POLI 478 Lecture Notes - Lecture 1: Beverley Mclachlin, Attorney General V. X, Auton
12 Jun 2018
School
Department
Course
Professor
POLI 478: The Canadian Constitution – Rights & Liberties
Course format (see syllabus):
• Lectures will usually be ~2 hours
• 10% participation (in conference); 30% midterm; 30% paper; 30% final
o Conference registration should be open soon
• Office hours: will be announced weekly; Prof. Manfredi will usually be around after class.
Introduction
2 main parts to this course:
• Constitutional doctrine: how have rights been defined over time by the Supreme Court of
Canada (SCC)? Do we agree/disagree?
• Political process: how did the courts come to define these rights? Why did X case (and not Y)
reach the SCC? How did the court reach its decision?
Manfredi believes SCC is a political, not legal institution.
• External politics: cases usually emerge through deliberate legal mobilization – actors w/policy
preferences use constitutional litigation
o e.g. Auton v. BC: several groups brought lawsuit because they felt autism provisions
under Charter were insufficient
o “oe ases a e aidetal -product of process, e.g. recent R v. Comeau
▪ Comeau regularly drove across the NB-QC border to buy beer, but police
stopped + fined him for circumventing the NB importation limit
▪ i.e. a minor event turned by interest groups (against inter-provincial trade
barriers) into constitutional case: these groups provided Comeau w/legal +
financial support during the process
• Internal politics: decision within court itself = political process
o Cases reach SCC because legal rules are unclear
o Why do the 9 justices – despite similar levels of education + experience - often reach
different verdicts?
▪ Models of judicial decision-making:
Legal
Judges apply law plainly
Attitudinal
Judges preferees ased o their alues, eliefs, life eperiees
Strategic
Judges have preferences, but are constrained by various factors:
• Internal: must bargain w/ + persuade other justices to vote with you
• External: SCC force comes from moral authority of judgments
The reality may be all three: a oiatio of hat the judges prefer to do, tempered
by what they think they should do, constrained by what they perceive is feasible to do.
Judicial activism: propensity of a court to reverse or otherwise modify decisions of other polit. actors.
• SCC increasingly activist since Charter
o National Post article (07/03/2003): Manfredi believes that Beverley McLachlin openly
akoledged “CC fous o soiall eefiial ruligs
• SCC falls in middle of restraint-activism spectrum: 1/3 of cases result in decision against gov.
o Not directly related to ideological orientation: courts/justices can make conservative
activist, or liberal restrained decisions
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Poli 478: the canadian constitution rights & liberties. Lectures will usually be ~2 hours: 10% participation (in conference); 30% midterm; 30% paper; 30% final, conference registration should be open soon, office hours: will be announced weekly; prof. manfredi will usually be around after class. 2 main parts to this course: constitutional doctrine: how have rights been defined over time by the supreme court of. Judges(cid:859) prefere(cid:374)(cid:272)es (cid:271)ased o(cid:374) their (cid:448)alues, (cid:271)eliefs, life e(cid:454)perie(cid:374)(cid:272)es. Judges have preferences, but are constrained by various factors: Internal: must bargain w/ + persuade other justices to vote with you: external: scc force comes from moral authority of judgments. The reality may be all three: a (cid:272)o(cid:373)(cid:271)i(cid:374)atio(cid:374) of (cid:862)(cid:449)hat the judges prefer to do, tempered by what they think they should do, constrained by what they perceive is feasible to do(cid:863).
