particular Duties of Government Lawyers - Debra McNair, The Role of the Federal Public Sector Lawyers: From Polyester to Silk (2001) UNB LJ 50: 125-65 - Review of the Nova Scotia Public Prosecution Service (Kaufman Report), June 9, 1999 - Johnston v. PEI (1989) 73 Nfld. & P.E.I.R. and 229 A.P.R. 22 -Venczel v. Assn. of Architects (Ontario) (1991) 45 Admin. L.R. 288 - Canada (Attorney General) v. Federation of Law Societies of Canada 2015 SCC 7 § 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 (AG) v. Federation of Law Societies 2015 SCC 7 § 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 § The Professional Work of State Lawyers in Democracy - The Legality of Legal Advising https:̸̸̸̸̸̸̸̸̸ ̸̸̸ablawg.ca̸̸̸2013̸̸̸01̸̸̸25̸̸̸the-legality-of-legal-advising § 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 24

Tuesday, June 2, 2020; 8:30 am – 10:00 am 17. CASE STUDY: THE SCN – LAVALIN CONTROVERSY

This is the second of two classes that will be the principal components of the effective class participation of the grading for this course.

On February 8, 2019, ran a story to the effect that the Minister of Justice and Attorney General of Canada felt that she had been subjected to undue pressure regarding the possibility of granting a remediation agreement (the Canadian variant of deferred prosecution agreements) to SNC – Lavalin, a Montreal-based corporation that was being prosecuted for, and some of whose senior managers had been prosecuted for, having engaged in the corruption of their outside-Canada commercial partners. In an of itself, this matter immediately became sensational. The fact that this matter came to public attention ten months before a scheduled federal general election added to its significance.

Within a short time, first the Clerk of the Privy Council and then the minister herself testified on the issues at stake before the Commons Committee on Justice. The various testimonies were conflicting. Given the absence of resolution to the satisfaction of the Minister of Justice, she resigned from Cabinet. Then the President of the Treasury Board also resigned, seemingly out of solidarity with her colleague. Shortly thereafter, both Members of Parliament were expelled from the caucus of the Liberal Party. Ms. Wilson- Raybould and Ms. Philpott continued to make public statements about the Prime Minister, interference in the prosecution system, about the government's adherence to feminism, its commitment to the development of Indigenous communities, and finally to their intention of being independent, non-party-affiliated candidates in the general election.

The Prime Minister mandated a former Minister of Justice, Hon. Anne MacLennan, to prepare a Report regarding the advisability of splitting the Justice portfolio, by separating the prosecutorial function from the ministerial justice policy function. The Report recommended that no such scission take place. The December 2019 Speech from the Throne and the mandate letter the Prime Minister sent to the Minister of Justice in the government formed after the 2019 election both envisaged retention of the pre-existing structure of the Justice portfolio.

In due course, SCN-Lavalin pleaded guilty in the superior Court of Quebec to the charges brought against it and agreed to pay a substantial fine. Some of its senior officials were convicted and sent to prison.

CORE READINGS - Textbook……………- ANATOMY

CONSTITUTIONAL TEXTS, STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Department of Justice Act, R.S.C. 1985, c. J-2 - Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121 - Criminal Code, R.S.C. 1985, c. C-46, especially Part XXII.1 - Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 - Review of the Roles of the Minister of Justice and Attorney General of Canada, prepared by Hon. Anne MacLennan, August 14, 2019

https://pm.gc.ca/en/news/backgrounders/2019/08/14/review-roles-minister-justice-and-attorney-general-canada - Public Prosecution Service of Canada Deskbook https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/index.html - Trudeau II Report by the Conflict of Interest and Ethics Commissioner, August, 2019 https://ciec-ccie.parl.gc.ca/en/publications/Documents/InvestigationReports/Trudeau%20II%20Report.pdf

SPECIFIC ISSUES

- To be the subject of discussion and recommendation by the students

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Tuesday, June 2, 2020; 10:00 am – 11:30 am 18. ACCOUNTABILITY TO LAW

The rule of law specifies that in Democratic statecraft, legal norms and instruments take precedence over other considerations. Accountability to law is a refinement of this doctrine, that requires that the state, state institutions and state officials voluntarily and willfully apply the rule of law in their official functions. The transactional view of accountability is that there can be no rights without commensurate obligations. The principled view of accountability is more fundamental and more important. It is based on recognition that without the rule of law, there can be no Democracy and that therefore, state officials should be accountable to the rule of law; they should implement the rule of law as a higher value of public action that relying on policy or politics in governing. This class first needs to identify with clarity the meaning of accountability for the circumstances of governing, despite the fact that in political discourse, party propaganda, media coverage and generic use, the term is imprecise. There is also a need to isolate objective analysis from subjective impressionism. The core of the matter is the setting out of the diverse factors comprised in the objective analysis of accountability. The key question to address is how does one behave in an accountable fashion, therefore in compliance with the rule of law and therefore Democratically. The unifying factor among the various criteria leading to accountability is the professional legal will and personal legal conscience. Next, the meaning of accountability is clarified as it applies to lawyers versus its meaning in regard to other public officials. Particular attention must be paid to the accountability to law of heads of state and government, those whose public actions are most prominent and visible. If democratic public life is a blend of rights, duties and responsibilities, can accountability to law properly be seen as a counterpart to the constitutionally entrenched and legally enforced civil and political rights?

CORE READINGS - Textbook…………….- TPPL, Chapters 11 and 12 - Additional……………- John Tait, A Strong Foundation: Report of the Task Force on Public Service Values and Ethics Canadian Public Administration., Spring 1997, Vol. 40, No.1, p.1 - Peter Aucoin, Mark Jarvis, Modernizing Government Accountability, Cnd. School of Public Service, 2005 - International Covenant on Civil and Political Rights http://www.unhchr.ch/html/menu3/b/a-ccpr.html - Rome Statute of the International Criminal Court http://www.un.org/law/icc/statute/99_corr/cstatute.htm - The Princeton Principles on Universal http://www.princeton.edu/~lapa/unive_jur.pdf - The Responsibility to Protect, Report of the International Commission on State Sovereignty, Dec. 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 - 42nd P., 1st Sess., S.C. 2017, c. 15, Bill C- 267

SPECIFIC ISSUES § Balance of Rights and Obligations in Democracy - 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 § Terminology - Federal Accountability Act, S.C. 2006, c. 9 – PS and MPP Accountability and Transparency Act, S.O. 2014, c. 13 § Constitutional Boundaries of Accountability to Law - Judicial Accountability Act (Ontario) Bill 66 of 2000:– not enacted § Various Applications of the Doctrine of Accountability to Law - Clark v. The Queen in right of British Columbia (1979) 99 D.L.R.(3d) 454 - Bown v. Newfoundland (Minister of Social Services) (1985) 54 Nfld. & P.E.I.R. 258 - Maclean v. Nova Scotia (AG) (1987) 35 D.L.R. (4th) 306 - Canada (Info Comm) v. Canada (Min EA) (1990) 72 D.L.R. (4th) 113 - Charlottetown (City) v. Prince Edward Island (1998) 169 Nfld. & P.E.I.R. 188 - Mulroney v. Coates (1986) 27 D.L.R. (4th) 118 - Canadian Wildlife Federation v. Canada (1990) 31 F.T.R. 1 - Tetzlaff v. Canada (Min Environment) (1991) 47 Admin. L. R. 290 - Bhatnager v. Canada (Min EI) (1990) 2 S.C.R. 217 - Jones v. Canada (Attorney General) and related cases arising out of the 1997 APEC Conference in

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Wednesday, June 3, 2020; 8:30 am – 10:00 am 19. ACCOUNTABILITY TO LAW OF HEADS OF STATE AND GOVERNMENT

In earlier phases of the development of Democracy, it was unthinkable for heads of state or government (HSG) to be pursued in justice, in other words to be held legally responsible or liable for the governmental actions they undertook while in office. The prevailing notion was that HSG could, and should, be held politically liable. The underlying theory was that the only possible sanction of an HSG who acted undemocratically or contrary to the rule of law was at the ballot box. The purpose of this class is to examine how this earlier concept has been altered as a result of the advance in both international and domestic legal theories of HSG legal responsibility, brought on in large part by the excesses HSGs committed throughout the twentieth century, and in particular in the aftermath of World War II. The Nuremberg were designed to extend legal, as opposed to political, responsibility to high officials of the state. The trials that followed World War II did not dampen the political ardor of HSG, many of whom believed in their own impunity and thought that those trials were exceptional in nature. These attitudes led, most prominently, to the criminal excesses committed in Chile in the 1970’s, to the human rights fiasco of the break-up of Yugoslavia and to the catastrophe of 1994 in Rwanda. While these were the most notorious cases, there were also many other similar ones, in all parts of the world. These events have resulted in a human rights-based revulsion to the unbridled use of political power and a rule of law-based reaction to it. This has in fact generated a whole new branch of political law.

In the last three decades, new international and domestic legal instruments have been put in place, sustained by doctrines based on the notion that legality supersedes both political will or impunity, and unjust public policy. Democratic attitudes regarding HSG have also changed. A trend has evolved for the responsibilization of HSG through court actions aimed specifically at them. This trend includes a variety of grounds of litigation and prosecution. This emerging domain of legality, in which it is not the state or state institutions, but the HSG personally, who are the defendants or the accused, has also become manifest within Canada. Students of statecraft must note two consequences of this evolving trend. We must know about such cases and systematize their analysis. Also, it is necessary to understand whether and how such jurisprudence restrains the use of political power and influences the conduct of public policy. In the context of this topic, it is good to keep an eye on the current impeachment proceedings in the United States, even though the American do not apply in Canada.

CORE READINGS - Textbook………- TPPL, Chapter - Additional…….- Report of the Commission of Inquiry on War Criminals Hon. Jules Deschênes, Commissioner; Dec. 30, 1986. - .Lutz, Ellen L. and Caitlin Reiger, Prosecuting Heads of State (Cambridge: Cambridge University Press, 2009) - Human Rights Watch. World Report (yearly) - Freedom House. Freedom in the World, 2013: Democratic Breakthroughs in the Balance - U.S. National Intelligence Council. Global Trends 2030: Alternative Worlds

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS INTERNATIONAL: - Charter of the United Nations and - Statute of the International Court of Justice - International Covenant on Civil and Political Rights; Doctrine of the Responsibility to Protect - Rome Statute of the International Criminal Court A / CONF. 183/9, July 17, 1998. In force July 1, 2002 especially arts. 27, 28 - United Nations. Delivering Justice: Program of Action to Strengthen the Rule of Law at the National and International Levels, A / 66 / 749, March 16, 2012 FEDERAL: - Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. SPECIFIC ISSUES § International Legal Proceedings Based on Crimes against Humanity and Equivalent Offences - Ex parte Pinochet Ugarte (1998) All E.R. (D) 629, (1998) 4 All E.R. 897, (1999) 1 All E.R. 577, (1999) 2 All E.R. 9 § Domestic Legal Proceedings on Matters of Maladministration - Prosecution of Laurent Fabius, Prime Minister of France, 1984-1986 - Prosecution of Geir Haarde, Prime Minister of Iceland, 2006-2009 § Domestic Legal Proceedings on Matters of Public Administration - Roncarelli v. Duplessis, 1959 S.C.R. 121 - George v. Harris, (2003), 32 C.P.C. 5th 134 § Domestic Legal Proceedings Based on Constitutional Conflict and Crimes against the State - Guergis v. Novak 2013 ONCA 449, June 28, 2013 § Domestic Legal Proceedings Based on Matters of Ethics and Corruption - Legal Proceedings by , , 1984-1993 - Thibault c. R., 2013 QCCS 1323, 18 février 2013; 2013 QCCA 473, 18 mars 2013, leave to appeal to the SCC denied 27

Wednesday, June 3, 2020; 10:00 am – 11:30 am 20. ACCESS TO INFORMATION

Among the issues of public administration as framed by the Law of Public Institutions and Administration, access has evolved as a major touchstone of good government. Public information constituting evidence and enabling citizen awareness is the very basis of sound governmental action. Transparency in the conduct of government is acknowledged to be one of the bases of accountability and the rule of law. The kind of transparency aimed at by enlightened observers of Democracy is that which enables citizens not only to witness the machinery of government and the processes of governing, but also to apprise themselves of the palpable results of governmental action, namely the creation and use of 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 practice since then has been one of conflict between successive governments on one hand and successive Information Commissioners on the other. The fundamental questions in this conflict have to be framed in the following manner: Is the publicity of government information more sensitive than the proper administration of the state, the application of rights and the lawful disposition of public funds? Is the publicity of government information more vital to society than the confidentiality of the information of state institutions? Having enacted access legislation, are governments duty- bound to observe these laws according to the stated purpose of the enactment, or to allow the dictates of policy or politics to apply them restrictively? More broadly, does an informed citizenry contribute to the Democratic nature of society? While Canada struggles with these initial problems, access legislation around the Democratic world has evolved. This country's inability to modernize access law is causing harm to the quality of its Democracy.

CORE READINGS - Additional………….- Office of the Information Commissioner Estimates Part III (yearly) and 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 - Federal Access to Information and Privacy Legislation Annotated (yearly) Drapeau & Roberge

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS FEDERAL - Access to Information Act, R.S.C. 1985, c. A-1. See especially ss. 2 and 4 - Security of Information Act, R.S.C. 1985, c. 0-5 - Public Servants Disclosure Protection Act, S.C. 2005, c. 46 ONTARIO - Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, with amendments

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. - 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: ATIA, ss. 24-25 - Exclusions: ATIA, 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 (InfoCom) 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 § Accountability Impact of the Work of the Information Commissioner - 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 - 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 - Canada Evidence Act, R.S.C. 1985, c. C-5 § Accountability impact of the work of the Information Commissioner

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Thursday, June 4, 2020; 8:30 am – 10:00 am 21. PUBLIC SECTOR LEADERSHIP THROUGH ETHICS

Over the last several decades, a number of rules have arisen to deal with not what public institutions and officials are tasked to do, but rather with how they must accomplish their public duties and what behaviours they should avoid. This domain is the best illustration of the migration of instruments. At first, the rules were of a political nature; later, they were framed in terms of policy instruments. Over the course of time, a number of these rules became legislated. Their self-standing and compulsory nature became ever stronger. There are three fundamental notions underlying such rules. The first is the public interest. The second is fairness and . The third is the avoidance of harm. Considering social and societal circumstances today, rules relating to matters of ethics have become increasingly prominent and important. They are now a vital component of the law of public institutions and administration.

Laws and other instruments dealing with matters of ethics are comprised in a bewildering plethora of instruments, each of which is addressed to a different component of the public sector. No study of law in the public sector is complete without them.

CORE READINGS

- Greene, Ian and David P. Shugarman Honest Politics Now (Toronto: Lorimer, 2017) - Levine, Gregory J. The Law of Government Ethics: Federal, Ontario and British Columbia, 2nd ed. (Aurora: Canada Law Book, 2015)

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS

- Parliament of Canada Act, R.S.C., c.P-1, ss. 81-90 - Conflict of Interest Code for Members of the House of Commons, Appendix I to the Standing Orders of the House of Commons - Ethics and Conflict of Intertest Code for Senators - Conflict of Interest Act, S.C. 2006, c. 9, s. 2 - Public Servants Disclosure Protection Act, S.C. 2005, c. 46 - Ethical Principles for , https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf - Federation of Law Societies of Canada Model Code of Professional Conduct (for lawyers, including public sector lawyers) https://flsc.ca/wp-content/uploads/2018/03/Model-Code-as-amended-March-2017-Final.pdf - Canadian Bar Association Code of Professional Conduct

SPECIFIC ISSUES

§ The Public Interest

§ Performance of Official Duties and Functions

§ Disengagement of Public (Professional) and Private Interests

§ Maintenance of Professional Standards and Behaviour

§ Avoidance of Personal Enrichment

§ Avoidance of Gifts

§ Arrangement of One's Private Affairs to not Impinge on Professional Life

§ No Misuse of Personal Information

§ Avoidance of Sexual Harassment

§ Avoidance of Workplace Harassment and Misbehaviour

§ Disclosure of Misbehaviour 29

Thursday, June 4, 2020; 10:00 am – 11:30 am 22. EVOLVING DEMOCRATIC RIGHTS; NEW REMEDIES IN THE DEVELOPMENT OF DEMOCRACY

The twin objectives of this course are to explain the legal aspects of government and governance, and to analyze the relationship of this law to policy and political forces and instruments in a Democratic context. The final steps in this journey are to see what new constitutional and legal rights are evolving in this sphere and what new remedies are arising to support and stabilize Democracy in an increasingly contentious political environment. Each generation adds to the fabric of Democracy. The incorporation of the 1960 Bill of Rights and of the 1982 Canadian Charter of Rights and Freedoms into the panoply of instruments of governance were but steps in the evolution of the country. Both at the domestic and on the international level, new and additional rights arise. Beyond the individually enumerated rights already well-established, the new super-right to sound public administration is emerging, primarily through international conventional law. We must ponder whether this will lead to a yet more elaborate super-right to Democratic government. The alternative, of course, is to accept the ebb and flow of history, according to which the pendulum of each Democratic state swings between Democracy and authoritarianism from time to time, rendering the concept of such a right meaningless. Of equal interest is the evolution of new remedies for breaches of Democratic state action. In the Anglo-American world, new sectoral Bills of Rights occasionally arise, while new subjects and forms of litigation also seek to solidify and expand Democracy. While much good work is done in this area in the global international institutions such as the United Nations, the most productive source of new remedies to secure Democracy seem to be arising from within European institutions such as the EU and the Venice Commission of the Council of Europe. It is no longer sufficient to say that the unique solution to undemocratic government is the political method, through the ballot box. The law is constantly evolving, its reach is expanding.

CORE READINGS - Textbook…………...- TPPL, Chapters 9, 13 and 14 - Additional………… - The Princeton Principles on Universal Jurisdiction http://www.princeton.edu/~lapa/unive_jur.pdf ………………………..- The Responsibility to Protect, December 2001 .http://www.iciss-ciise.gc.ca/menu-e.asp - 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 Report on the Rule of Law Study No. 512 / 2009 CDL-AD (2011) 003 rev. - 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 - Colin Harvey, Playing with Law and Politics, 51 U of TLJ 171, Spring 2001 - A. Alan Borovoy, New Threats to Political Rights, (1999) 10 NJCL 453

CONSTITUTIONAL TEXTS; STATUTORY PROVISIONS; LEGISLATIVE MATERIALS - Constitution Act, 1867, Preamble - Constitution Act, 1982, Preamble, ss.1, 2 (b) (c) (d), 3, 4, 5, 16(1), 17(1), 18(1),19(1), 20(1), 3 - The Rt. Hon. Beverly McLachlin. Unwritten Constitutional Principles: What’s Going On? (2006) 4 NZJPIL 147 SPECIFIC ISSUES § Elements of Democracy - Universal Declaration of Human Rights http://www.un.org/en/universal-declaration-human-rights/ - International Covenant on Civil and Political Rights http://www.unhchr.ch/html/menu3/b/a-ccpr.html § 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) § The Democratic Deficit - Peter Aucoin and Lori Turnbull. The Democratic Deficit: and Parliamentary Reform CPA, Vol.46, No. 4, p. 427 § Case Study on the Litigation of the Political Issues of Democratic Elections - Peter McCormick, The Political Jurisprudence of Hot Potatoes: Secession Reference and Bush v. Gore, [2002] 13 NJCL 271 § Accountability to Law of Heads of State and Government - Ex parte Pinochet Ugarte (1998) All E.R. (D) 629, (1998) 4 All E.R. 897, (1999)1 All E.R. 577, (1999) 2 All E.R. 9 § Accountability to Law of Heads of State and Government under International - The Statute of the International Criminal Court http://www.un.org/law/icc/statute/99_corr/cstatute.htm 30

Friday, June 5, 2020; 8:30 am – 10:00 am 23. POLITICAL LITIGATION AND PROSECUTION

In addition to legislation, litigation is one of the primary ways leading toward the creation of legal instruments in political law, namely court judgments. It is necessary to understand the determination of governmental, public and in particular political, issues through litigious process leading to decision-making as an alternative to other legal means, to the creation of policy and to political negotiation and compromise. First, it consists of adversarial use of legal process. Second, it is often perceived to be the most effective method of producing final and definitive, that is autonomously binding, solutions. Litigation is also often considered the most reliable way of striving for accountability to law in the face of the uncertainties of politics. In all of these senses, reliance on litigation indicates both a Democratic belief in legality and societal acceptance of the legitimate role of the judiciary. This examination starts by setting out the ways in which political law litigation is distinct from other types of legal actions. It is necessary to look at the decision to litigate when political issues are at stake, the decision to defend and the decision to appeal. What characteristics enable a to fall into the ambit of being considered political? The class will also look at the trends and patterns in the pleading of such cases: claims, defenses, litigation tactics, creation of public perceptions. We must enumerate the varieties of interactions between litigious proceedings and political matters, in light of the doctrine of justiciability. There is now increased use of litigation, as opposed to policy or political forms of problem resolution. This litigiousness is not a mere societal trend, or Americanization. The determination of fundamentally constitutional and political differences through litigation brings to the fore the twin ideas of politicization of law, as well as that of legalization and judicialization of politics, hallmarks of the Charter era in Canada. In this connection, pre and post Charter comparisons are valuable. Attention will also focus on the misuse of litigation and prosecution in political contexts. Particular mention ought to be made of the use of litigation by parliamentarians. Many of the same considerations apply regarding prosecutions.

CORE READINGS - Textbook……..…- TPPL, Chapters 9 and 13 - Additional………- Grant Hushcroft, The Attorney General and Charter Challenges to Legislation (1995) 5 NJCL 125 - , A Secret :Brian Mulroney, Stevie Cameron and the Public Trust (Montreal: MQUP, 2004) - Gregory Hein, Interest Group Litigation and Canadian Democracy IRPP Choices, March 2000, Vol. 6, No. 2 - Statement in the House of Commons by PM on the Rights of Indigenous Peoples, Feb. 14, 2018 - Statement by Premier of British Columbia on litigation of the pipeline authorization issue http://www.cbc.ca/news/canada/british-columbia/wine-boycott-ends-1.4547754

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 ONTARIO - Ministry of the Attorney General Act, R.S.O. 1990, c. M.17 - Courts of Justice Act, R.S.O. 1990, c. C.43

SPECIFIC ISSUES § Litigation About the Fundamental Nature of Canada - Reference: re Secession of Quebec (1998) 161 D.L.R. (4th) 385 - Henderson and Equality Party v. Quebec (Attorney General) (2002) D.L.R. (4th) 691 - Société St.-Jean Baptiste v. Hervieux-Payette [2002] CanLII 8266 (QC CA) § Justiciability - Operation Dismantle Inc. v. R. [1985] 1 S.C.R. 441 § Litigating the Legislative Process - Federation of Saskatchewan Indians v. Canada [2003] FCT 306 § Litigation About Political and Partisan Issues 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 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 § Use of Litigation or Prosecution for Political Motives - Ontario (Attorney General) v. Dieleman (1994) 16 O.R. (3d) 3 - Trinh v. Chan (1997) 34 C.C.E.L.(2d) 293 - UNB Student Union Inc. v. Municipal Election Officer (1999) 217 N.B.R. (2d) 322 - R. v. Kormos (1988) 78 C.R. (3d) 282 § Political Discourse and Discourse about Politics and Political Figures - R. v. Canadian Broadcasting Corporation (1992) 72 C.C.C. (3d) 545 - Foulidis v. Ford 2012 ONCA 7189 § Reporting on Politics and Political Figures - Vander Zalm v. Times Publishers et al. (1979) 96 D.L.R. (3d) 172 § 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 § Definition of a Political Trial - Case of Khodorkhovskiy v. Russia, No. 1 and No. 2, ECtHR, Nov. 28, 2011 and July 25, 2013

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Friday, June 5, 2020; 10:00 am – 11:30 am 24. THE JUDICIARY AND JUDICIAL DECISION-MAKING

The necessary complement to the analysis of litigation is comprehension of the role of the judiciary. This class will deal first with the law-politics interaction as an aspect of judicial institutions and second with the essence of decision-making by the courts. Who is appointed to the , why, and how? In particular, are the perceptions of political and judicial attitude factors in the nomination of judges? The guiding principle here is the independence of the judiciary from the executive branch. Today, independence specifically includes the absence of politicization. While it is a fact of life that the Charter has resulted in politicization of the law and it may in some instances be a factor in litigation, Democracy nevertheless requires its avoidance in the structuring of the judiciary and in the process of adjudication. Judicial – executive relations necessitate not only knowledge of the separation of functions, but also an institutional sensitivity to its intense meaning. The recent controversy regarding the possible requirement of functional bilingualism (as opposed to bi-jural training) for eligibility to the Supreme Court of Canada is an aspect of this dilemma. Statutory measures to limit the discretion of judges constitutes another aspect of the debate. The second fundamental point of consideration is that of the nature of judicial decision-making. What are the criteria judges take into account in making their decisions? Democratic theory holds that judges must decide exclusively on legal criteria. The question arises whether they are in some fashion, or to some extent, inherently political? Does this lead to the conclusion that judicial decisions are in fact political? Or worse, partisan? Is it more appropriate to assess the possible weight of considerations that may be political in judicial decision-making? Do judges’ life experience or 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? Is such a perception based on factual evidence? This is currently particularly relevant in respect of Indigenous people and women. As a result of global trends, comparison of the manner in which the law-politics relationship in the judiciary is handled in Canada with that of other like-minded states seems unavoidable.

CORE READINGS - Textbook…………- TPPL, Chapters 9 and 13 - Additional………..- Beverley McLachlin, Courts, and Executives in the Post-Charter Era, Policy Options, June 1999 - Patrick Monahan, The Public Policy Role of the Supreme Court of Canada in the Secession Reference (1999-2000) 11 N.J.C.L. 65 - Hugh Mellon & Martin Westmacott, eds., Appreciating the SC’s National Significance in Political Dispute and Judicial Review, - Frederick Vaughan, Judicial Politics in Canada, in Choices IRPP, Vol. 5, no. 1, June 1999 - Texts appearing under the title of Who Decides – The Courts or Parliament? Policy Options, Oct. 2003

CONSTITUTIONAL, STATUTORY AND LEGISLATIVE MATERIAL - Constitution Act, 1867, ss. 96-101 - Judges Act, R.S.C., c. J-1 - Supreme Court Act, R.S.C. 1985, c. S-26 - Rules of the Supreme Court, - Federal Courts Act, R.S.C. 1985, c. F-7 - Tax Court of Canada Act, R.S.C. 1985, c. T-2

SPECIFIC ISSUES § Architecture of the State – The Supreme Court - Reference re Supreme Court Act, ss. 5 & 6, 2014 SCC 21 § Democratic Decision-Making and the Separation of Functions - Tim Koopmans, Courts and Political Institutions: A Comparative View (Cambridge, Cambridge University Press, 2003) § Appointment of Judges - Valente v. The Queen (1985) 2 S.C.R. 673 - Reference re Remuneration of Judges (1997) 3 S.C.R. 3 - & Charlie Feldman, SC Appointments: When and How Should Parliament Exercise Oversight?, JPPL Vol. 8 , 253 - Jacob Ziegel, Merit Selection and Democratization of Appointments to the SCC, Choices IRPP, June 1999 § Political Rights and Activities of Judges - Muldoon v. Canada (1988) 3 F.C. 628 § Judicial Decision-Making in Political Cases - Black v. Chrétien (2001) 199 D.L.R. (4th) 228 - Bangalore Principles of Judicial Conduct http://www.transparency.org/building_coalitions/codes/bangalore_conduct.html - The Rt. Hon. Lord Steyn, The Weakest and Least Dangerous Department of Government [1997] P.L. 84 - Texts appearing under the collective title of Are Judges Too Powerful? in Policy Options IRPP, Vol. 20, No. 3, April, 1999 - Re Ouellet (Nos. 1 and 2) 1976 72 D.L.R. (3d) 95 § Executive – Judicial Relations - Open Letter to the Prime Minister by 652 academics and lawyers; May 13, 2014 - Beverley McLachlin,C.J., The Decline of Democracy and the Rule of Law::How to Preserve the Rule of Law and Judicial Independence? https://www.scc-csc.ca/judges-juges/spe-dis/bm-2017-09-28-eng.aspx

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COMPREHENSIVE 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)

- Oliver, Peter, Patrick Macklem & Nathalie Des Rosiers The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press: 2017)

- Ward, Norman. Dawson’s The Government of Canada (Toronto; Press, 6th ed., 1987)

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)

- Dominique Clément, Human Rights in Canada: A History (Waterloo: UP. 2016)

- 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)

- Forcese, Craig, Adam Dodek, Philip Bryden, Peter Carver, Richard Haigh, Mary Liston & Constance Macintosh Public Law: Cases, Commentary and Analysis (Toronto: Emond, 2015)

- Greene, Ian The Charter of Rights and Freedoms: 30+ Years of Decisions that Shape Canadian Life (Toronto: James Lorimer & Company Ltd., 2014)

- Greene, Ian and David P. Shugarman Honest Politics Now; What Ethical Conduct Means in Canadian Public Life (Toronto: James Lorimer & Company Ltd., 2017)

- 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) 33

- Moscrop, David Too Dumb for Democracy (Fredericton: Goose Lane Editions, 2019)

- 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)

- Savoie, Donald J. Democracy in Canada: The Disintegration of Our Institutions (Montreal and Kingston: McGill-Queen's U.P., 2019)

- 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)

- Crick, Bernard. Democracy: A Very Short Introduction. (Oxford: Oxford University Press, 2002) Also available on Kindle

- 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) 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) Les Canadiens et leur système de gouvernement

- Franks, C.E.S. The Parliament of Canada (Toronto: University of Toronto Press, 1987)

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- Greene, Ian and David P. Sugarman. Honest Politics: Seeking Integrity in Canadian Public Life (Toronto: James Lorimer & Company, 1997)

- 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) 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. 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) Petit guide du système parlementaire canadien (Montréal : Éditions Libre Expression, 1987)

- Marc Bosc and André Gagnon. House of Commons Procedure and Practice, 3rd Ed., 2017 La procédure et les usages de la Chambre des communes, 3e édition, 2017 (Ottawa: House of Commons and Montreal: Éditions Yvon Blais, 2017)

- 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)

- Walsh, Rob On the House: An Inside Look at the House of Commons (Montreal and Kingston: McGill-Queen's U. P., 2017)

TEXTS FROM LIKE – MINDED JURISDICTIONS

United Kingdom

- Bingham, Tom. The Rule of Law (London: Allen Lane, 2010)

- 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)

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- 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

- Frum, David. Trumpocracy: The Corruption of the American Republic (New York: Haroer-Collinbs, 2018)

- 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)

- 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

- Albright, Madeleine Fascism: A Warning (New York: Harper Collins, 2018)

- 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)

- Dupuis-Déry, Francis, Démocratie: Histoire politique d’un mot (Montréal : Lux Éditions, 2013)

- 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)

- Lévy, Bernard-Henri L'Empire et les cinq rois (Paris : Grasset, 2018)

- Steven Levitzky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing, 2018)

- 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)

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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 Ontario.

- 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 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.

- Reconsideration of the First Past the Post Electoral System.

- Major issues in the preparation of the 2019 Canadian federal general election.

- The initial political law analysis of the 2019 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. 37

- The current developments in financing of political parties and election campaigns.

- The impact of new media on the development of public law and the law-technology interaction.

- The law, policy and politics of federal by-elections.

- The status and work of the Commissioner of Canada Elections: law and/or politics.

- 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.

- 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.

- Challenges of managing elections.

- The recent treatment of parliamentary privilege in the Supreme Court and various courts of appeal.

- The current Canadian [or select another Canadian jurisdiction] 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, incorporating current issues.

- The use of Private Members’ Public Bills for public purposes.

- The rules relating to expulsion of parliamentarians from party caucuses.

- The change of political allegiance by parliamentarians in Canada [or select another Canadian jurisdiction].

- The modernization and reform of Canadian law on First Nations and their accountability to law.

- The use of legislation, tax measures and/or 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.

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- The current state of the balance between Parliament and the Executive.

- The current state of the balance between the Supreme Court and the Executive.

- Recent evolution of Legislative – Executive – Judicial relations in Canada.

- The use of commissions of inquiry to modernize public governance in Canada.

- The evolution of whistle-blowing legislation and practice in Canada, incorporating current issues.

- The politics of Canada’s legislation on access to information.

- The effect of the Access to Information Act on Canadian political life.

- The legal utility of the Charter Challenges Program.

- The evolution and legal impact of balanced budget legislation in Canada.

- The policies and practices to promote the independence of the Canadian judiciary.

- The politics and of the western provincial separatist movements in Canada.

- The reform of Canadian legislation on controlled substances through courts and Parliament.

- The organization of political resistance to new legislation: public policy, politics and economic interest.

- The mutual influences of legality and public opinion & polling.

- 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 constitutional control of legislation enacted for political popularity.

- 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. (42nd or 43rd Parliaments).

- Political law analysis of Canada – EU free trade.

- Political law analysis of NAFTA and the transition to the CUSMA.

- What is the national security – personal privacy trade-off resulting from domestic spying?

- Does the state have a duty to provide democracy and rule of law education?

- The December 2019 Speech from the Throne and the current legislative program, in comparison to campaign promises.

- Law and politics of Canada's recent crisis dealings with Iran.

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House of Commons Chamber

Anthony J. Batten

(British-born Canadian; 1940 - )

40