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Concordia University - POLI 398 - Study Guide Midterm Oct 16, 2017 -

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Concordia University - POLI 398 - Study Guide Midterm Oct 16, 2017 -

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background image Analyze and comment on CRTC using some sections
of the Act
• CRTC It was created in 1968, but since 1932 the parliament was creating special committee within broadcasting and the parliament of
Canada passed the Canadian Radio Broadcasting Act (ancestor of
the CRTC) § The CBC was created in 1952 § In 1968 the Broadcasting act was adopted and it includes then the CBC as the national broadcaster and instituted
restriction of foreign ownership and Canadian talent and
lead to the creating of the CRTC The CRTC Act goes back to 1976, that particular act increased the powers of the CRTC The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ The main goal of the broad ensure accessibility CRTC can be reviewed since it is a federal administrative institution It is an independent  agency It has to report to parliament through a minister § They report to the legislature which they have the power No minister can have anything to say The executive branch of gov. can ask a court to review decisions made by the CRTC It is in charge of regulations, the Canadian Broadcasting and Telecommunication system The CRTC Commission has authority in regard to all the Canadian Broadcasting system § It has authority over many thousands  broadcasters including television, cable distribution AM & FM, direct to home
satellite systems, subscription television, paid speciality
television § All major phone companies § It derives its authority from broadcasting act and telecommunications act □ The CRTC hold public hearing, round table discussions The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ Main goal = ensure accessibility § Make sure that Canadians have reliable telephone and telecommunication services at reasonable prices § Be attentive to the needs of Canadian Citizens, industries and interest groups § Ensure that all programming in CAN mirrors Canadian creativity and talent and make sure all programs mirrors our
linguistic & our multicultural diversity, special place for
aboriginal people (CAN social values) CRTC Act Before the CRTC the gov. participated in decision making process of what we see now as telecommunications and broadcasting B4 the gov. did not intervene or likely The gov. should not intervene that way corporations could be free as well as the people The gov. of QC & CAN, should intervene through the legislative assembly-power from the people, at the condition that laws
authorized or order the executive branch what not to do and what
to do § The CRTC Act was created through the Broadcasting Act. § The gov. then made the CRTC Act which takes care of the institution  CRTC § In order for the CRTC to do what the gov. of CAN wants it to do □ Powers where given to the CRTC (transferring powers from the Broadcasting Act to the CRTC) □ It takes care of the transfer of power or else you cannot regulate what you are supposed  to do ® It lead to the creation of the CRTC Act □ The CRTC is a federal gov. agency, therefore it can only deal with administrative law since it is not judicial □ It regulates + supervises all sectors of the Canadian Telecommunication and Broadcasting system which
includes:
® AM & FM Radio ® Television broadcasting ® Cable ® Special Services § It was first established in 1968 by the parliament and it was constituted  through the broadcasting act but in the end it
was constituted  by the CRTC Act
§ The CRTC grants licenses, monitors, established regulations and policies □ It works with the media industries and its goal is to develop broadcasting standards concerning violent
content, gender portrayal, cultural minority rights,
advertising and program aimed at children Broadcasting Act --> Canadian Nationalism & what it transports More interested by the CAN culture fabric like nationality It was originally established in 1968 and amended in 1981 Maintain Canada's cultural fabric therefore strengthening the economic political and social structure of Canadian § Covers 3 main sections: □ Broadcasting policy of CAN □ Regulatory power of the CRTC (most important one) □ Operating procedures and policies for the CBC (Radio- Canada) It imposes a Canadian owned Canadian broadcasting and provisions in regard to content… Encourages the development of Canadian expression, Canadian talent and resources Reflects Canada's cultural diversity, basically, the CRTC is supposed  to serve the needs and interest of all Canadians and to
reflect the various circumstances and ways of thinking of the
Canadian people It emphasizes that each broadcaster is responsible for their programs It has the power to create penalties through the broadcasting act to the broadcaster that do not respect the laws, rules and way of
the CRTC
They impose fines and they can limit and deny a broadcaster renewal of license for reasons specified in the act and policies and
regulation that the CRTC got from the Broadcasting Act
Telecommunication Act --> Technology It addresses the systems, technology and the way to do things and not to do technologically It is interested with technology to transfer information across CAN or provinces It identifies the significance of telecommunications in maintain Canada's identity and sovereignty It defines telecommunications as the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other
electromagnetic system, or by any similar technical system
According to the TCA, the CRTC has the right to make rules, orders and regulations with the view to implement the Canadian
telecommunication
§ In the case of the internet, it is not very clear what extend the CRTC wants to intervene Analyze and comment on s.91 and s.92 of BNA Act - All powers under the federal government come from section 91 of the BNA Act Legislative power of the parliament of Canada The government at the federal level - All powers under the provincial government come from section 92 of the BNA Act Powers that belong to the provincial legislators (parliament) The Notion of Power □ The people are the one's who have the power At the federal level, the people delegate their power to the federal government, the legislative branch of gov. according to
s.91 or 92 of the BNA Act.
Once the power has been transferred, then it belongs to either the legislative branch of parliament or legislative branch of
assembly
- Admin Law: a law has to be passed by the person/people  that have the power to do it □ Any decision has to be made by the people who have that power BNA Act --> Constitution-->Charter of Rights and Freedoms • The gov. cannot pass a law against the Charter of R.F or the Constitution (Ultra Vires) Analyze and comment on Duplessis  & Roncarelli
Superior Court case
Structure to be followed Introduction of the Case The facts Conclusions of the facts Court of appeal rejected Roncarelli appealed to Supreme Court The Decision Name the Judges concerned Comment Agree disagree Roncarelli = Plaintiff, Appellant - Duplessis = Defendant, Respondent - Archambault = Manager of the Commission - Introduction to the case Roncarelli = proprietor of a restaurant in MTL + holder of a license to sell liquor He sued Duplessis personally for damages arising out of the cancellation of his license by the QC Liquor Commission The license was arbitrarily cancelled by Duplessis without  legal powers in the matter Duplessis gave the order to the Commission (Archambault) to cancel it before its expiration He did to punish the plaintiff because he was a member of the Witnesses of Jehovah because he acted
as a bailsman for a large # of members of his sect that
were charged with the violation of municipal by-laws
linked with the distribution of literature
§ Facts: By-laws passed by towns  and municipalities made it an offence to distribute literature without a license. w w The intention was to eradicate the distribution  of Jehovah's Witnesses' pamphlets. w Roncarelli arranged bail for the enormous amount of arrests of Jehovah's Witnesses w Duplessis, the Premier of Qc ----> Qc Liquor Commission to revoke the license w Roncarelli sought Duplessis for the wrongful revocation of the license w Is the use of executive power to deliberately destroy Roncarelli's business valid? No, the commission has the right to grant and revoke the license at its discretion w Duplessis intentionally punished Roncarelli for acting contrary to the state interests was not a valid reason to revoke the license Conclusion of the Facts: The trial judge gave judgement to Roncarelli for part of the damages claimed but: Duplessis appealed and the Roncarelli seaked an increase in the amount of damages, cross-appealed The Court of Appeal dismissed the action and the cross-appeal ® § Judges Taschereau, Cartwright & Fauteux said: The action should be maintained and the amount $ awarded at trial should be increased by 25 000$ due to the wrongfully and
without  legal justification causing the cancellation of the permit
Duplessis was accused of damages under art. 1053 of the Civil Code Trial judge Kerwin said: Duplessis ordered the Commission to cancel the license and there was NO satisfactory reason has been proved to the Court of
Appeal
Judges Kerwin, Locke & Martland said: The cancellation of the permit was the result of an order given by Duplessis to the manager of the Commission Relationship of cause & effect between Duplessis' acts and the cancellation of the permit Duplessis: did not act in the exercise of any of his official powers There was no authority in any act enabling him to direct the cancellation of a permit under the Alcoholic Liquor Act Cancellation of a permit by the Commission at the request or upon the direction of a 3rd party was done It was not a proper and valid exercise of powers conferred upon the Commission by s.25 of the
Alcoholic Liquor Act
§ Duplessis was not entitled to the protection provided by art. 88 of the Code of Civil Procedure  because what he did was not done by
him in the exercise of his functions
It was outside his legal functions § - The Quebec Court of Queen's bench found in favor of Roncarelli Court of appeal rejected The judgement was released in favor of Roncarelli (8000$) Duplessis decided to appeal the decision to the province's Court of Appeal Roncarelli then cross-appealed for a higher award ○ No appeal was successful in the Court of Appeal
○ Duplessis took a further appeal to the Supreme Court of Canada
Decision 3 judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier 2 judges stated that although Duplessis had the power to order the cancellation, he had done so in bad faith; § and the 6th judge concluded the premier was not entitled to immunity as a public official Cartwright wrote a dissenting judgement which argued that it was within the power of the commission to refuse to grant Roncarelli a
permit as the act only fettered the commission by delineating
circumstances under which the granting of a permit was forbidden and
circumstances in which the cancellation of a permit was mandatory,
and nothing more. Judge Rand said: Denying or revoking a permit because a citizen exercises an unchallengeable right that is irrelevant to the sale of liquor is
beyond the scope of the discretion conferred upon  the
Commission by the Alcoholic Liquor Act It was not competent to the Commission and a fortiori to the gov. § Duplessis was not under any duty in relation to Roncarelli and his act was an intrusion upon the function of a statutory
body
§ Judge Abbott said: The cancellation was made because Roncarelli was associated with the Jehovah Witnesses & because he wanted to prevent him
to continue furnishing bail for the members of the sect
By authorizing and instructing the Commission to cancel the license, Duplessis acted without  any legal authority whatsoever He was not entitled to avail himself under the art.88 of the Code of Civil Procedure since the act complained that what he did was
not done by him in the exercise of his function, since he was gone
outside his functions to perform it. It would have applied IF: The time established that he performed the act complained that he had a reasonable ground for
believing that such act was within his legal authority to
perform § Judge Cartwright said: The loss suffered by Roncarelli was damnum sine injuria Duplessis approved the cancellation of the license, he cannot be answerable in damages since the act of the Commission in
cancelling the license was not an actionable wrong
Duplessis and Archambault acted throughout  in the honest belief that they were fulfilling their duty to the province The cancellation being illegal and imputable to Duplessis and damageable for Roncarelli, the latter was entitle to succeed
on an action under art.1053 of the Civil Code
§ Art.1054 deals with responsibility and art.88 with the procedure § Art.88  has its source in s.8 of an Act for the Protection of Justices of the Peace It provided that the officer shall be entitled to the protection of the stature although he has exceeded his powers of
jurisdiction and has acted contrarily to the law
§ It established that in pari materia  a public officer was not considered as having cease to act within the exercise of his
function by the sole fact that the act committed by him might
constitute  an abuse of power or excess of jurisdiction/violation of
the law
Attorneys: Scott & Stein for Roncarelli Beaulieu & Asselin for Duplessis Duplessis vs Roncarelli was compared to the following cases: § Boucher vs Le Roi □ Jehovah Witnesses were considered perturbators of public peace and they were constant  sources of
trouble in the province
□ It was even considered a rebellious conspiracy in the case of  Boucher vs Le Roi ○ Duplessis thought that it was not 'ethic' that the benefits that Roncarelli would get from his liquor permit would be used to help
disturbing religious beliefs
□ The Commission can to its discretion cancel the permit at any time ○ Archambault stated that he suggested that Roncarelli's permit should be confiscated & that he had the personal right to do so
according to art. 25 of the Liquor Law
○ Duplessis gave his consent, approbation, permission and his order to Archambault to cancel the permit § According to Duplessis it was in his duty to approve Archambault's suggestion to cancel the permit because
Roncarelli  did not deserve the privilege he had (the permit)
○ Duplessis pretends that he never gave the order to Archambault to cancel the license, he simply approved his suggestion of
cancelling it
- The Supreme Court of Canada held that indeed the premier had overstepped  his authority this decisions established the principle of the
rule of law including public officials
Comment: Agree or Disagree? Cartwright went on to argue that even if the commission were to be considered quasi-judicial, in which case procedural fairness guarantees
would apply, that still would not entitle the plaintiff to monetary
damages. the unwritten constitutional  principle of the “rule of law” means no public official is above the law, that is, they can
neither suspend  it nor dispense it.
□ Roncarelli wins § There might be a mistake ! □ Duplessis might have mistaken himself thinking that for the preservation of public peace and for the
suppression  of the existing problems at that time, he
had to remove the permit in order to not spread even
more the problems that were threatening to expand
○ The rule of law in administrative matter (the principle that legally delegated discretion) must be exercised in good faith Analyze and discuss  The principles  of Administrative
Law
What is Administrative law? It is the control by the legal obligations on the actions of governmental officials and on the remedies which are available to
anyone affected by a transgression of these limits
It covers the administration authorized that are under the control of the government Administrative law is the area of law overseeing governmental decisions made by authorities, departments or officials Deals with the action of administrators to whom powers have been granted by laws who have been enacted under the
constitution
The powers are granted by the constitutive  act Act that delegates the powers form the national assembly to the executive branch § They intervene in the administration and the protection of rights - Administrative Law is found under both  Civil Law and Common Law - Admin. Law covers the acts and the relationships between the government and the people Goal Make sure all activities of the government are authorized by the parliament or the provincial
legislature
□ make sure that the laws are equally and moderately applied based on 2 principles: 1) Government action: whatever action it takes must be legal (it has to be written in a statute, or
existed in common law)
§ Public law: admin law, constitutional  law, criminal law § Private law: sets the rules between individuals and settles disputes among groups of people and compensates victims § - - The principles are divided in 2 areas: The one's that govern the procedure provided by the government The one's that apply to the substantive  decisions - Rule of Law Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) § - Jurisprudence divides the procedural principals in 2 groups: Natural Justice Principle Application: § Content: § Fairness Principle Application: § Content: § - Substantive  Review of public decision-making Sources of Decision-Making Power Unreviewable Decisions - Excess of Jurisdiction and Errors of Law - Analyze and discuss  The Rule of Law ○ The rule that governs the principles and bases of administrative law
○ 3 branches
Legislative, executive , judicial Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) Federal Government Provincial Government 2 orders of the government that have completely different powers S.91 of BNA Act S.92 of BNA Act Exceptions: The Constitution  (used to be the BNA Act) It is the controlling law because you cannot go against it The Canadian Charter is now part of the constitution - The federal government cannot pass a law on a subjects matter that has not been attributed by s.91 if the constitution If not it is ILLEGAL (unconstitutional  = ultra vires) - Besides the Canadian charter, the freedoms and rights need to be recognized except if a law is done and is reasonable This is why there is a judicial branch a. 1) Make sure that their law respects the constitution  and the Charter Ex:. Duplessis vs. Roncarelli a. 2) Simplify access to justice 3) The rule of law = possibility of challenging laws 4) The role of the ministere de la justice 5) Ethics in the public administration 6) The public protector and his role 7) The auditor General 8) Qc's Lobbysts  Commissioner 9) The commission des droits de la personne et des droits de la jeunesse and its mandate 10) The Canadian Charter of Rights and freedoms 11) Qc Charter of HR and Freedoms 12) Right to equality 13) Civil Code 14) - The Sources of Law Legislation/Statutes: Also called case law Common law is the law decided by the judges in the English Empire When there was a problem the judges would decide in virtue of the jurisprudence ○ What has been decided on similar occasions from other cases Distinguish and explain why Doctrine: Means decisions of judges are based on doctrines Written by specialized lawyers that explain in details the reason of certain details Custom/Usage: Where the source of many decisions of the judges of the English empire Differences between the English law system and the French law system English = belonged more to judges ○ Rendered a decisions based on jurisprudence, doctrine and custom and usage Damnum sine injuria: when the plaintiff's right is not respected by another but where the infraction of the plaintiff's right does not cause damage • Fortiori:  en vertu d'une raison plus forte • Pari materia: in a similar case Midterm Study Guide jeudi 5 octobre 2017 22:48
background image Analyze and comment on CRTC using some sections
of the Act
• CRTC It was created in 1968, but since 1932 the parliament was creating special committee within broadcasting and the parliament of
Canada passed the Canadian Radio Broadcasting Act (ancestor of
the CRTC) § The CBC was created in 1952 § In 1968 the Broadcasting act was adopted and it includes then the CBC as the national broadcaster and instituted
restriction of foreign ownership and Canadian talent and
lead to the creating of the CRTC The CRTC Act goes back to 1976, that particular act increased the powers of the CRTC The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ The main goal of the broad ensure accessibility CRTC can be reviewed since it is a federal administrative institution It is an independent  agency It has to report to parliament through a minister § They report to the legislature which they have the power No minister can have anything to say The executive branch of gov. can ask a court to review decisions made by the CRTC It is in charge of regulations, the Canadian Broadcasting and Telecommunication system The CRTC Commission has authority in regard to all the Canadian Broadcasting system § It has authority over many thousands  broadcasters including television, cable distribution AM & FM, direct to home
satellite systems, subscription television, paid speciality
television § All major phone companies § It derives its authority from broadcasting act and telecommunications act □ The CRTC hold public hearing, round table discussions The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ Main goal = ensure accessibility § Make sure that Canadians have reliable telephone and telecommunication services at reasonable prices § Be attentive to the needs of Canadian Citizens, industries and interest groups § Ensure that all programming in CAN mirrors Canadian creativity and talent and make sure all programs mirrors our
linguistic & our multicultural diversity, special place for
aboriginal people (CAN social values) CRTC Act Before the CRTC the gov. participated in decision making process of what we see now as telecommunications and broadcasting B4 the gov. did not intervene or likely The gov. should not intervene that way corporations could be free as well as the people The gov. of QC & CAN, should intervene through the legislative assembly-power from the people, at the condition that laws
authorized or order the executive branch what not to do and what
to do § The CRTC Act was created through the Broadcasting Act. § The gov. then made the CRTC Act which takes care of the institution  CRTC § In order for the CRTC to do what the gov. of CAN wants it to do □ Powers where given to the CRTC (transferring powers from the Broadcasting Act to the CRTC) □ It takes care of the transfer of power or else you cannot regulate what you are supposed  to do ® It lead to the creation of the CRTC Act □ The CRTC is a federal gov. agency, therefore it can only deal with administrative law since it is not judicial □ It regulates + supervises all sectors of the Canadian Telecommunication and Broadcasting system which
includes:
® AM & FM Radio ® Television broadcasting ® Cable ® Special Services § It was first established in 1968 by the parliament and it was constituted  through the broadcasting act but in the end it
was constituted  by the CRTC Act
§ The CRTC grants licenses, monitors, established regulations and policies □ It works with the media industries and its goal is to develop broadcasting standards concerning violent
content, gender portrayal, cultural minority rights,
advertising and program aimed at children Broadcasting Act --> Canadian Nationalism & what it transports More interested by the CAN culture fabric like nationality It was originally established in 1968 and amended in 1981 Maintain Canada's cultural fabric therefore strengthening the economic political and social structure of Canadian § Covers 3 main sections: □ Broadcasting policy of CAN □ Regulatory power of the CRTC (most important one) □ Operating procedures and policies for the CBC (Radio- Canada) It imposes a Canadian owned Canadian broadcasting and provisions in regard to content… Encourages the development of Canadian expression, Canadian talent and resources Reflects Canada's cultural diversity, basically, the CRTC is supposed  to serve the needs and interest of all Canadians and to
reflect the various circumstances and ways of thinking of the
Canadian people It emphasizes that each broadcaster is responsible for their programs It has the power to create penalties through the broadcasting act to the broadcaster that do not respect the laws, rules and way of
the CRTC
They impose fines and they can limit and deny a broadcaster renewal of license for reasons specified in the act and policies and
regulation that the CRTC got from the Broadcasting Act
Telecommunication Act --> Technology It addresses the systems, technology and the way to do things and not to do technologically It is interested with technology to transfer information across CAN or provinces It identifies the significance of telecommunications in maintain Canada's identity and sovereignty It defines telecommunications as the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other
electromagnetic system, or by any similar technical system
According to the TCA, the CRTC has the right to make rules, orders and regulations with the view to implement the Canadian
telecommunication
§ In the case of the internet, it is not very clear what extend the CRTC wants to intervene Analyze and comment on s.91 and s.92 of BNA Act - All powers under the federal government come from section 91 of the BNA Act Legislative power of the parliament of Canada The government at the federal level - All powers under the provincial government come from section 92 of the BNA Act Powers that belong to the provincial legislators (parliament) The Notion of Power □ The people are the one's who have the power At the federal level, the people delegate their power to the federal government, the legislative branch of gov. according to
s.91 or 92 of the BNA Act.
Once the power has been transferred, then it belongs to either the legislative branch of parliament or legislative branch of
assembly
- Admin Law: a law has to be passed by the person/people  that have the power to do it □ Any decision has to be made by the people who have that power BNA Act --> Constitution-->Charter of Rights and Freedoms • The gov. cannot pass a law against the Charter of R.F or the Constitution (Ultra Vires) Analyze and comment on Duplessis  & Roncarelli
Superior Court case
Structure to be followed Introduction of the Case The facts Conclusions of the facts Court of appeal rejected Roncarelli appealed to Supreme Court The Decision Name the Judges concerned Comment Agree disagree Roncarelli = Plaintiff, Appellant - Duplessis = Defendant, Respondent - Archambault = Manager of the Commission - Introduction to the case Roncarelli = proprietor of a restaurant in MTL + holder of a license to sell liquor He sued Duplessis personally for damages arising out of the cancellation of his license by the QC Liquor Commission The license was arbitrarily cancelled by Duplessis without  legal powers in the matter Duplessis gave the order to the Commission (Archambault) to cancel it before its expiration He did to punish the plaintiff because he was a member of the Witnesses of Jehovah because he acted
as a bailsman for a large # of members of his sect that
were charged with the violation of municipal by-laws
linked with the distribution of literature
§ Facts: By-laws passed by towns  and municipalities made it an offence to distribute literature without a license. w w The intention was to eradicate the distribution  of Jehovah's Witnesses' pamphlets. w Roncarelli arranged bail for the enormous amount of arrests of Jehovah's Witnesses w Duplessis, the Premier of Qc ----> Qc Liquor Commission to revoke the license w Roncarelli sought Duplessis for the wrongful revocation of the license w Is the use of executive power to deliberately destroy Roncarelli's business valid? No, the commission has the right to grant and revoke the license at its discretion w Duplessis intentionally punished Roncarelli for acting contrary to the state interests was not a valid reason to revoke the license Conclusion of the Facts: The trial judge gave judgement to Roncarelli for part of the damages claimed but: Duplessis appealed and the Roncarelli seaked an increase in the amount of damages, cross-appealed The Court of Appeal dismissed the action and the cross-appeal ® § Judges Taschereau, Cartwright & Fauteux said: The action should be maintained and the amount $ awarded at trial should be increased by 25 000$ due to the wrongfully and
without  legal justification causing the cancellation of the permit
Duplessis was accused of damages under art. 1053 of the Civil Code Trial judge Kerwin said: Duplessis ordered the Commission to cancel the license and there was NO satisfactory reason has been proved to the Court of
Appeal
Judges Kerwin, Locke & Martland said: The cancellation of the permit was the result of an order given by Duplessis to the manager of the Commission Relationship of cause & effect between Duplessis' acts and the cancellation of the permit Duplessis: did not act in the exercise of any of his official powers There was no authority in any act enabling him to direct the cancellation of a permit under the Alcoholic Liquor Act Cancellation of a permit by the Commission at the request or upon the direction of a 3rd party was done It was not a proper and valid exercise of powers conferred upon the Commission by s.25 of the
Alcoholic Liquor Act
§ Duplessis was not entitled to the protection provided by art. 88 of the Code of Civil Procedure  because what he did was not done by
him in the exercise of his functions
It was outside his legal functions § - The Quebec Court of Queen's bench found in favor of Roncarelli Court of appeal rejected The judgement was released in favor of Roncarelli (8000$) Duplessis decided to appeal the decision to the province's Court of Appeal Roncarelli then cross-appealed for a higher award ○ No appeal was successful in the Court of Appeal
○ Duplessis took a further appeal to the Supreme Court of Canada
Decision 3 judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier 2 judges stated that although Duplessis had the power to order the cancellation, he had done so in bad faith; § and the 6th judge concluded the premier was not entitled to immunity as a public official Cartwright wrote a dissenting judgement which argued that it was within the power of the commission to refuse to grant Roncarelli a
permit as the act only fettered the commission by delineating
circumstances under which the granting of a permit was forbidden and
circumstances in which the cancellation of a permit was mandatory,
and nothing more. Judge Rand said: Denying or revoking a permit because a citizen exercises an unchallengeable right that is irrelevant to the sale of liquor is
beyond the scope of the discretion conferred upon  the
Commission by the Alcoholic Liquor Act It was not competent to the Commission and a fortiori to the gov. § Duplessis was not under any duty in relation to Roncarelli and his act was an intrusion upon the function of a statutory
body
§ Judge Abbott said: The cancellation was made because Roncarelli was associated with the Jehovah Witnesses & because he wanted to prevent him
to continue furnishing bail for the members of the sect
By authorizing and instructing the Commission to cancel the license, Duplessis acted without  any legal authority whatsoever He was not entitled to avail himself under the art.88 of the Code of Civil Procedure since the act complained that what he did was
not done by him in the exercise of his function, since he was gone
outside his functions to perform it. It would have applied IF: The time established that he performed the act complained that he had a reasonable ground for
believing that such act was within his legal authority to
perform § Judge Cartwright said: The loss suffered by Roncarelli was damnum sine injuria Duplessis approved the cancellation of the license, he cannot be answerable in damages since the act of the Commission in
cancelling the license was not an actionable wrong
Duplessis and Archambault acted throughout  in the honest belief that they were fulfilling their duty to the province The cancellation being illegal and imputable to Duplessis and damageable for Roncarelli, the latter was entitle to succeed
on an action under art.1053 of the Civil Code
§ Art.1054 deals with responsibility and art.88 with the procedure § Art.88  has its source in s.8 of an Act for the Protection of Justices of the Peace It provided that the officer shall be entitled to the protection of the stature although he has exceeded his powers of
jurisdiction and has acted contrarily to the law
§ It established that in pari materia  a public officer was not considered as having cease to act within the exercise of his
function by the sole fact that the act committed by him might
constitute  an abuse of power or excess of jurisdiction/violation of
the law
Attorneys: Scott & Stein for Roncarelli Beaulieu & Asselin for Duplessis Duplessis vs Roncarelli was compared to the following cases: § Boucher vs Le Roi □ Jehovah Witnesses were considered perturbators of public peace and they were constant  sources of
trouble in the province
□ It was even considered a rebellious conspiracy in the case of  Boucher vs Le Roi ○ Duplessis thought that it was not 'ethic' that the benefits that Roncarelli would get from his liquor permit would be used to help
disturbing religious beliefs
□ The Commission can to its discretion cancel the permit at any time ○ Archambault stated that he suggested that Roncarelli's permit should be confiscated & that he had the personal right to do so
according to art. 25 of the Liquor Law
○ Duplessis gave his consent, approbation, permission and his order to Archambault to cancel the permit § According to Duplessis it was in his duty to approve Archambault's suggestion to cancel the permit because
Roncarelli  did not deserve the privilege he had (the permit)
○ Duplessis pretends that he never gave the order to Archambault to cancel the license, he simply approved his suggestion of
cancelling it
- The Supreme Court of Canada held that indeed the premier had overstepped  his authority this decisions established the principle of the
rule of law including public officials
Comment: Agree or Disagree? Cartwright went on to argue that even if the commission were to be considered quasi-judicial, in which case procedural fairness guarantees
would apply, that still would not entitle the plaintiff to monetary
damages. the unwritten constitutional  principle of the “rule of law” means no public official is above the law, that is, they can
neither suspend  it nor dispense it.
□ Roncarelli wins § There might be a mistake ! □ Duplessis might have mistaken himself thinking that for the preservation of public peace and for the
suppression  of the existing problems at that time, he
had to remove the permit in order to not spread even
more the problems that were threatening to expand
○ The rule of law in administrative matter (the principle that legally delegated discretion) must be exercised in good faith Analyze and discuss  The principles  of Administrative
Law
What is Administrative law? It is the control by the legal obligations on the actions of governmental officials and on the remedies which are available to
anyone affected by a transgression of these limits
It covers the administration authorized that are under the control of the government Administrative law is the area of law overseeing governmental decisions made by authorities, departments or officials Deals with the action of administrators to whom powers have been granted by laws who have been enacted under the
constitution
The powers are granted by the constitutive  act Act that delegates the powers form the national assembly to the executive branch § They intervene in the administration and the protection of rights - Administrative Law is found under both  Civil Law and Common Law - Admin. Law covers the acts and the relationships between the government and the people Goal Make sure all activities of the government are authorized by the parliament or the provincial
legislature
□ make sure that the laws are equally and moderately applied based on 2 principles: 1) Government action: whatever action it takes must be legal (it has to be written in a statute, or
existed in common law)
§ Public law: admin law, constitutional  law, criminal law § Private law: sets the rules between individuals and settles disputes among groups of people and compensates victims § - - The principles are divided in 2 areas: The one's that govern the procedure provided by the government The one's that apply to the substantive  decisions - Rule of Law Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) § - Jurisprudence divides the procedural principals in 2 groups: Natural Justice Principle Application: § Content: § Fairness Principle Application: § Content: § - Substantive  Review of public decision-making Sources of Decision-Making Power Unreviewable Decisions - Excess of Jurisdiction and Errors of Law - Analyze and discuss  The Rule of Law ○ The rule that governs the principles and bases of administrative law
○ 3 branches
Legislative, executive , judicial Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) Federal Government Provincial Government 2 orders of the government that have completely different powers S.91 of BNA Act S.92 of BNA Act Exceptions: The Constitution  (used to be the BNA Act) It is the controlling law because you cannot go against it The Canadian Charter is now part of the constitution - The federal government cannot pass a law on a subjects matter that has not been attributed by s.91 if the constitution If not it is ILLEGAL (unconstitutional  = ultra vires) - Besides the Canadian charter, the freedoms and rights need to be recognized except if a law is done and is reasonable This is why there is a judicial branch a. 1) Make sure that their law respects the constitution  and the Charter Ex:. Duplessis vs. Roncarelli a. 2) Simplify access to justice 3) The rule of law = possibility of challenging laws 4) The role of the ministere de la justice 5) Ethics in the public administration 6) The public protector and his role 7) The auditor General 8) Qc's Lobbysts  Commissioner 9) The commission des droits de la personne et des droits de la jeunesse and its mandate 10) The Canadian Charter of Rights and freedoms 11) Qc Charter of HR and Freedoms 12) Right to equality 13) Civil Code 14) - The Sources of Law Legislation/Statutes: Also called case law Common law is the law decided by the judges in the English Empire When there was a problem the judges would decide in virtue of the jurisprudence ○ What has been decided on similar occasions from other cases Distinguish and explain why Doctrine: Means decisions of judges are based on doctrines Written by specialized lawyers that explain in details the reason of certain details Custom/Usage: Where the source of many decisions of the judges of the English empire Differences between the English law system and the French law system English = belonged more to judges ○ Rendered a decisions based on jurisprudence, doctrine and custom and usage Damnum sine injuria: when the plaintiff's right is not respected by another but where the infraction of the plaintiff's right does not cause damage • Fortiori:  en vertu d'une raison plus forte • Pari materia: in a similar case Midterm Study Guide jeudi 5 octobre 2017 22:48
background image Analyze and comment on CRTC using some sections
of the Act
• CRTC It was created in 1968, but since 1932 the parliament was creating special committee within broadcasting and the parliament of
Canada passed the Canadian Radio Broadcasting Act (ancestor of
the CRTC) § The CBC was created in 1952 § In 1968 the Broadcasting act was adopted and it includes then the CBC as the national broadcaster and instituted
restriction of foreign ownership and Canadian talent and
lead to the creating of the CRTC The CRTC Act goes back to 1976, that particular act increased the powers of the CRTC The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ The main goal of the broad ensure accessibility CRTC can be reviewed since it is a federal administrative institution It is an independent  agency It has to report to parliament through a minister § They report to the legislature which they have the power No minister can have anything to say The executive branch of gov. can ask a court to review decisions made by the CRTC It is in charge of regulations, the Canadian Broadcasting and Telecommunication system The CRTC Commission has authority in regard to all the Canadian Broadcasting system § It has authority over many thousands  broadcasters including television, cable distribution AM & FM, direct to home
satellite systems, subscription television, paid speciality
television § All major phone companies § It derives its authority from broadcasting act and telecommunications act □ The CRTC hold public hearing, round table discussions The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ Main goal = ensure accessibility § Make sure that Canadians have reliable telephone and telecommunication services at reasonable prices § Be attentive to the needs of Canadian Citizens, industries and interest groups § Ensure that all programming in CAN mirrors Canadian creativity and talent and make sure all programs mirrors our
linguistic & our multicultural diversity, special place for
aboriginal people (CAN social values) CRTC Act Before the CRTC the gov. participated in decision making process of what we see now as telecommunications and broadcasting B4 the gov. did not intervene or likely The gov. should not intervene that way corporations could be free as well as the people The gov. of QC & CAN, should intervene through the legislative assembly-power from the people, at the condition that laws
authorized or order the executive branch what not to do and what
to do § The CRTC Act was created through the Broadcasting Act. § The gov. then made the CRTC Act which takes care of the institution  CRTC § In order for the CRTC to do what the gov. of CAN wants it to do □ Powers where given to the CRTC (transferring powers from the Broadcasting Act to the CRTC) □ It takes care of the transfer of power or else you cannot regulate what you are supposed  to do ® It lead to the creation of the CRTC Act □ The CRTC is a federal gov. agency, therefore it can only deal with administrative law since it is not judicial □ It regulates + supervises all sectors of the Canadian Telecommunication and Broadcasting system which
includes:
® AM & FM Radio ® Television broadcasting ® Cable ® Special Services § It was first established in 1968 by the parliament and it was constituted  through the broadcasting act but in the end it
was constituted  by the CRTC Act
§ The CRTC grants licenses, monitors, established regulations and policies □ It works with the media industries and its goal is to develop broadcasting standards concerning violent
content, gender portrayal, cultural minority rights,
advertising and program aimed at children Broadcasting Act --> Canadian Nationalism & what it transports More interested by the CAN culture fabric like nationality It was originally established in 1968 and amended in 1981 Maintain Canada's cultural fabric therefore strengthening the economic political and social structure of Canadian § Covers 3 main sections: □ Broadcasting policy of CAN □ Regulatory power of the CRTC (most important one) □ Operating procedures and policies for the CBC (Radio- Canada) It imposes a Canadian owned Canadian broadcasting and provisions in regard to content… Encourages the development of Canadian expression, Canadian talent and resources Reflects Canada's cultural diversity, basically, the CRTC is supposed  to serve the needs and interest of all Canadians and to
reflect the various circumstances and ways of thinking of the
Canadian people It emphasizes that each broadcaster is responsible for their programs It has the power to create penalties through the broadcasting act to the broadcaster that do not respect the laws, rules and way of
the CRTC
They impose fines and they can limit and deny a broadcaster renewal of license for reasons specified in the act and policies and
regulation that the CRTC got from the Broadcasting Act
Telecommunication Act --> Technology It addresses the systems, technology and the way to do things and not to do technologically It is interested with technology to transfer information across CAN or provinces It identifies the significance of telecommunications in maintain Canada's identity and sovereignty It defines telecommunications as the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other
electromagnetic system, or by any similar technical system
According to the TCA, the CRTC has the right to make rules, orders and regulations with the view to implement the Canadian
telecommunication
§ In the case of the internet, it is not very clear what extend the CRTC wants to intervene Analyze and comment on s.91 and s.92 of BNA Act - All powers under the federal government come from section 91 of the BNA Act Legislative power of the parliament of Canada The government at the federal level - All powers under the provincial government come from section 92 of the BNA Act Powers that belong to the provincial legislators (parliament) The Notion of Power □ The people are the one's who have the power At the federal level, the people delegate their power to the federal government, the legislative branch of gov. according to
s.91 or 92 of the BNA Act.
Once the power has been transferred, then it belongs to either the legislative branch of parliament or legislative branch of
assembly
- Admin Law: a law has to be passed by the person/people  that have the power to do it □ Any decision has to be made by the people who have that power BNA Act --> Constitution-->Charter of Rights and Freedoms • The gov. cannot pass a law against the Charter of R.F or the Constitution (Ultra Vires) Analyze and comment on Duplessis  & Roncarelli
Superior Court case
Structure to be followed Introduction of the Case The facts Conclusions of the facts Court of appeal rejected Roncarelli appealed to Supreme Court The Decision Name the Judges concerned Comment Agree disagree Roncarelli = Plaintiff, Appellant - Duplessis = Defendant, Respondent - Archambault = Manager of the Commission - Introduction to the case Roncarelli = proprietor of a restaurant in MTL + holder of a license to sell liquor He sued Duplessis personally for damages arising out of the cancellation of his license by the QC Liquor Commission The license was arbitrarily cancelled by Duplessis without  legal powers in the matter Duplessis gave the order to the Commission (Archambault) to cancel it before its expiration He did to punish the plaintiff because he was a member of the Witnesses of Jehovah because he acted
as a bailsman for a large # of members of his sect that
were charged with the violation of municipal by-laws
linked with the distribution of literature
§ Facts: By-laws passed by towns  and municipalities made it an offence to distribute literature without a license. w w The intention was to eradicate the distribution  of Jehovah's Witnesses' pamphlets. w Roncarelli arranged bail for the enormous amount of arrests of Jehovah's Witnesses w Duplessis, the Premier of Qc ----> Qc Liquor Commission to revoke the license w Roncarelli sought Duplessis for the wrongful revocation of the license w Is the use of executive power to deliberately destroy Roncarelli's business valid? No, the commission has the right to grant and revoke the license at its discretion w Duplessis intentionally punished Roncarelli for acting contrary to the state interests was not a valid reason to revoke the license Conclusion of the Facts: The trial judge gave judgement to Roncarelli for part of the damages claimed but: Duplessis appealed and the Roncarelli seaked an increase in the amount of damages, cross-appealed The Court of Appeal dismissed the action and the cross-appeal ® § Judges Taschereau, Cartwright & Fauteux said: The action should be maintained and the amount $ awarded at trial should be increased by 25 000$ due to the wrongfully and
without  legal justification causing the cancellation of the permit
Duplessis was accused of damages under art. 1053 of the Civil Code Trial judge Kerwin said: Duplessis ordered the Commission to cancel the license and there was NO satisfactory reason has been proved to the Court of
Appeal
Judges Kerwin, Locke & Martland said: The cancellation of the permit was the result of an order given by Duplessis to the manager of the Commission Relationship of cause & effect between Duplessis' acts and the cancellation of the permit Duplessis: did not act in the exercise of any of his official powers There was no authority in any act enabling him to direct the cancellation of a permit under the Alcoholic Liquor Act Cancellation of a permit by the Commission at the request or upon the direction of a 3rd party was done It was not a proper and valid exercise of powers conferred upon the Commission by s.25 of the
Alcoholic Liquor Act
§ Duplessis was not entitled to the protection provided by art. 88 of the Code of Civil Procedure  because what he did was not done by
him in the exercise of his functions
It was outside his legal functions § - The Quebec Court of Queen's bench found in favor of Roncarelli Court of appeal rejected The judgement was released in favor of Roncarelli (8000$) Duplessis decided to appeal the decision to the province's Court of Appeal Roncarelli then cross-appealed for a higher award ○ No appeal was successful in the Court of Appeal
○ Duplessis took a further appeal to the Supreme Court of Canada
Decision 3 judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier 2 judges stated that although Duplessis had the power to order the cancellation, he had done so in bad faith; § and the 6th judge concluded the premier was not entitled to immunity as a public official Cartwright wrote a dissenting judgement which argued that it was within the power of the commission to refuse to grant Roncarelli a
permit as the act only fettered the commission by delineating
circumstances under which the granting of a permit was forbidden and
circumstances in which the cancellation of a permit was mandatory,
and nothing more. Judge Rand said: Denying or revoking a permit because a citizen exercises an unchallengeable right that is irrelevant to the sale of liquor is
beyond the scope of the discretion conferred upon  the
Commission by the Alcoholic Liquor Act It was not competent to the Commission and a fortiori to the gov. § Duplessis was not under any duty in relation to Roncarelli and his act was an intrusion upon the function of a statutory
body
§ Judge Abbott said: The cancellation was made because Roncarelli was associated with the Jehovah Witnesses & because he wanted to prevent him
to continue furnishing bail for the members of the sect
By authorizing and instructing the Commission to cancel the license, Duplessis acted without  any legal authority whatsoever He was not entitled to avail himself under the art.88 of the Code of Civil Procedure since the act complained that what he did was
not done by him in the exercise of his function, since he was gone
outside his functions to perform it. It would have applied IF: The time established that he performed the act complained that he had a reasonable ground for
believing that such act was within his legal authority to
perform § Judge Cartwright said: The loss suffered by Roncarelli was damnum sine injuria Duplessis approved the cancellation of the license, he cannot be answerable in damages since the act of the Commission in
cancelling the license was not an actionable wrong
Duplessis and Archambault acted throughout  in the honest belief that they were fulfilling their duty to the province The cancellation being illegal and imputable to Duplessis and damageable for Roncarelli, the latter was entitle to succeed
on an action under art.1053 of the Civil Code
§ Art.1054 deals with responsibility and art.88 with the procedure § Art.88  has its source in s.8 of an Act for the Protection of Justices of the Peace It provided that the officer shall be entitled to the protection of the stature although he has exceeded his powers of
jurisdiction and has acted contrarily to the law
§ It established that in pari materia  a public officer was not considered as having cease to act within the exercise of his
function by the sole fact that the act committed by him might
constitute  an abuse of power or excess of jurisdiction/violation of
the law
Attorneys: Scott & Stein for Roncarelli Beaulieu & Asselin for Duplessis Duplessis vs Roncarelli was compared to the following cases: § Boucher vs Le Roi □ Jehovah Witnesses were considered perturbators of public peace and they were constant  sources of
trouble in the province
□ It was even considered a rebellious conspiracy in the case of  Boucher vs Le Roi ○ Duplessis thought that it was not 'ethic' that the benefits that Roncarelli would get from his liquor permit would be used to help
disturbing religious beliefs
□ The Commission can to its discretion cancel the permit at any time ○ Archambault stated that he suggested that Roncarelli's permit should be confiscated & that he had the personal right to do so
according to art. 25 of the Liquor Law
○ Duplessis gave his consent, approbation, permission and his order to Archambault to cancel the permit § According to Duplessis it was in his duty to approve Archambault's suggestion to cancel the permit because
Roncarelli  did not deserve the privilege he had (the permit)
○ Duplessis pretends that he never gave the order to Archambault to cancel the license, he simply approved his suggestion of
cancelling it
- The Supreme Court of Canada held that indeed the premier had overstepped  his authority this decisions established the principle of the
rule of law including public officials
Comment: Agree or Disagree? Cartwright went on to argue that even if the commission were to be considered quasi-judicial, in which case procedural fairness guarantees
would apply, that still would not entitle the plaintiff to monetary
damages. the unwritten constitutional  principle of the “rule of law” means no public official is above the law, that is, they can
neither suspend  it nor dispense it.
□ Roncarelli wins § There might be a mistake ! □ Duplessis might have mistaken himself thinking that for the preservation of public peace and for the
suppression  of the existing problems at that time, he
had to remove the permit in order to not spread even
more the problems that were threatening to expand
○ The rule of law in administrative matter (the principle that legally delegated discretion) must be exercised in good faith Analyze and discuss  The principles  of Administrative
Law
What is Administrative law? It is the control by the legal obligations on the actions of governmental officials and on the remedies which are available to
anyone affected by a transgression of these limits
It covers the administration authorized that are under the control of the government Administrative law is the area of law overseeing governmental decisions made by authorities, departments or officials Deals with the action of administrators to whom powers have been granted by laws who have been enacted under the
constitution
The powers are granted by the constitutive  act Act that delegates the powers form the national assembly to the executive branch § They intervene in the administration and the protection of rights - Administrative Law is found under both  Civil Law and Common Law - Admin. Law covers the acts and the relationships between the government and the people Goal Make sure all activities of the government are authorized by the parliament or the provincial
legislature
□ make sure that the laws are equally and moderately applied based on 2 principles: 1) Government action: whatever action it takes must be legal (it has to be written in a statute, or
existed in common law)
§ Public law: admin law, constitutional  law, criminal law § Private law: sets the rules between individuals and settles disputes among groups of people and compensates victims § - - The principles are divided in 2 areas: The one's that govern the procedure provided by the government The one's that apply to the substantive  decisions - Rule of Law Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) § - Jurisprudence divides the procedural principals in 2 groups: Natural Justice Principle Application: § Content: § Fairness Principle Application: § Content: § - Substantive  Review of public decision-making Sources of Decision-Making Power Unreviewable Decisions - Excess of Jurisdiction and Errors of Law - Analyze and discuss  The Rule of Law ○ The rule that governs the principles and bases of administrative law
○ 3 branches
Legislative, executive , judicial Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) Federal Government Provincial Government 2 orders of the government that have completely different powers S.91 of BNA Act S.92 of BNA Act Exceptions: The Constitution  (used to be the BNA Act) It is the controlling law because you cannot go against it The Canadian Charter is now part of the constitution - The federal government cannot pass a law on a subjects matter that has not been attributed by s.91 if the constitution If not it is ILLEGAL (unconstitutional  = ultra vires) - Besides the Canadian charter, the freedoms and rights need to be recognized except if a law is done and is reasonable This is why there is a judicial branch a. 1) Make sure that their law respects the constitution  and the Charter Ex:. Duplessis vs. Roncarelli a. 2) Simplify access to justice 3) The rule of law = possibility of challenging laws 4) The role of the ministere de la justice 5) Ethics in the public administration 6) The public protector and his role 7) The auditor General 8) Qc's Lobbysts  Commissioner 9) The commission des droits de la personne et des droits de la jeunesse and its mandate 10) The Canadian Charter of Rights and freedoms 11) Qc Charter of HR and Freedoms 12) Right to equality 13) Civil Code 14) - The Sources of Law Legislation/Statutes: Also called case law Common law is the law decided by the judges in the English Empire When there was a problem the judges would decide in virtue of the jurisprudence ○ What has been decided on similar occasions from other cases Distinguish and explain why Doctrine: Means decisions of judges are based on doctrines Written by specialized lawyers that explain in details the reason of certain details Custom/Usage: Where the source of many decisions of the judges of the English empire Differences between the English law system and the French law system English = belonged more to judges ○ Rendered a decisions based on jurisprudence, doctrine and custom and usage Damnum sine injuria: when the plaintiff's right is not respected by another but where the infraction of the plaintiff's right does not cause damage • Fortiori:  en vertu d'une raison plus forte • Pari materia: in a similar case Midterm Study Guide jeudi 5 octobre 2017 22:48
background image Analyze and comment on CRTC using some sections
of the Act
• CRTC It was created in 1968, but since 1932 the parliament was creating special committee within broadcasting and the parliament of
Canada passed the Canadian Radio Broadcasting Act (ancestor of
the CRTC) § The CBC was created in 1952 § In 1968 the Broadcasting act was adopted and it includes then the CBC as the national broadcaster and instituted
restriction of foreign ownership and Canadian talent and
lead to the creating of the CRTC The CRTC Act goes back to 1976, that particular act increased the powers of the CRTC The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ The main goal of the broad ensure accessibility CRTC can be reviewed since it is a federal administrative institution It is an independent  agency It has to report to parliament through a minister § They report to the legislature which they have the power No minister can have anything to say The executive branch of gov. can ask a court to review decisions made by the CRTC It is in charge of regulations, the Canadian Broadcasting and Telecommunication system The CRTC Commission has authority in regard to all the Canadian Broadcasting system § It has authority over many thousands  broadcasters including television, cable distribution AM & FM, direct to home
satellite systems, subscription television, paid speciality
television § All major phone companies § It derives its authority from broadcasting act and telecommunications act □ The CRTC hold public hearing, round table discussions The CRTC mandate is to serve public interest, and the CRTC is mandated by the broadcasting act and the telecommunications
act
§ Main goal = ensure accessibility § Make sure that Canadians have reliable telephone and telecommunication services at reasonable prices § Be attentive to the needs of Canadian Citizens, industries and interest groups § Ensure that all programming in CAN mirrors Canadian creativity and talent and make sure all programs mirrors our
linguistic & our multicultural diversity, special place for
aboriginal people (CAN social values) CRTC Act Before the CRTC the gov. participated in decision making process of what we see now as telecommunications and broadcasting B4 the gov. did not intervene or likely The gov. should not intervene that way corporations could be free as well as the people The gov. of QC & CAN, should intervene through the legislative assembly-power from the people, at the condition that laws
authorized or order the executive branch what not to do and what
to do § The CRTC Act was created through the Broadcasting Act. § The gov. then made the CRTC Act which takes care of the institution  CRTC § In order for the CRTC to do what the gov. of CAN wants it to do □ Powers where given to the CRTC (transferring powers from the Broadcasting Act to the CRTC) □ It takes care of the transfer of power or else you cannot regulate what you are supposed  to do ® It lead to the creation of the CRTC Act □ The CRTC is a federal gov. agency, therefore it can only deal with administrative law since it is not judicial □ It regulates + supervises all sectors of the Canadian Telecommunication and Broadcasting system which
includes:
® AM & FM Radio ® Television broadcasting ® Cable ® Special Services § It was first established in 1968 by the parliament and it was constituted  through the broadcasting act but in the end it
was constituted  by the CRTC Act
§ The CRTC grants licenses, monitors, established regulations and policies □ It works with the media industries and its goal is to develop broadcasting standards concerning violent
content, gender portrayal, cultural minority rights,
advertising and program aimed at children Broadcasting Act --> Canadian Nationalism & what it transports More interested by the CAN culture fabric like nationality It was originally established in 1968 and amended in 1981 Maintain Canada's cultural fabric therefore strengthening the economic political and social structure of Canadian § Covers 3 main sections: □ Broadcasting policy of CAN □ Regulatory power of the CRTC (most important one) □ Operating procedures and policies for the CBC (Radio- Canada) It imposes a Canadian owned Canadian broadcasting and provisions in regard to content… Encourages the development of Canadian expression, Canadian talent and resources Reflects Canada's cultural diversity, basically, the CRTC is supposed  to serve the needs and interest of all Canadians and to
reflect the various circumstances and ways of thinking of the
Canadian people It emphasizes that each broadcaster is responsible for their programs It has the power to create penalties through the broadcasting act to the broadcaster that do not respect the laws, rules and way of
the CRTC
They impose fines and they can limit and deny a broadcaster renewal of license for reasons specified in the act and policies and
regulation that the CRTC got from the Broadcasting Act
Telecommunication Act --> Technology It addresses the systems, technology and the way to do things and not to do technologically It is interested with technology to transfer information across CAN or provinces It identifies the significance of telecommunications in maintain Canada's identity and sovereignty It defines telecommunications as the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other
electromagnetic system, or by any similar technical system
According to the TCA, the CRTC has the right to make rules, orders and regulations with the view to implement the Canadian
telecommunication
§ In the case of the internet, it is not very clear what extend the CRTC wants to intervene Analyze and comment on s.91 and s.92 of BNA Act - All powers under the federal government come from section 91 of the BNA Act Legislative power of the parliament of Canada The government at the federal level - All powers under the provincial government come from section 92 of the BNA Act Powers that belong to the provincial legislators (parliament) The Notion of Power □ The people are the one's who have the power At the federal level, the people delegate their power to the federal government, the legislative branch of gov. according to
s.91 or 92 of the BNA Act.
Once the power has been transferred, then it belongs to either the legislative branch of parliament or legislative branch of
assembly
- Admin Law: a law has to be passed by the person/people  that have the power to do it □ Any decision has to be made by the people who have that power BNA Act --> Constitution-->Charter of Rights and Freedoms • The gov. cannot pass a law against the Charter of R.F or the Constitution (Ultra Vires) Analyze and comment on Duplessis  & Roncarelli
Superior Court case
Structure to be followed Introduction of the Case The facts Conclusions of the facts Court of appeal rejected Roncarelli appealed to Supreme Court The Decision Name the Judges concerned Comment Agree disagree Roncarelli = Plaintiff, Appellant - Duplessis = Defendant, Respondent - Archambault = Manager of the Commission - Introduction to the case Roncarelli = proprietor of a restaurant in MTL + holder of a license to sell liquor He sued Duplessis personally for damages arising out of the cancellation of his license by the QC Liquor Commission The license was arbitrarily cancelled by Duplessis without  legal powers in the matter Duplessis gave the order to the Commission (Archambault) to cancel it before its expiration He did to punish the plaintiff because he was a member of the Witnesses of Jehovah because he acted
as a bailsman for a large # of members of his sect that
were charged with the violation of municipal by-laws
linked with the distribution of literature
§ Facts: By-laws passed by towns  and municipalities made it an offence to distribute literature without a license. w w The intention was to eradicate the distribution  of Jehovah's Witnesses' pamphlets. w Roncarelli arranged bail for the enormous amount of arrests of Jehovah's Witnesses w Duplessis, the Premier of Qc ----> Qc Liquor Commission to revoke the license w Roncarelli sought Duplessis for the wrongful revocation of the license w Is the use of executive power to deliberately destroy Roncarelli's business valid? No, the commission has the right to grant and revoke the license at its discretion w Duplessis intentionally punished Roncarelli for acting contrary to the state interests was not a valid reason to revoke the license Conclusion of the Facts: The trial judge gave judgement to Roncarelli for part of the damages claimed but: Duplessis appealed and the Roncarelli seaked an increase in the amount of damages, cross-appealed The Court of Appeal dismissed the action and the cross-appeal ® § Judges Taschereau, Cartwright & Fauteux said: The action should be maintained and the amount $ awarded at trial should be increased by 25 000$ due to the wrongfully and
without  legal justification causing the cancellation of the permit
Duplessis was accused of damages under art. 1053 of the Civil Code Trial judge Kerwin said: Duplessis ordered the Commission to cancel the license and there was NO satisfactory reason has been proved to the Court of
Appeal
Judges Kerwin, Locke & Martland said: The cancellation of the permit was the result of an order given by Duplessis to the manager of the Commission Relationship of cause & effect between Duplessis' acts and the cancellation of the permit Duplessis: did not act in the exercise of any of his official powers There was no authority in any act enabling him to direct the cancellation of a permit under the Alcoholic Liquor Act Cancellation of a permit by the Commission at the request or upon the direction of a 3rd party was done It was not a proper and valid exercise of powers conferred upon the Commission by s.25 of the
Alcoholic Liquor Act
§ Duplessis was not entitled to the protection provided by art. 88 of the Code of Civil Procedure  because what he did was not done by
him in the exercise of his functions
It was outside his legal functions § - The Quebec Court of Queen's bench found in favor of Roncarelli Court of appeal rejected The judgement was released in favor of Roncarelli (8000$) Duplessis decided to appeal the decision to the province's Court of Appeal Roncarelli then cross-appealed for a higher award ○ No appeal was successful in the Court of Appeal
○ Duplessis took a further appeal to the Supreme Court of Canada
Decision 3 judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier 2 judges stated that although Duplessis had the power to order the cancellation, he had done so in bad faith; § and the 6th judge concluded the premier was not entitled to immunity as a public official Cartwright wrote a dissenting judgement which argued that it was within the power of the commission to refuse to grant Roncarelli a
permit as the act only fettered the commission by delineating
circumstances under which the granting of a permit was forbidden and
circumstances in which the cancellation of a permit was mandatory,
and nothing more. Judge Rand said: Denying or revoking a permit because a citizen exercises an unchallengeable right that is irrelevant to the sale of liquor is
beyond the scope of the discretion conferred upon  the
Commission by the Alcoholic Liquor Act It was not competent to the Commission and a fortiori to the gov. § Duplessis was not under any duty in relation to Roncarelli and his act was an intrusion upon the function of a statutory
body
§ Judge Abbott said: The cancellation was made because Roncarelli was associated with the Jehovah Witnesses & because he wanted to prevent him
to continue furnishing bail for the members of the sect
By authorizing and instructing the Commission to cancel the license, Duplessis acted without  any legal authority whatsoever He was not entitled to avail himself under the art.88 of the Code of Civil Procedure since the act complained that what he did was
not done by him in the exercise of his function, since he was gone
outside his functions to perform it. It would have applied IF: The time established that he performed the act complained that he had a reasonable ground for
believing that such act was within his legal authority to
perform § Judge Cartwright said: The loss suffered by Roncarelli was damnum sine injuria Duplessis approved the cancellation of the license, he cannot be answerable in damages since the act of the Commission in
cancelling the license was not an actionable wrong
Duplessis and Archambault acted throughout  in the honest belief that they were fulfilling their duty to the province The cancellation being illegal and imputable to Duplessis and damageable for Roncarelli, the latter was entitle to succeed
on an action under art.1053 of the Civil Code
§ Art.1054 deals with responsibility and art.88 with the procedure § Art.88  has its source in s.8 of an Act for the Protection of Justices of the Peace It provided that the officer shall be entitled to the protection of the stature although he has exceeded his powers of
jurisdiction and has acted contrarily to the law
§ It established that in pari materia  a public officer was not considered as having cease to act within the exercise of his
function by the sole fact that the act committed by him might
constitute  an abuse of power or excess of jurisdiction/violation of
the law
Attorneys: Scott & Stein for Roncarelli Beaulieu & Asselin for Duplessis Duplessis vs Roncarelli was compared to the following cases: § Boucher vs Le Roi □ Jehovah Witnesses were considered perturbators of public peace and they were constant  sources of
trouble in the province
□ It was even considered a rebellious conspiracy in the case of  Boucher vs Le Roi ○ Duplessis thought that it was not 'ethic' that the benefits that Roncarelli would get from his liquor permit would be used to help
disturbing religious beliefs
□ The Commission can to its discretion cancel the permit at any time ○ Archambault stated that he suggested that Roncarelli's permit should be confiscated & that he had the personal right to do so
according to art. 25 of the Liquor Law
○ Duplessis gave his consent, approbation, permission and his order to Archambault to cancel the permit § According to Duplessis it was in his duty to approve Archambault's suggestion to cancel the permit because
Roncarelli  did not deserve the privilege he had (the permit)
○ Duplessis pretends that he never gave the order to Archambault to cancel the license, he simply approved his suggestion of
cancelling it
- The Supreme Court of Canada held that indeed the premier had overstepped  his authority this decisions established the principle of the
rule of law including public officials
Comment: Agree or Disagree? Cartwright went on to argue that even if the commission were to be considered quasi-judicial, in which case procedural fairness guarantees
would apply, that still would not entitle the plaintiff to monetary
damages. the unwritten constitutional  principle of the “rule of law” means no public official is above the law, that is, they can
neither suspend  it nor dispense it.
□ Roncarelli wins § There might be a mistake ! □ Duplessis might have mistaken himself thinking that for the preservation of public peace and for the
suppression  of the existing problems at that time, he
had to remove the permit in order to not spread even
more the problems that were threatening to expand
○ The rule of law in administrative matter (the principle that legally delegated discretion) must be exercised in good faith Analyze and discuss  The principles  of Administrative
Law
What is Administrative law? It is the control by the legal obligations on the actions of governmental officials and on the remedies which are available to
anyone affected by a transgression of these limits
It covers the administration authorized that are under the control of the government Administrative law is the area of law overseeing governmental decisions made by authorities, departments or officials Deals with the action of administrators to whom powers have been granted by laws who have been enacted under the
constitution
The powers are granted by the constitutive  act Act that delegates the powers form the national assembly to the executive branch § They intervene in the administration and the protection of rights - Administrative Law is found under both  Civil Law and Common Law - Admin. Law covers the acts and the relationships between the government and the people Goal Make sure all activities of the government are authorized by the parliament or the provincial
legislature
□ make sure that the laws are equally and moderately applied based on 2 principles: 1) Government action: whatever action it takes must be legal (it has to be written in a statute, or
existed in common law)
§ Public law: admin law, constitutional  law, criminal law § Private law: sets the rules between individuals and settles disputes among groups of people and compensates victims § - - The principles are divided in 2 areas: The one's that govern the procedure provided by the government The one's that apply to the substantive  decisions - Rule of Law Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) § - Jurisprudence divides the procedural principals in 2 groups: Natural Justice Principle Application: § Content: § Fairness Principle Application: § Content: § - Substantive  Review of public decision-making Sources of Decision-Making Power Unreviewable Decisions - Excess of Jurisdiction and Errors of Law - Analyze and discuss  The Rule of Law ○ The rule that governs the principles and bases of administrative law
○ 3 branches
Legislative, executive , judicial Because of the law, in virtue of the law everybody is equal before the law There will be liability or punishments  only when an act is contrary to the provision of the law The wrongdoing need to be proven in front of a judge (court) Federal Government Provincial Government 2 orders of the government that have completely different powers S.91 of BNA Act S.92 of BNA Act Exceptions: The Constitution  (used to be the BNA Act) It is the controlling law because you cannot go against it The Canadian Charter is now part of the constitution - The federal government cannot pass a law on a subjects matter that has not been attributed by s.91 if the constitution If not it is ILLEGAL (unconstitutional  = ultra vires) - Besides the Canadian charter, the freedoms and rights need to be recognized except if a law is done and is reasonable This is why there is a judicial branch a. 1) Make sure that their law respects the constitution  and the Charter Ex:. Duplessis vs. Roncarelli a. 2) Simplify access to justice 3) The rule of law = possibility of challenging laws 4) The role of the ministere de la justice 5) Ethics in the public administration 6) The public protector and his role 7) The auditor General 8) Qc's Lobbysts  Commissioner 9) The commission des droits de la personne et des droits de la jeunesse and its mandate 10) The Canadian Charter of Rights and freedoms 11) Qc Charter of HR and Freedoms 12) Right to equality 13) Civil Code 14) - The Sources of Law Legislation/Statutes: Also called case law Common law is the law decided by the judges in the English Empire When there was a problem the judges would decide in virtue of the jurisprudence ○ What has been decided on similar occasions from other cases Distinguish and explain why Doctrine: Means decisions of judges are based on doctrines Written by specialized lawyers that explain in details the reason of certain details Custom/Usage: Where the source of many decisions of the judges of the English empire Differences between the English law system and the French law system English = belonged more to judges ○ Rendered a decisions based on jurisprudence, doctrine and custom and usage Damnum sine injuria: when the plaintiff's right is not respected by another but where the infraction of the plaintiff's right does not cause damage • Fortiori:  en vertu d'une raison plus forte • Pari materia: in a similar case Midterm Study Guide jeudi 5 octobre 2017 22:48

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School: Concordia University
Department: OTHER
Course: Administrative Law
Professor: Jean-Claude Danis
Term: Fall 2017
Tags: CRTC, BroadcastingAct, and Ruleoflaw
Name: Study Guide Midterm Oct 16, 2017
Description: CRTC CRTC Act Broadcasting Act Telecommunications Act Rule of Law Roncarelli v. Duplessis s.91 and s.92 of BNA Act
Uploaded: 10/10/2017
18 Pages 63 Views 50 Unlocks
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