TOPIC 1: BASIC THEORIES OF LAW

Positivism and Natural Law - Both legal positivism and natural law are descriptive theories, in that they are principally concerned with identifying what

law is, as opposed to what the law ought to be. Both positivism and natural law are concerned with concepts of law and justice, even if they diverge as to how the two relate to one another. Both are largely based on Western, liberal ideas about law and society.

Natural law theory is aspirational, in the sense that laws, properly called, are not simply all those official rules and principles that govern us but only those that adhere to certain moral truths, most often of a universal and immutable nature; i.e. law’s legal authority depends upon an external moral standard (public policy) that holds across all societies. See Drummond Wren, and note how judge appeals to our moral conscience Example – Re Drummond Wren A piece of land has a restrictive covenant against being sold to Jews or other undesirable races. The current owners want to have it declared invalid on public policy grounds. H: the court agrees to find the covenant invalid and focuses on public policy issues, and the societal shift against discrimination following WWII. Specifically, the court brings up issues like the San Francisco Charter, and the statements from Churchill and De Gaulle about the rights of minorities. This is a very natural law view of justice. Legal positivism reflects the belief that law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings); Positivism insists on the separation between law and morality and as a result focuses on describing laws without reference to justness or legitimacy/fairness. Legal positivism is only concerned with what is legally valid, not what is morally valid. The common slogan of legal positivists is “the existence of a law is one thing; it’s merit or demerit is another”. Thus, on this view, the Nazis had a legal system used for evil ends and the British had a legal system used for good ends; both, however, were legally valid. See Noble and Wolf where the judge relies on the supposed certainty of positive law. Example - Re Nobel and Wolfe Almost identical fact pattern to Drummond Wren. This time, the court upholds the restrictive covenant on the basis that the covenant is valid and enforceable. Criticizing the court in Wren, the court here talks about the proper role of the judiciary not to discuss public policy, but to only interpret those laws that are clearly present. In this case, there is no established legal principle to deny the validity of the restrictive covenant, and so it should be upheld. [courts role is to decide matters based on law and not public policy. Apply the law] Feminist Perspectives on Law: critical legal theory Feminist perspective on law reflects a critique and often a rejection of liberalism as a political ideology; laws that existed from 17th century did not normally respond to the needs of women and even aided in their oppression. Early Formalist Feminism - Early Feminist movements in law – centered on gaining the voting franchise for women, seeking women’s formal equality

with men and reform of marriage laws. Eg. woman could not vote prior to 1916. In 1918 Parliament passed the Women’s Suffrage Act = allowed female British subjects over 21 the right to vote as long as they possessed same qualification require for men

- Liberal laws often contributed to the gross inequality between genders - Feminism takes issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision

of what justice might be - Early formalist feminism attempted to replace laws that favoured men w/ more gender neutral laws in order to seek equality

with men Edwards v AG Canada The Privy Councils decision is an example of early feminism in its approach to formal equality

Facts: s24 of the BNA Act 1867, stated that only “qualified persons” were eligible to be appointed to the Senate. Gov’t argued that women would not have been considered “qualified persons” at the time that 1867 Act was passed. Issue: Whether the words “qualified persons” include a woman and consequently whether women are eligible to be summoned to and become members of the Senate of Canada. Reasoning: The word “persons” is ambiguous and in its original meaning would undoubtedly embrace members of the opposite sex. At the time of enactment “Persons” would refer to males because at common law woman were incapable of serving public office. Outcome: The SCC found that “qualified persons” did not include women, basing its judgment on a formulaic and traditional interpretation. They appealed to the JCPC. THE JCPC held that “qualified persons” included women and women are eligible to be summoned to and become members of the senate. Contemporary Feminism - The objective of feminist legal theory, consist of understanding and exploring the female experience, figuring out if law

and institutions oppose females, and figuring out what changes can be committed to. This is to be accomplished through studying the connections between the law and gender as well as applying feminist analysis to concrete areas of law

- Contemporary feminism consists of different sects with different beliefs. It is a more complex movement, relying on various disciplines such as criminology and sociology

- the general gist of feminism is that the legal system is seen as paternalistic and male-centred. - “Liberal Feminists: argue that it is possible to have gender equality within a liberal conceptual framework - “Radical Feminists”: not so sure as divisions between men and women are seen as fundamental and attributable to the very

notion of liberal society. - Vague notions of “policy”, “common sense”, or “human nature” have found their way into law and been used by judges to

preserve male privilege. - Implicit in many of feminist’s central themes is that women given the ability to re-construct society could do better. Eg.

The subject of abortion provides a good forum to examine how feminist theory may translate into practice R v Morganteler Justice Wilson, however, wrote a concurring opinion focusing on much more “feminist” topics, such as rights in a wider social context, the female experience, and far more emotional issues). Wilson J who agreed with the majority in the end result, rendered a separate opinion. Her decision is an example of modern feminist approach to public law concerns. Facts: 3 doctors were charged with the offence of procuring a miscarriage contrary to s251(1) of the CCC Issues: In 1998, the SCC was asked to determine whether s251 of the Criminal Code (criminalizing the procurement of an abortion unless properly authorized by a physician) was contrary to s7 of the charter. Whether a pregnant woman can, as a constitutional matter be compelled by law to carry the fetus to term. Held: The majority of the court found that the provision offended the charter on procedural grounds. Reasoning: The right to reproduce is an integral part of modern woman’s struggle to assert her dignity and worth as a human being. The right to liberty in s7 gives woman the right to decide for herself whether or not to terminate her pregnancy. s251 asserts that a woman’s capacity to reproduce is not to be subject to her own control. This, deprives a pregnant woman of her right to security of the person as well as her right to liberty. Critical Legal Studies: critical legal theory - CLS is a direct attack on traditional legal theory, scholarship, education. - Legal decisions are a form of political decision, but not that it is impossible to tell judicial and legislative acts apart. Rather,

CLS have argued that while the form may differ, both are based around the construction and maintenance of a form of social space. The argument takes aim at the positivist idea that law and politics can be entirely separated from one another

- Traditional CLS school is that far more often than is usually suspected the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, the disabled, homosexuals etc.) for greater justice.

- CLS adherents rejects that there is any kind of natural legal order discoverable by objective means. - CLS not only denies the possibility of discovering a universal foundation for law through pure reason but sees the whole

enterprise of jurisprudence as operating to confer a false legitimacy on law and legal systems.

- Law institutionalizes and legitimates the authority and power of particular social groups or classes. The rule of law is not a rational, quasi-scientific ordering of society’s norms but is indeterminate, full of subjective interpretation and a large degree of incoherency.

- CLS, like the feminist perspective, takes issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision of what justice might be

- The liberal belief that law should be certain and neutral is, for CLS scholars, illusory. Law reproduces the oppressive characteristic of contemporary Western societies

- 3 stages governing the application of CLS ideas to legal thought: (1) Hegemonic consciousness: Many, if not most Western laws are maintained by a system of beliefs that have their foundation in a liberal, market driven economy, which reflect interests of a dominant class (2) Reification: In the second stage the beliefs that maintain Western laws are presented as essential, necessary and objective (3) Denial: Laws and legal thinking aid in the denial of real truths. E.g. denial occurs between the promise of a certain state law – equality – and the reality such as the vast amounts of discrimination or racism that can be found so readily in society. See R v R.D.S: Compare how the judges in this case dealt with the issue of race and equality with the judges in Re Drummond Wren and Re Noble and Wolf EXAMPLE - R v R.D.S FACTS: A white police officer arrested a black 15 year old who allegedly interfered with the arrest of another youth. The TJ, while delivering her reasons for acquittal of the youth commented that police officers had been known to misled the court in the past, that they had been known to overreact particularly with non-white groups and that that would indicate a questionable state of mind. She claimed her comments were not tied to the police officer testifying before the court. ISSUE: Do the comments by the TJ in her reasons give rise to a reasonable apprehension of bias and that she was not impartial between the Crown and the accused? HELD: The SCC held that there was no reasonable apprehension of bias. The TJ acquittal of RDS was restored. REASONING: Major J on one end, Cory J in middle and L’Heureux-Dube on the other end Cory J: Majority (TJ comments were appropriate) - Agrees with Major J on the law and L’Heureux-Dube on the result - It is dangerous for a judge to suggest that a particular person overreacted because of racism unless there is evidence

adduced to sustain this finding - Findings of credibility cannot be made on the basis of generalizations i.e. because PO are racist against black therefore this

PO was a racist. - A high standard must be met before a finding of reasonable apprehension of bias can be made re: a TJ comments. The

judge’s remarks are worrisome and come close to the line. However, concluded that the comments taken in the whole context of the judgment did not give rise to a reasonable apprehension of bias [Test: a reasonable informed person aware of all the circumstances]

L’Heureux-Dube: Majoirity - While judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality - Disagree with Cory J, saying that the comments were not close to the line, but rather an appropriate recognition of the facts

of the case and the context in which they arose - It is inevitable and appropriate that the differing experiences of judges will assist them in their decision-making process and

will be reflected in their judgments - The comments made by the TJ were an appropriate recognition of the facts in evidence in this case and of the

context within which this case arose- a context known to Judge Sparks and to any well-informed member of the community. As a member of the community, it was open to her to take into account the well-known presence of racism in that community and to evaluate the evidence as to what occurred against that background.

- An understanding of the context or background essential to judging may be gained from testimony from expert witnesses in order to put the case in context and from the judge’s personal understanding and experience of the society -

Major J: Dissent (Comments not appropriate) - Trial judges have to base their findings on the evidence before them (whether racism exists in society is not the issue) - Issue: Whether there was evidence before the court upon which to base a finding that this particular PO’s actions were

motivated by racism - Judges should avoid making comments based on generalizations when assessing the credibility of individual witnesses.

- The duty to be impartial does not mean that judges cannot bring to the bench many existing sympathies, antipathies or attitudes.

- It is open to the appellant to lead evidence that the PO was racist and that racism motivated his actions…The TJ CANNOT infer this based on her general view of the PO or society and the TJ did not judge based on the evidence before her.

- Life experience is NOT a substitute for evidence Law and Economics(aka Public Choice Theory) - Law and economics theories look at law differently, less grounded in moral theory and more in ideas about efficiency (as

opposed to feminism, which deals with producing equality); law and economics scholars have applied economic analysis to explain various areas of law (Eg. Contract law, crime, torts, family law, property, legislation, abortion)

- The traditional law and economics approach applies economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient.

- “Pareto Optimality” – Efficiency tends to be defined in terms of an ideal where the welfare of each of the relevant parties can no longer be maximized except at the expense of other parties.

- As such law and economics is sometimes criticized as ignoring questions respecting distributive justice - Central to all economic analysis is the assumption that human beings are rational actors - Justice and efficiency are interrelated. Gov’t have to consider the costs of providing and maintain the institutions of justice - An economic approach can be used to understand policy goals in the public realm. The economic theory of regulation, or

public choice theory, applies basic economic theory in an attempt to understand public policy. It attempts to explain government intervention as a corrective to market failure. The theory seeks to understand why some government programs seems to run counter to the public good, or at least do not maximize the public good. This theory says that policy makers (e.g. legislators) act in order to maximize political support; they are not necessarily attempting to maximize social welfare and are motivated by self interest

- Proposition of public choice theory: diffused and fragmented groups are less effective than more focused and concentrated groups in achieving success in the political arena and in influencing legislators and regulators

NB: One of the themes in public law is to show common law has been displaced by policy formulation (ie legislation) as the primary means of social regulation. Duncan Estate v Baddeley Facts: The D, trotfeasor, by his negligent acts caused injury and death to Mr. Duncan. The estate of Mr. D is claiming an award of loss of future earnings. Issue: Does a claim in tort for loss of future earnings survive the death of a victim? If so, how is the claim calculated? Held: A claim for loss of future earnings does survive the death of a victim Reasoning: The loss of the ability and capacity to earn an income is an actual financial loss, which can be valued in commercial terms. There is no justice in a rule that the respondent need not offer compensation because Mr. D can no longer enjoy it. Dissent: it was the intent of the legislature in framing the Survivor of Actions Act to eliminate the claim of a victim, who died instantaneously as a result of the tort of a wrongdoer, for damages for loss of expectation of life including the loss of future income. The judge could not agree that a victim who was killed instantaneously as a result of a tort had not suffered an ‘actual’ as opposed to a ‘potential’ or ‘speculative’ loss, NB: While the court did not do any explicit calculations or economic reasoning, there was a clear subtext that the judge had to consider the wider social-economic implications of allowing for recovery of future earnings or not Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology (Court of Appeal) NB: The main issue in the case was whether the human rights regime covers the entire field of anti-discrimination law. Facts: B had applied for a number of job openings at the college. She was not granted an interview for any, although she had the requisite qualifications. She alleged this was because of her ethnic origin. She issued a claim for damages for discrimination. Alleged that the respondent was in breach of its CL and statutory duties not to discriminate against her. Issue: Assuming the plaintiff can prove the allegations set forth in her statement of claim, do they give rise to a cause of action at common law and if they do not, do they give rise to a civil action under the Ontario Human Rights Code? Held: The allegations give rise to a cause of action at CL for discrimination. Appeal allowed. Plaintiff awarded costs.

Reasoning: The interests of persons of different ethnic origin are entitled to protection of the law. The preamble to the code is evidence of the public policy of the province respecting fundamental human rights. From this policy, the judge recognized a new tort of discrimination. As such, if the P can make out that she has been discriminated against and has suffered injury as a result, the CL must afford her a remedy (Ashby v White) Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology (SCC) Issue: Whether the SCC should affirm the recognition by the Ont CA of a new intentional tort. The tort was recognized to protect a P against unjustified invasion of his or her interest not to be discriminated against in respect of a prospect of employment on the grounds of race or national origin. Held: Appeal allowed. Previous judgment set aside. Action dismissed. No order as to costs. Reasoning: This new tort is a species of an economic tort found on a statute enacted in an area outside a fully recognized area of CL. The code forecloses any civil action based directly upon a breach thereof but it also excluded any CL action based on an invocation of the public policy expressed in the code. NB: public choice theory behind the Court of Appeals decision; the Court recognised, on public policy grounds, a new “tort of discrimination”. But, at the Supreme Court level, this idea of a new “economic tort” was rejected. Similarities/Differences in Theories - Both Positivism and Natural Law are concerned with concepts of law and justice, even if they diverge as to how the two

relate to one another. Both are also based largely on Western, liberal ideas about law and society. - In contracts, Feminism and Critical Studies take issue with the liberal basis of law and its relationship to justice; both

attempt to establish alternative visions of what justice might be - Law and Economics Theories look at law from another perspective, ground less in moral theory and more in ideas about

efficiency - The Public Choice Critique in Law and Economic Theory echoes the complaints voiced by the CLS and feminist

scholars. CASES

Hill v Church of Scientology Facts: Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common law libel action based on allegedly false statements the church made about him (that he misled a judge and sealed certain documents). Church argued that the principles of the CL ought to be interpreted, even in a purely private legal action, in a manner consistent with the Charter. Issue: Does the charter apply to the common law tort of defamation in a private individual matter? If so, is the common law tort of defamation inconsistent with the Charter (s. 2b)? Ratio: Even though Charter doesn’t apply directly to this action, Common law should be interpreted with reference to Charter values (as per obiter in Dolphin). If common law is inconsistent with Charter values, and not justifiable, the common law should be modified. Reasoning: Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. Charter rights do not exist in the absence of state action. However, the CL must be interpreted in a way that is consistent with charter values. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not extend in the absence of state action. The most that the litigant can do is argue that the common law is inconsistent with Charter values. NB: The party who is alleging that the common law is inconsistent with the Charter should bear the onus of proving both that the common law fails to comply with Charter values. Societe de l’assurance automobile du Quebec v Cyr Facts: Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ), a provincial auto-insurance monopoly, entered into a contract with the Centre de vérification mécanique de Montréal (CVMM) to carry out the mechanical safety inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program NB: Cyr was mentioned in an appendix to the K but was not an actual party to the K but Cyr signed the appendix agreeing to comply with required inspection procedures. However, following notices of breach for failure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked by SAAQ. Cyr and CVMM filed a motion for judicial review of the decision to

revoke the accreditation, claiming that SAAQ had not followed its obligation of procedural fairness under the Act respecting administrative justice (AAJ). Issues: Is the SAAQ bound by private K law or public administrative law? Can a government body avoid public law duties when delegating its functions by way of contract or other form of agreement? Held: Appeal dismissed and Cyr is entitled to procedure fairness. AAJ applies. Superior Court: held that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights, not public admin law, and dismissed the application based on the fact that the SAAQ fulfilled its obligation under the K. Court of Appeal: Majority set aside the decision, holding that the K was between SAAQ and CCVM not CYR and that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid the obligations codified by s. 5 of the AAJ. Reasoning: Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considered a party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was granting him the authorization to act on its behalf. Dissent: Held that the parties are bound by contract. CYR as an employee of CCVM, is also bound by that K and K law should apply. Comment: This case distinguishes between the applicability of public and private law.

ARTICLES David Tanovich, “The Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian Criminal Justice System” Introduction - Has the Charter given any hope to Aboriginal and radicalized communities? While there is reason to be optimistic about

the possibilities for future reform, the Charter to date has had very little impact on racial injustice in Canada - We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our

streets flourishes The utility of using litigation to address racial injustice in the criminal justice system - Oppression is far too deeply rooted to expect a document focused on individual rights and applied by largely white middle

class judges to make any meaningful structural change. - Successful litigation brings with it considerable attention – media, community organizations, universities and law schools

or at judicial conferences – and can help raise public consciousness, stimulate academic research and political action. One of the most important political responses could be the collection of data which will reveal the extent and scope of racial injustice.

- Absence of any racial profiling legislation, and the passing of Anti Terrorism Legislation, and the Conservative Criminal Code amendments, has had a disproportionate impact on radicalized communities. So, Charter litigation remains as important means of addressing fundamental injustice.

- “While I place considerable reliance on Charter litigation to address racial injustice, there is no question that other legal and extra-legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigation fails. Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actors etc are all examples of strategies that can work together with litigation”

The problem is not with the Charter but with those who argue and interpret it - Narrow approaches to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter

litigation on racial injustice. - In a number of key cases addressing issues such as bail (because blacks are more likely to be detained as seen as a danger

and flight risk: R v Hall), jury selection (because blacks are less likely to be found on juries as many blacks are immigrants and under the Juries Act are not permitted [only citizens can]: R v Laws, the use of peremptory challenges to exclude radicalized jurors: R v Lines – see also R v Gayle: and racial profiling, courts have refused to adopt critical race standards

or arguments when they were advanced. See, e.g.: R. v. Pan; R. v. Sawyer— Sawyer, who is White, was tried together with Galbraith, who is Black, on a charge of assault. Following the conviction, a juror contacted Sawyer and told him that she had been under “undue pressure to come to a verdict and that certain racial comments were made by other members of the jury”.

- The accused argued that the common law jury secrecy rule needed to be altered under section 7 of the Charter to ensure that verdicts were not tainted by racism. The argument was rejected. R v Gayle: accused argued that TJ erred in not expanding scope of questions on a R v Parks Challenge for cause to ensure a more effective means of detecting unconscious racial bias.

- Test from Parks: whether the juror would be able to judge the evidence without bias, prejudice or partiality knowing the accused is black and if applicable the victim is white. Court rejected argument; R v Spence: Victim = Asian. Accused = black. African legal clinic argued that the racial background of the victim should be part of the Parks challenge for cause question to ensure that racial partiality directed at the victim did not infect trial process. Court did not directly address this argument; Peart v Peel Regional Police Services Board: African legal clinic argued for reverse onus in racial profiling civil cases (ie burden of proof on police). This argument was rejected. Charkaoui v Canada (Citizenship and immigration): Islamic and Muslim organizations argued that the court should factor in the racial profiling problem when interpreting the constitutionality of provisions enacted in nation security context. Court Did not address this issue.

- Also, in a number of cases, trial judges have been or appeared hostile when asked to adjudicate a race issue. E.g. in R v Brown, B was asked by the judge to apologize to the officer for raising racial profiling. Sometimes, hostility can be implied from the reasoning employed by the Court to dismiss the argument. The relevant instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change

- With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once critical race standards have been established by the courts. Why are trial lawyers not raising race when it is appropriate to do so? E.g. small number of racial profiling cases litigated following the R v Brown decision. Race is not being raised because some lawyers are not seeing the issue, while others are uncomfortable engaging in race talk before courts as they believe they have a strong argument using traditional constitutional principles or because they are simply not sure how to factor in race and racial profiling into a framework of analysis under s 9 and s24 of the charter.

- Appellate lawyers often fail to raise the issue of race on appeal. The SCC has yet to deal with the racial profiling issue. And they face the hurdle of not having a record from which to work (race issues not raised at trial)

Conclusion - This refusal of judges to act and lack of race consciousness by lawyers are having a direct impact on the ability of the

Charter to remedy racial injustice - The two bright spots have been race-based challenges for cause, and the recognition of the existence of racial profiling by

our courts. But even in these areas, there is still room for improvement - Engaging in race talk and developing critical race standards are critical because colour-blind due process is working

disproportionately to the disadvantage of radicalized groups. Rostam Josef Neuwirth, “International Law and the Public/Private Law Distinction”

I. INTRODUCTION Background - A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible - It is the ill-defined notion of international law that is called to face the challenge of a menacing disorder spreading over

the emerging international community - The two categories of public international and private international law are most likely to fulfil this function in the

emerging international community: o Public international law, or the “law of the nations”, is defined as the system of law governing the relations

between states. o Private international law, or the “conflict of laws”, is a system co-ordinating the different law from different

countries and it responds to the question of applicability of foreign or domestic law within domestic courts

- In the present time, complex interactions between states and private individuals occurs, and harmony between public and private international law cannot be confirmed anymore

- The decline of state sovereignty and the increasing insufficiency of a pure positivist theory of law to explain phenomena on the legal plane, are two examples of how global change has shattered the fundaments of doctrinal thinking on which the classical doctrine was built

Legal pluralism and legal polycentricity in international law - The world community of today is formed by a great number of diverse societies; each political society has its own law

which is based on its own traditional religious, cultural or social values - The first steps in the recognition of the diversity of the world community are found in the terms of legal pluralism and

legal polycentricity, repudiating both the presumption of the sole existence of one total legal order and a single value approach to law.

- Considering the very nature and rationale of public and private international law: o both deal with interactions amongst these various societies, whether organised as states, peoples, groups or

individuals, that together form the world community – o Different legal traditions must be given their equal and due place in the international legal order. o This can be achieved by emphasising the continuity in the evolution of law; an evolution that has constantly been

influenced by the exchange of many different cultures. The critical point: tendencies in contemporary law - The second half of the 20th century has faced dynamic development in all areas affecting human society, and driven by

the theory of legal positivism law was not spared from this development and underwent, and is undergoing, significant changes

- Law has reached a critical point which is cause for hope and concern – the critical point is understood as two parallel yet mutually antagonistic trends.

- The evolution of technology has affected the evolution of law – law has rapidly evolved, but the question is whether it has progressed or regressed? o Law has progressed EXTERNALLY – almost every action in daily life is subject to law (i.e. broad scope of

application). From an INTERNAL point of view, as far as the FUNCTION OF LAW WITH RESPECT TO JUSTICE is concerned (thus including morality, predictability and continuity), the issue is less clear. The huge quantity of norms enacted gives rise to concern.

- A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible. Aristotle pointed out that every law is laid down in general terms, while there are maters about which it is impossible to speak about in general terms. But the defect lies not in the law, but in the nature of the subject matter. Because of this flaw apparently inherent in law, the challenge in the near future is to examine the traditional perception of the theory underlying law. This flaw, and various opposite tendencies in the evolution of law, call for new theoretical approaches to the law regulating the present world order. From a practical perspective, it calls for a simpler general theory, allowing for a rapid orientation but also a just application of the vast variety of norms.

A Law for the World of Today - The present challenge is to find a legal notion that faces the challenges of the new realities that a global political world

order has created. Such a notion would not only have to cover the different categories of law, but also it would have to meet the implications of an immense cultural diversity of legal systems created by a large number of states

- In this process of adaptation, the preliminary step is to bring about the desired change by redefining existing notions, or by creating new notions used in legal discourse

- Since codification (the process whereby legal ideas become positive law) – is taking place extensively, changes in the ideas do not automatically result in changes of the written positive law. Therefore, when new legal ideas emerge, they are still expressed through notions that gave shape to their previous legal norms. The new ideas may then stand in clear contradiction to each other.

- This fate is shared by the notion of international law The notion of “international law” - International Law: The notion of “international” appears too narrow and therefore outdated as the literal meaning refers

to relation between states and states only. Should use multinational law with literally suggest many nations.

- International Uniform Law: usually limited to private international law and has not yet reached a consistent meaning. - European Community Law: Creates notion of world law. Emphasis on the social rather than the political aspect, which

results in giving priority to peoples over the states. - Global Law: this reflects what the international community is really about today. An important element of global law is

the shift of legal development from the state to society. Global law can be defined as a body of law governing the entire planet as well as civil society.

- Universal Law: a label that would meet the geographical requirements of human law so as to include space activities. Main concern is not only geographical but also temporal.

A synthetic search for a suitable notion - When contemplating the variety of notions that exist for the law of today, it is hard to make a choice. Each notion has

appeared in a different time and context, but they all appear to overlap - The essay will use the term international law, because its covers broadest range of these contexts. Instead of trying to

change the term itself the focus will be on a change of its understanding and scope of application

II. THE DYNAMISM OF PUBLIC/PRIVATE DICHOTOMY

A. Public international law foundations - The evolution of public international law reveals the strong influences that theories exercise on the shape of law and its

institutions; on the other hand, the theories themselves are shaped by influences stemming from the factual developments occurring in this world

- This becomes obvious when one considers the two main theories competing in international law: natural law and positive law, the first emphasising moral standards and the latter a more practical approach.

- While a naturalist view dominated the 17th and 18th centuries, the positivist view gained importance throughout the 19th century.

- Since WWII, the naturalist and positivist views can be said to co-exist in parallel. The atrocities committed by the Nazi government that culminated in World War II revived the popularity of natural law. Since then, the naturalist and positivist view can be said to co-exist in parallel.

Principle sources of international law: (i) International conventions establishing rules expressly recognised by contesting states (corresponds more with positivist thought) (ii) International custom (e.g. treaties which lack universal binding force) (corresponds with naturalist thought): The universally binding force of custom is expressed in the concept of ius cogens, i.e. peremptory norms, which is based upon an “acceptance of fundamental and superior values within the system and in some respects is akin to the notion of public order”. A further expression of the naturalist character expressed by custom is found in the concept of obligations erga omnes. With full awareness of the major importance of the distinction between customary and treaty law Private international law - Conflict of laws in its widest sense deals with 3 subjects: jurisdiction, choice of law, and recognition of foreign judgments - The body of rules called private international law fulfills a coordinating function between legal orders of different states, in

search for a greater decisional harmony - From a theoretical perspective, the historical development of private international law was dominated by 2 major ideas. The

first focused on the personal and the second on the territorial quality of a social order. Private and public law - The classical distinction is that public law governs the relations between the state and its nationals, while private law

governs their relations amongst themselves. The implementation of international law

- The way a state approaches this depends on whether the state practice is influenced by the monist or dualist concept - The reception and implementation of the international norm in the national realm is necessary because a state, the

traditional subject of international law, can in some cases only achieve compliance w/ international obligations by assuring that the behaviour of its nationals is in conformity w/ international obligations entered by the same state

- Customary international law and treaties: Distinguish between international customary law and treaties, the two main sources of international law.

- International customary law is considered to be part of municipal law if incorporated. The incorporation can be made on the basis of a relevant constitutional provision or by judicial practice. Incorporation doesn’t automatically give such law higher standing within the national legal order. A later national law is capable of nullifying the obligation set forth

- Treaties: The way treaties are transferred into the national legal system not only depends on the constitution but also the character of the treaty. The CONSTITUTION determines the process from the beginning of negotiations until the final administration of a negotiated treaty within a national legislation. From a constitutional point of view, the implementation of a treaty can take place through a special or general transformation. Special = international norm must be adopted by legislation/regulation; general = declared part of municipal law without any special legislation. Treaties can either be self-executing or non-self executing; the former requires implementation by way of statute.

Advantages/disadvantages of direct applicability of international laws in a municipal court: Advantages include the increase for the effectiveness of international law, a better fulfillment of relevant treaty obligations etc. Disadvantages are recognized when one considers democratic participation in the international law making process, the adaption of international norms to domestic particular circumstances, the adequate fulfillment of the respective international obligations, possible conflicts between international and other nations norms

TOPIC 2: SOURCES OF LAW

Overview - Early relations with Aboriginal Peoples - Reception of English Common Law - French Civil Law and Bijuralism - Convention - Statute - Treaty A. LAW FROM HISTORY, CUSTOMS, AND TRADITION 1. Law and Aboriginals - Three major groups of aboriginal people: (i) Indian (ii) Inuit (iii) Metis - It is important for a legal system to recognize that Canada was populated by aboriginal people prior to its colonization by

the European empires - s91(24) of the Consti Act 1867, gives the federal parliament power over “Indians” and “lands reserved for the Indians” - Aboriginals’ cultural, political, economic and legal systems/rights not protected after colonization - But in 1982, with the partition of the Constitution, aboriginal rights were constitutionally entrenched in s 35 of the

Constitution Act, 1982. The provision protects “existing aboriginal and treaty rights of the aboriginal peoples of Canada” Mitchell v Canada - Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty and were absorbed into the

CL as rights, unless (1) they were incompatible with the Crown’s assertion of sovereignty (2) they were surrendered voluntarily via the treaty process or (3) the government extinguished them.

- Aboriginal rights falling within the constitutional protection of s.35(1) could not be unilaterally abrogated by the gov’t. However, the gov’t retained the jurisdiction to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and compelling public objectives

Delgamuukw v BC interpreted (Test for proof of aboriginal title) To make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria:

1. The land must have been occupied prior to sovereignty 2. If present occupation is relied on as proof of occupation pre sovereignty, there must be a continuity between

present and pre sovereignty occupation; and 3. At sovereignty that occupation must have been exclusive

- Lands held by virtue of aboriginal title may not be alienated (ie transferred to someone else). Alienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it

- if aboriginal peoples wish to use their lands in a way that title does not permit, then they must surrender those lands and convert them into non-title lands to do so,.

- The content of aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition - the content of aboriginal title contains an inherent limit that lands held pursuant to title cannot be used in a manner that is

irreconcilable with the nature of the claimants attachment to those lands 2. Canada’s Common and Civil Law Traditions (a) Reception of European law: - Canada law remains a largely European inheritance. British concepts of “reception” determined how Canada’s common

law and statute law was received - How were colonial laws to apply to the new world? The laws in force depended on whether colonies were simply settled or

were conquered or ceded by indigenous peoples. - Just as the aboriginal legal systems, the British had special rules of incorporation that defined how non-British law would

apply in their colonies. If a location was conquered or ceded, pre existing laws of the indigenous sovereign remained in force subject to modification or replacement by the Crown or parliament where necessary to operate gov’t. NB: The English CL was to have little to no authority.

- If the colony was settled a legal vacuum existed that must be filled; some form of law was required to govern new colonies. For British settlements a mixture of CL and statute was adopted.

Cooper v. Stewart (Discussed the “Rule of Reception”) - There is an important distinction between CONQUER and SETTLE Conquest: there is an established system of local laws that would continue to apply, modified only as far as was necessary to integrate them into the imperial legal system. Settled: CL + statute was imported. Ignored the presence of Aboriginals; it entails the automatic reception of English law NB: The rule of conquest was applied to central Canada and the rule on settlement everywhere else (Maritimes + Western provinces), so the entire body of English law (CL = statute) was imported to the settled colonies - Upper Canada (Ont) enacted legislation receiving the common law of England as the applicable legal code - Lower Canada (Que), except for criminal matters, the “Laws of Canada” (Civil law) applied in relation to “Property and Civil Rights” that is, private law matters. NB: The courts were the arbiters of settlement dates and determined date of statutory reception to be “the date of the institution of a local legislature in a colony: Young v Blaike (b) Nature of the Common and Civil law: Common law: Common law is an English invention. It is judge-made law, developed through the common law courts (as opposed to the Court of Chancery). Two fundamental ideas permeate common law theory: (1) Judges do not make the law but merely declare it; (2) all the relevant past decisions are considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance. CL is perceived as a set of fixed rules, unearthed by judges from cases through deductive legal reasoning, analogy, and application of precedent Civil law: Quebec inherited civil law. Civil law is based on established laws, normally written as broad legal principles. The difference between civil and common law lies more in their different methodological approaches as opposed to codification per se. In civil law countries, legislation is seen as the primary source of law. Judgements normally rely on the provisions of codes and statutes. Judicial reasoning is based extensively on the general principles of the rule or code. On the other hand, common law methodology, even where statutory sources of law are present, employs analogical reasoning from statutory provisions to fill in gaps. NB: The “bijuralism” remains largely intact in Canada today - Canadian federal law applies to all provinces and is derived from the CL - In Que private law derives from its Civil Code (c) The Operation of Common Law and Precedent [Statre decisis: let the decision stand] - The principle of stare decisis is the formal term to describe how the common law relies on legal principles established in

past cases (precedent), a foundational principle that leads to a more or less stable and certain legal structure. - Advantages/benefits and disadvantages/problems with/of precedent:

o Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society)

o Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish; (v) Also some intellectual uncertainty (as the law is in constant evolution)

EXAMPLE: A Ratio may be applied in a wide or narrow sense: Bhadauria is an example of how a wide reading of the judges reasoning, no claim based on breach of the Human Rights Code or the public policy found within it, is available to any future litigant Canada Trust Company v Ontario Human Rights Commission – the judge takes a narrower reading of Bhadauria distinguishing it and constraining it to its facts, in order to allow the claim for discrimination in the context of a trust claim

(d) Common Law and Equity - Equity’s original function was to provide a corrective to the perceived harshness of the common law. - The law sometimes fails to achieve adequate justice in a particular case - Matters falling within the equitable jurisdiction of Chancery courts included disputes relating to: property (trusts), contracts

(specific performance, injunctions), procedure (set-off and account of profit), guardianship and commercial matters (fiduciary duties)

- Rules of equity are now applied concurrently in all superior courts, with equity prevailing over CL in cases of conflict Re DeLaurier – The equitable doctrine of fiduciary was invoked to protect the religious upbringing of a child. In equity a principle was established that the court might control or ignore the parental right and that the child was the predominant consideration when interpreting the statutory provision. Court could suspend or supersede the parental right via equity. Guerin v Canada – equitable principles have been adapted to public law circumstances. • Indian land is leased out to golf course and the oral terms they agreed upon were not included in the lease. The written

lease was unfavourable to the natives • Disposing of abo Land places upon the Crown an equitable obligation to deal with the land for the benefit of the Indians • HELD: Fiduciary relationship exists. Crown has obligation to act in best interest of natives. • Crown cannot act unconscionably – Since crown acted unconscionably (ignored terms of agreement( it breached the

fiduciary relationship KLB v British Columbia – In placing children under foster parents care, the gov’t does not breach a fiduciary duty if the parent who took guardianship of the child commits a tort against the child. However, the gov’t may be held negligent if the gov’t actor failed to take sufficient care in placing the child with a proper foster parent. B. INTERNATIONAL LAW - Distinguish between domestic and international law

I. SEPARATE SPECIES OF LAW A. Domestic Law Domestic law exists as legislation enacted by the legislatures or made as regulations by the executives. Domestic law also comes in the form of common law. At the pinnacle of domestic law is constitutional law. B. International Law The 2 most significant sources of international law are treaties and “customary international law”: (1) Treaties/Convention (contracts between states who take part in treaty) - bilateral treaty - a treaty that binds 2 states - multilateral treaty – a treaty that binds a larger number of states - treaties are binding on the states that are parties to them and generally no others

- treaties may be a an exchange of promises between sates as to how they will act on the international plane, others require states to change their internal policies, practices and laws to confirm to the treaty.

(2) Customary international law binds all states, excepting only those that have been sufficiently persistent in rejecting it prior to its emergence as a binding norm. E.g. The Universal Declaration of Human Rights. Overtime a combination of state practice and an emerging view on the legally obligatory nature of the right found in the document have prompted many countries to consider the Declaration customary international law.

II. INTERNATIONAL LAW AS PART OF CANADIAN LAW - Executive branch of the gov’t negotiates treaties with other countries. Once a treaty is signed it is binding on the

signatories and they must comply with it or risk being found in contravention. A. Receiving Treaties into Domestic law and Questions of Legitimacy (1) Dualism and the Separate Solitudes of Domestic and International Law: Canada is a dualist jurisdiction. An international treaty may require Canada as a matter of international law to change its domestic law.

- An international treaty has no direct effect in domestic law until domestic legislation passed to transform or implement the law into Canadian law by an act of Parliament (if a federal matter) or provincial Legislatures (if a provincial matter) NB: Canadian law insists that treaties be transformed into domestic federal law by an act of Parliament

PROBLEM: Arises when Parliament fails to implement treaty law into domestic law the result is an unfortunate legal quandary: Canada is bound by the treaty as a matter of international law and yet its policy makers need not abide by the treaty under the terms of domestic law. REMEDY: Fed gov’t should delay ratification of treaty until Parliament and the provincial legislators revise the law to bring them into compliance with the international obligation. NB: When Fed gov’t exercises its power to conclude an international treaty, Parliament and provincial legislatures may face a dilemma in cases where the law is not consistent with the treaty. There are advantages, disadvantages and uncertainties with the dualist mode of reception. For example the implementation issue – there are no clear rules on when a treaty has been implemented into Canadian law; in this context, the Baker approach seems to be unsatisfactory, which states that for a treaty to be considered implemented, it must be done so explicitly in the relevant statute (ie the Canadian statute would have to implement and include the wording of the convention/treaty into Canadian domestic statute) Courts are increasingly prepared to view even unimplemented international treaties as important interpretive aids in understanding Canadian statute. Further, the Suresh approach appears to not be satisfactory either, which suggests that you can use unimplemented treaties to aid interpretation of legislation. The result can be the partial application of treaties never concretely implemented by the legislature but in a manner that does not actually comply with Canada’s international obligations.

CASES The following are two cases on the application of international law in Canadian domestic law: Baker v Canada FACTS: Baker was an illegal citizen living in CAN. She gave birth to 4 children while in Canada. In 1992, Baker was diagnosed w/paranoid schizophrenia and applied for welfare and she was ordered deported. Baker applied for an exemption based on H&C under s114(2) (this prevented her from having to leave the country to apply for citizenship). She didn’t want to leave b/c of her illness and her children. In denying her application, the Minister stated that there were insufficient H&C grounds. The immigration officer rejected her application. Baker requested and obtained the immigration officers notes and applied for judicial review of the decision. ISSUE: Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations w/respect to the International Convention of the Rights of the Child, does procedural fairness require the decision maker to consider and treat the best interests of the Canadian child as a primary consideration in assessing an applicant under S.114 (2) of the Immigration Act?” Should the values outlined in the international convention be followed by the minister? REASONING: Majority: (L’Heureux-Dube) International treaties and conventions are not part of Canadian law unless they have been implemented by statute: Francis v The Queen. The convention has not been implemented by parliament therefore its provisions have no direct application within Canadian law. Nonetheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. Human rights international law is also a critical influence on the interpretation of the scope of the rights included in the charter: Slaight Communications v Keegstra. NB: the values/principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. Dissent (Iacobucci): It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation: Capital Cities. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law. “The result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament”. What the rights of children in the convention outlines is irrelevant unless and until such provisions are the subject of legislation enacted by parliament.

De Guzman v Canada FACTS: DeGuzman was sponsored by her mother as an unmarried daughter to become a permanent resident of Canada. When she landed she misrepresented herself as a single with no dependents. She in fact had two sons whome she left with their father. She then tried to submit an application to have her sons sponsored for admission to Canada and her application was refused under paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR). Ms G argued that the relevant provision was invalid as it was inconsistent with international human rights instruments to which Canada is a signatory, and which protect the right of families to live together and the best interests of children. ISSUE: Is paragraph 117(9)(d) invalid because it renders the Immigration and Refugee Protection Regulation non-compliant with “international human rights instruments” to which Canada is signatory? HELD: The appeal was dismissed. S117(9)(d) remains operative and is constitutional and does not violate s7. Paragraph 3(3)(f) which states that, the IRPA must be “construed and applied in a manner...that complies with international human rights instruments to which Canada is a signatory”, does not incorporate into Canadian law international human rights instruments to which Canada is a signatory, but merely directs that the IRPA must be construed and applied in a manner that complies with them.

- A legally binding international human rights instrument to which Canada is a signatory is determinative of how the IRPA must be interpreted and applied, in the absence of a contrary legislative intention.

- Non binding international human rights instruments are intended to be used as persuasive and as contextual factors in the interpretation and application of the IRPA and not as determinative,

REASONING: To conclude that the terms of the IRPA, which have been debated and approved by Parliament, are overridden by a conflicting international legal instrument does not respect the legislative process in this country. Only express indication of such a principle by Parliament would allow such an outcome NB: There is an expanding role of the common law to incorporate international law in the interpretation of domestic law - In Baker, Court endorsed the use of international law to interpret a statutory provision as requiring immigration officers to give great weight to the best interests of any affected children when exercising discretion, EVEN IF NOT IMPLEMENTED NB: Further, Brunnees and Troope in a Hesistant Embrace argue that courts have not always made it clear how influential international law should be in the interpretation of domestic legislation. Sometimes it is treated as merely persuasive, while at other times it is presumed to be determinative, unless the statutory text is irremediably inconsistent with international law. In an attempt to bring greater clarity to the analysis in the evolving domestic jurisprudence, the authors suggest that Parliament should be presumed not to legislate in derogation of international legal norms that are binding in Canada. In contrast, non binding international norms should not be given the same interpretive weight, but should be regarded as no more than persuasive and contextual B. Customary International Law Reception and Legitimacy - Canada’s approach to customary international law is very different from its dualist treaty reception doctrines. - Once a rule becomes recognized as customary law, it is AUTOMATICALLY part of domestic law - It Can be displaced by statute that is inconsistent with the customary international law - There are also some concerns related to incorporating customary international law into domestic law (i) when a legislature does legislate in a manner that displaces customary international law, Canada may be subsequently in

violation of its international obligations. (ii) If customary international law is subsequently incorporated directly into CAN law by the courts, there may never be any

clear and direct input by political branches of gov’t into the rules by which law in CAN is being made (iii) Courts asked to apply customary international law to domestic law rely on expert testimony from international lawyers

and academics questioning the legitimacy of these outside sources. NB: The SCC has been unclear on the statutes of customary international law in Canadian domestic law C. STATUTORY LAW

- Statutory rule will supersede a judge made common law rule - Bhadauria is an example of how the CA and SCC grapple with how to treat the relationship between CL and statute law

where the legislative enactment has not specifically responded to a CL rule. - Bhadauria (CA) CA recognized that the legislative enactment had not specifically responded to the CL rule. As a result,

they extended the CL to include a tort of discrimination, based on public policy derived from the code. - Bhadauria (SCC) The SCC held that advancement of the CL was foreclosed by the legislative initiative and intent which

displaced the existing CL in Ontario and established a different regime. The code forecloses any civil action based directly upon a breach thereof, and it also excludes any CL action based on an invocation of the public policy expressed in the code. The code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff did not see fit to use.

The following cases provide a brief glimpse into the intricate relationship between custom, CL, civil law and constitutional law that exists in contemporary Canada: Halpern v Canada I: whether the exclusion of same-sex couples from the CL definition of marriage (union between man and woman breach ss.2(a) or s15(1) of the charter in a manner that is not justified by a free and democratic society under s1 of the charter. H: CL is subject to charter scrutiny where gov’t inaction or action is based on CL rules. To freeze the definition of marriage is contrary to the living tree doctrine of growth and expansion of constitutional interpretation: Hunter v Southam. CL definition of “marriage” infringed the claimants right under s15 and it was not saved by 1. Changed the CL definition of marriage to “the voluntary union for life to two persons to the exclusion of all others”. St-Hilaire v Canada (A-G) FACTS: Ms. St-Hilaire pleaded guilty to a reduced charge of manslaughter for the murder of her husband who was a member of the Public Services of Canada and a contributor to the superannuation plan. She claimed the allowances prescribed in the Superannuation Act, asking the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession. The Treasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. The respondent applied to the Federal Court for a declaratory judgment that would recognize her right to the benefits provided by the Act. Allowing the application, Blais J. ruled that the applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. ISSUE: The federal court had to determine the suppletive law applicable to the case (common law or civil law) and whether Ms. St-Hilaire was entitled to the benefits of the Superannuation Act. Namely, whether the federal statute, The Supperannuation Act, permits recourse to the civil law of Quebec to provide for its application to a dispute from Que or whether the common law rules complete the Act as suppletive law. The court had to determine the place of provincial private law in the application of federal legislation. HELD: Appeal allowed. Resort must be had to the civil law of Que and not the CL, in order to apply federal statute in Que to determine whether she was entitled to the benefits provided by the Superannuation Act. Ms. St Hilaire made an attempt on the life of her husband; she is unworthy of inheriting under the civil code and was not entitled to any of the benefits and allowances provided by the Act. REASONING: Decary JA (dissenting in part): - It would be wrong to associate systematically all federal legislation with common law. - When the a federal enactment is silent concerning the applicable private law, a Quebece litigant “is entitled to expect that

his civil rights will be defined by the Quebec civil law, even if the adverse party is the federal gov’t”. - Therefore, unless indicated otherwise, no document other than the Civil Code shall serve as ordinary law, in private law, in

the federal legislation applicable to Quebec. - In Quebec it is trite law that the "ordinary law" of the province is constituted by the Civil Code of Québec and the Code of

Civil Procedure - The rights at issue in this case were of a private nature. Therefore, civil law is therefore called upon to fill in the lacunae or

gaps left by federal law

- Since the Act is silent on the question of eligibility, the Attorney General submits that the legislative void must be filled by the common law. This argument cannot succeed, since the question of eligibility is a question of civil rights and the applicable rule is one of private law, and thus, in this case, of civil law

Letourneau JA Held that respondent was disqualified from reciving the benefitd under the act Desjardin JA: To determine the meaning of the words "surviving spouse" and "succession" when the federal statute in question, the Public Service Superannuation Act, is silent, it is necessary to refer to the Civil Code of Québec and not the common law. - Therefore, since the respondent was "convicted of making an attempt on the life of the deceased", she was unworthy by

operation of law of inheriting from her husband under that provision and could not receive the surviving spouse's annuity. D. CONVENTION - Constitutional conventions are a species of unwritten constitutional norms. - The British Constitution was understood to include certain conventions that govern the workings and interaction of the

branches of the state. Because the Constitution Act 1867 sought to effect “a Constitution similar in Principle to that of the UK,” Canada inherited these conventions.

The following is a case where a specific convention was recognized: Re: Resolution to amend Constitution (The Patriation Reference) : FACTS: The References in question were prompted by the opposition of eight provinces to a proposed Resolution, published on October 2, 1980. The proposed Resolution provided for the patriation of the B.N.A. Act (abolishing the Westminster Parliament authority over legislation in Canada) with an amending formula, and a Charter of Rights and Freedoms (Feds wanted to do this without the unanimous consent of the provinces). The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick. The opposition of the others was based on their assertion that both conventionally and legally the consent of all the provinces was required for the proposed amendment to be passed and implemented. HELD: The SCC affirmed the existence of an unwritten dimension to the Constitution. ISSUES: 2 key issues: (1) Is the agreement of the provinces constitutionally (legally) required to amend the constitution? Majority of 7:2

[CH Laskin] - Provincial consent is not legally required. Conventions cannot crystallize into law. Dissent [Martland & Ritchie JJ] Relied on ‘federalism’ principle and precedent to support the view that ‘in law’ provincial approval was required. Argued that the federal government is doing indirectly what it cannot do directly by having the UK amend the constitution without provincial support.

- NB: essence of Federalism is agreement of provinces, cannot do what you want unilaterally. -

(2) Is there a constitutional convention that the gov’t of Canada will not seek to amend the constitution without the agreement of all the provinces where such an amendment impacts on provincial powers?

- Majority [Martland & Ritchie + 4] recognized that there was a convention that stated that there must be substantial degree of provincial consent before amending the constitution

- Constitutional conventions are not enforceable by the courts - A 6:3 majority found an existing convention that a “substantial measure of provincial consent” is required. Since

1930 all amendments affecting the provinces were passed with provincial consent – there were no exceptions. Precedent indicated intent to have consent.

- Minority ( Laskin + 2) -> no convention had developed as there was no strong history of convention developed KEY ELEMENTS TO A CONVENTION: 1) Precedent: It must be developed over time (usage, custom , tradition) 2) Acceptance: Intent to be bound by the Convention 3) Reason for the convention – to maintain democracy i.e. PM, cabinet, GG as a rubber stamp

ARTICLE

The “Bijuralism” Issue Department of Justice, “Bijuralism and Harmonization: Genesis” “Bijuralism” signifies the co-existence of the English common law and French civil law traditions, within a country organized along federal lines i. Common Law Tradition (judge made law) - The principle characteristic of the common law is this inductive process, which consists of generalizing from common

points between distinct cases and then establishing legal categories with vague foundations and flexible limits - To practitioners, the common law means that they have access to a fragmented law that they will discover incrementally as

needed. This leads to the legal fiction that a judge does not make the law but discovers it, as a legal vacuum is impossible ii. Civil Law Tradition (codified law) - The most important feature of the civil law tradition differentiating it from the common law tradition is its emphasis on the

primacy of written laws (not judge made laws ie CL). - Another defining characteristic of the civilian tradition is its conceptualism as the civil law tradition is characterized by its

emphasis on abstract concepts. What follows from this is the use of a deductive approach to legal reasoning, proceeding from the general to the specific (as opposed to specific to general like in C/L).

- The second source of law in civilian tradition is legal scholarship “la doctrine”, and the third source is prior judicial decisions

- While prior decisions are sometimes a source of law in the civil tradition they are never the course of legal rules as in the CL tradition.

Language - One integral issue relating to Canada's bijuralism is that of "language". - The sources of common law were established in the English language. Translation often results in some very difficult

problems for the practice of the common law in French. The same holds true for the practice of civil law in English as some concepts are quite hard to translate

- In order to attain a high level of interaction between Civil law and CL a high degree of bilingualism must be attained - I cannot emphasize enough that my experience has taught me that French is not the exclusive linguistic vehicle for the

expression of the civil law tradition nor is English the exclusive vehicle for the expression of the common law. I highly doubt that there is any mystical connection between the French language and the civil law tradition and the English language and the common law tradition.

Bilingual legislation - Federal legislation in Canada is intended to apply consistently across the provinces and territories. While this may be the

ultimate goal of federal legislation, in practice this goal is not easily attained, since federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Federal legislation must not only be bilingual, but also bijural. Indeed, federal legislation must simultaneously address four different groups of persons: (1) Anglophone common law lawyers; (2) francophone common law lawyers; (3) anglophone Quebec civilian lawyers; and (4) francophone Quebec civilian lawyers.

- It is crucial that these four legal audiences in Canada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory

- One distinctive and often difficult feature of Canadian bijuralism is the task of rendering the common law in French and the civil law in English. More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. In many areas, a new vocabulary must be forged.

Interpreting Bilingual Legislation - The requirement in Canada that legislation be enacted in both English and French has important implications. It means that

both language versions of a bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translation—and neither has paramountcy over the other. This is known as the "equal authenticity rule"

- The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extract the "highest common meaning" from the two versions that is consistent with the context of the provision.

- Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute. One must therefore go further than mere verbal comparisons, looking to the highest common meaning of the two versions

Harmonization - Over the years, pursuant to the division of powers under the Constitution Act, 1867, Parliament has enacted a considerable

number of laws aimed at regulating private law issues. Certain public law statutes, when applied in Quebec, require that recourse be had to the Civil Code of Quebec to identify the precise nature of the juridical act in question. Consequently, there are several areas of law found in federal statutory enactments which require harmonization with Quebec private law, expressed primarily in the Quebec Civil Code

- As such, civil law is called upon to fill the gaps left by the federal law - While civil law and common law complement the private law provisions of federal legislation, at the same time, federal

legislation should not be applied uniformly throughout the country in every respect. This requires respect for the character and uniqueness of the concepts and principles of each legal system

Convergence and Progress - There is evidence of a certain convergence between the civil law and common law traditions in Canada. While the common

law and civil law families share common origins, these legal systems have been moving farther and farther from those origins.

- This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of international law, the mobility of persons, the influence of the media, the production of indigenous reference works and the growing use of legislation, even in common law jurisdictions, to enable the law to adapt quickly to societal change.

- One often-cited example of the convergence of the two legal traditions in Canada focuses on the acceptance in Quebec of specific institutions of the common law tradition—namely, the trust.

- Another instance of this "rapprochement " of the two traditions can be discerned from the current situation where common law courts are required to apply and interpret substantive civil law – .e.g recent tort case where Court made extensive reference and resorted to civilian authority

- Chief Justice McLachlin stated that looking to how other courts in different jurisdictions deal with this issue provides perspective both on the nature of the problem and possible solutions.

- Bijuralism in Cdn is more than the mere co-existence of the 2 legal traditions. It involves sharing of values + traditions Conclusions - Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against

anyone. - It is true that things have already changed substantially. The codification of the law is increasingly extensive in both

systems. There are more and more new sources of substantive law, including international law and native law. Translation, language training for judges and jurists, and exchanges between law schools are far more common. There is widespread access to criminal justice in French at the trial level throughout the country. Some universities offer a double law degree; others have organized one-year work terms for students studying the other system.

- The negative side is that French-language books, articles and cases from Quebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. I have also noticed that the bilingualism of many young Quebec jurists is insufficient to give them full access to English-language legal sources.

Application of International Law in Canadian Court The following is an article on issues concerning the application of international law in Canadian courts: Brunnee, Jutta & Stephen Toope, “A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts” Background - Today, Courts appear to recognize the relevance of international norms whether or not they have been implemented

through Canadian legislation, and whether or not they are binding on Canada

- In Baker, the Court held that the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review

- Canadian courts are grappling more with the “practical application” of international law - Canadian courts, however, are still inclined to avoid deciding cases on the basis of international law. Even when they

invoke international law, CAN courts generally do not give international norms concrete legal effect in individual cases - After the Baker decision, there appears to be a trend towards treating all international law, whether custom or treaty,

binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and persuasive, but not determinative (this comes implicitly from the decision)

- The point is the SCC and other courts have confused, rather then clarified the domestic impact of international law - The Job is for academics and the judiciary/courts to attack international law questions in a more principled manner. - The SCC in Baker and in Suresh said that the relevant international instrument was not implemented in Canada (but we

think it’s arguable that there is implied implementation because of the Charter and its protections) - We argue that it is not enough to treat ALL normative threads as potentially persuasive, but not mandatory – over time, this

approach risks weakening the fabric of the law. CONCERN: If international law is merely persuasive, it becomes purely optional, and it can be ignored at the discretion of the judge

- We argue that in the case of norms that are binding on Canada under international law, Canadian courts have an obligation to interpret domestic law in conformity with the relevant international norms as far as possible. By contrast, norms that aren’t binding can help inform the interpretation of domestic law and may be persuasive.

Implemented Treaties - In Canada, the executive controls both the signature and ratification of international treaties. If the treaty is in force and

Canada has ratified it, the treaty is binding on Canada as a matter of international law; but this does not answer the question of whether the treaty is effective within the Canadian domestic legal system

- Canadian courts struggle not only to determine when international norms require implementation through legislation but also to determine whether such implementation has actually occurred. They wrestle as well with the implications of the common law principle that "Parliament is not presumed to legislate in breach of a treaty or in a manner inconsistent with the comity of nations and the established rules of international law." In the case law, it remains unclear when this principle comes into play and how it relates to the implementation requirement.

- So while the power to enter into an agreement rests with the federal executive, transformation generally requires legislation that enacts treaty obligations into domestic law.

- It is unclear what constitutes implementation, and there are potentially many ways this can be done in a statute. Least common practice is “inferred implementation”

- When a treaty is explicitly transformed into Canadian law, its provisions should be determinative in the interpretation of domestic legislation

- When the purpose of a statute is to implement an international treaty, the Court must adopt an interpretation consistent with Canada’s obligations under the treaty.

- Canadian courts have tended towards a narrow construction of the implementation requirement, effectively equating implementation with statutory implementation

- But surely there can be implicit implementation, e.g. by way of the Charter. - In Ahani, it was stated that absent implementing legislation, international law has no effect - Traditionally, however, Canadian law did not categorically require statutory implementation Unimplemented treaties - There are cases where treaties are genuinely unimplemented. - What is the legal effect of such treaties? We submit that a treaty that is binding on Canada, while not directly applicable

in Canada, is nonetheless subject to the presumption of legislative intent to Act consistently with Canada’s international obligations.

- This understanding leads to the inference that courts should make every effort to interpret Canadian law so as to conform to Canada’s international obligations

- Unfortunately, Canadian case law has not taken a consistent approach to the presumption of conformity w/ international law.

- First, there is an uncertainty of the effect of the presumption in the context of Charter interpretation. The SCC has tended to draw upon international norms merely to inform its interpretation of the Charter. In the Charter context, a weaker version of the presumption of conformity has emerged.

- Secondly, the case law since Baker is unclear on whether the presumption applies equally to Canada’s international obligations and non-binding international norms

- The ambiguous state of the case-law in this regard is reflected in the Court’s decision in Baker. One of the principle causalities of this lack of clarity is customary international law. The central ruling in Baker was that even though Canada had never explicitly transformed its obligations under the Convention of the Rights of the Child into domestic law, the immigration official was bound to consider the “values” expressed in that Convention when exercising discretion. Therefore, the Convention’s emphasis upon “the best interests of the child” should have weighed heavily in considering Ms Baker’s application.

- It would seem that the primary question for the majority with respect to the relevant international instrument was how to give effect to the unimplemented treaty. As said above, the majority took the narrow view on the question of implementation and observed that, absent implementation by Parliament, it’s provisions have no DIRECT application in Canadian law. Yet the “values” reflected in the Convention could shape statutory interpretation.

- In our view the majority erred for 2 reasons: (1) While the provisions in that instrument were not directly applicable IN Canadian law, they were binding ON Canada and therefore relevant to statutory interpretation through the presumption of conformity (from the standpoint of this presumption, the Court wouldn’t have had to distinguish between the “provisions” and “values”, and could have used both). The Court simply failed to adopt the presumption which they should have, based on the very quote which they relied to cite authority for the presumption; it would have been clearer for them to just have used the presumption in arriving at the conclusion; (2) By avoiding the presumption, the interpretation of the international instrumental taken was overly narrow

- Baker results in 2 questions: (1) How should courts approach international treaty norms that are binding on Canada, but absent implementation, not directly applicable in Canada? (2) How should they approach norms that do not bind Canada but reflect important international values?

- Some have suggested to ignore the rigid distinction between binding and non binding. Doing so risks some norms being ignored completely, simply because they are not legally binding. Similarly, legal norms produce a false sense of security when it is assumed that they require nothing other than “mechanical” application by a judge. According to Knop, an approach focused on persuasiveness of norms can improve the domestic application of both types of norms. Knop therefore likes Baker’s approach

- But we are worried that Baker has not signaled a positive shift. Worry is that Baker signals a path towards treating all international law as persuasive authority, which the Court MAY use to inform its interpretation of domestic law. By treating both binding and non-binding international norms in this manner, courts move away from their duty to strive for an interpretation that is consistent with Canada’s international obligations.

- Binding international norms are not only persuasive, they are obligatory. If we fail to uphold our obligations, we undermine respect for law internationally

Note: binding = ratified; implemented = implemented by statute Customary international law - The existence of a binding rule of custom is proven with reference to two distinct, but interrelated, elements: (1) state

practice and (2) opinio juris (a sense of legal obligation). When these 2 ingredients become sufficiently widespread among the state of the world, the practice in question is said to become legally binding as customary international law.

- The proper application of customary international law has emerged in a series of cases after Baker as a major question for the Supreme Court. To what extent can international customary law inform domestic legal processes? The best view appears to be that customary law can operate directly within the Canadian legal system

- We hope that the SCC intended to suggest that the precautionary principle can inform statutory interpretation even if it should not yet have become customary international law. If this reading is correct the Court would have confirmed a principle that it alluded to in Baker: in appropriate cases, international norms that are not legally binding on Canada may inform statutory interpretation and judicial review

- The SCC commented on customary international law in Suresh and held that Jus cogens norms are a particularly compelling form of customary international law.

Summary - Customary international law (a peremptory norm of customary international law which emerges by general consensus of

the international community): should be directly applicable (it is a part of Canadian law). Courts should strive to interpret statutes and common law to be consistent with obligations under customary law. However, the approach of Canadian courts to customary international law is unclear. There is no unequivocal statement on whether custom is part of Canadian law or not. If anything, there are some indications that our courts may be retreating from custom. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even jus cogens, is not directly binding in Canada. The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more.

- International treaty law: treaty that has been explicitly implemented by statute is part of our domestic law and should be determinative in the interpretation of Canadian law. When Charter issues arise, Canadian legislatures retain control over domestic law. The presumption of conformity is to be applied only where possible, and it can be rebutted by an explicit legislative Act.

- International law that is NOT binding: finally, there is an array of international normative statements that may not be legally binding on Canada, but Canada may find relevant to the interpretation of a domestic statute. E.g. might encounter non-binding parts of a treaty (preamble); international treaties to which Canada is not a party etc (SOFT LAW). These norms should be treated as potentially relevant and persuasive for the interpretation of domestic law

TOPIC 3: Fundamental Principles of the Canadian Legal System

Overview - Rule of law - Parliamentary sovereignty and constitutional supremacy - Separation of powers - Judicial independence

RECURRING CONSTITUTIONAL THEMES IN CANADIAN PUBLIC LAW (Craik Reading) - Public law concerns the relationship between the state and civil society - Private persons may only create legal rights and duties b/w each other, and only on the basis of consent. In comparison, the

state holds all authoritative power (the state may impose its dictates on persons without their individual consent). In a society governed by the rule of law, the state may not act arbitrarily. The state must impose its will in accordance with law

- The starting point in assessing the legitimacy of state action is the Constitution. The Constitution establishes the foundational law through which the rule of law can occur. First, it establishes as a matter of law who can make the “ordinary law” of the land (as well as who can amend the constitution) and also spells out any limits on the content of this ordinary law. Second, a constitution establishes the respective relationships between the institutions or branches of the state that perform the functions necessary to operationalize law in society

- In Succession Reference the court confirmed the status of four unwritten principles of the constitution – (1) Federalism (2) Democracy (3) Constitutionalism and the Rule of Law (4) Protection of Minority Rights.

Principles of Public Law: (1) Rule of Law – all exercised of legitimate public power must have a source of law and every state official or agency is subject to constraint of the law (2) Constitutional supremacy – the constitution is the supreme law of the society and any ordinary law that is inconsistent with the Constitution is of no force or effect (3) Parliamentary supremacy – subject to the constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it deems fit (4) Federalism – legislative sovereignty in Canada is divided between a national legislature or Parliament and provincial legislatures, according to a division of law-making powers or jurisdictions set out in the Constitution. (5) Statutory Authority – the executive branch of the state derives all its authority to act from statutory grants of power from the legislative branch, save and except for certain powers derived from “royal prerogative” and constitutional convention (6) Judicial Independence – the judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional law functions.

I. CONSTITUTION IN CANADA

A. THE PRINCIPLE OF THE RULE OF LAW - Everyone, including the powerful state, must act in accordance with the law

- In Succession Reference the SCC viewed the principles of “Constitutional supremacy” and the “rule of law” as closely connected while distinguishing them “the constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency of no force or effect.”

- Rule of law is broader than the concept of constitutionalism and indeed is necessary prerequisite - The idea that all state officials are subject to the legal order and to the same legal obligations as are individual citizens was

most strikingly affirmed by a majority of the SCC in Roncarelli v Duplessis Roncarelli v Duplessis: the SCC confirmed that all state officials are subject to legal order and to the same legal obligations as are individual citizens. FACTS: Director of the provinces liquor commission, acting under the express direction of Premier Duplessis revoked the license of Roncarelli. The director, of the commission, argued that he was acting under the commissions unqualified statutory power to cancel permits “at its discretion”. Duplessis did not like Roncarelli and Duplessis used his power to pursue a personal vendetta. HELD: SCC found a violation of the rule of law. It was arbitrary decision making. Although statute allowed the the director of the commission to use his discretion no statute could delegate such unlimited power to a gov’t official or that the premier could manipulate his own powers to pursue a personal vendetta. Minority Rights: Jehovah witness cannot be singled out for discriminatory treatment for reasons which are irrelevant to legitimate state interest (here liquor regulation) Democracy: by denying Roncarelli the right to post bond for Jehovah witnesses the premier was denying him his democratic rights. Legal power cannot be exercised in an arbitrary position for irrelevant reasons. B. WHAT COMPRISES THE CONSTITUTION OF CANADA? - Canada has a written constitution – The Constitution Act 1867 and The Constitution Act 1982 - 1867 Act – principle achievement was federalism – the division of legislative powers between a national Parliament and

provincial legislatures (S 91 and s92) - 1982 Act – principle achievement was the Charter – individual and minority rights; definition of the Constitution and its

legal status (s52(1) and (2)) - s52(2) is understood to only refer to the written components of the Constitution HOWEVER in Succession Reference – the

SCC confirmed that the Constitution also contains “unwritten” principles/rules. Succession Reference Case - Held that there were 4 Unwritten principles of the constitution: (1) federalism (2) democracy (3) constitutionalism and the

rule of law (4) respect for minorities - NB: no single principle can be defined in isolation from the others, nor does any one principle trump or exclude the

operation of any other. - These principles may be helpful to a proper interpretation of the text of the constitution and the delineation of spheres of

jurisdiction the scope or rights and obligations and the role of our political institutions. The court described unwritten principles as having the force of law and imposing substantive limits in the powers of gov’t

- Constitution as a “living tree” doctrine – the principles of the constitution evolve: Edwards v AG of Can - These unwritten principles fill the gaps in the express terms of the constitutional text but the principles do not override the

text - Principles are binding on both courts and governments - “These principles are important because problems or situations may arise which hare not expressly dealt with by the text of

the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive definition for our system of government”: Reference re Secession of Quebec

- Case Significance: Most significantly the Court turned to these four principles in resolving the question. This re-confirms that our Constitution is not just based on its express wording. Unwritten principles have an important place in applying the constitution [see para. 32]. Look for the four principles to guide Courts in future cases.

BC v Imperial Tobacco Canada FACTS: BC legislature enacted an Act creating a civil cause of action for the BC gov’t against tobacco manufactures with respect to health care costs incurred by the gov’t for tobacco related illnesses. Manufacturers of tobacco claimed that the legislation enacted which favoured BC government violated the principle of rule of law.

ISSUE: Did the legislation breach the unwritten constitutional principles of the rule of law? Is the Act constitutionally invalid in whole or in part as offending the rule of law? HELD: The Act does not implicate the unwritten principle of the rule of law. REASONING: Unwritten constitutional principles including the rule of law are capable of limiting the gov’t actions. The written constitution is the first in importance in CAN law. Therefore, the unwritten principles of the rule of law cannot be taken as an invitation to dispense with the written text of the consti. Other unwritten principles such as democracy and constitutionalism are very strongly in favour of upholding the validity of legislation that conforms to the express terms of the Constitution. The rule of law requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text. CONSTITUTIONAL CONVENTIONS - Constitutional conventions are another species of unwritten constitutional norms. - They have particular importance with respect to the workings, in particular the limits on the power, of the Crown and

executive government - They were inherited from the British constitutional structure - The Patriation Reference Case defined what a convention is and recognized a convention of “substantial provincial

agreement” HELD: A unilateral amendment of the Constitution would breach a constitutional convention. The ordered that the gov’t should adhere to this convention but are not legally obligated to abide by it. There is no legal sanction for breaching a convention.

REASONING: the main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period. Constitutional conventions are based on precedent and custom and are as a result usually unwritten. The court made several findings about the nature and effect of conventions of the Constitution: 1. Conventions come into existence on the basis of 3 factors:

a. A practice or agreement developed by political actors overtime (usage, custom , tradition ; b. A recognition by political actors that they are bound to follow convention (an intent to be bound); c. The existence of a normative reason – that is, a purpose for the convention

NB: In this case the majority located a normative reason for a convention of “substantial provincial agreement” in the federal nature of Canadian democracy. 2. Conventions are not “law” and cannot be enforced by the courts. C. THE PRINCIPLE OF CONSTITUTIONALSUPREMACY - the constitution is the supreme law of the society and any ordinary law that is inconsistent with the Constitution is of no

force or effect - In the Succession Reference the SCC confirmed that with s 52(1) of the Constitution Act 1982, and with the adoption of the

Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy

- The principles of constitutionalism and the rule of law lie at the root of CAN system of gov’t. Elements of the rule of Law: Manitoba Language Rights Reference: (1) The rule of law provides that the law is supreme over acts of both gov’t and private persons – one law for all (2) The rule of law requires the creation and maintenance of an actual order of positive laws which preserve and embodies

the more general principle of normative order. (3) The exercise of all public power must find its source in a legal rule. The relationship of the state and the individual must

be regulated by law. NB: The constitutionalism principle requires that all gov’t action comply with the constitution. The rule of law principle requires that all gov’t action must comply with the law, including the Constitution. Constitutionalism and the rule of law are not in conflict with democracy, rather they are essential to it. The doctrine of constitutional supremacy carries with it certain necessary implications that speak to other aspects of public law:

(1) Hierarchy of law: To state that the Constitution is Canada’s supreme law implies a hierarchy of law. In this hierarchy there is common law and statute law. CL can be overridden or amended by express statement of the legislature in the form of statute. Statute law is binding to the extent it is not inconsistent with the Constitution. (2) Adjudication: To effect constitutional supremacy requires a mechanism for adjudicating alleged inconsistencies between the Constitution and ordinary law, including the power to declare (and enforce) the invalidity of inconsistent ordinary law. Our system accepts that constitutional interpretation cannot be performed by the same body that enacts the ordinary law (i.e. the legislature). Our system requires that the legislature will be checked and balanced by the judiciary with the authority to interpret and apply the Constitution. (3) Counter-majoritarianism: In a system of constitutional supremacy, the power to interpret and enforce the Constitution against majority preferences must be present in order to protect the minority, that is individuals, minority groups and regional populations. (4) Amendment by super-majority required: process of amending the constitution must involve a super majority which brings in more or other elements of society than comprise a legislative majority. E.g. 750 rule D. CONSTITUIONAL SUPREMACY AND HUMAN RIGHTS LAWS The SCC has described human rights legislation as quasi-constitutional in nature. Quasi-constitutional means:

(1) Human rights and anti-discrimination laws are important to individual rights in Canadian society and closely related to other civil liberties protected in the constitution

(2) Due to their significance, human rights statutes deserve a broad and liberal interpretation and can be used to interpret provisions in other legislation

NB: despite this status, human rights legislation is of the nature of “ordinary” statute law and subject to the Constitution The principle of constitutional supremacy vis-a-vis human rights legisation is best demonstrated by the SCC decision of: Vriend v Alberta: V, an employee in the Christian college lost his job when he admitted he was gay. He was prevented from filing a human rights complaint in Alberta because “sexual orientation” was not a ground protected from discrimination legislation. It was clear that Alberta made a conspicuous policy decision to leave it out of the human rights legislation. Held: The SCC found that the legislation violated s15(1) of the Charter and the court read in to the list of grounds protected from employment discrimination the phrase “sexual orientation” so Alberta statute complied with the Constitution/charter. The charter can compel the government to do something i.e. by reading in sexual orientation

II. THE EXERCISE OF PUBLIC POWER IN CANADA

A. THE SEPARATION OF POWERS DOCTRINE - The separation of powers doctrine refers to the division of governmental functions between the legislative, executive and

judicial branches - Each branch is defined by its relationship to law: (i) the making of law (legislature); (ii) the implementing of law (executive); and (iii) the interpreting and applying the law (judiciary) - In Canada, there is no strict separation. The parliamentary tradition adopted by Canada’s founders gives pre-eminence to

the legislative branch, to which the executive is made subordinate. The PM and members of his/her Cabinet, who comprise the executive council are elected members of the legislature and take part in the day to day activities in the legislature. This is not the case in the US.

- The distinction between the legislature, executive and judiciary is important to Canadian law. It serves two principal purposes: (1) a functional purpose of identifying the institutional homes of the three major forms of public power and (2) a normative purpose of providing general boundaries for the operation of each institution

- legislative decision making is prospective (oriented to the future), broad in impact (oriented to the public interest or interests of large groups) and open ended in range of outcomes

- judicial decision making is retrospective (oriented to past events), localized in impact (oriented to individuals disputes) and narrow in outcome (oriented to the application of principles to facts to produce the “right” outcome

- executive or administrative decision making shares features of both legislative and judicial DM and is difficult to define B. LEGISLATIVE POWER The legislative branch of the state is divided between the federal legislature (parliament) which includes the elected H of C and an appointed senate and the elected legislatures in each province. The division of authority between the two legislature levels is a feature of federalism. NB: elected municipal councils and school boards get their powers by delegation from legislatures. 1. The Principle of Parliamentary Supremacy - The principle of parliamentary supremacy is that Canada’s federal and provincial legislatures are understood to be the sole

sovereign holders of state authority, subject to authority being divided between them as set out in ss 91 and 92 of the Constitution Act, 1867.

- But with the Constitution Act, 1982, Canada adopted the Charter of Rights and Freedoms which transformed Canada, to a significant extent, from a system of Parliamentary supremacy to one of the constitutional supremacy.

Doctrine of Exhaustion: all the power to enact laws belongs to either the federal or provincial governments. Section 33 of the Charter: override provision which allows either Parliament or provincial legislatures to enact legislation in contravention of certain charter rights. An example of how the court has approached parliamentary sovereignty as a principle of constitutional law can be found in Babcock v Canada FACTS: The gov’t of CAN sought to rely on a statutory right of non disclosure of Cabinet documents, despite the docs having already been disclosed in the course of litigation. The applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear statutory statement to the contrary. ISSUE: What is the nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished? HELD: The rule of law or the doctrines of separation of powers and the independence of the judiciary have not been offended. It is well within the power of the legislature to enact laws, as long as they do not fundamentally alter or interfere with the relationship between the courts and the other branches of gov’t. REASONING: Cabinet confidentiality is essential to good government. Although unwritten constitutional principles are capable of limiting gov’t action they do not in this case. The unwritten principles must be balanced against the principle of Parliamentary sovereignty. Federal crown privilege is part of valid federal law over which Parliament has the power to legislate. 2. The Principle of Federalism a. Overview - Federalism: Dividing legislative power between a federal government and regional governments, each being assigned

respective spheres of jurisdiction under s91 and s92 of the Constitution Act 1867 which sets out lists of enumerated federal and provincial powers.

- The opening paragraphs of s.91 grants a residual law-making power to parliament under the phrase POGG. - Federalism is an unwritten principle of the Canadian Constitution (see Reference re Secession of Quebec); the SCC in that

case described this principle as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society

b. Federalism and Human Rights Legislation - All 11 Canadian legislatures and 3 Territories have enacted human rights laws to govern those areas subject to their

regulatory authority. - Most private activity falls within provincial authority under “property and civil rights” in s 92(13). However, certain sectors

of the economy fall within federal authority ie banking. Parliament has enacted the Canadian Human Rights Code to cover these other federal regulated areas.

C. EXECUTIVE POWER

- The executive includes all ministries of gov’t and thier employees – the civil service, the armed forces and crown corps. It may include statutorily created bodies that carry out largely “governmental” functions.

- In law, the executive branch is subordinate to the legislature. The relationship between the legislative and executive branches in Canada has two important features:

1. The executive derives any power it has solely from the laws or statutes passed by the legislature. That is, the executive must locate any authority it has to act in Canadian society from a statutory source

- By way of statute legislators delegate elements of their sovereign power to executive actors, be that FED or PROV cabinet, a particular minister of the crown or local public health official.

2. By constitutional convention the executive is responsible to the legislature “responsible gov’t”. The PM and the cabinet must command the support (or confidence) of a majority of elected legislators.

D. JUDICIAL POWER - s 96 to 101 of the Constitution Act 1867 contains provisions on the judicature Section 96 provides that the federal executive shall appoint justices of the country’s superior, county and district courts.

- Federal gov’t appoints judges - Superior courts are referred to as Section 96 courts - NB: each province also has a system of non-section 96 courts, to which the province has the authority to appoint

judges. Section 101 parliament is accorded the authority to create courts for the “better administration of the laws of Canada” – understood to mean law passed by Parliament itself.

- With this power, the Federal Courts Act was passed (jurisdiction and power are statutory) - Federal Courts play a role similar to that of provincial superior courts but for fed legislation

Section 101 also authorizes Parliament to create a general court of appeal for Canada. - With this power, Parliament created the Supreme Court Act creating the Supreme Court of Canada

The Judiciary’s Constitutional and Administrative Law Jurisdiction The SCC has identified the “core jurisdiction” of superior courts as encompassing two public law powers: (1) Constitutional law jurisdiction: The jurisdiction to rule on the constitutional validity of all ordinary laws in Canada - The principle of constitutional supremacy presupposes a role for an adjudicative institution to rule on whether ordinary

legislation has violated the limits of legislative power set out in the constitution - Remedy – in constitutional cases – declare law invalid and of no force and effect - S24 of the charter allows courts of competent jurisdiction to grant remedies in individual circumstances for charter

breaches by excluding evidence. (2) Administrative law jurisdiction - The jurisdiction to supervise the activities of the executive gov’t and other

Statutorily delegated actors to ensure that they act within their statutory authority - Executive authority is limited by and to the jurisdiction granted by statutory delegation from the legislature - Superior courts ensure that executive gov’t acts within its delegated authority through the method of “judicial review”.

Judicial review of executive action has constitutional status. JR cannot be withdrawn from section 96 courts by provincial legislatures. It is guaranteed: Crevier v Quebec

NB: Admin law jurisdiction has been divided between Federal Courts and Superior courts (3) The Principle of Judicial Independence: an elemental constitutional doctrine, closely tied to the separation of powers - Judicial independence is “essential to the achievement and proper functioning of a free, just and democratic society based

on the principles of constitutionalism and the rule of law.”: Mackin v NB - Judicial independence insulates judges from retaliation from other branches of gov’t for their decisions and guarantees that

“the power of the state is exercised in accordance with the rule of law and the provisions of our constitution”: Ell - Judicial independence also preserves the separation of powers b/w the three branches of our democracy by depoliticizing

the relationship between the judiciary and the other two branches

CASES Quebec Secession Case (Recognizes and explains the importance of 4 unwritten constitutional principles) FACTS: In 1995, a second referendum for the secession of Quebec was held and failed. Following the referendum, Parti Quebecois leader, Buchard, announced that his government would make plans to hold another referendum when he was confident that the “winning conditions” were there. In reaction, Prime Minister Chretien initiated a reference to answer the legality of a unilateral declaration of independence from a Canadian province.

ISSUES: (1) Under the Constitution of Canada, could Quebec separate unilaterally?

- SC said “no” and succession requires a Constitutional amendment which requires negotiation. - A referendum, while not legally binding, should be considered a legitimate indication of the need for constitutional

discussions among all provinces. However, if there was a clear majority in the referendum on a clearly phrased question, Canada cannot deny Quebec succession

(2) Under international law, is there any precedent existing as to whether they could unilaterally separate? - SC said “no” with a “but” - SC felt that existing international body of law recognized the right of self-determination which belongs to all

peoples - BUT since Quebecois were part of Colonial Empire and weren’t subject to alien domination or exploitation, and had

ability to participate in government, they weren’t subjugated by Canada so don’t have international right to secede unilaterally.

(3) In the event of a conflict between domestic and international law, to effect secession from Canada unilaterally, which would take precedence in Canada?

ANALYSIS: - The constitution is comprised of written and unwritten elements. These defining principles function in symbiosis. No

single principle can be defined in isolation from the others, nor does anyone principle trump or exclude the operation of any other.

- Use of unwritten principles: These principles assist in the interpretation of the text and the definition of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree”: Edwards v. Attorney-General for Canada

- In Provincial Judges Reference, the court determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text"

- In Provincial Judges Reference the SCC cautioned that the recognition of these constitutional principles could not be taken as an invitation to dispense with the written text of the constitution. A written constitution promotes legal certainty and predictability and provide existence of constitutional JR

Four fundamental principles underlie the interpretation of the Constitution: 1. Federalism - Political power is shared between the two levels of government. - Federalism recognizes the diversity of the component parts of Confederation and the autonomy of provincial gov’ts to

develop their societies within their respective spheres of jurisdiction - Federalism protects minority culture (i.e. Que) by allowing provinces to have power over local matters s92(16)

2. Democracy - Democracy is a political system of majority rule. - Values of Democracy: respect for the inherent dignity of the human person, commitment to social justice and equality,

accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

- In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise.

- In individual terms, the right to vote in elections to the H of C and the provincial legislatures, and to be candidates in those elections, is guaranteed to by s. 3 of the Charter.

- The relationship between democracy and federalism means that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level.

- Yet democracy cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented.

3. Constitutionality and Rule of Law

- Constitutionalism provides that the constitution is the supreme law of Canada, and that any law that conflicts with it is of “no force and affect”: s52(1) Constitution Act

- The 'rule of law' is a highly textured expression, importing many things conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority".

- The rule of law provides a stable, predictable and ordered society. It provides a shield for individuals from arbitrary state action. The exercise of all public power must find its ultimate source in a legal rule: Provincial Judges Reference

NB: to amend the constitution you need substantial consensus (larger than a majority). Since it must be substantial minority views are thus consider and are not lightly surpassed. Argument that constitutionalism is inconsistent with democratic gov’t. This is not true as constitutionalism facilitates a democratic political system by creating orderly framework within which people may make political decisions. 4. Respect for Minority Rights - - There are a number of constitutional provisions protecting minority language, religious, and education rights, and these

provisions reflect a broader principle of protection of minorities - There are a number of specific constitutional provisions protecting minority language, religion and education rights. - Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional

judicial review that it entails, is the protection of minorities. Singh v Canada (Explains some of the fundamental principles discussed above) FACTS: S was a foreign national who attempted to claim convention refugee status under the Immigration Act, on the basis that he had a well founded fear of prosecution in his home country. He was denied status. S challenged the adjudication procedures under the Immigration Act on the basis that it violated s7 of the Charter and s2(e) of the Bill of Rights. The gov;t claimed that since S had no status within the country that he was not subject to the charter. When S applied to the Immigration Appeal board for a re-determination, S was not given an oral hearing, as the board determined on the basis of the material submitted that S would not be able to establish his claims at a hearing. ISSUES: (1) Whether section 39 is ultra vires Parliament because of the fundamental, unwritten principles of the Canadian Constitution, namely the independence of the judiciary, the rule of law and the separation of powers; and (2) Whether section 39 should be read down or otherwise rendered inapplicable in the circumstances. ANALYSIS: 1. Parliamentary sovereignty - The Constitution is the supreme law of Canada s52(1) but It is parliament and the legislatures, not the courts, that have

ultimate constitutional authority to draw the boundaries. - While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention or

sovereign will of Parliament. Purposively, contextually or policy-oriented may be the interpretative methods used to attribute such meaning.

NB: Both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution 2. Separation of powers - The Canadian Constitution does not insist on a strict separation of powers. In Canada there is a mixing of functions among

the various branches of government (unlike the US & UK). E.g. there is a statutory power allowing the SSC to give advisory opinions, a function of the executive.

- In the Quebec Secession Reference the Court unanimously confirmed its right to perform this function as follows 3. Rule of law: The elements of rule of law include: (1) That the law is supreme over the acts of both government and private persons ("one law for all"); (2) That an actual order of positive laws be created and maintained to preserve "normative order"; and (3) That "the exercise of all public power must find its ultimate source in the legal rule". put another way "the relationship between the state and the individual must be regulated by law".

- In this case, the rule of law cannot be taken to invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure.

4. Independence of the judiciary: - Appellants’ argued that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from

engaging in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary

- The TJ correctly held that this did not constitute an interference with independence as measured by the now well-established rules in Valente v. The Queen.

- s39 in no way interferes with the security of tenure, financial security, or administrative independence of judges - the courts are simply barred by s39 from reviewing docs and thus within the ambit of Cabinet secrecy - s39 is just another form of a privative clause, and legislated privitive clauses can preclude courts from reviewing findings

of fact by a tribunal where such fact finding is done with in that tribunals jurisdiction HELD: the appeal should be dismissed. Reference re Rumuneration of Judges of the Prov Court of PEI ;Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (Identifies judicial independence as stemming from an unwritten constitutional principle) FACTS: The reference was the amalgamation of three different sets of challenges to the impartiality and independence of provincial court judges in Manitoba, PEI, and Alberta. Each of the provinces had in some way imposed a salary reduction on provincial court judges. The powers of the provincial legislatures to reduce the salaries of the provincial court judges was challenged as a violation of section 11(d) Charter – accused has the right to be presumed innocent until proven guilty “in a fair and public hearing by an independent and impartial tribunal”.

o In PEI, and Manitoba, the salaries of judges were lowered along with those of other civil servants to help combat deficits. In PEI, various challenged of the judges’ consequent independence were raised by the defendants, causing the government to bring two reference questions to its Supreme Court. Only one reference resulted in a finding of dependence, namely for lack of adequate security tenure.

o In Manitoba, the pay cut was challenged directly by a provincial judges association. o In Alberta, cuts to judicial salaries were challenged by defendants. Three accused had challenged the

constitutionality of their trials before provincial court judges who were subject to provincial legislation reducing the salaries of provincial court judges.

ISSUE: Independence of provincial court judges within the context of their financial security. ANALYSIS: - The Court looked to constitutional norms and found that judicial independence was one such norm implied by the preamble

to the Constitution. - The preamble reveals the “basic principles which are the very source of the substantive provisions of the Constitution Act

1867” and it “invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme”.

- Three fundamental requirements of judicial independence: (1) Financial security, (2) Security of tenure, and (3) Institutional independence – as a court as a whole. Institutional independence is needed so that courts can guard the Constitution, the rule of law and fundamental justice.

- A judge must also be reasonably seen as being independent. It is guaranteed by the preamble. Must then rely on the Doctrine of Necessity which finds its source in the rule of law and is applied to prevent a failure of justice. To qualify for the DoN: (1) The rule will not apply in circumstances where its application would involve positive and substantial injustice; and (2) When the rule does apply, it only applies to the extent that necessity justifies

NB: The doctrine of necessity recognizes the importance of finality and continuity in the administration of justice. However, these doctrines should be applied rarely to preserve the effects of an unconstitutional law - The government should establish judicial salary commissions, which can guard against manipulation by both the executive

and legislatures. This separates negotiation between the government and judges over salaries. This removes an ability for the government to manipulate judges to make decisions in certain ways. Civil law judges have a right to salary commission by way of preamble, as they have no rights under section 11 (d).

- Judicial independence “flows as a consequence of the separation of powers, because these appeals concern the proper constitutional relationship among the three branches of government in the context of judicial remuneration”. The doctrine of separation of powers comes from the preamble to the constitution.

HELD: The Majority: - Allowed the appeals in part, stating that there was constitutional protection of judicial independence and impartiality for all

judges. - Found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as

the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. All judges in Canada are protected by the Constitution.

- Established that independent compensation commissions are required to help set salaries free of political manipulation. The judicial salary reduction in each of the three provinces involved in the reference were found to be unconstitutional because they had not been preceded by a report of judicial compensation commission.

There are 2 dimensions of judicial independence: (1) Individual independence (i.e. of the judge) (2) Institutional/collective independence (i.e. of the court or tribunal of which that judge is a member).

Financial security has both an individual and institutional dimension A reasonable person test employed to determine whether there is judicial independence under s 11(d)

- The institutional independence of the courts emerges from the logic of federalism, which requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government.

- But the institutional indepedence of the judiciary reflects a deeper commitment to the separation of powers between and amongst the legislative, executive, and judicial organs of government

- Financial security must be understood as merely an aspect of judicial independence, which in turn is not an end in itself. - Judicial independence maintains public confidence in the impartiality of the judiciary. Another social goal served by

judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule.

The Unwritten Basis of Judicial Independence

- Judicial independence is at root an unwritten constitutional principle. Although several sections of the Constitution guarantee things such as financial security (e.g. s 11(d) of the Charter)), these don’t provide an express code for the protection of judicial independence for all types of courts

- The first and most serious problem is that the range of courts whose independence is protected by the written provisions of the Constitution contains large gaps. Sections 96-100, for example, only protect the independence of judges of the superior, district, and county courts, and even then, not in a uniform or consistent manner.

- While ss. 96 and100 protect the core jurisdiction and the financial security, respectively, of all three types of courts (superior, district, and county), s. 99, on its terms, only protects the security of tenure of superior court judges. Moreover, ss. 96-100 do not apply to provincially appointed inferior courts, otherwise known as provincial courts.

- Section 11(d) is limited as well (only applies to bodies which exercise jurisdiction over offences). So, the independence of provincial courts adjudicating in family law matters, for example, would not be constitutionally protected.

- The Preamble has been used as a reference point to fill the gaps in the Constitution. The same approach applies to the protection of judicial independence

Collective Financial Security

- These relationships should be depoliticized: That is, the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice. The depoliticization is largely governed by convention and must be protect by the consti

- This imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse

- The institutional independence of the courts is closely linked by the principle of separation of powers, because in order to guarantee that the courts can protect the Constitution, they must be protected by a set of objective guarantees against intrusions by the executive and legislative branches of government.

- With respect to the judiciary, the determination of the level of remuneration from the public purse is political in another sense, because it raises the spectre of political interference through economic manipulation. An unscrupulous government could utilize its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication

The three components of the institutional or collective dimension of financial security fulfill this goal: (1) Judicial salaries can be reduced, so long as economic manipulation occurs through an independent, objective and effective body, combined with a judicial compensation commission (between the judiciary and other branches of government) that would depoliticize the process. While not binding, these reviews should be taken seriously (2) No negotiations on judicial remuneration b/w the judiciary and the executive/legislature (3) Judicial salaries may not fall below a minimum level (the Constitution protects judicial salaries from falling below an acceptable minimum level. The reason it does is for financial security to protect the judiciary from political interference through economic manipulation. If salaries are too low, there is a danger that members of the judiciary could be tempted to adjudicate cases in a particular way in order to secure a higher salary from the executive or the legislature or to receive benefits from one of the litigants.

Application of Legal Principles - The SCC faulted the governments of Prince Edward Island and Alberta for neither consulting salary commissions nor having such bodies

to begin with. For this reason, the actions of these governments breached section 11(d) of the Charter of Rights. - Manitoba did have a salary commission, but its actions were unconstitutional because the provincial government did not use it. - Since these considerations were made using section 11(d), the Court considered whether violations of these rights could be justified under

section 1 of the Charter of Rights, as is normal procedure. In this case Prince Edward Island and Alberta's actions failed the section 1 test because they did not explain why they did not have salary commissions. Likewise, Manitoba did not explain why they did not use their salary commission

COMMENT: Although this case was settled using s 11(d), the Court went on to recognize the general principle of judicial independence as an unwritten rule

TOPIC 4: Basic Architecture of the Canadian Legal System

Overview Relationship between branches of government: judicial review; constraints on power of each branch (1) Executive Branch: structure; powers (delegated legislation); introduction to nature and role of administrative tribunals (2) Legislative Branch: structure and operation of Parliament; legislative process; formation of statute versus regulations; ethics and accountability (3) Judicial Branch: Canadian court systems; appointment of judges; judicial independence CHAPTER 4: PARLIAMENT AND THE LEGISLATIVE PROCESS

I. STRUCTURE AND OPERATION OF PARLIAMENT A. CONSTITUENT PARTS OF THE PARLIAMENT OF CANADA - Parliament consists of the Queen, an Upper House styled Senate, and House of Commons: s 17, Constitution Act 1. The Monarch and Governor General: - Queen is essentially Canada’s head of state. GG, in practice, exercises Queen’s powers. The Constitution Act 1867 vests

the “executive government” in the Queen. - Canadian head of state is not elected; his/her identity depends – in the case of Monarch – on birth, and – in the case of

governor general – on appointment. - Selection of Monarch is discriminatory (bars Catholics from assuming the crown and precludes monarch from marrying

Roman Catholics), and has been challenged via the Charter, see O’Donohue v The Queen F: argued that the Act of Settlement contains a provision that limits Roman Catholics rights of succession for the Monarch and breaches s15(1) of the charter. H: Canada cannot unilaterally change the rules of succession whether imposed by the court of otherwise. To do so

would be contrary to the commitment given in the statute of Westminster, would break symmetry and breach the principle of union under the British crown set out in the preamble of the Constitution Act 1867. The rules of succession are necessary for the proper functioning of the constitution and the rules are not subject to charter scrutiny.

- In practice, the monarch appoints the governor general. But the monarch does so in the ADVICE of the PM (a constitutional convention). The PM’s decision on the GG is a political one.

2. The Senate: - Canada has an unelected upper chambers of the federal legislature; the Constitution expressly anticipates the appointment

of senators by the governor general (see s 24 of the Constitution Act 1867). In exercising that power, the governor general follows the advice of the PM, as required by constitutional convention.

Two cases attempted to dispute this process, but failed: Brown v Alberta F: Alberta legislation stated that to conform with democratic principles senators must be elected by the people. B was elected under Alberta statute. At time of election there was no vacancies. I: should the court declare that senators appointed from Alberta “must be appointed” in a manner consistent with the processes of the Senatorial Selection Act. H: The court only has jurisdiction on legal questions/issues. Therefore the court cannot decide as the appellants originating notice as it does not raise a legal issue as required by existing law Samson v A-G F: Interlocutory injunction to restrain GG from appointing to the senate a qualified person from the Alberta unless that person has been elected pursuant to the provisions of the Senatorial Act. H: the court cannot impose procedural or other limitations on the GG’s express power of appointment to the Senate or otherwise fetter the exercise of his discretion. It is a political issue not legal. Applicants remedy can be obtained in the political arena by means of a constitutional amendment. Application dismissed. 3. House of Commons: - Members of the House of Commons are elected, a requirement that is anticipated by s 37 of the Constitution. - Each riding elects 1 member to the house (the current number of districts, and thus members of Parliament, is 308) - Riding boundaries established by independent commissions and takes into account social + economic links - Canada’s electoral system is referred to as a “single-member plurality” or “first-past-the-post” system ie the candidate with

the largest number of votes wins the election. - A political party is a group of people who together establish a constitution and bylaws and elect a leader and other officers

(definition if found in s2 of the Canada Elections Act [this act also governs elections to ensure they are fair: s9] - After an election, the party with the most elected representatives usually becomes the governing party. The leader of this

party becomes the PM, and chooses people to head the various government departments called the cabinet - All the elected candidates have a seat in the House of Commons, where they vote on Bills - Until recently, the Canada Elections Act required a registered party to run candidates in at least 50 electoral districts. This

rule was struck down by the SCC in Figueroa v Canada: I: does fed legislation requiring a registered party to run candidates in at least 50 electoral districts violate s3 of the charter “every citizen has the right to vote in an election of members of the H of C...and to be qualified for membership therein”? H: this threshold by withholding benefits (ie tax receipts) from candidates of parties who have not met the 50- candidate threshold undermines the right of each citizen to meaningful participate in the electoral process and infringes s3 of the charter. Not saved by s1.

B. BRINGING THE CONSTITUTENT ELEMENTS OF PARLIAMENT TOGETHER - Parliament is not a permanent feature, meeting indefinitely. Canada has had 40 Parliaments since 1867. Parliament has

been summoned 40 times and dissolved 39 times. 1. Summoning - Summoning: the calling of Parliament. By constitutional convention the GG calls parliament to session on the advice of the

PM. This convention is codified in the Writ of Election, enacted as schedule 1 in the Canada elections Act. - The formal opening of the first session of parliament has two parts:

(1. a) Formal Opening of parliament - the taking and subscribing to the Oath of Allegiance by Members and the election of a Speaker (1. b) Speech from the throne – this opens the first session and any subsequent sessions of a Parliament and marks the first occasion of “parliament Assembled”. (2) Address in Reply to the Speech from the Throne – the PM puts forth a motion that the throne speech be considered either that day or on some future day. On the specified day the proceedings which result in the H of C response to the throne speech. A gov’t member (not of the ministry) will thank GG. Another gov’t private member will second the motion and the house normally adjourns to the 1st of 6 days for resuming debate on motion and on any amendments. On the 1st of 6 days of formal debate the first speaker is the leader of the opposition who may propose an amendment to the throne speech. 2. Prorogation - Prorogation: once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation. A

prorogation is the prerogative of the GG, acting on the advice of the PM. Section 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least once every 12 months (i.e. Parliament cannot be entirely sidelined).

- Prorogation ends a session but does not dissolve parliament. Prorogation abolishes all pending legislation and quashes further committee activity. All bills must be reintroduced and no committee can sit.

- Committee work and bills can be revived via a motion by the house 3. Dissolution - Dissolution: The Constitution Act, 1867 (s 5), and the Charter (s 4(1)) limit the duration of a Commons to 5 years, except

in times of war or insurrection. As such PARL must be dissolved and elections must happen at least every 5 years NB: The PM must resign or seek parliamentary dissolution after a no confidence vote, as a matter of constitutional convention. If a gov’t loses a vote of no confidence they must resign or ask for dissolution - Ministerial responsibility along with the fusion of the executive and legislative branches are distinguishing features of

responsible gov’t. These are conventions and not set out in the constitution. (1) there is a responsibility of a minister to the Queen or the GG (2) there is the individual responsibility of a minister to the house (3) the ministry collectively to the house - 3 types of votes can be considered confidence votes (i) ones that expressly state that that they are confidence votes (ii) motions made votes of confidence by a declaration of the gov’t (iii) implicit votes of confidence i.e. budget NB: GG can refuse a dissolution ie Lord Byng affair

II. KEY ACTORS IN PARLIAMENT A. POLITICAL PARTIES - Decision making in parliament depends on swaying a majority of votes in each chamber and for this reason it encourages

parliamentarians to organize political parties: s49 of the Constitution Act 1867 - Another constitutional motivation for parties stems from the confidence convention: the individual commanding the

confidence of the Commons (the majority) is appointed PM. Party in control = executive power. - Once 12 MP threshold is met benefits flow to the party: they can sit together, have their party affiliation notes with their

name on the official records and on TV broadcasts of proceedings and are allowed a larger number of questions during question period, they can participate in the commons board of internal economy and can tap into research funds.

B. THE SPEAKER - Speaker is an MP elected by other MPs - The speaker acts as the spokesperson of the House in its relations with the Crown, the Senate and authorities outside

parliament. The speaker presides over the sittings of the house and enforces the observance of all rules for the preservation of order and the conduct of business. The speaker has extensive responsibilities relating to the administration of the H of C.

- s. 49 of the Constitution Act 1867 sanctions the casting vote of the chair in cases where there is a tie vote C. PARLIAMENTARY COMMITTEES

- H of C delegates most of the detailed study of proposed legislation and the scrutiny of gov’t policy and programs to its committees.

- Types of committees: (i) Committees of the whole (house) – composed of entire membership of the H of C (ii) Standing committee – appointed for life of parliament to deal with subjects of continuing concern for the house (iii) Legislative committee – ad hoc basis, to examine bills in details (vi) Special committee – an ad hoc basis, to study specific matters. (v) Joint Committees – composed of members from the house and senate (vi) subcommittees – standing committees can delegate some part of their mandate to or a particular task to a smaller group.

III. PARLIAMENTARY PROCEDURE

A. SOURCES OF PARLIAMENTARY LAW Parliamentary law, i.e. the rules determining parliamentary procedure - flows from an array of sources including statute, Constitution, standing orders, customs, presidents as assessed by the Speaker. (1) Constitutional and Legislative Basis: Parliamentary Privilege - The Canadian Constitution incorporates British parliamentary traditions via the preamble to the Constitution Act, 1867, “a

Constitution similar in Principle to that of the UK”. That Act speaks of Parliament possessing parliamentary “privileges” as does the Parliament of Canada Act

- Parliamentary privileges are those rights necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts: Provincial Judges Reference

- “Privilege” means legal exemption from some duty, burden to which others are subject: NB Broadcasting v Nova Scotia Canada v Vaid : H: Labour relations with regards to the chauffeur was not considered part of parliamentary immunity. R: to sustain a claim of parliamentary privilege the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body including the assembly work in hold the gov’t to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. NB: The idea of privilege reflects and enforces the separation of powers, specifically the separation between Parliament/legislatures and courts] (2) Standing orders: - Standing orders are rules of procedure adopted by at least a simple majority vote of the members of the Commons.

Standing orders constitute a fairly comprehensive code of Commons operations, including in relation to Commons law making, without court intervention.

B. PARLIAMENTARY LAW MAKING 1. Scope of Parliaments Law Making Jurisdiction (substantive law focus) - Parliamentary supremacy means that Parliament is the source of all power and Parliament has the jurisdiction to make or

unmake any law whatever - Parl is subordinated to other constraints in the Constitution. Laws made by PARL must be consistent with the constitution

a. The Power to Pass Bad Laws

- Parliament is, therefore, even free to pass careless or bad laws, so long as it sticks within its Constitutional mandate. See Bacon v Saskatchewan Crop Insurance, where the applicant failed in using the rule of law principle in an attempt to challenge an allegedly bad law. Not courts job to determine if the law is good or bad just if it is legal.

- Even when it is alleged that an ill-intentioned ministry tricked parliament into enacting legislation, the courts will not probe that statute’s promulgation: Turner v Canada

- Parliament may strip away contractual rights, for example, but to do so it must be absolute. In the absence of a clear express intent to abrogate rights and obligations – rights of the highest importance to the individual – those rights remain in force. Wells v Newfoundland: the crown had a contractual obligation to the respondent which it breached by eliminating his position. As his right to seek damages for that breach was not taken from him by legislation, he is entitled to compensation.

b. The Power to Follow Unfair Procedures

- Canadians are not entitled to any sort of due process or procedural fairness in the law making process - To demonstrate the breadth of Parliament’s law making power, it has been held that there can be expropriation of property

without compensation, so long legislation makes such an intent clear. There is no due process right against duly enacted legislation unambiguously expropriating property interests: Authorson v Canada

c. Ethics in Law Making (focussing on conflicts of interest)

- Parliament may be sovereign, but individual parliamentarians are not - A parliamentarian induced by the prospect of financial gain to vote in one way or another in performing his or her law

making functions is subject to sanction in a number of ways - Ethics rules exist both in statutory law and in the internal procedural rules governing each hose of Parliament - Real conflict: situation which a minister of the crown has knowledge of a private economic interest that is sufficient to

influence the exercise of his or her public duties and responsibilities - Potential conflict: where a minister finds himself in a situation in which the existence of some private economic interest

could influence the exercise of his public duties or responsibilities - Apparent conflict: exists when there is a reasonable apprehension, which reasonably well-informed persons could

properly have, that a conflict of interest exists. - Conflicts that are unavoidable: (1) Inherent conflict: arises out of position of the parliamentarian as an individual in

society i.e. parent or (2) Representative interest conflict: arises when members share personal interests, i.e. farming, fishing

- The principles underlying conflict of interest are impartiality and integrity. - How to avoid conflict of interest? Disclosure, avoidance, withdrawal - Most conflict of interest rules for fed legislation are found in three acts Criminal Code, parliament of Canada Acts, and

Canada Elections Act. NB: bribery is the most extreme form of conflict of interest and is a criminal offence - Post Employment Code for Public Office Holders: the code suggests that public office holders, in order to reduce risk of

conflict of interest, should, depending on the asset or interest in question, use avoidance, confidential report, public declaration, divestment, or recusal

2. Parliament’s law-making procedure (bill to law) - Parliament is free to determine its own procedure and pass laws as it pleases within its constitutional zone of jurisdiction - Mainly governed by rules of procedure of each chamber of Parliament, e.g. Standing Orders of the House of Commons - There are 2 types of bills: (1) public (centred on public policy) and (2) private (relates to matters of a particular

interest/benefit to a person/persons, including corporations). The legislative process for each is a bit different. Before a bill becomes law, it goes through 9 stages: (i) leave to introduce the bill (ii) bill is read a first time and printed [adopted without debate amendment or question put] (iii) the bill is read a second time (being the most important stage as it is then that the principle and object of the bill are debated/accepted/rejected; three types of amendments may be proposed at this stage) (vi) the bill is referred to committee (v) the bill is considered in committee and reported back to the house (vi)the house concurs in the bill at report stage [debate takes place] (vii) the bill is read a third time and passed by the house (viii) After passed in the house, the bill goes through stages in the senate approximately the same as those in the House (viiii) finally the bill received royal assent (1) Public bills: - They may be considered each day during Gov’t orders in any sequence the gov’t determines - To introduce a public bill, a member must give 48 hrs written notice and then obtain leave to introduce the bill (2) Private bills: - May be considered only during private members hours, limited to 1 hour per day 5 days a week. - A bill designed to exempt an individual or group of individuals from the application of the law is a private bill. Private

bills are subject to special rules in both Houses of Parliament. Most private bills originate in the Senate where the fees and charges imposed on the promoter are less

- They are introduced by means of a petition signed by the interested parties and presented in the House by a Member who has agreed to sponsor it. After approval of the petition, private bills are tabled, read a first time, printed and ordered for a second reading. Notice of private bills must be posted in the lobbies of the Parliament buildings before consideration by the

committee. If accepted the amendments are read in the house a 2nd time and once agreed to are returned to the senate with a message informing that Chamber accordingly.

CHAPTER 5: THE EXERCISE OF EXECUTIVE AUTHORITY

- The executive branch refers to institutions in government that are responsible for implementing and enforcing laws, whether those laws – created by both the legislature or judiciary

- The executive is not a single institution but consists of the GG and the privy council (cabinet) to administrative tribunals, crown corps.

- A clear set of legal principles governing the boundaries of executive powers and manner by which executive powers are to be exercised has been developed (namely administrative law)

- At the heart of administrative law is a requirement that government officials exercise their powers in furtherance of public, not private, interests. Administrative actors, however, are generally not elected

II. THE EXECUTIVE BRANCH DEFINED

A. THE CROWN - The entire authority of the executive branch is vested in the monarchy. The Crown is the formal legal entity of the

government, and the Crown is the bearer of both legal rights and obligations - This is entrenched in s 9 of the Constitution Act 1867 - The governor general is to exercise all powers and authorities lawfully belonging to the monarch in respect of Canada - The Queen appoints the governor general and lieutenant governors to act as her representatives, although by

constitutional convention these appointments are now made on the advice of the PM, who the Queen must follow; GG and lieutenant governors are bound by constitutional convention to exercise their powers with the advice of the Cabinet

- The Cabinet is the collective decision-making committee comprising the PM and their other ministers. The 1867 Act never mentions the Cabinet instead reference is made to the Queens’s privy council. The privy counsel is not technically the same thing as the federal cabinet. All cabinet ministers are privy counsellors but not all privy counsellors are sitting cabinet ministers.

B. THE PRIME MINISTER AND CABINET - Ministers and the PM together comprise the ministry/cabinet. The PM presides over the Cabinet. PM has sole authority

to determine who the GG swears in as a minister, who sits on cabinet, and what portfolio within the Cabinet that M has. PM has unfettered authority to compel the removal of Ministers.

- PM has authority to exercise personal prerogatives ie appoint senators, the GG, judges. - The Cabinet is in most matters the supreme executive authority: It is the Cabinet that determines the legislative agenda

of the government in Parliament and it is the Cabinet and its ministers that are responsible for the administration of the individual departments of the government.

- The separation of the executive branch from the legislative branch is not absolute. The constitutional convention of “responsible government” lies at the foundation of Canadian governance. Under a system of responsible government, the ministry is accountable to the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain the confidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in Parliament for the activities of his or her department

- Idziak v Canada: the multiple roles of ministerial officials can give rise to claims of conflict. In this case a Minister of Justice’s involvement in the two-step extradition process raised questions of bias. SCC rejected claim of bias.

NB: the 1867 Act never mentions “cabinet”. Instead reference is to the “Queens Privy council”. To sit in cabinet a minister must be sworn into the Privy Council where they remain members for life. C. THE PUBLIC SERVICE - The employees of ministries of the government, often referred to as civil servants, are also part of executive but they they

are politically neutral. Continue their employment with the gov’t regardless of political fortunes. - Minister is held politically accountable for all matters arising within the department, including policy decisions by civil

servants. - Three principles that structure the relationship between the civil service and political officials within the gov’t are:

(1) Ministerial Responsibility: requires that the presiding M be held politically accountable for all matters arising within the department, including policy decisions by civil servants

(2) Political Neutrality: requires that civil servants carry out their responsibilities loyally to the gov’t in power without regard for the civil servant’s own political views. Cannot express publically their views on policy issues.

(3) Public Service Anonymity: as a consequence of the first two principles, bureaucrats should be held accountable to their political overseers, but are not answerable to Parliament.

- Civil servants must be loyal to the government they represent and refrain from public criticism of gov’t policies: Fraser v Canada F: employee discharged from revenue Canada after criticizing the gov’t policies regarding metrification. H: as a general rule, federal public servants should be loyal to their employer, the gov’t of Canada, not the political party in power at a given time. A public servant must not engage in sustained and highly visible attacks on major gov’t policies. A person entering the public service must know or aught to be deemed to know, that employment in the public service involves acceptance of restraints. One of which is exercising caution when criticising the gov’t.

D. INDEPENDENT ADMINISTRATIVE AGENCIES - As a matter of express constitutional recognition, the formal executive bodies are limited to the governor general and

lieutenant governors, the federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers

- However, executive functions are also carried out by a variety of bodies that have a measure of independence from the government, for a number of reasons (e.g. the legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency; also, particular kind of expertise might be needed).

- As a constitutional matter, adjudicative admin bodies do not have to be independent, although there may be circumstances, which require their independence. An example of an independent admin agency is the Canadian Human Rights Commission.

Ocean Port Hotel Ltd v British Columbia: FACTS: A police investigation led to allegations that the R, which operated a hotel and pub, had committed five infractions. Following a hearing, a two-day suspension of the respondent's liquor licence was imposed. The R appealed. The findings on 4/5 allegations were upheld, and the penalty was confirmed.

▪ Description of the Board: The chair and members "serve at the pleasure of the Lieutenant Governor in Council", Appointed for a one-year term and serve on a part-time basis, All members (but the chair) are paid on a per diem basis.

ISSUE: Whether members of the Liquor Appeal Board are sufficiently independent to render decisions on violations of the Act and impose the penalties it provides? What we are looking at here is if someone appointed to a tribunal is deciding judicially or in order to be reappointed therefore decide in such away to make the cabinet and minister happy. HELD: Yes, the board is independent but the matter remitted to the BC CA to decide the issues, which it did not address. REASON: Degree of independence required of a tribunal is a matter depending on intention of Parliament or the legislature and absent constitutional constraints; such a choice has to be respected. ANALYSIS: This case raises the issue of the degree of independence required of members sitting on admin tribunals empowered to impose penalties. The statute must be construed as a whole to determine the degree of independence the legislature intended. Like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. E. CROWN CORPORATIONS - These are essentially administrative bodies that have a legal personality separate from the government. - The purpose of creating Crown corporations is that they may be useful where there is a strong commercial aspect to the

governmental service, which may require decisions to be made free from political influences that may unduly interfere with the commercial objectives.

- Crown corporations have public objectives ie Canada post, VIA Rail F. MUNICIPALITIES - Municipalities, are created under provincial legislation, deliver a wide range of public services, such as the provision of

road, sewer and water services

- Unlike other forms of independent administrative bodies, municipalities are governed by elected officials and they exercise broad plenary powers

- The legal significance of an administrative body with direct lines of democratic accountability was considered by the SCC in Shell Canada Products Ltd v Vancouver City (Narrow confining approach) A city can act only for a “municipal purpose” and the purpose of influencing Shell’s business in a foreign country was not related to the health and welfare of inhabitants since the business was outside the territorial boundaries of the city. The City can consider external matters but only as they relate to the welfare of inhabitants.

Dissent: McLachlin (broader more deferential Approach) held that the resolutions were within the City’s authority because they should take a flexible view of improper purposes in context of municipality. To allow municipal councils to make statements re: these kinds of questions E. ENFORCEMENT BODIES: POLICE AND PROSECUTORS - The executive branch of gov’t, in addition to being responsible for the implementation of government policy, is required to

enforce those policies that have the force of law. The enforcement duties fall primarily on the police and to prosecutors - There is a tension b/w accountability and independence in the context of enforcement (i.e. free from political oversight, yet

they have to be held accountable). - The following two cases consider the tension between accountability and independence in the context of enforcement: R v Campbell – SCC commented on the relationship between the police and political executive. Police are independent of the control of the executive government. Police are not agents of the crown. Krieger v Law Society (Alberta) – It is a constitutional principle in Cdn that the AG must act independently of partisan concerns when supervising prosecutorial decisions. Independence of the AG in deciding fairly who should be prosecuted is also a hallmark of a free society.

III. SOURCES OF EXECUTIVE POWER - All executive power flows from the royal prerogative and statutory delegation A. PREROGATIVE POWER - Prerogative powers are those exercisable by the Crown that do not arise from a statutory grant of power to the Crown - These powers can be overridden by statute, this is provided by the principle of parliamentary Supremacy - There has been debate over who can exercise these powers, and when they may be subject to judicial oversight. Black v Chretien: held that prerogative powers are subject to judicial oversight in certain circumstances. In this case, the PM exercised prerogative powers over the conveyance of honours to deny Conrad Black a British Peerage. Black argued that Chretien was not allowed to wield such powers. H: Historically, the PM and Cabinet wielded prerogative powers with respect to war and peace. Further, the court found that there is no expectation or right to an honour, and so there was no basis for judicial review (court could not review decision). Once Chretien’s exercise of the honours prerogative is found to be beyond review by the courts then how the PM exercised the prerogative is also beyond judicial review. It is neither our duty nor our right to investigate the OMs motives or his reasons for his advice. B. STATUTORY POWER - The majority of executive powers originate from a delegation of authority by the legislature by statute (must conform

with constitution and the principle comes from parliamentary sovereignty) - No delegate can be authorized to exercise an absolute discretion: Ronceralli v Duplesis - Another argument made in relation to delegation is that a delegation must not amount to a complete handing over of

legislative authority: Re Gray (1918) F: concerns the legality of changes to statutory conscription rules that were enacted by cabinet pursuant to a general delegation of powers. H: rejected the argument that the delegation amounted to an unconstitutional handing over of legislative powers to the executive. Parliament intended to clothe the exec with the widest powers in time of danger. The exec may for the common defence make such orders and regulations as they may deem necessary or advisable for the security peace order and welfare of Canada. It is within the legislative authority of the PARL to delegate to the Governor in Council the power to enact the impugned orders in council.

- Parliament cannot delegate to provincial legislatures, and vice versa (i.e. inter delegation) (the basis of this principle is that an inter-delegation would upset the constitutional division of powers contained in ss 91 and 92 of the Constitution Act, 1867: Nova Scotia Inter-Delegation Case. Although there can be indirect inter-delegation, namely where the inter-delegation was to an administrative body as opposed to the legislature itself: PEI Potato Marketing Board v Willis

IV. THE NATURE AND FUNCTION OF DELEGATED POWERS - The major types of decisions commonly made by administrative decision makers: A. RULE MAKING (i.e. delegated legislation) - Most pervasive form of administrative rule making is the regulation making power that is delegated to the Cabinet

through the governor in council. Regulation making power is often delegated to other bodies other than cabinet. - The legal effect of delegated legislation is determined by the parent legislation. A conflict between a statute and delegated

legislation is always resolved in favour of the statutory provision. - The statutory process is much more cumbersome and time consuming than the process for enacting regulations; AND

regulations are preferred in situations where rules require re-adjustment, expertise from specific groups or consultation from specific stakeholders.

- There are concerns as well as regulations can be enacted by Cabinet without prior notice or consultation - See the “Government of Canada, Guide to Making Federal Acts and Regulations”, p. 273 of the book for more B. DISPUTE RESILUTION - It is common for administrative agencies to be created in order to hear and decide specific kinds of disputes - Less formal than courts with similar powers. Unlike courts, tribunals are designed such that tribunal members have broad

discretion to determine and apply public policy. - There are some advantages (public participation; time/expense; don’t have to follow rigid laws all the time and can rely

heavily on policy etc) C. BENEFIT OR OBLIGATION DETERMINATION - The most prevalent group of administrative decision makers are those empowered to determine whether a person will be

granted a particular public benefit (e.g. a welfare entitlement, issuance of a licence, assessed a penalty, a broadcast licence. - Obligation determinations may raise different issues than benefit determinations; these decisions usually initiated by the

imposing agency, leaving an affected person to take affirmative steps to protect her interests if she feels aggrieved - The desire for fairness is often in conflict with the need for administrative efficiency in these situations D. ENFORCEMENT DECISIONS - Those decisions and activities that are required to promote compliance with legal obligations, including criminal and quasi

criminal enforcement proceedings. Exec branches of gov’t use police and prosecutors to investigate and prosecute violations of statutory and regulatory requirements most commonly via the courts.

NB: Each of the above functions may overlap

V. LIMITS ON THE EXERCISE OF DELEGATED AUHTORITY A. CONTROLLING JURISDICTION: SUBSTANTIVE ULTRA VIRES - Admin tribunals can only exercise the powers granted by the enabling statute. This area tends to turn on the interpretation

of the authorizing legislation. Recipients of delegated authority have no natural jurisdiction to act. - Any act done outside the boundaries of the statutory grant is w/o legal authority and unlawful – ultra vires - An Admin agency may embark on an inquiry properly within its statutory mandate, but in carrying out the inquiry the

agency may act w/o proper legal basis ie not abiding by the requirements of procedural fairness or abuse of discretion - The determination of the legality of the exercise of administrative authority is the function of the courts. - “Delegatus non Potest Delegare” = A delegate cannot delegate. - Matters that are merely administrative may lawfully be subdelegated. Merely administrative matters are those matters that

do not require the exercise of substantial amounts of discretion. - A delegate may subdelegate where the power to subdelegate is specifically provided for in statute. B. CONTROLLING PROCEDURES: THE DUTY TO BE FAIR - Duty to be fair refers to the procedures adopted by the decision maker - Admin decision makers are generally required by common law to act fairly toward those persons affected by their decisions - The duty to be fair is no longer confined to judicial/quasi judicial decisions and extends to determinations of policy

- Nicholson was the foundational Canadian authority. This case abolished the rigid distinctions between administrative (where PF applied) and judicial and semi judicial (where PF did not apply). Instead the decision maker must look at the effect the decision has on the individual. NB: See Knight v Indian Head School and Baker

KNIGHT (principles set out in Nicholson) Set out the approach under common law to determine if duty of PF exists: Step 1: Is there a right, interest or privilege at stake? Must rely on the 3 factors to assess whether there was a duty of fairness: Knight (originally from Cardinal): (1) The nature of the decision (administrative v. legislative OR Final v Interim); (a) Is the decision Final or Interim?

- Final/determinative = duty If JR = final and court can quash decision - Interim = no duty Right of Appeal clause = interim - Exceptions: Recommendation based on investigation (interim) could lead to a final decision (Re Abel) or If

recommendation would have minor impact on final determination = no duty of PF (Dairy Producer’s Co-operative Ltd v Saskatchewan)

(b) Is the decision administrative (ie. specific to the person) or legislative (general effect)? Rule: Look at the nature of the decision itself, and NOT the form of the power being exercised (Homex) Consider: (1) Number of people effected (Homex), (2) Nature of who made the decision (Inuit), (3) Effect of the decision (Homex; School closure cases) and (4) Decision made on broad grounds of public policy falls short of test Administrative = duty OR Legislative = no duty -­‐ “a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural

protection” (Martineau v Matsqui Institution) If ‘legislative’, do one of these apply: (i) Cabinet/ Cabinet Appeals: Rule: General legislative decisions determining policy of broad application do not attract the duty of PF (Inuit Tapirisat) Inuit Tapirisat: no duty to afford PF to cabinet material. Telephone rates affected vast number of people; Cabinet had vast powers to be able to intervene on own motion/discretionary powers (ii) By-laws: Rule: if bylaw is directed at one person and it is not of general application, then that by-law will required a duty of PF; however if by-law directed at everyone = legislative -­‐ Absurd to allow everyone a hearing -­‐ If by-law directed at single person = specific and duty of PF owed (Homex) -­‐ On-going dispute = duty to afford PF (Homex) Note: If decision is specific and final = duty (Knight- decision final and dealing specifically w him) (iii) Policy making & school closures: Rule: PF not applicable to legislative or policy decisions. The rationale for this is that it would allow too many ppl to be given a hearing. For PF to apply to a policy or legislative decision, the duty to afford PF must be clearly spelled-out in the legislation (Canadian Association of Regulated Importers v Canada) School closure: difficult to determine whether admin or leg…(say both views) View 1: Admin: b/c duty of PF applies to decisions that affect a finate group and have a high degree of impact (Bezaire v Windsor Roman Catholic Separate School Board) -­‐ School closures are policy decisions w broad impact on finite grp View 2: Legislative: b/c it could be considered a general policy decision PF will not be given for: 1) Government acting for private citizen (Dunsmuir)

If there is a K, then look at that K—private employment law will provide for protection for employees through notice period (Dunsmuir) 2) Government tendering/contracting: Government tendering demands that all bidders compete on a level playing field in terms of the call for tenders, and certiorari is available to quash the award of a contract in the event that the process was flawed -­‐ If public money spent for improper or in improper manner, the conduct of the municipality should be subject to JR

(Shell Canada) Facts: Vancouver decided not to do business w Shell; reviewable under PF because: (i) Government not acting purely as private citizen (ii) Government acting outside of its statutory mandate—disapproval of South African regime beyond what

municipality expected to do (iii) Although decision not reviewable, decisions should be carried out fairly

(2) Nature of relationship between decision-maker and the individual: (not always applicable) Rule: Most often the relationship is Public Body and Citizen BUT this element acts as a ‘catch-all’ for thinking about other things that may alter analysis that flows from nature/impact of decision If employment relationship: a) PF applies whenever there is a decision to terminate a public officer whether for privilege or not b) Focus on the nature of the employment relationship/ ‘office holders’ (Knight; Dunsmuir)

(i) No K of employment and the office is purely statutory (ie. Minister and Judges) = duty of PF (ii) If terms of employment expressly provide for summary dismissal or are silent on the matter/ employment ‘at

pleasure’ = duty to afford PF (iii) If the terms of appointment confer procedural rights = statutorily based right to PF, but no CL right (iv) If the relationship is purely contractual, should be treated in private law-- look at that K—private employment law

will provide for protection for employees through a notice period (Dunsmuir)

(3) The effect of decision on individual’s rights - Is the decision significant and does it have an important impact on the person? i.e. loss of income, deportation, risk of

torture *being fired from a job will always attract a duty of procedural fairness **Usually in a licensing type situation there is a duty of PF when person denied licence makes a challenge Step 2: Once it has been established that the threshold for procedural fairness has been met it is then necessary to determine the content of procedural fairness based on the 5 Baker factors as applied in Suresh. One must work through this test to determine what level of procedural fairness applies. Examine the statute to see if it contains a provision that would suggest that procedural fairness does not apply (Need CLEAR provision to take away right to PF) Baker v. Canada (Minister of Citizenship and Immigration) (1999) ISSUES ON APPEAL: (1) Procedural Fairness (a) Entitled to oral interview and participation of family to make submissions at interview: not required to an oral interview/hearing. (b) Did the failure of Officer Caden to provide his own reasons violate the principle of procedural fairness?: Required, but officer Lorenz’s notes were provided and this was sufficient. (c) Was there a reasonable apprehension of bias in making the decision? TEST: what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? There is a Reasonable apprehension of bias is shown through officer’s notes - notes disclosed a lack of concern regarding the interests of her children and were insensitive to her mental health issues. His notes make a link between B;s mental illness, her training as a domestic worker, the fact she has had several children, and the conclusion that she would therefore be a strain on out social welfare system for the rest of her life. Officer L may have been drawing conclusions based not on the evidence but on the fact B was a single mother with several children and had a psychiatric illness. His use of capitals to highlight the number of B’s children may suggest to a reader that this was a reason to deny her status. A reasonable observer it would appear that his own frustration

with the system interfered with his duty to consider impartially whether the appellant admission should be facilitated owing to humanitarian or compassionate considerations. NB: decision is administrative and affects rights privileges or interests of an individual is sufficient to trigger application of Duty of procedural fairness. CRITERIA FOR DETERMINING CONTENT of PF (From Baker, Suresh) 1. Nature of decision being made/process followed in making it. (How close to the judicial model.)

i. Is it a discretionary decision? more reason for procedural fairness - Argue that if there is a high level of discretion then perhaps can lean towards PF to ensure that discretion was

exercised properly. ii. Is the decision of a serious nature, does it affect those around them?

- If yes, then the greater the impact then the more rigorous the procedural protections will be mandated. i.e. torture and deportation is most serious

- When doing this analysis it is best to do it in the context of a comparison to cases such as Baker and Suresh in order to determine the serious nature of the decision. E.g. in Suresh there was the issue of torture or deportation in Baker.

iii. Does the process resemble a judicial decision? - The more the process resembles a judicial decision, the more likely procedural protections will be required

(Knight) 2. Nature of Statutory Scheme

i. (Whether there is a right of appeal, how final/determinative the decision is.) Ask: What is the decision? How final is it? Greater procedural protection required when there is no:

- Provision for a hearing - If the decision is final and determinative (Baker),

o If there is a privative clause this would seem to suggest that procedural fairness should apply as the decision is likely final and determinative.

- If no requirement of oral or written submission, - If no right of appeal, - Only subject to JR as judges can only quash they cannot replace decision of the board.

3. Importance of the decision to person affected.

- The more important the decision, the higher the level of procedural protections to meet the PF mark. 4. Legitimate expectations

- If the claimant has an LE that a certain procedure will be followed, this procedure may be required or - If the claimant has a LE that a certain result will be reached in their case, fairness requires more extensive procedural

rights than would otherwise be accorded. This cannot lead to substantive rights outside of procedural domain - Must know the procedures of the past in order to be entitled to them. - NB: In Baker there is no LE affecting the content of the D of F

5. Choice of procedures made by the agency itself.

- Does DM have expertise and/or - Does DM has ability to choose his/her own proceedings and/or - Does the legislation confer discretionary powers and the provisions are broad without to many constraints

** This would lead to deference to the ministers decision. Less need for procedural safeguards. ** Expertise + discretion require lower PF Conclusion: A mid/high/low range of procedural fairness should be applied. Not as high as Baker or Suresh but at least some content should be provided.

Content of Refugee Cases (Example) Based on above factors court held that in weighing all of the factors, S.7 does not require a full oral hearing or complete judicial process. However, they require more than the procedure required by the Act (which is none). Things required:

▪ (1) Notice and disclosure so person knows case they have to meet. ▪ (2) Material on which the Minister is basing her decision must be provided to the individual w/an opportunity for

that individual to respond (provide sufficient information) ▪ (3) Opportunity to challenge information used by Minister for validity ▪ (4) Minister must provide written reasons for their decision

C. CONTROLLING DISCRETION: BAD FAITH, IMPROPER PURPOSES AND IRRELEVANT CONSDIERATIONS - It is not uncommon for powers to be delegated with little or no statutory guidance as to how the DM’s discretion should be

exercised. - The benefit of admin decision makers having broad discretion allows the DM to fully account for the particular facts and

context of the question before it. However, there are also concerns with this broad discretion: - If admin decision maker exercises discretion in (1) bad faith; or (2) takes into account irrelevant considerations or (3)

ignores mandatory considerations, then their decision may be overturned - An important consideration in determining whether an administrative decision maker has improperly exercised his

discretion will be the amount of deference a reviewing court gives an administrative decision ie standard of review - Baker excerpt (SCC considered the proper approach to the judicial review of discretionary decisions and the requirements

of administrative decision makers who exercise discretionary powers) DISCRETION TEST Step 1: Does the decision maker have discretion?

• Does the statute use the word “may”? • Are there a range of options the decision maker can chose from? • Does the statute refer to opinion, or the public interest?

Step 2: Has there been an abuse of discretion? The forms of abuse of discretion are: Rule: decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of DM, the exercise of discretion for improper purpose and use of irrelevant considerations. Considerable deference will be given to these DM.

(1) Bad faith, - Expressly/deliberately abusing discretion - Bad faith amounts to jurisdictional error since it is implied that the legislature would not have intended for a delegated

authority to act fro some improper and ulterior purpose. Person accusing of bad faith has onus of proving bad faith. (2) Improper considerations

- Generally accepted that administrative decision makers must make their decisions in accordance with the Canadian Charter of Rights and Freedoms

- Some decisions have considered international treaties/international human rights norms – see Baker. However, the SCC in Suresh said that unratified treaties cannot be considered (3) Improper purposes.

(Roncarelli) (a) Determine what the proper use of discretion would be/ what would it be for? (b) Sort out relevant considerations/ irrelevant considerations (c) Look at purpose of statute (Roncarelli) (d) Guidelines published by responsible agency (Baker) (e) That the admin dm made decision in accordance w Charter (f) International treaties/international human rights norms (Baker- yes; Suresh- unratified treaties shouldn’t be

considered)

Roncarelli— R paying bail for JWs. Statute appeared to grant a discretion, yet the SCC intervened b/c Duplessi cancelled liquor licence just b/c he didn’t like R. He abused his discretion by revoking the licence for religious persecution. This was ultra vires. Step 3: Has the decision maker considered the appropriate factors?

• Are specific considerations mandated in the grant of discretion? • What is the overall purpose of the statute? • Are there Charter values that are applicable? • Is there an applicable guideline? • Is there a relevant un-ratified international treaty?

Step 4: Standard of Review for Discretionary Decisions (1) General Discretion - In Dunsmuir, the majority, discretionary decisions are expressly named as a situation where a standard of reasonableness

will usually apply. - Other elements, which suggest reasonableness – the presence of a privative clause, the relative expertise of the decision

maker to the court. - Where the court is applying the reasonableness standard, the court will consider whether the decision falls within a range of

possible, acceptable outcomes, which are defensible in respect of the facts and the law. - Court will also consider justification, transparency and intelligibility within the decision-making process. Application to Baker: The failure by the immigration officer to give serious weight and consideration to the interests of the children constitute an unreasonable exercise of the discretion conferred on the DM notwithstanding the important deference that should be given to the decision of immigration officers. Indications of children’s interests as important considerations governing the manner in which H & C powers should be exercised may be found in the purposes of the Act, international instruments (Convention on the Rights of the Child) and in the guidelines for making H and C decisions published by the Minister herself. However, international treaties and conventions are not part of Canadian Law unless they have been implemented by statute (Francis v The Queen).

CHAPTER 6: THE COURTS AND THE JUDICARY

I. STRUCTURE OF THE CANADIAN COURT SYSTEM A. CONSTITUTIONAL FRAMEWORK OF THE JUDICIARY - Starting point in understanding the Canadian court system is the Constitution Act 1867 - s92(14) gives exclusive power to the provincial legislatures with respect to the admin of justice including the

maintenance and organization of provincial courts, both civil and criminal, including procedural matters. s96 states that provinces create s96 courts but the Fed government appoints and pays the salaries of provincial superior court judges.

- s101 gives the Fed government authority to create the Supreme Court of Canada, the Federal Court/Federal Appeal Court, and the Tax Court, as authorized by the Constitution

- Prov appoint and pay the salaries of the judges of the `provincial courts, courts that are not s96 courts - Provinces cannot pass legislation creating a tribunal, appoint members and then confer on the tribunal the jurisdiction of

superior courts. Re Residential Tenancies Act developed a 3 part test in order to determine whether creating such a tribunal would erode the s 96 power. This is because superior courts are a fundamental institution protected by our Constitution through the interpretation of s 96. The provinces, or federal Parliament, cannot enact legislation to encroach on their core jurisdiction (see pg 311 for three part test)

B. OVERVIEW OF THE CURRENT CANADIAN COURT SYSTEM 4 levels of courts in Canada: (1) First level is the provincial/territorial courts (small claims court, traffic violations, most criminal offences, family law matters, young persons in conflict with the law, regulatory offences, hearings to determine if enough evidence to justify a full trial in a serious criminal cases) which every province/territory has except Nunavut (there is no territorial court—matters that would normally be heard at that level are heard by the Nunavut Court of Justice, which is a superior court)

(2) Second level is provincial/territorial superior courts (s 96 courts – deals with more serious crimes and civil cases, divorce, property claims and cases involving large sums of money) and take appeals from first level courts) (except for Nunavut, where the Nunavut Court of Justice deals with both territorial and superior court matters) (3) Third level is courts of appeal. Usually sits a panel of 3 judges. (4) The highest level is the supreme court of Canada – final court of appeal. Must grant leave to hear appeal. NB: also, the federal courts, specialized federal courts (e.g. the tax court of Canada and military courts, intellectual property proceedings citizenship appeals, interprovincial and federal disputes, Competition Act cases, crown corps or departments of gov’t of CAN and has jurisdiction to review federal admin tribunals, commissions and federal board) NB: Some provinces have unified family courts dealing with all aspects of family matters. NB: administrative tribunals and alternative dispute resolutions are closely related to the courts but not part of court system

III. JUDICIAL APPOINTMENTS

B. PROVINCIAL APPOINTMENT PROCESS - In Canada, Judges are selected by the executive branch, often following a short-listing procedure involving an advisory

committee - For provincial/territory appointed judges the basic model is built on an advisory committee made up of a mixture of

members from the legal community and laypersons, which makes recommendations to the provincial attorney general C. FEDERAL JUDICIAL APPOINTMENT PROCESS

- s 96 courts, Federal court and tax court are appointed by the governor in council (i.e. the Cabinet), usually following review of candidates by an advisory committee. The SCC justices are simply appointed by the governor in council

1. Non-Supreme Court of Canada Appointments a. Overview

- The office of the Commissioner for Federal Judicial Affairs oversees the federal judicial appointment process for s 96 court

- Independent judicial advisory committees constitute the heart of the appointments process - Federal appointments are made by the governor general, acting on the advice of the federal Cabinet. A recommendation

is made to Cabinet by the Minister of Justice and by the PM with respect to the appointment of the Chief Justices; that recommendation is made from amongst the names which have been previously reported by the committees to the Minister. The recommendation for appointment as a judge is made to Cabinet by the minister of justice, who has been advised by the judicial advisory committee

b. Criticisms

- Questions have remained about political influence on the selection process. - Too much discretion in the hands of the gov – e.g. minister has power to appoint from the “recommend” and “highly

recommend list” (big lists = room for abuse of discretion) (“the basic concern”) - No transparency or accountability – candidates face no formal scrutiny and no information is made public to support the

choice of appointee - Patronage appointments – allegations that appointments are tainted by political considerations and that candidates who

contributed to political parties are appointed. - There is no requirement in law for the gov`t to follow the recommendations of any advisory committee. Calls for change

have been made (one suggestion is to have interviews) 2. Supreme Court appointments

- None of the appointment processes described above apply to the SCC (SCC judges normally appointed by cabinet) - Yet, in the post – Charter era, the court’s decisions will have a great effect on public policy. It is argued that the SCC is

“legislating”. As a result, calls for change to the federal appointment process have been especially persistent in relation to appointments to the SCC.

- Some authors have argued that the court must be democratized by requiring public scrutiny of potential appointees (ie questioning of potential appointees by a parliamentary committee). Others argue that the concept of democratization is

misplaced in relation to the judiciary. Judges must not be accountable and be free to decide cases in accordance with their view of the law and their own conscience.

- Minister of Justice, Proposal to reform the SCC Appointment process: appoint based on merit, system should protect and promote the reality and perception of judicial independence, system should be transparent, meaningful parliamentary input, meaningful provincial input. SEE page 335 of text for the overview of proposal and 4 stage process

III. JUDICIAL INDEPENDENCE

- JI. is the notion that judges are at arm’s length from the other branches of government - JI. consists essentially in the freedom to render decisions based solely on the requirements of the law and justice. - It requires that the judiciary be left free to act w/out improper interference from any other entity – i.e. that the executive

and the legislative branches don’t impinge on the essential authority and function of the court - Reference re Remuneration: JI serves important societal goals: (1) maintains public confidence in the impartiality of the

judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done; (2) maintains the rule of law, one aspect of the constitutional principle which finds that the exercise of all public power must find its ultimate source in the rule of law.

A. SOURCES AND SCOPE

- JI is a constitutional concept; e.g. sections 96 to 100 of the Constitutional Act, 1867 provide for the appointment, security of tenure and remuneration of federally appointed judges [Note: these provisions only apply to superior courts]

- s. 99 specifies the tenure of office of superior court judges NB: the court recognized an unwritten principle of judicial independence in the Constitution. JI, as an unwritten constitutional principle, extends to ALL courts. This is derived from s 11(d) of the charter (“independent and impartial tribunal”) and imposes a requirement for JI on all courts, not just superior courts which have such protection expressly written in s96 - s101. NB: In Ell v. Alberta the SCC found that justices of the peace had the same protections of judges Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Reference re Independence and Impartiality of Judges of the Prov. Court of P.E.I. FACTS: The reference was the amalgamation of three different sets of challenges to the impartiality and independence of provincial court judges in Manitoba, PEI, and Alberta. Each of the provinces had in some way imposed a salary reduction on provincial court judges. The powers of the provincial legislatures to reduce the salaries of the provincial court judges was challenged as a violation of section 11(d) Charter – accused has the right to be presumed innocent until proven guilty “in a fair and public hearing by an independent and impartial tribunal”. (1) In PEI, and Manitoba, the salaries of judges were lowered along with those of other civil servants to help combat

deficits. In PEI, various challenged of the judges’ consequent independence were raised by the defendants, causing the government to bring two reference questions to its Supreme Court. Only one reference resulted in a finding of dependence, namely for lack of adequate security tenure.

(2) In Manitoba, the pay cut was challenged directly by a provincial judges association. (3) In Alberta, cuts to judicial salaries were challenged by defendants. Three accused had challenged the constitutionality of

their trials before provincial court judges who were subject to provincial legislation reducing the salaries of provincial court judges.

ISSUE: whether and how the guarantee of JI in s 11(d) of the Charter restricts the manner by and the extent to which provincial gov’t and legislatures can reduce the salaries of provincial court judges. ANALYSIS: The Court looked to constitutional norms and found that judicial independence was one such norm implied by the preamble to the Constitution. The preamble reveals the “basic principles which are the very source of the substantive provisions of the Constitution Act 1867” and it “invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme”. Three fundamental requirements of judicial independence: (1) Financial security; (2) Security of tenure; and (3) Institutional independence – as a court as a whole. Institutional independence is needed so that courts can guard the Constitution, the rule of law and fundamental justice.

-­ A judge must also be reasonably seen as being independent. It is guaranteed by the preamble. This requires more separation of powers.

-­ Provincial courts should benefit from this institutional independence. -­ The gov’t should establish judicial salary commissions, which can guard against manipulation by both the executive and

legislatures. This separates negotiation between the government and judges over salaries. This removes an ability for the government to manipulate judges to make decisions in certain ways. Civil law judges have a right to salary commission by way of preamble, as they have no rights under section 11 (d).

-­ Judicial independence “flows as a consequence of the separation of powers, because these appeals concern the proper constitutional relationship among the three branches of government in the context of judicial remuneration”. The doctrine of separation of powers comes from the preamble to the constitution.

OUTCOME: The Majority allowed the appeals in part, stating that there was constitutional protection of judicial independence and impartiality for all judges. The Majority found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. All judges in Canada are protected by the Constitution. The Majority established that independent compensation commissions are required to help set salaries free of political manipulation. The judicial salary reduction in each of the three provinces involved in the reference were found to be unconstitutional because they had not been preceded by a report of judicial compensation commission.

B. ASSESSING INDEPENDECE - The test to assess whether there is JI is an objective, reasonable persons test. Would a reasonable person who is fully

informed of all the circumstances consider that a particular court was independent? Mackin v NB - Independence includes both a requirement of actual independence, and also a reasonable perception of independence on

the part of a reasonable and well-informed person E.g. Canada (Minister of Citizenship and Immigration) v Tobiass I: Was JI impaired by a private meeting between a senior department of justice official and the CJ of the Federal Court in relation to a delay in a hearing to which the justice department was a litigant? H: meeting did cause damage to the appearance of JI. Independence of judges, under s11(d), has 2 aspects: (1) an institutional aspect and (2) personal aspect. The judiciary should actually remain independent but it should also be seen/appear to remain independent. C. DIMENSIONS AND CORE CHARACTERISTICS From s 11(d) the courts developed 3 requirements in regards to independent and impartial tribunals: Provincial Judges (1) Security of tenure: - Constitutionally protected security of tenure has both an institutional and individual dimension - Individual security of tenure means that judges may not be dismissed until the age of retirement except breaches of “good

behaviour”, which have been interpreted to include misconduct or disability. Arbitrary removal is prohibited. - Institutional security of tenure means that, before a judge may be removed for cause, there must be a judicial inquiry to

establish that such cause exists, at which the judge affected must be afforded the opportunity to be heard: Re Therrien - A judge can only be removed from office for a reason relating to his or her capacity to perform his or her judicial duties. - Superior court judges are removable only by a joint address of the H of C and the Senate as per s99 - s 69(3) Judges Act establishes the Canadian Judicial Council as the body responsible for investigating complaints about the

conduct of federally appointed judges. If the Council concludes that removal of a judge is warranted, it makes a report to the minister of justice, who may introduce a motion before Parliament.

(2) Financial security - Financial security relates to the pay judges receive for performing their job. It protects against an dishonest/corrupt

government that could utilize its authority to set judges salaries as a vehicle to influence the course and outcome of adjudication ie paying a judge more to find in the gov’t favour

- It has both an individual and institutional dimension – courts should both be free and appear to be free from political interference through economic manipulation by the other branches of gov’t and that they not become entangled in the politics of remuneration from the public purse

- Institutional financial security has 3 requirements: (1) Judicial salaries can be reduced, so long as economic manipulation occurs through an independent, objective and effective body, combined with a judicial compensation commission (between the judiciary and other branches of government) that would depoliticize the process. While not binding, these reviews should be taken seriously (2) Not permissible for judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature, this would be seen as political.; (3) Reductions to judicial remuneration cannot take those salaries below a basic minimum level of remuneration that is required for the office of a judge in order to prevent political pressure via economic manipulation: Provincial Judges Reference

- The commissions charged with the responsibility of dealing with the issue of judicial remuneration must meet the 3 general criteria: (1) they must independent, objective and effective. It would undermine the goal if the independent commissions were under the control of the executive or legislature; (2) salary commissions must be objective. They must make recommendations on judges’ remuneration by reference to objective criteria, not political expediencies; and (3) the commission must be effective. There is a constitutional obligation for gov’ts not to change or freeze judicial remuneration until they have received the report of the salary commission. The commission must convene if a fixed period of time has elapsed since its last report. The reports must have a meaningful effect on the determination of judicial salaries.

(3) Administrative independence - Administrative independence requires that courts themselves have control over the administrative decisions that bear

directly and immediately on the exercise of the judicial function such as the assignment of judges, sittings of the court and court lists and allocation of court rooms and direction of the admin staff engage in carrying out these functions

Canada v Tobiass - was judicial independence impaired by a private meeting between a senior department of justice official and the CJ of the Federal Court in relation to a delay in a hearing to which the justice department was a litigant? H: meeting did cause damage to the appearance of judicial independence. Independence of judges, under s11(d), has 2 aspects: (1) an institutional aspect and (2) personal aspect. The judiciary should actually remain independent but it should also be seen/appear to remain independent.

CHAPTER 7: STATUTORY INTERPRETATION

I. OVERVIEW OF STATUTORY INTERPRETATION

A. SOURCES OF INTERPRETATION LAW- 3 main sources of interpretation law: (1) Interpretation Acts: - Every Canadian jurisdiction has an Interpretation Act that contains various rules applicable to statutes in general - NB: federal Act applies only to federal legislation; provincial or territorial legislation is governed by the relevant local

Act. (2) Interpretation Rules in Individual Statutes and Regulations: - Definitions tell interpreters how particular words used in the legislation are to be understood - Application sections indicate the scope of the legislation in terms of space (territorial application), time (temporal

application), persons affected (eg. Her Majesty), and subject matter (some things may be excepted). - Preambles and purpose statements indicate the reasons for the new legislation. - Commencement and transitional provisions (end of statute), indicate when the legislation will commence or come into

force and how it will apply to situations in progress.

(3) Common Law: - Statutory interpretation is rooted in the CL, in a body of principles, presumptions and conventions known as the “rules

of statutory interpretation”. - These rules are not binding, they operate as guidelines

Ruth, Sullivan, Sullivan and Driedger on the Construction of Statutes (evolution of stat interpretation): Courts recognized and practised four approaches to Statutory Interpretation

(1) Equitable Construction (mischief rule):

- The words of the legislative text are less important than achieving Parliament’s actual intentions. - Legislation is construed to promote legislative purpose. - With the est. of Parliament as a separate and primary source of power, there was less room for equitable construction. (2) Doctrine of Strict Construction: - Aimed at preserving the life, liberty and property of citizens from state interference (3) Plain Meaning Rule: - A court is obliged to stick to the literal meaning of the legislative text in so far as that meaning is clear - If the words of a legislative text are clear and unambiguous, the court must apply them as written despite any contrary

evidence of legislative intent and regardless of consequences (Sussex Peerage Case (1844)) - Justification that courts should adhere to this rule: (1) offers the best evidence of the lawgiver’s intent, (2) sticking to

the plain meaning is rule of law and the need for certainty and predictability. (4) Golden Rule: - Permits the courts to depart from the ordinary meaning of a text to avoid absurd consequences. (Grey v Pearson) - Golden Rule is grounded in the supervisory and mediating roles of the courts. Must ensure that those who exercise

powers conferred by the legislation do so within the limits of those powers. Current Theory and Practice:

- Textualists: judges see the text itself as the best guarantor of the rule of law. - Intentionalists: the interpreter’s job is to give effect to the intentions of the legislature as revealed not only by the text

but by other evidence as well, including extrinsic aids and presumed intent. - Pragmatists: when confronted with an interpretation problem, they form impressions of what the statute says, what the

legislature intended and what would be a good result having regard to the relevant legal norms.

B. RANGE OF INTERPREATION ISSUES: Perrier Group of Canada Inc. v Canada: Court had to decide whether the carbonated water sold under the Perrier label was a “beverage” within the meaning of the Excise Tax Act. PG said “beverage” meant manufacturer drink, produced by mixing ingredients. Minister of Rev said that “beverage” meant any liquid fit for human consumption. Court agreed with Minister. (1) Static v Dynamic Interpretation argument: - Interpreter claims that the text should be interpreted as it would have been when the text was first enacted (static

interpretation) or in light of current understanding of language and social conditions (dynamic interpretation. Harvard College: Even though a genetically altered mouse could be thought of as a composition of matter, the majority preferred a static interpretation. (2) Non-application argument: - Interpreter identifies a reason not to apply a provision to the facts even though, given its ordinary meaning, it would

otherwise apply (must read-down to avoid absurdity or comply w the presumptions of leg intent). Re Vabalis: a married would applied to change her name from Vabalis to Vabals. The Change of Name Act said that a married person applying for a name change must also apply for the surnames of their spouse to be changed. Court held this to be absurd. (3) Incorrigible Gap argument: - the interpreter claims that the legislation as drafted cannot apply to the facts even though, give its purpose, it probably

should apply. - Whether the omission is deliberate or inadvertent, the court has no jurisdiction to fill a gap in a legislative scheme or

otherwise enlarge the scope of legislation. Beattie v National Frontier: B claimed no fault accident benefits from his insurer. B was found guilty of impaired driving. Claimed that the benefits held in trust pending his conviction had to be returned to the insurer. B then claimed post-conviction benefits on the ground that there was nothing in the legislation that prevented him from receiving those benefits as the charge was disposed of. Court reluctantly agreed. It was clear the lawmaker had intended to deny benefits to a person in B’s position, but there was a gap in the legislation. Nothing to deny access to benefits after conviction. (4) Supplementation argument: - The interpreter concedes that the legislation as drafted does not apply, but claims that the CL does apply so as to

supplement the underinclusive legislation. - These arguments are usually successful when the court relies on parens patriae (inherent) jurisdiction

Beson v Director of Child Welfare: the court acknowledged that although the province’s Adoption of Children Act created various appeals to the Adoption Appeal Board, it did not provide for an appeal in this case. If the B’s had no right of appeal, there would be a gap in the legislation, which the court could fill by an exercise of their inherent jurisdiction. (5) Corrigible Mistake argument: - The interpreter claims that the provision in question contains a drafting mistake, which must be corrected before

determining whether the provision applies to the facts. - He or she must establish what the legislature clearly intended and what the text would have said had it been properly

drafted. Morishita v Richmond: court had to interpret a provision in a municipal bylaw that referred to s. 4 of the bylaw. Since reference to s. 4 was incoherent, while the reference to s. 5 made sense, the court concluded that the lawmaker intended to refer to s. 5. (6) Exhaustive Code argument: - The interpreter concedes that the overlap between legislative provisions or between legislation and the CL does not

create a conflict, but claims that a particular Act or provision was meant to apply exhaustively, to the exclusion of other law, whether statutory or CL.

Gendron v Supply & Services: the issue was whether a union member could bring an action against the union for breaching the CL duty of fair representation. The court ruled that the duties owed by unions to union members was set out in the Canada Labour Code and, that statute was meant to be an exhaustive code, displacing recourse to the CL. (7) Paramountcy argument: - The interpreter claims that there is a conflict between two provisions or between a provision and the CL and that one

takes precedence over the other on the basis of some principled reason. Ie. Leg prevails over CL or specific or general. Insurance Corp of BC v Heerspink: H challenged the statutory right of an insurance company to terminate an insurance contract upon giving 15 days notice without establishing any cause.

II. AN OVERVIEW OF THE RULES OF STATUTORY INTREPRETATION

A. RULES ABOUT MEANING (1) Ordinary meaning rule: the meaning that comes to the mind of a competent reader upon reading a legislative text.

This is presumed to be the meaning intended by Parliament but this presumption can be rebutted by evidence suggesting another meaning was intended.

(2) Technical meaning rule: it is presumed that legislatures use words in their popular, non-technical sense. Unless the legislation deals with a specialized subject that people governed by the legislation would understand in a specialized way, then specialized understanding is preferred over ordinary usage.

Re Witts and Attorney General for BC: W purchased a horse (colt) for breeding purposes. After taking possession of the horse, W discovered it was a gelding, and therefore useless for breeding. W tried to rescind his purchase under the Horse Racing Rules and Regulations. Under these rules, close examination of a horse to be purchased is prohibited and title vested regardless of age or sex. Court held this to be based on sex. W stuck with horse. Case illustrates that evidence of technical meanings can be given by experts in the relevant field thr testimony or affidavit. (3) Shared meaning rule: if one version of a bilingual text lends itself to two interpretations while the other version can

plausibly bear only one interpretation, the interpretation that is shared should be adopted. (4) Original meaning rule: the meaning of the words used in a legislative text is fixed at the time of enactment but its

application to facts over time is not fixed. Language that is technical, concrete, and specific tends to attract a static interpretation. Language that is general or abstract attracts a dynamic interpretation.

(5) Plausible meaning rule: if the ordinary meaning of a text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing.

B. PRESUMPTIONS RELIED ON TO ANALYZE THE MEANING OF A TEXT Most Important Assumptions: (1) Straightforward expression: the legislature chooses the clearest, simplest, and most direct way of stating its meaning. (2) Uniform expression: the legislature uses the same words and techniques to express the same meaning and different

words and techniques to express different meanings.

(3) No tautology/no redundancy: there are no superfluous words in legislation: every word, every feature of the text is there for a reason and plays a meaningful role in the legislative scheme.

(4) Internal coherence: all the provisions of a legislative text fit together logically and work together coherently to achieve the purposes of legislation.

Assumptions based on so-called maxims of interpretation: (5) Implied exclusion: if something is not mentioned in circumstances where one would expect it to be mentioned, it is

impliedly excluded. (6) Associated words (noscitur a sociss): the meaning of a word or phrase is affected by the other words or phrases with

which it is linked in a sentence. (7) Limited class (ejusdem generis): when a list of things that all belong to an identifiable class is followed by a more

general term, the general term may be read down to include other things within the identifiable class eg. Hockey, skiing and other sports. Other sports may be read down to include only winter sports.

(8) The legislature would have said “x”: if the legislature intended the proposed interpretation, it would have framed the legislation in a different way, as it did elsewhere in the Act or regulation.

R v Daoust (relies on ordinary meaning rule, associated words rule and the no tautology rule): Police suspected the owners of a second hand store of selling stolen merchandise. Issue: does one “transfer possession” of property in the context of laundering proceeds of crime if one buys the property with the intention of converting it? Held: Court supports its understanding of transfer by claiming that it is the ordinary meaning of the word. Ord meaning is not the dictionary meaning, but the meaning that spontaneously comes to mind when read in context. Also use the associated words rule and the no redundancy rule.

C. PURPOSE AND SCHEME ANALYSIS All legislation is enacted to achieve a particular outcome by imposing new obligations or prohibitions. This is seen thr. The following rules: (1) Legislative Purpose: interpreters must always try to determine the purposes of legislation and adopt an interpretation

that promotes or is consistent with those purposes. (2) Interpretation Acts: the Interpretation Act of every Canadian jurisdiction includes a provision that directs interpreters

to give every enactment “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” If leg is drafted overly broad use narrow interpretation to ensure attainment of objects.

(3) Legislative scheme: provisions of an Act are presumed to work together as parts of a coherent scheme designed to implement the legislature’s goals. Look to titles, headings, and subheadings.

R v Chartrand: C invited a child to get into his car so that he could take photos of him. Child agreed. They drove around stopping places and taking pictures. Father found C with the child. C claimed to be taking pictures for the parents. C charged with abduction. HELD: court first looked at the similarities and differences among the provisions dealing with abduction. Considered the social context and the mischief it was meant to cure. Relied on the disputed word argument and the corrigible mistake argument.

D. MISTAKES AND GAPS IN THE LEGISLATIVE SCHEME (1) Corrigible mistakes: legislature is presumed not to make mistakes, but this presumption can be rebutted by evidence

that the text does not reflect the rule the legislature intended to enact. Courts of jurisdiction to correct these mistakes. (2) Incorrigible gaps: courts almost always deny jurisdiction to cure a gap. Curing an underinclusive provision amounts to

“reading in” which is considered a form of judicial legislation, while “reading down” does not. (3) Supplementing legislation by reliance on CL: courts cannot cure underinclusive legislation by expanding its scope

beyond what the text allows. It can rely on supplemental sources of law to complete the leg scheme.

E. PRESUMPTIONS OF LEGISLATIVE INTENT - Reoccurring issue in stat interpretation is whether the courts should apply the same rules and techniques to all

legislation, regardless of subject matter or purpose

- Historically, courts have distinguished between leg that takes away the freedom or property of a person and leg designed to cure mischief, advance religion or confer benefits.

F. AVODING ABSURDITY

- It is presumed that the legislature does not intend its legislation to produce absurd consequences. - The clearer and more precise the text seems, the greater the absurdity required to depart from its ord meaning. - Leg tries to avoid: irrational distinctions; irrational, contradictory or anomalous effects; defeating the purpose of the

legislation; undermining the efficient application of legislation; and, violating important norms of justice or fairness.

G. RELATION TO OTHER LEGISLATION AND OTHER SOURCES OF LAW - Constitutional Law: it is presumed that legislatures intend to enact constitutionally valid law and comply with any

limitations on jurisdiction set out in the Constitution Acts. Sometimes the legislature did intend to restrict a charter right or freedom if justified under s 1.

- Regulations: must be read in light of their enabling provision and their enabling legislation as a whole. The regs and the enabling legislation are presumed to constitute an integrated scheme.

- Related legislation: statutes dealing with the same subject matter must be read together and are presumed to offer a coherent and consistent treatment of the subject.

- The Statute book: even if statutes do not related to the same subject, it is useful to compare provisions in different enactments that deal with a particular matter.

- CL: provincial leg sometimes incorporates CL concepts or terms, and federal sometimes incorporate both CL and civil law concepts. Resort to CL in these cases is appropriate to determine the meaning of the concept or term.

- International Law: presumed that provincial and federal. Legislatures intend to comply with international law, both customary and conventional.

H. EXTRINSIC AIDS

Resolving interpretation issues can be assisted by extrinsic aids: - Legislative scheme: consists of agreements that the legislation in question is intended to implement or of legislation on

which the legislation has been modelled in whole or party - Legislative history: consists of material formally brought to the attention of the legislature during the legislative

process, including ministerial statements, committee reports, recorded debates and tabled background material. - Legislative evolution: consists of the successive amendments and re-enactments a provision has undergone from its

initial enactment to the time of application; note that subsequent evolution is not considered a legitimate aid. - Expert Opinion: consists of precedent, administrative opinion, and scholarly legal publications, and expert testimony

III. SOME ILLUSTRATIONS R v McIntosh: Facts: M had given the deceased some sound equipment to repair. M made several attempts to get equip back but D avoided him. M’s gf saw D outside and told M. M got a knife and approached D. According to M, in self-defence he stabbed the D with the knife. Issue: Is the self-defence justification in s 34 of the CC available where an accused is the initial aggressor, having provoked the assault against which he claims to have defended? Analysis: - s 34(1) says “without having provoked the assault” while s 34(2) does not. Therefore, s 34(2) is available to initial

aggressors. - Crown argued that it was ambiguous and that based on leg history, the CL, public policy, margin notes and the

relationship btw ss 34 and 35, it would be absurd to make s 34(2) available to initial aggressors when they can rely on s 35.

- Court found that the fact that the Parliament did not include the “not having provoked” in s 34(2) is the best and only evidence we have of legislative intent. It is a principle of stat interp that where two interpretations of a provision which affects the liberty of a subject are available, the one that favours the accused should be adopted.

- Dissent: judicial mandate must give effect to Parliament’s intent, inferred not only from the language of the text but also from aids such as the evolution of the legislation from CL to its current formulation. This was a corrigible mistake.

Held: Court agrees that some absurdity flows from giving effect to the terms of s 34(2). It still must be interpreted according to its plain terms. Accused can rely on s 34(2). Re Rizzo and Rizzo Shoes Ltd (leading case on statutory interpretation) Facts: R was ordered into bankruptcy. R’s employees lost their jobs and a trustee assumed control of the corp’s property. The employees claimed termination and severance pay said to be owing under the Employment Standards Act. The trustee disallowed the claim on the ground that bankruptcy of the employer did not constitute a dismissal of employment. Analysis: - Statutory obligation on employers to provide termination and severance pay is governed by the ESA - At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the

ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone

- Justice Iacobucci: “Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. Today there is only one principle or approach (modern rule/principle), namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

- s. 10 of Ontario’s Interpretation Act provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.

- The objects of the ESA and of the termination and severance pay provisions themselves are broadly premised upon the need to protect employees. Finding ss. 40 and 40a to be inapplicable in bankruptcy situations is incompatible with both the object of the ESA and the termination and severance pay provisions.

- The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise.

- Since the ESA is benefits-conferring legislation, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.

HELD: When the express words of ss. 40 and 40a are examined in their entire context, the words “terminated by an employer” must be interpreted to include termination resulting from the bankruptcy of the employer. Medovarski v Minister of Citizenship and Immigration (illustrates the courts position on bilingual interpretation) Facts: M and E, two permanent residents, were ordered deported for serious criminality. They each appealed to the Immigration Appeal Division of the Immigration and Refugee Board and their removal orders were automatically stayed. Both appeals were discontinued as a result of a transitional provision (s. 196) of the new Immigration and Refugee Protection Act (IRPA), which took away the right to appeal an order for removal unless a party had, under the former Act, been “granted a stay”. In each case, the trial judge set aside the decision to discontinue the appeal. The Federal Court of Appeal allowed the Minister’s appeal in both cases, holding that the purpose of the IRPA’s transitional provision was to deny a right of appeal in the case of an automatic stay. Analysis:

- The words of the statute must be interpreted having regard to the object, the text and the context of the provision, considered together (E.A. Driedger)

- The objectives of the IRPA indicate intent to prioritize security. - The purpose in enacting the IRPA was to efficiently remove from the country persons who have engaged in serious

criminality. - Section 196 of the IRPA, properly interpreted, applies only to actively granted stays. Since s. 196 refers explicitly to

s. 64, the transitional provisions should be interpreted in light of these legislative objectives. - In interpreting bilingual statutes according to Daoust one must:

(1) Determine whether or not there is an apparent discordance, and if so, whether there is a common meaning between the French and the English versions. common meaning favors the more restrictive limited meaning.

(2) Determine if the common meaning consistent with Parliament’s intent.

- Although the French version seems to apply to both an automatic and an actively ordered stay, the common meaning of the English and French versions of s. 196, is in this case the English version, which applies only to actively granted stays.

- This interpretation, which accords with Parliament’s general object, is reinforced by the absurd effect of the broader interpretation of s. 196. If s. 196 was applicable to automatic stays, it would effectively become redundant and be reduced to an essentially meaningless statutory provision.

HELD: The appeals should be dismissed. Possibilities when dealing with discrepancy between French and English versions: (1) Version A is ambiguous, while version B lends itself to only one of the possible meanings of version A; version B is

the shared meaning; (2) Both versions are ambiguous, but both lend themselves to a single, particular meaning; this is the shared meaning; (3) Both versions are clear but say different things; there is no shared meaning; (4) One version is broader in scope that the other; either the narrower version is the shared meaning or the two versions

say different things so that there is no shared meaning. Canada (Attorney General) v Mossop (interpretation of human rights legislation) Facts: M was a federal civil servant who applied for bereavement leave to attend the funeral of his same sex partner’s father. He was denied the paid day off because the collective agreement defines spouse as a member of the opposite sex. He complained to the Canadian Human Rights Commission that this constituted discrimination on the grounds of family status. The CHRC ordered that he be paid for the day, and the collective agreement be modified. Issue: What is the standard of review in HRA case in interpreting its own statute? Ratio: At the SCC, 6 found the standard was correctness, of which 4 said the decision was wrong and 2 said it was right. L’H-D said the said the standard was patent unreasonableness and the CHRC made the right decision (4-3 decision overturned). Analysis:

- The Federal Human Rights Act has no privative clause. It was argued that the expertise there requires deference to their interpretation of their enabling statute. Absence of a privative clause led Fed Ct of App to apply a correctness standard. Fed Ct of App: decision interpreting ‘family status’ was a question of law reviewable on correctness basis and the Tribunal got it wrong.

Per Lamer C.J. (Majority): - Not only was there no privative clause, there was the opposite: a statutory right of appeal - The issue in this case is one of statutory interpretation, and therefore a question of law reviewable under s. 28 of the Federal

Court Act. - The courts cannot abdicate this duty to the tribunal, and must therefore review the tribunal's decisions on questions of this

kind on the basis of correctness, not on a standard of reasonability. - With respect to the meaning to be attributed to the words "family status", while the Act should be interpreted generously with

a view to effecting its purpose, neither ordinary meaning, context, nor purpose indicates a legislative intention to include same‑sex couples within "family status".

- Clear intent throughout the CHRA not to extend to anyone protection from discrimination based on sexual orientation. Dissent (L’ Heureux‑Dubé )[most important part of case]:

- Interpretation of HR Legislation: It is well established that human rights legislation has a unique quasi‑constitutional nature, and that it is to be given a large, purposive and liberal interpretation.

- CoA correctly examined the “plain meaning” and textual context of the term, as well as the intention of Parliament. - Purpose of Act: The purpose of the Act, set out in s. 2, is to ensure that people have an equal opportunity to make for

themselves the life that they are able and wish to have without being hindered by discriminatory practices. - Textual Interpretation: Even if one were to take a textual approach to the interpretation of s. 3 of the Act, it would not be

necessary to construe "family status" as including only those families, which have recognizable status at law. - The term "status" may also indicate more factual matters of rank, social position, or relation to others. When the meaning of

the French version of the term, "situation de famille", is considered, it is apparent that the scope of "family status" has potential to be very broad.

- A textual interpretation seems to support the conclusion of the tribunal that “family statute” should not be restricted to a narrow legal meaning.

- Purpose and Intent: Parliament's decision to leave "family status" undefined is evidence of clear legislative intent that the term's meaning should be left for the Commission and its tribunals to define. Even if Parliament had in mind a specific idea of the scope of "family status", there is no definition in the Act which embodies this scope.

- Based on the purpose of the Act, the purpose of the benefit, and all the evidence before it, it was perfectly reasonable for the Tribunal to conclude that the collective agreement violated s. 10(b) of the Act, a conclusion with which the Court has no reason to interfere.

Comment: Even now the courts are less likely to defer to HR tribunals, partly because HR decisions go to the core of the values of the society, have an impact on Canadian values and the courts have more expertise than the tribunals.

CHAPTER 8: CONSTRAINTS ON LEGISLATIVE AND ADMINISTRATIVE ACTION

I.THE ROLE OF CONSTITUTIONAL JUDICIAL REVIEW IN A DEMOCRATIC SOCIETY

A. THE JUSTIFICATION FOR CONSTITUTIONAL JUDICIAL REVIEW - The judiciary plays an important role in ensuring that the written constitutional prevails over ordinary legislation. It was

held that the court can review legislation in order to make sure it is in compliance with the constitution. - Marbury v Madison – An American case. JR review was created in this case - Operation Dismantle v The Queen: constitutional supremacy was originally grounded in s 2 of the Colonial Laws

Validity Act 1865. - With the partition of the Canadian Constitution in 1982, the principle of constitutional supremacy was expressly

enshrined in s52(1). B. THE LIMITATIONS OF JUDICIAL REVIEW 1. Issue of Justiciability - Are all actions by the political branches of gov’t “justiciable”? That is, amenable to resolution by the courts? - Operation Dismantle tested the limits of the role that courts play in weighing governmental measures designed to

protect national security against the standards imposed by the constitution. F: Cabinet decides to allow the US to test missiles in northern Canada. A group of citizens argued that this violated their s. 7 rights by increasing the threat of nuclear war. I: should the appellant’s statement of claim be struck out before trial as disclosing no reasonable cause of action? H: The majority decided to strike out the statement of claim and dismiss this case as there was no reasonable cause of action; it would be entirely impossible to prove causation here. The majority endorsed the sentiments expressed by the concurring opinion of Wilson J. A: Wilson stated that this case was non-justiciable based on the type of issue raised. It would be inappropriate for the courts to second-guess foreign policy. This is not because the courts cannot rule on political questions, but because they can only do so when individual rights are at stake. Allowing constitutional review of this would allow, for instance, constitutional review of any declaration of war, which is not appropriate. However, if the issue was that the missile testing was directly threatening the safety of people near-by the testing, then a right would be in play, and even the cabinet decisions would be reviewable. This was simply not the right case.

R: Thus the courts have established that: • Political/moral question are reviewable, but only when rights are involved • Even cabinet decisions may be reviewed in some circumstances • Causation must be shown between the reviewable action and the infringement of the identified right • Potential future infringements may yield causes of action

2. Issue of Enforcement Although the Constitution is supreme and the judiciary is relied on to interpret and invalidate legislation that is inconsistent with it, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions.

Doucet-Boudreau v NS (Minister of Education) This case split the SCC over the scope of judicial power to grant a form of “structural injunction” as a remedy under s. 24(1) of the charter for a breach by the executive branch of a positive charter right. F: the court ordered the government of Nova Scotia to use its best efforts to build a French Language school to comply with its duties under the Charter (minority language rights: s23 of the charter) Despite the constitutional requirement for governments to provide French language schools under s. 23 of the Charter, the government of Nova Scotia failed to build such schools. After years of waiting, a group of parents sued, and won a court order requiring that the governments build the schools. The trial judge also crafted the order stating that the court would continue to hold jurisdiction, and require the government to submit progress reports on the school building. The government appealed the order on the ground that the court had overstepped its boundaries and began to take executive-type action. I: whether a trial judge may after ordering that a prov gov’t use its best efforts to build French-language school facilities by given dates, retain jurisdiction to hear reports on the progress of those efforts as part of their remedy under s24(1)? H: Majority concluded that this remedy came within a superior court’s authority under s24 and the TJ had authority to choose the injunctive remedy on the terms and conditions that he prescribed. Reviewing courts must show considerable deference to TJs choice of remedy. A reviewing court should only interfere where the TJ has committed an error of law or principle. The courts interpreted s. 24 widely to allow for the crafting of flexible, effective and pragmatic remedies. Taking into consideration the special circumstances of this case, the non-traditional order, even if quasi-executive, was permissible. Minority: Argued that this order clearly overstepped the border of what was acceptable. Courts should assume that their orders will be followed in good faith, and failing that, resort to the contempt mechanism. The minority argued that such an injunction usurped the role of the executive by placing the judiciary in the position of directing the implementation of law and gov’t policy. A related issue is how courts address the consequences of a sweeping legislative disregard of constitutional rules: Reference re Language Rights - s 23 of Manitoba Act stated that the Manitoba legislature must enact print and publish legislation in both French and English. As such unilingual enactments of the Manitoba legislature are inconsistent with s.23 of the Manitoba Act since the constitutionally required manner and form for their enactments has not been followed. However to hold such legislation of no force and effect the present composition of the Manitoba Legislature might be invalid. To declare the acts of the legislature of Manitoba invalid and of no force and effect would undermine and offend the principles of rule of law. Therefore, to maintain rule of law the rights, obligations and other effects the acts must be found to be valid even if only in English. To do otherwise would create chaos and anarchy that would offend the constitutionally guaranteed rule of law. To ensure rule of law the court will recognize as valid the constitutionally invalid acts of the legislature (doctrine of necessity). To conform with rule of law, Court decided on a drastic remedy – namely allowing the invalid acts to remain law until statutes were translated. 3. The Issue of legitimacy - A more prominent concern is that judges have to interpret vague statements in the Constitution ie “liberty” “security of

a person”. When judges give concrete shape to these vague ideas set out in the Charter and then invalidate laws that do not conform to their interpretation of these requirements, the rule of law may subtly be transformed into the rule of unelected judges.

Two main complaints about judicial review: (1) Under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial legislatures. Argument is that courts have expanded their proper role of interpreting the Constitution and have thereby unduly shrunk the zone of parliament supremacy. (2) The second criticism is sparked by the substantive approach courts have taken to particular rights, rights that may protect unpopular elements of society, such as people convicted of criminal offences, or prompt decisions such as protection for gays and lesbians, disliked by those holding particular political, social or religious views. NB: A core question lies at the heart of both of these complaints: in rendering constitutional decisions, how much deference should courts show elected officials?

Vriend v Alberta - Iacobucci J discusses what he refers to as a “dialogue” between the courts and the legislatures when it comes to constitutional review of laws. The legislature passes a bill. The courts decide if it infringes on a charter right. If it does, the government may still justify it based on s. 1. The courts may reject this argument. The legislature may in turn overrule the courts by means of s. 33. Thus, it isn’t that the courts want to do judicial review based on the constitution. They are required to do so by the terms of the constitution. The method that was set out was not one way, but enshrines a cooperative system between parties. Most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives. By doing this the legislature responds to the courts. Parliamentary safeguards remain despite the courts reading in approach. On one side, the concern is that sometimes judicial review is illegitimate, because it is anti-democratic, in that unelected officials (judges) are overruling elected representatives. Also, they read in concepts to laws which amounts to changing the law in itself (e.g. in Reference re Rumeneration of Judges of PEI reading in judicial independence principle in the Constitution by reference to the preamble was criticized in a dissenting opinion of La Forest J). The other side is that it was the will of the people that enacted the Constitution (including the Charter) and administrative tribunals. And it is the Court’s job to oversee adherence to these laws. Judicial review is not anti-democratic, therefore. Further, there is a lot of “built in” deference to the legislature (see s 1, s 33). What is the role of the Courts? It is to decide legal disputes that citizens and the gov’t ask them to decide. In order to do so they must (1) define the precise contours of the division of legislative powers btw the federal and provincial gov’ts; (2) They rule on legislation alleged to be unconstitutional for violation of the Charter, and define the scope of the constitutional rights and freedoms; and (3) they must exercise de facto supervision over the hosts of admin tribunals created by Parliament and the Legislatures. What is the judicial role? It is to resolve disputes and decide legal questions, which others bring before the courts. It is not for judges to set agendas for social change or to impose their personal views on society.

II. DIFFERENT SORTS OF JUDICIAL REVIEW OF LEGISLATIVE ACTION The following show various types of approaches courts use to address different types of constitutional challenges to legislation A. UNWRITTEN CONSTITUTIONAL PRINCIPLES Canadian courts have been willing to a limited extent to recognize underlying constitutional principles that can be given full legal effect (e.g. Reference re Secession of Quebec; Reference re Rumeration of Provincial Court Judges) Bell Canada v Canadian Telephone Employees Association F: In a pay equity dispute, Bell Canada argued that the Human Rights Tribunal was an unconstitutional body, as its members did not possess judicial independence – an unwritten constitutional requirement. As members of a clearly judicial-like body, they required independence just like s. 96 judges do, as per the Provincial Judges Reference. I: whether the Canadian Human Rights Tribunal lacks independence and impartiality because of the power of the Canadian Human Rights Commission to use guidelines binding on the Tribunal concerning a class of cases and the power of the tribunal chairperson to extend tribunal members terms only for ongoing inquiries. H: The court found that the requirement of judicial independence did not apply as strictly to the HRT as it did to full courts. It is only an administrative tribunal, and can be reviewed by the courts. Its need to be fully independent is less. Further, the commission’s powers to issue guidelines were fairly limited. The overlapping of different functions in a single administrative agency is not unusual and it is necessary for an admin agency to effectively perform the commission and tribunals intended role. Thus, the court found that there was no objective apprehension of bias in the tribunal. B. THE CONSTITUTION ACT, 1867 - In terms of their potential to generate litigation, the most important features of the Constitution Act 1867 are the

provisions of ss 91 – 95 that distribute legislative power between the federal and provincial levels of government - Issues that arise are (1) does legislation fall outside jurisdiction that enacted it; or (2) if a particular situation falls under

fed or prov jurisdiction. The following case is an example of number (2) above: Qu’Appelle Indian Residential School Council v Canada

F: A HR dispute arises between an employee of a native residential school board, and the board itself. The School Board argued that the Canadian HRT did not have jurisdiction, because the issue was one of labour and employment and as a result fell under provincial jurisdiction. The CHRT argued that they had jurisdiction because the issue involved aboriginal affairs which fell under federal jurisdiction. I: Who had jurisdiction? The federal gov’t or the prov gov’t? H: Resolution of federalism disputes typically turns on the way a court decides to characterise a particular law or activity. At issue is the character or nature of the activity concerned. In this case, the identified activity was the administration of an aboriginal reserve school, which falls under the federal mandate for aboriginal affairs. As such it should be characterized as coming within federal jurisdiction by virtue of section 91(24) of the constitution. The Indian Residential school and its employment relations come under federal jurisdiction because they always have. C. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS - The final type of constitutional litigation arises from the Charter - In Taylor the SCC considered an argument that the provision of s13(1) of the Canadian Human rights Act that made it a

discriminatory practice for a person to distribute hate messages by telephone unjustifiably infringed on freedom of expression protected by the charter. Two aspects of this decision are important: (1) Process of defining the substantive right protected by the relevant provision of the Charter ie freedom of expression did not deserve protection under s2(b) (2) Relationship between the substantive rights and the justification of limits on those rights under s 1

I: whether s13(1) in so far as it restricts the communication of certain telephone messages, violates the “freedom of expression as guaranteed by s2(b) of the Charter. H: s13(1) infringes s(2)(b) of the charter, the question now becomes whether the provision can be justified under s.1 of the charter. Expression is protected, regardless of its content, unless the form in which the expression is manifested is a violent act (R v Lucas, Keegstra) Even deliberate lies and falsehoods are protected by s2(b) (Keegstra) Most analysis done under s1. S13(1) is saved under s1. Oakes test Analysis

1. The law in question must serve a “pressing and substantial objective”. Look to intention of parliament when legislation was created.

2. Proportionality Test the means chosen by parliament to achieve its objective. i) Rational Connection: Is the law rationally connected to the objective/intention of parliament? The law must not be arbitrary, unfair or irrational. There remains no question that s13(1) is rationally connected to the aim of restricting activities antithetical to the promotion of equality and tolerance in society. ii) Minimal Impairment on the right or freedom in question. Did parliament carefully craft the law to minimally impair person’s right? Is there something else they could have done to minimally impair the right? Language of s13(1) of the CHRA extends only to that expression giving rise to the evil sought to be eradicated and provided a standard of conduct sufficiently precise to prevent unacceptable chilling of expressive activity. iii) Effects Balance: must balance the deleterious (damaging, harmful) effects of the measures which are responsible for limiting the rights or freedoms in question and the objective which has been identified as of “sufficient importance” i.e. to high if many innocent people will be convicted (deleterious effects out way salutary affects) H: Limitation imposed upon the freedom of expression by s13(1) is not unduly harsh and that the 3rd requirement of this test is satisfied.

Minority: s13(1) cannot be held as valid law as it fails under s1, the proportionality test: (i) rational connection: s13(1) is capable of catching a broad range of expression beyond that which can be justifiably limited in pursuit of the objectives of preventing discrimination and maintaining social harmony and individual dignity. To the extent it catches such expression it is not carefully tailored to its aims and lacks a rational connection with its objectives. (ii) Minimal impairment: s13(1) catches speech which is neither intended no calculated to foster discrimination. It catches speech which may be entirely accurate and truthful; speech which merely seeks to air legitimate group grievances; speech which merely exposes to ridicule; speech which merely communicates the information by telephone to as a single person who has the power to hang up the phone if he or she does not like the message; private speech between consenting participants. (iii) Importance of Right Versus Benefit Conferred: benefit of s13(1) falls short of outweighing the seriousness of the infringement which the section effect on freedom of expression.

III. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION - As Canadian courts have become more willing to take into account a number of other factors in determining the nature

of their institutional relationship with administrative decision makers. These factors have become part of the standard of review analysis that has become the first step a court must take when reviewing an administrative decision

- The SCC pragmatic and functional test is designed to extract from an assortment of variables Parliament’s intent as to how intense judicial scrutiny of administrative action ought to be. The basic question addressed by the standard review analysis is how deferential should the courts be to executive branch interpretations of the mandate accorded to them by statutes?

A. STANDARDS OF REVIEW DR. Q V. COLLEGE OF PHYSICIANS AND SURGEONS OF BRITISH COLUMBIA (2003 SCC): F: An Inquiry Committee of the appellant College found that the respondent physician had taken physical and emotional advantage of one of his female patients and was guilty of infamous conduct. On an appeal under the Medical Practitioners Act, the reviewing judge set aside the Inquiry Committee's decision, disagreeing with its findings as to credibility. The CA dismissed the College's appeal b/c it could not conclude that the reviewing judge was "clearly wrong". H: The appeal is allowed. The SOR is reasonableness simpliciter.

The reviewing judge only considered one of the four factors – the statutory right of appeal - and failed to address the need for deference b/c of assessment of creditability

A: In a case of JR, the Court applies the PFA, which calls upon a reviewing court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review, undergo significant searching or testing, or be left to the near exclusive determination of the decision-maker. To determine the appropriate standard of review of admin decision-makers, the pragmatic and functional approach must be applied. Need to consider the 4 contextual factors from Pushpanthan. Note: All four factors need not be considered in every decision. (1) Privative Clause (or Statutory Right of Appeal) - Strong Privative clause (deference) vs. Strong Appeal provisions (no deference) What is a full PC? “A full PC = decisions of the tribunal are final and conclusive from which no appeal lies and all forms of JR are excluded”

• “Final and Conclusive” may be sufficient • “Final settlement” falls somewhere between full PC and clause providing for review by appeal

(2) Expertise: (1) The court assesses the expertise of the tribunal.

a. Composition—lay persons or experts? b. Under enabling statute, how are individuals appointed? Permanent appointments = more likely to have expertise c. Specialized knowledge of the topic? d. Accumulated experience or skill?—dealt w similar cases over and over again? Ie. members have terms of no less

than 5 yrs. Does statute require academic qualifications? e. Is there a nexus btw the nature of the expertise and the question being asked?

(2) The court then considers the court’s own expertise relative to that the tribunal. a. If Tribunal has no more expertise than Court = less deference b. Example: if matter is about law society—courts will know more about this; Human Rights decisions—courts

usually deal w similar issues as Tribunal, so Tribunal has less relative expertise (3) The court then identifies the specific issue before the decision-maker relative to the expertise. [How relevant is

the expertise to the particular problem at issue? Pezim: securities regulation is highly specialized activity requiring specific knowledge and expertise. Questions were economic and out of courts domain, therefore Securities Commission had more expertise NB: Based on past case law labour law is an area that courts do accept that this is an area of expertise for labour relations board. They are given deference based on expertise factor. NB: Usually if the minister is making a decision it is said they have a high level of expertise and should be given deference: Baker

NB: Courts give deference to those interpreting Collective Agreements as they have expertise in doing so: Mossop (3) Purpose of the Act as a whole and the provision in particular: 1. What is the purpose of legislation in general and w/any particular provisions at issue 2. Does it relate to one single person (less deference)? Or Does the tribunal have to balance a range of interests (more

deference)? NB: A piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference. Two categories of decision-making regimes: (a) Polycentric decision makers = more deference - involves a large number of interlocking and interacting interests and considerations - Statute may require Tribunal to:

-­‐ Select from range of remedial choices/ admin responses -­‐ Concerned w protection of the public -­‐ policy issues -­‐ balances various interests/considerations

Examples: Ryan: took into account interests of public, lawyers CUPE: statute made Tribunal take into account the public interest to protect essential services (b) Bipolar decision makers = less deference - Tribunals that determine the rights or entitlements of individual parties - Emphasis on deciding facts in these kinds of proceedings—disputes btw 2 parties Example: Human Rights Tribunal (4) Nature of Question: Fact/law/mixed Question of fact, law or mixed fact and law? (Southam) (1) Question of law – less deference. General determination of law with precedent setting quality. Question of central importance to the legal system (2) Question of fact – more deference (3) Mixed fact and law—heavily fact based requires more deference while heavily law based requires less deference Mossop: Deference is given on questions of fact b/c of signal advantage. Less deference is warranted on questions of law b/c the finder of fact may not have developed any particular familiarity w/the issue of law B. THE STANDARD OF REVIEW IN OPERATION (CASE EXAMPLES) The next two decisions apply the “standard of review” analysis to determine the appropriate standard. - In MacLean, the court addresses arguments that the commission behaved in a procedurally unfair manner without doing

a separate “standard of review” analysis. - There is a difference between dismissal of complaints at the commission stages and at the tribunal stage, which affects

the standard of review analysis. - The commission is responsible for investigating and attempting to resolve complaints but it does not adjudicate

complaints or have the authority to make a final determination that the complaint is valid. - If compliant is forwarded by the commission to the tribunal, the tribunal normally holds a formal hearing to adjudicate

the complaint. MacLean v Canada What is the appropriate SOR of the Commission’s decision to dismiss the applicant’s complaints? - To determine the SOR of admin decision makers the pragmatic and functional approach must be applied. 4 contextual

factors must be balances to determine SOR: - (i) Presence of absence of a privative clause

o No privative clause of statutory right of appeal in legislation o Silence is neutral

- (ii) Expertise of tribunal relative to reviewing court o Commission has greater expertise in fact finding and screening complaints favours greater deference on JR

- (iii) Purpose of the legislation and the provision in particular o Parl intended reviewing courts to refrain from intervening lightly in the screening decision of the

commission. This leads to greater deference of commission’s decision - (vi) Nature of question fact, mixed fact and law, and fact.

o Fact and law (very fact intensive) provides for greater deference to the commission HELD: Balancing all these factors the commission’s decision should be reviewed on a standard of reasonableness simplicitor. Procedural Issues Was procedural fairness breached by failing to provide the applicant with a copy of all materials it considered in reaching its decision? o No, the commission is only required to disclose to one party, comments it receives from another party when the

comments contain new facts not in the investigation report. If no new facts are raised then disclosure not require by rules of procedural fairness. Commission did not breach the duty of PF owed to applicant.

- Was procedural fairness breached for not providing sufficient reasons to the applicant for its decision to dismiss complaint? • Commissions reasons are brief but advise applicant why the commission decided to dismiss his compliant

C. REMEDIES - Parliament can create a right of appeal to the court from decisions of admin agencies - Where rights of appeal are not made available it is usually open to those seeking relief using a series of judicial review remedies: certiorari, prohibition, mandamus and herbas corpus

CASES Dunsmuir v. New Brunswick Facts: D was a civil servant employed in the Depart of Justice in NB. The Gov’t terminated his employment, due to a number of problems, and offered him severance in lieu of notice. D argued that he was entitled not just to a contractual remedy but also to fairness before being terminated (e.g. an opportunity to know the concerns of the employer and a chance to address them). An arbitrator was appointed to address D’s challenge and concluded that fairness was required, and had not been provided. The reviewing judge reversed this finding, stating that the applicable SoR was correctness, reasonableness simpliciter and patent unreasonableness. The notion that a single decision by a single decision-maker would require a court to parse through three different SoR’s vividly illustrates the complexity that the SC then sets out to remedy. The CoA for NB dismissed the appeal from the reviewing judge, and the matter thus ended up at the SC. Issues: (1) What is the approach to be taken in judicial review of decisions of administrative tribunals? (2) Should D have been afforded PF in his dismissal? Principles:

- There are now only two SoR – “reasonableness” and “correctness” (the court fused reasonable simpliciter with patent unreasonableness).

- In determining which standard to use, courts will look at the four factors below. If a factor leads to showing more deference to a decision-maker, this will militate towards using a standard of reasonableness. The standard of correctness will apply where less deference is warranted.

Standard of Review Analysis

- If no statutory standard- is there any binding precedent? If not which of the four Pushpanthan factors are present?

1. Is there a privative clause?

- Privative Clause: Strong PC = deference

- Examples: “the decision of the tribunal is final”; “no decision or order of the board may be reviewed in any court”; “Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”; and “Decisions and findings of Board are all final and conclusive…”

- Statutory right of appeal: where there is a statutory right of appeal, this is not determinative of a correctness standard of review (Pezim). If that Tribunal has expertise, then it is possible for standard of reas simp. Strong appeal provision = no deference thus correctness will apply

2. The purpose of the tribunal as determined by interpretation of enabling legislation (Mandate)

- Consider whether the role being fulfilled by the tribunal’s decision fulfills a fundamental purpose of the enabling Act. If so → more deference.

- Look at general purpose of legislation in general / provisions at issue. Does it relate to 1 person (Bipolar DMless deference)? OR does the Tribunal have to balance a range of interests (Polycentric DM- more deference).

3. The nature of the question at issue. If the answer has less importance to the legal system, then more deference is

afforded and the standard of reasonableness should apply. - Question of fact, law or mixed fact and law?

(1) Question of law – less deference. General determination of law with precedent setting quality. Question of central importance to the legal system (2) Question of fact – more deference (3) Mixed fact and law—heavily fact based more deference, heavily law based- less deference Bastarache and LeBell JJ @ [51]: “questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness”

4. The expertise of the tribunal. This should be considered in relation to the court’s expertise on the issues in question. - The issue is not simply expertise, but the relative expertise of the tribunal. - Courts may look at the area of tribunal, or at the process of appointments for tribunal members. (ie no particular

qualifications required = less indication of expertise). - Special expertise = deference

Three step test for assessing expertise set out in Pushpanathan.

(4) The court assesses the expertise of the tribunal. a. Composition—lay persons or experts? b. Under enabling statute, how are individuals appointed? Permanent appointments = more likely to have expertise c. Specialized knowledge of the topic? d. Accumulated experience or skill?—dealt w similar cases over and over again? Ie. members have terms of no less

than 5 yrs. Does statute require academic qualifications? e. Is there a nexus btw the nature of the expertise and the question being asked?

(5) The court then considers the court’s own expertise relative to that the tribunal. a. If Tribunal has no more expertise than Court = less deference b. Example: if matter is about law society—courts will know more about this; Human Rights decisions—courts

usually deal w similar issues as Tribunal, so Tribunal has less relative expertise (6) The court then identifies the specific issue before the decision-maker relative to the expertise. [How relevant is

the expertise to the particular problem at issue?] IMPORTANCE OF DUNSMUIR: As of Dunsmuir there are only 2 standards. Patent unreasonableness no longer applies. Simplified the standard of review. (1) The Correctness Standard

Rule: When applying the correctness standard the reviewing court will not show deference to the board’s decision or reasoning process. If the could decides in the end that it does not agree with the decision maker it will substitute its own decision for that of the board’s. Correctness Applies to: (1) Question of law of central importance to legal system and outside expertise of decision-maker; (2) Question of jurisdiction between two or more tribunals; (3) Constitutional issue (4) If outside expertise of DM then certainly correctness (5) Statutory right of appeal (6) No Expertise (2) The Reasonableness Simpliciter Standard Rule: Reasonableness is concerned mostly w/existence of justification, transparency and intelligibility w/in decision-making process. Also whether decision falls w/in a range of possible, acceptable outcomes, defensible in respect of the facts and law. Ask: (1) If there was transparency, justification and intelligibility of the Tribunal throughout the decision-making process; (2) What would a reasonable person think (significant change). Look to see whether the decision of the tribunal falls within range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Reasonableness Applies to: (1) Questions of fact, (2) Discretion and Policy (3) As well as question where the legal issues cannot be easily separated from the factual issues (4) If interpreting a home statute and/or closely related statute then reasonableness but this can be trumped if there is a statutory right of appeal as it pushes us more towards a correctness SOR (5) A strong privative clause (6) Expertise

TOPIC 5: Relationship of Aboriginal Peoples to the Canadian State

ARTICLES

“Mary C Hurley, “The Crown’s fiduciary relationship w/ Aboriginal peoples”: A. BACKGROUND: Aboriginal peoples have always had a unique legal and constitutional position:

(1) First there was the Royal Proclamation of 1763, which reserved to the Crown the exclusive right to negotiate cessions (giving up) of Aboriginal title. This was due to the Crown’s concern with the abuses committed by purchasers of Aboriginal lands.

(2) Then came subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over “Indians, and Lands Reserved for the Indians.” This section reflects the “protective provisions” of the Royal proclamation.

(3) Finally, section 35 of the Constitution Act, 1982 recognizes and affirmed “existing aboriginal and treaty rights” of Canada’s Aboriginal peoples, defined as including the “Indian, Inuit and Métis peoples

B. JUDICIAL INTERPRETATION: - “fiduciary relationship” is one in which someone in a position of trust has “rights and powers which he is bound to

exercise for the benefit” of another. The SCC has adapted these largely private law concepts to the context of Crown-Aboriginal relations

- In the 1950s the court observed in the Indian Act “aboriginals are wards of the state, whose care and welfare are a political trust of the highest obligation”

- Guerin v R established that: o the fiduciary relationship is rooted in the concept of Aboriginal title, the Aboriginal interest in land may

be alienated only via surrender to the Crown; o this requirement, which places the Crown between the Aboriginal group and third parties to prevent

exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation into a fiduciary one;

o in the unique Crown-Aboriginal relationship the fiduciary obligation owed by the Crown is sui generis/unique

- The scope of the relationship was extended in R v Sparrow, which was the Court’s first s 35 decision: o the “general guiding principle” for section 35 is that “the Government has the responsibility to act in a

fiduciary capacity with respect to aboriginal peoples”. o the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and

the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified”;

o “[t]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test.

- See also R v Adams, Delgamuukw v BC where the court expanded upon the crown’s obligation to consult affected Aboriginal groups, finding that the consultation must be in good faith. Also the crown is under a moral, not legal, obligation to enter into and conduct negotiations in good faith.

- Wewaykum Indian Band v Canada (a non-section 35 decision) which set out some limitations of the fiduciary duty due to a flood of fiduciary claims after the above noted cases (e.g. that the fiduciary duty “does not exist at large” and must focus on the particular obligation or interest in dispute, crowns fiduciary duty varies depending on the nature and importance of the interest sought to be protected, crown is not an ordinary fiduciary and can have regard to interests of many parties not just aboriginals)

C. EXTRA-JUDICIAL CONSIDERATIONS: - Provinces and territories are also bound by fiduciary obligations, however Parliament has primary jurisdiction in

relation to aboriginal peoples under s 91(24) - The fed gov’t identifies 2 principal categories of fiduciary obligations for government managers to take into account: (1) Guerin-type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land). (2) Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights NB: Crown-Aboriginal fiduciary relationship may be found in a variety of other documents (see article page 6 – 7) D. COMMENTARY: - The application of SCC decisions confirming the fiduciary relationship has yet to be fully defined in a number of

contexts, for example, land claim and self-government negotiations. Similarly, the standard(s) for government conduct that will uphold “the honour of the Crown” in various situations require clarification

- SCC decisions confirm the fiduciary relationship does have legal and constitutional scope but concept itself and obligations arising from it are still being developed

“Highlights from the Report of the Royal Commission on Aboriginal Peoples” CHAPTER 1: LOOKING FORWARD LOOKING BACK STAGE 1: Separate worlds: - Aboriginals inhabited the Americas. They were not terra nullius (empty land) as the Europeans thought - Aboriginal cultures were shaped by environment and the evolution of technology STAGE 2: Nation-to-nation relations - Encounters btw aborginal and non-aboriginal people began to increase - For at least 200 years, the Europeans (French and British) would not have been able to survive the climate, succeed in

their business (whaling, fishing, fur trade) or dodge each other’s bullets without aboriginal help. - Cautious co-operation was the theme of this period (1500s which lasted into the 18 – 19th century). Aboriginals in

charge of own affairs - Co-operation was formalized in two important ways: (1) treaties (as set out in writing by British French and other

European negotiators) and (2) the Royal Proclamation of 1763 - Treaty Making:

o Treaties were a way for Europeans and Abo’s to recognize each others sovereignty and mutual respect o Ab’s later found out that the treaties were used different to what they expected. Colonial powers expected First

Nations to acknowledge the authority of the monarch and to cede large tracts of land to British control for settlement and to protect it from seizure by other European powers or by the US but the Crown used them as a tool for clearing aboriginal people off desirable land.

- The Royal Proclamation of 1763: o The Royal Proclamation of 1763 was a defining document in the relationship between Aboriginal and non-

Aboriginal people in North America. o The proclamation summarized the rules that were to govern British dealings with Aboriginal people - especially in

relation to the key question of land. o Aboriginal people were not to be "molested or disturbed" on their lands

o Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown.

o The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal political authority.

o It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement. It finds a balance in an arrangement allowing Aboriginal and non-Aboriginal people to divide and share sovereign rights to the lands that are now Canada.

STAGE 3: Respect gives way to domination

- Settlers population began to out grow aboriginals population, fur trade was dying, settlers no longer needed aboriginal nations as military allies and ideology proclaiming European superiority over all other peoples of the earth was taking hold

- Ironically, the transformation from respectful coexistence to domination by non-Aboriginal laws and institutions began with the main instruments of the partnership: the treaties and the Royal Proclamation of 1763

- Then came Confederation in 1867, a new partnership b/w English and French, which was negotiated w/out Aboriginal nations

- Then came the BNA Act, young Canada’s new constitution, which made “Indians and Lands reserved for the Indians” subject for government regulation

- Colonial and Canadian gov’t established reserves of land for aboriginal people, there was also attempts at assimilation

STAGE 4: Renewal and renegotiation

- Policies of domination and assimilation battered Aboriginal institutions, sometimes to the point of collapse. Poverty, ill health and social disorganization grew worse. Aboriginal people struggled for survival as individuals, their nationhood erased from the public mind and almost forgotten by themselves.

- Resistance to assimilation grew weak, but it never died away. In the fourth stage of the relationship, it caught fire and began to grow into a political movement.

- One stimulus was the federal government's White Paper on Indian policy, issued in 1969 - They studied their history and found evidence confirming that they have rights arising from the spirit and intent of

their treaties and the Royal Proclamation of 1763. They took heart from decisions of Canadian courts, most since 1971, affirming their special relationship with the Crown and their unique interest in their traditional lands. They set about beginning to rebuild their communities and their nations with new-found purpose.

- A dozen years of intense political struggle by Aboriginal people, including appeals to the Queen and the British Parliament, produced an historic breakthrough: "Existing Aboriginal and treaty rights" were recognized in the Constitution Act, 1982.

- The way forward: o The policies of the past have failed to bring peace and harmony to the relationship between Aboriginal

peoples and other Canadians. They have also failed to bring contentment or prosperity to Aboriginal people

o But governments have so far refused to recognize the continuity of Aboriginal nations and the need to permit their decolonization at last. By their actions, if not their words, governments continue to block Aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and work out their own solutions to social, economic and political problems. It is this refusal that effectively blocks the way forward.

o The new partnership we envision is much more than a political or institutional one. It must be a heartfelt commitment among peoples to live together in peace, harmony and mutual support.

o We propose 4 PRINCIPLES as the basis for a renewed relationship: recognition, respect, sharing and responsibility. We propose that treaties be the mechanism for turning principles into practice

CHAPTER 2: RESTRUCTURING THE RELATIONSHIP

- To restore the essence of the early relationship between Aboriginal and settler societies described in Chapter 1, the elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood. The right to self government important.

Self-Government: - The right is inherent in Aboriginal people and their nationhood - Three other sources of the right of self-government apply to Aboriginal peoples: (i) international law (ii) Canadian

history (iii) right to self gov’t protected by the constitution - We hold that Aboriginal governments are one of three orders of government in Canada - federal,

provincial/territorial, and Aboriginal. - To have self-government, they need to establish larger communities, develop human resources, build a public service - We propose a new Royal Proclamation. The proclamation should be followed by the enactment of companion

legislation by the Parliament of Canada - legislation to create the new laws and institutions needed to implement the renewed relationship. Their combined purpose is to provide the authority and tools for Aboriginal people to structure their own political, social and economic future.

- 3 types of self government: nation government, public government, and community interest government - Financing self government is another issue (e.g. developing own source revenues such as a taxation system) - to accomplish this the federal government will need to undergo some reorganization of its own ie eliminate the

department of aboriginal affairs and northern development and the ministerial position that goes with it and create a new ministerial position for abo relations.

- the right to abo gov’t to exercise authority over all matters relating to the good gov’t and welfare of abos peoples and their territories is an exisiting abo right and recognized by the constitution

Redistributing lands and resources: - Aboriginal land, in relation to the size of Canada, is small - Treaty agreements did not end the conflict. - Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and

some have been successful. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues - they have legal rights.

- The law of Aboriginal title establishes three things: (1) Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their history of having lived in and used those lands since time immemorial. (2) Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that nation's traditional lands. (3) The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests in those lands.

- But the courts are a cumbersome, costly and sometimes insensitive way to solve the human issues that underlie land and resource claims. Negotiated settlements are favourable.

- The existing land claims settlement process is deeply flawed: It assumes that no Aboriginal rights apply on Crown land unless Aboriginal nations can prove otherwise. This position is at odds with the doctrine of continuing Aboriginal title and with the duty of the Crown to protect Aboriginal interests. The government of Canada controls the process. It acts as defender of the Crown's interests and also as judge and jury on claims. This is a clear conflict of interest, since it considers itself the 'loser' when a claim is settled in favour of Aboriginal people

- A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of a new treaty process

- Failure to redistribute land and resources will doom Aboriginal people to a state of dependency on other Canadians - a sure recipe for grievance on both sides

Economic Development

- Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new governments a success

- Several factors will make revitalization of Aboriginal economies a big challenge: dependence on government for funds; inequality; variability (in that aboriginal communities are located all over the country)

- Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations - Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for

most nations will come from access to a fair share of lands and resources. But that won’t be enough. We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development

- The employment problem is immense, and needs reform/support - Public investment in education and training is vital to improve employment prospects for Aboriginal people in the

existing job market. The employment problem is immense. - Alternatives to welfare are needed. There may never be enough jobs to go around in Aboriginal communities. Yet

social assistance, as now delivered, is not a good way of providing cash income, for it traps recipients in a marginal existence Aboriginal entrepreneurs face other obstacles too: limited capital for investment, distrust from banks and other financial institutions, tiny local markets, absence of local business services and advisers, hostility at home & nearby communities

Treaties: the mechanism for change

- The Commission proposes a wide-ranging agenda for change to achieve two goals: o Rebuilding Aboriginal nations as the best and proper way for Aboriginal people to protect their heritage and

identity, restore health and prosperity to their communities, and reorganize their relations with Canada. o Restoration of relations of mutual respect and fair dealing between Aboriginal and non-Aboriginal people.

- The central mechanism of change is the treaty. We propose that the treaty relationship be restored and used from now on as the basis of the partnership between Aboriginal and non-Aboriginal people in Canada. This will require fulfillment and renewal of existing treaties and the making of new treaties with abo peoples who do not have them now.

- Implementation of treaty terms and promises was problematic from the start. As time passed and the balance of power between Aboriginal and non-Aboriginal people shifted, governments were able to ignore terms and promises that no longer suited them

- Historical evidence is clear: the written treaties often are not a full and fair statement of agreements reached. The Commission has concluded that the treaties should be implemented to reflect their spirit and intent - not just their words, whether spoken or written

- It is deeply self-serving of Canadian authorities to insist on a literal interpretation of such clauses. If the relationship between Aboriginal and non-Aboriginal people is ever to be set right, the underlying intentions of treaty promises - not the letter of outdated terms - must guide their present-day implementation

- We believe that those without a treaty, accord, compact or other agreement clarifying their relationship with Canada have the right to seek one. For its part, Canada has a duty to conclude such treaties.

- We propose a new treaty process to lead the way to reconciliation between Aboriginal and non-Aboriginal people over the next 20 years. An agreed treaty process can be the mechanism for implementing virtually all the recommendations in our report - indeed, it may be the only legitimate way to do so.

- To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them.

- The main objectives of a new treaty-making process would be to establish the full jurisdiction of those nations as part of an Aboriginal order of government and expand the land and resource base under their control

The relationship restructured

- We have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of tension and failed initiatives to one of co-operation and growing successes.. Let us review them briefly:

(1) The federal government should begin the cycle of renewal with an act of national intention - a new Royal Proclamation (We propose a new Royal Proclamation, stating Canada's commitment to principles of mutual recognition, respect, responsibility and sharing in the relationship between original peoples and those who came later)

(2) Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them.

(3) The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to establish the new relationship

(4) Aboriginal nations should begin their rebuilding processes

(5) All governments should prepare to enter into the new treaty process.

(6) Governments should take interim steps, as proposed by this Commission, to redistribute lands and resources. (7) Aboriginal and non-Aboriginal governments should co-operate to stimulate economic Development

CHAPTER 3: GATHERING STRENGTH

- Aboriginal people experience ill health, run-down and overcrowded housing, polluted water, inadequate schools, poverty and family breakdown at rates found more often in developing countries than in Canada. These conditions are inherently unjust. They also imperil the future of abo communities and nations

- To take charge of their communities strong bonds of family that gave individuals and communities their stability must be rebuilt

- Aboriginals want to control child services as family bond starts with the children - In order to repair the family, action must be taken in (i) rehabilitation services to rehabilitate parents with

serious problems (ii) preventive services – to prevent serious problems (iii) continued reform of existing services - need to improve services to prevent family violence - also a need to prevent illness amongst abos. Need recourses to reduce infant mortality, tuberculosis, diabetes, heart

disease and other illness. More illness care services will not turn tide what is needed is a new strategy for abo health & healing.

- Short term, prevention treatment and rehab services play an important role. In the long term abos need to take control of the health care services, train abos in health services and management of health services and community infrastructure to deal with clean water, waste management and housing problems.

- We propose that gov’t and educational institutions undertake to train 10,000 abo people for careers in the health and social services, including professional and management roles.

- Furthermore aboriginals should take greater control over schooling. The current systems sees many aboriginals dropping out of high school. We recommend the development of aboriginals controlled education systems, recognized by all gov’ts and able to plan and deliver lifelong learning.

- Adults should also have opportunity to attend school to acquire the necessary skills Protecting Aboriginal Arts and Heritage

- Aboriginals should be better represented in our media (ie radio, TV). - Commission sees a need for active support to encourage revitalization and development of visual, literary and

performing arts - Protective action should extend to the material forms of aboriginal cultures (artifacts, works of art and craft,

historical sites) and to their dynamic forms – songs, dances stories and teachings that bring collective memory insight and inspiration to abo people and to the world

- Gov’t should cooperate in making an inventory of sacred sites, in part so that those threatened by development or natural erosion can be saved.

- Language is one of the main instruments for transmitting culture from one generation to the next and should be protected

CHAPTER 4: PERSPECTIVES AND REALITIES

- Woman play a prominent part in the political and cultural life of many traditional aboriginal societies. As they give birth to children and raise them. Woman want to see their leaders and communities take a 0 tolerance stand against family violence.

- With the help of elders, abo nations have maintained their traditional values, language and knowledge base - Youth are an important part of abo communities and need learning institutions run by abo people for abo people.

They need better financial support to undertake their studies. - Gov’t of Canada should deal with Metis people, like all other abo peoples, on a nation to nation basis. S91(24) of

the consti includes Metis people. - Urban aboriginals: those who live in cities. Northern aboriginals: those who live up north - We propose that all levels of gov’t co-operate to increase support for cultural survival initiatives - self gov’t in urban areas? Aboriginals should have authority to influence local gov’t activities, or abos would

operate some services in the community for themselves ie schools, daycares, housing services - Canada’s cities offer many chances for building bridges between cultures and Canadians should take a bigger

initiative to do so. CHAPTER 5: RENEWAL: A TWETY-YEAR COMMITMENT

- First step is for the gov’t to make a clear commitment to renewing the relationship between abo and non abo people, guided by the principles of recognition, respect, sharing and responsibility. Best way to do this is by a new royal proclamation.

- We propose that the fed gov’t set up an abo people review commission to assess the actions of governments in accomplishing the tasks on the agenda for change

ABORIGINAL RIGHTS - Calder Case recognized aboriginal rights and said the feds have to negotiate with the aboriginals - s.35(1)” The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” - Feds have right to legislate with respect to Aboriginals under s91(24). s35(1) limits the exercise of that power R v. GUERIN (Crown owes fiduciary duty to Aboriginals) FACTS: Musqueam band surrendered land to the Crown to lease for a golf course. They were not told that the rent increases would be limited to 15% per year and that the golf course had the right to remove any buildings or improvements. The surrender document did not make reference to the oral terms, which the Band understood would be embodied into the lease. The Band was not given a copy of the lease, and did not receive one until 12 years later after several requests. Damages awarded at $10 million ISSUE: Does the Crown have a fiduciary duty with respect to the Band? If so, did the crown fail to exercise the necessary degree of care? HELD: By obtaining a much less valuable lease then promised, the Crown breached their fiduciary obligation owed to the Band. ANALYSIS

- S.35(1) is NOT PART of the Charter; therefore because it is in PART II of the Constitution Act, it is not subject to s.33

- Disposing of Indian land places upon the Crown an equitable obligation to deal with the land for the benefit of the Indians.

- Crown has discretion but duty is of loyalty to aboriginals: discretion must be exercised for their benefit. R v. VAN DER PEET (Test used to identify if an aboriginal right exists)

- Does [Aboriginal group] have an aboriginal right? Aboriginal rights are protected by s.35(1) of the Constitution for the purpose of recognising that Canada was already occupied by distinctive aboriginal societies and to reconcile Crown sovereignty over the occupied lands (Van der Peet). It should also be noted that Van der Peet held that aboriginal rights are not universal; so where a right has been affirmed for one group, it does not necessarily establish a right for all aboriginal groups. In the same case, Lamer C.J. established that an aboriginal right involves a custom integral to the distinctive culture of the aboriginal group claiming the right.

FACTS: The appellant , Dorothy Van der Peet, was charged under s 61(1) of the Fisheries Act with the offence of selling fish caught under the authority of an Indian food fish licence. She argued that as a member of the Sto:lo, she was exercising an existing aboriginal right to sell fish. ISSUES: Does s 35(1) recognize and affirm the right of the Sto:lo to sell fish? Does aboriginal right include right to harvest for commercial gain? When is an aboriginal right in existence? How are the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined? HELD: SCC upheld decision that prior to contact, commercial fishing for band was merely incidental to fishing for food. V failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo society which existed prior to contact. Therefore, NOT an aboriginal right under s 35(1). ANALYSIS:

- s 35(1) should be given a generous and liberal interpretation in favour of aboriginal people - Must use a purposive approach: the aboriginal rights recognized and affirmed by s35(1) must be directed at

identifying the crucial elements of those pre existing distinctive societies. In order to be an aboriginal right an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right

Distinctive Culture Test (condensed into a 3-Part test below) 1. Courts must take into account the perspective of aboriginal peoples themselves

- Must be sensitive to the aboriginal perspective. 2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant

has demonstrated the existence of an aboriginal right 3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in

question - Must have an independent significance – not incidental). Must be rooted in a particular community (makes that

culture distinctive/what it is). - Distinct Unique, Distinctive one of the things that made the society what it is.

4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact

- Time element: only those that arose pre-contact (frozen rights approach). Continuity must be identifiable (OK to have some interruption or evolution).

- If it started because of European arrival, it is not a protected right 5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating

aboriginal claims - Conclusive evidence is not required – just show pre-contact origin. Must be flexible re evidence (different

standards) - Must accept oral evidence

6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis - Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis. - The existence of the right will be specific to each aboriginal community.

7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists

- Must be integral to the aboriginal community in question not incidental 8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not

require that that practice, custom or tradition be distinct - Distinct Unique, - Distinctive one of the things that made the society what it is.

9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence

- Whether the practice, custom or tradition was an integral part of the community’s culture before the arrival of the Europeans.

- If the practice, custom or tradition adapted due to their arrival is not relevant. 10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies

and cultures of aboriginal peoples - Must identify the precise nature of the appellant’s claim - Once the above is satisfied ask: was the practice of exchanging fish for money or other goods an integral part of the

specific distinctive culture of the Sto:lo prior to contact with Europeans? VAN DER PEET TEST (aboriginal right’s test)

1. What is the Nature of the Claim? a. Characterise it in accurate language e.g. “right to sell fish for money or trade”

2. Is the right claimed integral to a distinctive society? a. DISTINCTIVE: is it a defining feature of the group?

i. Doesn’t have to be “distinct” → many groups shared similar integral customs b. INTEGRAL: did it have central significance as a defining feature of the society?

3. Does the right have Continuity with customs Prior to Contact? a. Must be consistent with past customs b. Evolution of the custom is permitted c. Interruption and resumption of the custom is permitted

NB: It should also be noted that, while there is an aboriginal right to [activity], the right may be extinguished by the Crown provided there was a clear and plain intention to do so before s.35(1) was adopted in 1982 (Sparrow). The onus rests on the State. R. v. SPARROW (Interference with an Aboriginal Right)

- After establishing that there is an aboriginal right, the questions remain as to whether the right has been extinguished and whether infringement is justified. Only the Feds can extinguish a right through exercise of s.91(24) (Delgamuukw). The Court in Sparrow established a test for addressing these questions:

FACTS: Musqueam Indian charged under Fisheries Act using a longer drift net than permitted by terms of the Band’s Indian food fishing licence but has defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band's licence is inconsistent with s. 35(1) of the Constitution Act, 1982 and therefore invalid ISSUE: Is parliaments power to regulate fishing limited by s.35(1)? What is the definition of “existing rights” in s.35? Can these rights be regulated? Whether the respondent was exercising an “aboriginal right” within the meaning of s 35(1) HELD: that Sparrow was exercising an ‘inherent’ Aboriginal right ANALYSIS

- The word “existing” in s 35 means that s 35 only protects unextinguished aboriginal rights and treaties; - Existing was interpreted as referring to those rights that were not extinguished prior to the introduction of the 1982

Constitution (April 1982). This means that extinguished rights are not revived by the Constitution Act, 1982. A right that has been validly extinguished before 1982 is not protected by s 35. These “existing rights” can be regulated as long as they pass the test for justification

- The phrase “existing aboriginal rights” must be interpreted flexibly as to permit their evolution over time (rejected the alternate ‘frozen’ interpretation referring to rights that were being exercised in 1982)

- Up until 1982, Feds could extinguish aboriginal rights. Can’t do that now however because of s.35 they have constitutional right to existing aboriginal rights. If you want to show that you’ve extinguished an aboriginal right then feds need to point to clear and plain language that they intended to do so

- The words “recognized and affirmed” in s 35 mean that aboriginal rights/treaties are constitutionally protected, but are not absolute rights, and may be infringed if the test of “justified interference” is met;

- s 35(1) is a constitutional guarantee of aboriginal and treaty rights. However, the guarantee isn’t absolute, and the s 35 rights are subject to regulation by federal laws, provided that the laws meet a standard of justification.

JUSTIFICATION FOR INTERFERENCE WITH ABORIGINAL RIGHTS TEST 1. Is there an existing aboriginal right? (Van der Peet) [onus is on the natives] 2. Has the right been extinguished by the Federal government? [onus is on the State]

- By a clear and plain intention pre-1982? Where the Crown proves a clear and plain intention to extinguish an Aboriginal right before the adoption of s.35(1) in 1982, that right will be said to no longer exist

- A regulation is insufficient to extinguish an aboriginal right. 3. Was there actual interference with the right? [onus on natives] CONSIDER:

- Unreasonableness of infringement - Undue hardship on natives - Any denial of preferred means to exercise right

4. Can it be justified? [onus on State] NOTE: given the Fiduciary Obligation of the Crown (Guerin), we must consider: - Does the government have a valid objective for interfering? (e.g. conservation) - Has priority to exercise right been safeguarded for aboriginals? - Is there minimal infringement on the rights to achieve the valid objective? - Was fair compensation given to the natives in return for infringement? - Did the government consult the relevant aboriginal group?

R v SAPPIER; R v GRAY (a practice undertaken for survival purposes can still create an aboriginal right) FACTS: The respondents, S and P who are Maliseet and G who is Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents’ respective First Nations. Those taken by S and P were to be used for the construction of P’s house and the residue for community firewood. Those cut by G were to be used to fashion his furniture. The respondents had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. ISSUE: Whether the right to harvest timber existed pre-contact for the relevant aboriginal peoples. HELD: The appeals should be dismissed. The respondents made out a defence of aboriginal right. The right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling. Any other conclusion would freeze the right in its pre-contact form. ANALYSIS :

- The respondents rely on the pre-contact practice of harvesting timber in order to establish their aboriginal right. - Lamer C.J. acknowledged in Van der Peet, that “the doctrine of aboriginal rights exists, and is recognized and

affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries”.

Application of the Distinctive Practices Test From R. v. Van der Peet: 1. What is the Nature of the Claim?

- the relevant practice is harvesting wood. - The record shows that wood was used to fulfil the communities’ domestic needs for such things as shelter,

transportation, tools and fuel. - Therefore, likely that the respondents’ claim as of a right to harvest wood for domestic uses as a member of the

aboriginal community will stand. 2. Is the right claimed integral to a distinctive society?

- Evidence established that the wood was critically important to the Maliseet and Mi’Kmaq people pre-contact - Even though the practice may have been undertaken for survival purposes, it can still be considered integral to an

Aboriginal community’s distinctive culture. 3. Does the right have Continuity with customs Prior to Contact?

- Although the nature of the practice which founds the aboriginal right claim must be considered in the context of the pre-contact distinctive culture of the particular aboriginal community, the nature of the right must be determined in light of present-day circumstances; “logical evolution means the same sort of activity, carried on in the modern economy by modern means.”

R v POWLEY (modification of Van Der Peet test to Metis) FACTS: a father and son, Steve and Roddy Powley, were charged in 1993 with possession of a moose they had shot out of season and without a licence in Sault Ste. Marie. The pair pleaded not guilty on the grounds that, as Métis, they had an Aboriginal right to hunt that was unjustly infringed by Ontario game laws. ISSUE: Whether members of the Métis community in and around Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35. HELD: the members of the Métis community in and around Sault Ste. Marie have, under s. 35(1) of the Constitution Act, 1982, an aboriginal right to hunt for food that is infringed without justification by the Ontario hunting legislation. ANALYSIS:

- Modified certain elements of the pre-contact test from Van Der Peet to reflect the distinctive history and post-contact ethnogenesis and evolution of the Métis

- The pre-contact test might prove inadequate to capture the range of Métis customs, practices or traditions that are entitled to protection, since Métis cultures by definition post-date European contact.

- The Supreme Court found the appropriate way to define Métis rights in s. 35 was to modify the test used to define the Aboriginal rights of Indians (the Van der Peet test)

METIS RIGHTS TEST (Modified Van Der Peet Test) 1. Characterization of the right: Here it was a harvesting right. The Court said that the Métis have a general right to hunt for food in the traditional hunting grounds of the Métis community. 2. Identification of the historic rights bearing community: An historic Métis community was a group of Métis with a distinctive collective identity, who lived together in the same geographic area and shared a common way of life. The historic Métis community must be shown to have existed as an identifiable Métis community prior to the time when Europeans effectively established political and legal control in a particular area. 3. Identification of the contemporary rights bearing community: Métis community identification requires two things: (1) The community must self-identify as a Metis community; and (2) There must be proof that the contemporary Métis community is a continuation of the historic Métis community. 4. Verification of membership in the contemporary Metis community: There must be an “objectively verifiable process” to identify members of the community. This means a process that is based on reasonable principles and historical fact that can be documented. The Court set out three components to guide the identification of Métis rights-holders: (1) Self-identification –

- the individual must self-identify as a member of a Métis community. It is not enough to self-identify as Metis, that identification must have an ongoing connection to an historic Metis community.

(2) Ancestral Connection – - There is no minimum “blood quantum” requirement, but Métis rights-holders must have some proof of ancestral

connection to the historic Métis community whose collective rights they are exercising. - The Court said the “ancestral connection” is by birth, adoption or other means. “Other means” of connection to the

historic Métis community is still open-ended. (3) Community Acceptance –

- In order to claim s. 35 rights it is not enough to prove a genealogical connection to a historic Métis community and then join a Métis organization. One must have a “past and ongoing” relationship to the Métis community.

- There must be proof of acceptance by the modern community and evidence that is “objectively verifiable.” Ie. documented proof and a fair process for community acceptance.

- The core of community acceptance is about past and ongoing participation in a shared culture, in the customs and

traditions that reveal a Métis community’s identity. NB: Difficulty in determining membership in the Métis community does not mean that Métis people do not have rights 5. Identification of the relevant time: For Indians, the Court looks to a “pre- contact” time. The Court modified this test for Métis in recognition of the fact that Métis arose as an Aboriginal people after contact with Europeans. The Court called the appropriate time test for Métis the “post contact but pre-control” test and said that the focus should be on the period after a particular Métis community arose and before it came under the effective control and influence of European laws and customs. 6. Was the practice integral to the claimant’s distinctive culture: Is the practice - subsistence hunting - is an important aspect of Métis life and a defining feature of their special relationship to the land? The Court specifically noted that the availability of a particular species over time is not relevant. The issue is really about the right to generally. The Court found that, for the historic Sault Ste Marie Métis community, hunting for food was an important and defining feature of their special relationship with the land. 7. Continuity between the historic practice and the contemporary right: There must be some evidence to support the claim that the contemporary practice is in continuity with the historic practice. Aboriginal practices can evolve and develop over time. 8. Extinguishment: The doctrine of extinguishment applies equally to Métis and First Nation claims. Extinguishment means that the Crown has eliminated the Aboriginal right. Before 1982 this could be done by the constitution, legislation or by agreement with the Aboriginal people. A Métis individual, who is ancestrally connected to the historic Métis community, can claim Métis identity or rights even if he or she had ancestors who took treaty benefits in the past. 9. Infringement: No rights are absolute and this is as true for Métis rights as for any other rights. This means that Métis rights can be limited (infringed) for various reasons. If the infringement is found to have happened, the gov’t must be able to justify its action. 10. Justification: Conservation, health and safety are all reasons that government can use to justify infringing an Aboriginal right. But they have to prove that there is a real threat. The Métis are entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria set out in Sparrow. HAIDA NATION v BC (duty to consult and accommodate w Aboriginal peoples) FACTS: For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title has not yet been legally recognized. The Province of British Columbia issued a “Tree Farm License” (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6. The Minister approved a transfer of TFL 39 to Weyerhaeuser granting them the right to harvest the forests in Block 6 of the land (which is subject to a land title claim by the Haida people). ISSUE: Is the government required to consult with Haida people about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land? HELD: both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6. ANALYSIS: A. Does the Law of Injunctions Govern This Situation? - The remedy of interlocutory injunction does not preclude the Haida’s claim. B. The duty to consult and accommodate is rooted in the honour of the Crown (HoC); - The gov’ts duty to consult with Aboriginal peoples and accommodate their interests is grounded in the HoC. HoC is

always at stake in its dealings with Aboriginal peoples. The historical roots of the principle of the HoC suggest that it must be understood generously

- Where the Crown has assumed discretionary control over specific Aboriginal interests, the HoC gives rise to a FD. This requires that the Crown act with reference to the Aboriginal group’s best interest in exercising discretionary control over the specific Aboriginal interest at stake

- Where treaties remain to be concluded, the HoC requires negotiations leading to a just settlement of Aboriginal claim - HoC requires that these rights be determined, recognized and respected. This requires the Crown to participate in the

process of negotiation. While this process continues, the HoC may require it to consult and accommodate Aboriginal interests.

C. When the Duty to Consult and Accommodate Arises: - The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the

Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.

- Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. - The Crown cannot run over Aboriginal interests where claims affecting these interests are being seriously pursued in

the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. - To exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be

to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable. D. The Scope and Content of the Duty to Consult and Accommodate - The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence

of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. - The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of

consultation in good faith. The content of the duty varies with the circumstances and each case must be approached individually and flexibly.

- Cases where a strong prima facie case for the claim is established, the right and potential infringement is high and the risk of non-compensable damage is high = deep consultation required

E. Do Third Parties Owe a Duty to Consult and Accommodate? - The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests

with the Crown- third parties not liable F. The Province’s Duty - The duty to consult or accommodate rests with both the Feds and the Provinces. G. Admin Review - Likely fall under the standard of reasonableness. TAKU RIVER v BC (Example of how the duty to consult is fulfilled, and reinforces the principle set out in Haida that meaningful consultation doesn’t require agreement) FACTS: A mining company applied to the BC government for permission to reopen an old mine in an area that was subject of an unresolved land claim by the TRTFN people. This application triggered a statutory environmental assessment process, which ended with the approval of the application to reopen the mine. Through the environmental assessment process, the TRTFN’s concerns with the road proposal became apparent. Its concerns crystallized around the potential effect on wildlife and traditional land use, as well as the lack of adequate baseline information by which to measure subsequent effects ISSUE: Does the Crown have a duty to consult and accommodate Aboriginal peoples prior to making decisions that might adversely affect their as yet unproven Aboriginal rights and title claims? HELD: The Crown fulfilled its duty to consult and accommodate. The process of granting project approval to Redfern took three and a half years, and was conducted largely under the Environmental Assessment Act. Members of the TRTFN were invited to participate in the Project Committee to coordinate review ANALYSIS: A. Did the Province Have a Duty to Consult and if Indicated Accommodate the TRTFN? - In Haida Nation v. British Columbia (Minister of Forests), this Court has confirmed the existence of the Crown’s duty

to consult and, where indicated, to accommodate Aboriginal peoples prior to proof of rights or title claims. - Here, the Province was aware of the claims, and contemplated a decision with the potential to affect the TRTFN’s

asserted rights and title negatively. It was apparent that the decision could adversely affect the TRTFN’s asserted rights and title. It follows that the HoC required it to consult and accommodate the TRTFN

B. What Was the Scope and Extent of the Province’s Duty to Consult and Accommodate the TRTFN? - The scope of the duty to consult is “proportionate to a preliminary assessment of the strength of the case supporting the

existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” - There is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over at least some

of the area that they claim and the potentially adverse effect of the Ministers’ decision on the TRTFN’s claims appears to be relatively serious. In summary, the TRTFN’s claim is relatively strong

- While it is impossible to provide a prospective checklist of the level of consultation required, it is apparent that the TRTFN was entitled to something significantly deeper than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation.

C. Did the Crown Fulfill its Duty to Consult and Accommodate the TRTFN? - Members of the TRTFN were invited to participate in the Project Committee to coordinate review of the project

proposal in November 1994 and were given the original two-volume submission for review and comment - They participated fully as Project Committee members, with the exception of a period of time from February to

August of 1995, when they opted out of the process, wishing instead to address the issue through treaty talks and development of a land use policy.

- Crown fulfilled its duty. It adequately accommodated the TRTFN.

ABORIGINAL TITLE DELGAMUUKW v BRITISH COLUMBIA(The leading case on Aboriginal title) FACTS: Aboriginal tribes claim aboriginal title on over 58,000 square km in BC. BC claims tribes have no right to land. The tribe wants to enter oral traditions and other aboriginal perspectives to prove land ties but British style property law depends on written evidence. Trial judge refused to really consider oral histories. Their claim was originally for ownership of the territory and jurisdiction but transformed it to a claim for aboriginal title and self-government. ISSUE:

(1) Can oral perspectives be considered to determine title? (2) What is nature and scope of constitutional protection afforded by s. 35(1) to common law Aboriginal title? (3) Did the province have the power to extinguish aboriginal rights after 1871, either under its own jurisdiction or

through s 88 of the Indian Act? HELD: For P, appeal granted, new trial ordered. ANALYSIS:

- Only feds can extinguish aboriginal title - Aboriginal title is more than a right to exercise particular rights, but less than a fee simple. It is a community held

right in the land itself: a right to exclusively use land for a variety of purposes which are not restricted to those that are the customs, practices or traditions of the aboriginal people.

- The TJ erred by giving little weight to aboriginal oral histories and recollections of aboriginal lives. Oral histories were of critical importance to the appellants’ case as oral histories was used to establish their occupation and use of the disputed territory, an essential requirement for aboriginal title

- The TJ after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for “ownership”.

- Aboriginal rights demand a unique approach to evidence: must place equal weight on Aboriginal and common law perspectives since oral histories are often the only record of aboriginal past

- Oral evidence is crucial as it was only way to demonstrate occupation and if not allowed would impose an impossible burden of proof

- Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different. A new trial was ordered.

STEP 1: ABORIGINAL TITLE TEST

- The Court held in Delgamuukw that to prove title, the Aboriginal group must demonstrate exclusive pre-sovereignty use and occupation to the land. Since aboriginal title is burden on the Crown, it cannot exist without Crown title, and so is established at sovereignty. Furthermore, if present-day occupation was being relied upon as proof of prior occupation, present occupation must reflect a “substantial maintenance of the connection” with pre-sovereignty occupation.

1. Was the land occupied pre-sovereignty?

- Land must have been occupied at the time of sovereignty, NOT contact - Aboriginal title is burden on Crown title – cannot exist without Crown title, and so was established at sovereignty. - Proof of occupancy can come by physical occupation (common law) or by reference to aboriginal law (i.e. trespass).

2. If relying on present occupation as proof, does present occupation reflect a “substantial maintenance of the connection” with pre-sovereignty occupation?

- Interruption of occupancy is acceptable (Van der Peet) - If present occupation relied on as proof of occupation pre-sovereignty, must be continuity between present and pre-

sovereignty occupation. - Need not be unbroken chain but must be a “substantial maintenance of the connection” b/w the people and the land.

(Mabo) - Certain infringements of Aboriginal title are justified – but Crown has duty to consult w/aboriginals and pay

compensation 3. At sovereignty, was occupancy exclusive?

- Proof: Trespass laws. Permission to enter lands given to other bands. These show an intention and capacity to retain exclusive control.

- Joint exclusive occupation is likely acceptable, though the Court didn’t go too deep into it STEP 2: INTERFERENCE WITH ABORIGINAL TITLE (Sparrow, via Delgamuukw):

1) Can it be justified? [onus on State]. Given the Fiduciary Obligation of the Crown (Guerin), we must consider: - Does the gov’t have a valid objective for interfering? (conservation) - Has priority to exercise right been safeguarded for aboriginals? - Is there minimal infringement on the rights to achieve the valid objective? - Was fair compensation given to the natives in return for infringement? - Did the gov’t consult the relevant aboriginal group?

Justification of title interference is virtually identical to that laid out in Sparrow, but note:

- To maintain the honour and integrity of the Crown, the gov’t must not act in a heavy-handed fashion in congruence with their fiduciary obligation

- If infringement does to the heart of being aboriginal, then the Indians’ needs will be taken into greater account - If infringement only touches on Indianness (often due to commercial undertakings on reserve land), there will be

less consideration for the Indians.  STEP 3: SCOPE OF ABORIGINAL TITLE (1) the right to use land for a variety of purposes – not necessarily for traditions integral to a distinctive society; (2) but the use cannot be irreconcilable with the group’s use of the land Aboriginal right does not equal aboriginal title: Title is inalienable & Communally held:

- Title is inalienable except to government and government has fiduciary duty to Aboriginals. - Title is held communally and that community makes decisions. In other words, the aboriginals cannot sell land to a

third party. They must surrender it to the crown that will then sell it to a third party. Limit on Use:

- Uses to which the land is put cannot threaten future relationship with land. Cannot put the land to use that would destroy the value of their distinctive culture. The use of the land must not be “irreconcilable” with the groups attachment on the land.

STEP 4: EXTINGUISHMENT OF TITLE Can arise by either the Federal govt (post 1867) or by Treaties (pre 1867)

- s 88 of IA: -doesn’t allow provinces to extinguish title and never had ability to do so (has to be federal) - Relationships with the land may be equally fundamental to aboriginal peoples - Provincial gov’t are prevented from legislating in relation to both types of aboriginal rights in s91(24) “Indians” and

“land reserved for Indians” - Aboriginal rights are part of the core of Indianness at the heart of s91(24). Prior to 1982 as a result they could not be

extinguished by provincial laws of general application - s88 – nothing in the language of the provision would even suggests the intention to extinguish aboriginal rights. The

explicit reference to treaty rights in s88 suggests that the provision was clearly not intended to undermine aboriginal treaty rights.

TSILHQOT’IN NATION v BRITISH COLUMBIA FACTS: The Tsilhqot’in people are a distinct Aboriginal group who have occupied the Claim Area for over 200 years. The T seeks declarations of Tsilhqot’in Aboriginal title in a part of the Cariboo-Chilcotin region of British Columbia defined as Tachelach’ed (Brittany Triangle) and the Trapline Territory. The T seeks declarations of Tsilhqot’in Aboriginal rights to hunt and trap in the Claim Area and a declaration of a Tsilhqot’in Aboriginal right to trade in animal skins and pelts. ISSUE: Do the The Tsilhqot’in people have existing Aboriginal title to Tachelach’ed (Brittany Triangle) and the Trapline Territory? HELD: Judge unable to make a declaration of Aboriginal title, but concluded that the evidence before him proves that Tsilhqot’in title does exist in specific portions of Tsilhqot’in territory, comprising approximately 200,000 hectares. ANALYSIS: (1) Evidentiary Issues (Oral):

- Tsilhqot’in was not a written language until the last half of the twentieth century. The history of the Tsilhqot’in people is an oral history, accessed by listening to the stories and legends told by Tsilhqot’in people.

- In a fact-driven process, such as the determination of Aboriginal rights and title, one must sift through the layers of oral history and oral tradition evidence with an awareness of context and an appreciation of the role of that tradition within Aboriginal society

- Oral history and oral tradition evidence must be assessed by making three distinct inquiries into: (i) The context of the performance in which the oral history is related; (ii) The internal coherence of the oral history; and (iii) An external comparison of the oral history with outside sources.

(2) Evolution of aboriginal title: - Baker Lake Test (aboriginal title claim to be accepted and negotiated): (1) That they and their ancestors were

members of an organized society; (2) That the organized society occupied the specific territory over which they assert the aboriginal title; (3) That the occupation was to the exclusion of other organized societies; and (4) That the occupation was an established fact at the time sovereignty was asserted by England

- The next important development in Canadian Aboriginal law was the partition of the Canadian Constitution with the enactment of the Constitution Act, s 35(1). The view that aboriginal title is rooted in Canadian soil is embodied in the theory that title is sui generis. Put simply, aboriginal title in this country is unique and in a class by itself. The description of Aboriginal title as sui generis captures the essence of a proprietary right shaped by both common law and Aboriginal systems (note the 3 sui generis aspects noted in Delgamuukw)

- The Van der Peet articulated a test for determining whether a particular activity is protected as an Aboriginal right - Aboriginal title is a SPECIES of aboriginal right which differs from aboriginal rights to engage in particular

activities. It confers a sui generis interest in land, a right to the land itself. It confers a right to exclusive use, occupation and possession to use the land for the general welfare and present day needs of the Aboriginal community.

ABORIGINAL TREATIES

R v MARSHALL; R v BERNARD FACTS: In Marshall, 35 Mi’kmaq Indians were charged with cutting timber on Crown lands in Nova Scotia without authorization. In Bernard, a Mi’kmaq Indian was charged with unlawful possession of spruce logs he was hauling from the cutting site to the local saw mill. The logs had been cut on Crown lands in New Brunswick. In both cases, the accused argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title. ISSUE: Can members of the Mi’kmaq people in Nova Scotia and New Brunswick engage in commercial logging on Crown lands without authorization, contrary to statutory regulation? More precisely, do they have treaty rights or aboriginal title entitling them to do so? HELD: dismissed the cross-appeal in Marshall and restored the convictions ANALYSIS: (1) Background: - Marshall 1: a member of the Mi’kmaq nation was charged with fishing and selling eels contrary to Federal

regulations. The defendant in that case, Donald Marshall Jr., admitted that he had caught and sold several hundred pounds of eel out of season. His defense was that the truckhouse clause of the treaties of 1760-61 gave him the right to catch and trade fish. The issue before the Court was whether the treaties conferred this right.The Court that the truckhouse clause amounted to a promise on the part of the British that the Mi’kmaq would be allowed to engage in traditional trade activities so as to obtain a moderate livelihood from the land and sea. The Mi’kmaq had traded in fish at the time of the treaties. Marshall’s activity could be characterized as fishing in order to obtain a moderate livelihood. It was thus the logical evolution of an aboriginal activity protected by the treaties. Marshall was acquitted.

- Marshall 2: the Court commented on the nature of the right and the implication of Marshall 1 on the right of the Mi’kmaq to harvest and sell other resources. It stated that treaty rights pertaining to activities other than fishing, like logging, would fall to be decided on such evidence as might be led in future cases directed to that issue.

(2) Argument: - The respondents argued that they used forest products for a variety of purposes at the time of the treaties, from

housing and heat to sleds and snowshoes, and indeed occasionally traded products made of wood, all to sustain themselves. Logging represents the modern use of the same products, they assert. Therefore the treaties protect it. If wood was gathered in any way, for any purpose, in 1760, modern Mi’kmaq have the right to log, subject only to such limits as the government can justify in the greater public good.

- At issue here is the logical evolution of a traditional Mi’kmaq trade activity in the way modern eel fishing was found to be the logical evolution of a traditional trade activity of the Mi’kmaq in Marshall 1.

- It was found that commercial logging was not the modern equivalent or a logical evolution of a traditional Mi’kmaq trading activity in 1760-61.

- In order to be protected under those treaties, trade in forest products must be the modern equivalent or a logical evolution of Mi’kmaq use of forest products at the time the treaties were signed.

- On the facts of these cases, the evidence supports the conclusion that trade in forest products was not contemplated by the parties and that logging is not a logical evolution of the activities traditionally engaged in by Mi’kmaq at the time the treaties were entered into.

- Commercial logging does not bear the same relation to the traditional limited use of forest products by the Mi’Kmaq [dwellings, baskets, canoes (not commercial logging)] as fishing for eels today bears to fishing for eels or any other species in 1760.

(3) Justification: - The words “recognized and affirmed” in s 35 mean that aboriginal treaties are constitutionally protected, but are not

absolute rights, and may be infringed if the test of “justified interference” is met: See Sparrow Test ABORIGINAL TREATY RIGHTS TEST (Marshall No 1) 1. Is there a treaty?

- Is there extrinsic evidence of a treaty? A written treaty may not include all terms of the treaty as some may be oral. Extrinsic evidence can be received even absent of any ambiguity on the face of the treaty. If treaty created verbally then written up after would be unconscionable for crown not to include oral terms

2. What is the right under the treaty? - Look at the historical context of the treaty. The goal was that the Mi’kmaq remain economically stable to prevent

war by keeping them happy and restrict them from joining with the French while being able to purchase necessaries from the british

- Here, the wording of the truckhouse clause speaks only of trade. The Mi’kmaq affirmed “that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truckhouses as shall be appointed or Established by His Majesty’s Governor”. Nothing in these words comports a general right to harvest or gather all natural resources then used.

3. What is the scope of the right? - Interpret the treaty liberally to uphold the honour and integrity of the Crown - The scope of treaty right is to be determined by what trading activities were in the contemplation of the parties at the

time the treaties were made. Must look at context in which treaty was negotiated and the common intentions of the parties

- Treaty rights are not frozen in time. - Has there been a logical evolution of the treaty right? This is ok. (Marshall No 3): this means the same sort of

activity, carried on in the modern economy by modern means. This prevents aboriginal rights from being unfairly confined simply by changes in the economy and technology. But the activity must be essentially the same. “While treaty rights are capable of evolution within limits, . . . their subject matter . . . cannot be wholly transformed”

ARTICLE

BC Treaty Commission, “Why treaties in the modern age” - When the early Europeans first began to settle in the eastern part of North America, Britain recognized that those

people who were living there had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty

- In most of the treaties, aboriginal people gave up their title in exchange for land reserves and for the right to hunt and fish on the land they’d given up

- BC did not recognize aboriginal title, so there was no need for treaties to extinguish it - Over the decades, aboriginal people protested demanding treaties to be signed. The demand intensified, culminating

in the formation of the Allied Tribes of BC in 1916 to work for treaties. In response, Ottawa amended the Indian Act in 1927 to make it illegal to raise funds to pursue land claims (which was lifted only in 1951)

- So treaties should have been made but they weren’t. Isn’t it simply too late to revisit this? Under s 35 of the Constitution Act 1982, aboriginal rights and treaty rights are recognized and affirmed

The Evolution of Aborginal Title (Calder decision recognizes aboriginal title) - Calder decision recognizes aboriginal title (1973). In that case, the Nisga’a of northwestern BC argued that the

Crown’s underlying title was subject to Nisga’a title to occupy and manage their lands. - However, the judges then split on whether Nisga’a aboriginal title still existed or had been extinguished by colonial

legislation prior to Confederation. Rights in British Columbia

- The decision in Calder was a legal turning point. The recognition of aboriginal title in Calder as a legal right was sufficient to cause the federal government to establish a land claims process; but BC refused to participate

- Still the question remained: had aboriginal title been extinguished before British Columbia joined Confederation, or not?

- Three court decisions since the Calder case have addressed this question. (1) Sparrow decision recognizes aboriginal right to fish. the Court took the same approach as those judges in Calder

who said that the Nisga’a still had title. They said that unless legislation had a “clear and plain intention” to extinguish aboriginal rights, it did not have that effect.

(2) Delgamuukw decision confirms aboriginal title exist. The decision confirmed that aboriginal title does exist in British Columbia, that it’s a right to the land itself — not just the right to hunt, fish or gather — and that when dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights may be affected.

(3) The Marshall and Bernard decision sets limits on aboriginal title. The court unanimously dismissed the claim to both treaty and aboriginal rights. It found that although the treaty protected the Mi’kmaq rights to sell certain products, including some wood products, this right did not extend to commercial logging.The court said that while rights are not frozen in time, the protected right must be a logical evolution of the activity carried on at the time of treaty- making. Treaties protect traditional activities expressed in a modern way and in a modern context. New and different activities are not protected.The court adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in question

What do these legal decisions mean? - The courts have confirmed that aboriginal title still exists in BC, but they have not indicated where it exists. To

resolve this situation, the governments and First Nations have two options: either negotiate land, resource, governance and jurisdiction issues through a treaty process or go to court and have aboriginal rights/title decided on a case to case basis

- The Haida Nation and Tlingit First Nation cases provide guidelines for the negotiation and definition of aboriginal title in BC. The gov’t has a duty to consult and possibly accommodate abo interests where title has not been proven. Duty arises from need to deal with abo rights in the interim prior to those rights being addressed through a treaty or court decision

- In Mikisew, the SCC extended the Crown’s obligation to consult and accommodate aboriginal interest (established in Haida and Taku) to include existing treaty rights. This decision confirms that the overall goal of reconciliation between crown and First Nations does not end with the signing of a treaty and there is a continuing duty to consult and accommodate in circumstances where treaty rights might be adversely affected.

All of these landmark judgments together confirm that: (1) Aboriginal rights exist in law (2) Aboriginal rights are distinct from the rights of other Canadians (3) They include aboriginal title, which is a unique communally held property right (4) Aboriginal rights take priority over the rights of others, subject only to the needs of conservation (5) The scope of aboriginal title and rights depend on specific facts relating to the aboriginal group and its historical relationship with the land (6) The legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the peoples and governing societies that were resident in North America long before settlers arrived (7) Aboriginal rights and title cannot be extinguished by simple legislation because they are protected by the Constitution Act, 1982 (8) Government has a duty to consult and possible accommodate aboriginal interest even where title has not been proven (9) Government has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected

Potential Essay Questions (1) It is often said that under our constitutional system, the role of the legislature is to make the law, the role of the judiciary is to interpret the law, and the role of the executive is to apply the law. In practice, does this theoretical understanding always unfold? The following areas is where the separation of powers starts to blur:

(a)The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative branch, to which the executive is made subordinate (an introductory example) (b) The parliamentary system contemplates an overlapping of personnel between the legislature and the executive. The PM and members of his/her Cabinet, who comprise the executive council “advising” the head of state, are elected members of the legislature. This is not the case in the US (another introductory example) --- The following would be more suitable for the body of the essay:

(c) Legitimacy of Constitutional judicial review: SCC’s interpretation of the “vague” Charter and vague language in the Constitution Act, 1867 leads to concern is that when judges give concrete shape to the rights provided in the Charter, and invalidate laws that do not conform to their interpretation of these requirements, the rule of law may become subtly transformed into the rule of unelected judges (d) Forms of administrative justice or adjudication have grown out of the development of executive functions (tribunals verge on being courts in some circumstances – see, e.g. Human Rights Tribunal, p. 241), and rule making of admin bodies (delegated legislation) blurs the role between the executive and legislature; see also the leniently interpreted difference between delegation of power Parliament/legislature power and abdication (re Gray) (e) There is a considerable degree of integration between the Legislature and Government (i.e. executive) – it is the same individuals, on a practical level, who control the legislative and executive branches of government. Talk about idea of responsible government here. (f) The ability of the SCC to “enforce” executive decisions creates a tension between the appropriate relationship of judiciary and executive (see Doucet-Boudreau case) (g) SCC ability to give “advisory opinions” to the federal government (the government may ask the Court to consider questions on any important matter of law or fact, especially concerning the interpretation of the Constitution.

(2) Discuss cases cited in the Craik book that demonstrate the blur between the separation of powers and/or the problems that result as a result of the blurred roles of the legislature, executive and judiciary: (3) Critique the role of international law in Canadian domestic law: (a) What is the approach? Dualist tradition re: treaties (i.e. needs to be “implemented” in legislation); customary international law (no special approach) (b) Advantages about Canada’s approach re: international law: (i) Democratic participation in the international law making process (ii) Keeps in check separation of powers (ie. Prevents executive from “law making”) (c) Problems:

(i) Implementation issue: Baker’s approach too strict (why can’t there be “implied” implementation?); hesitancy after baker to treat international law as binding (generally treated as merely persuasive) – this weakens the fabric of law – on the verge of becoming “optional” law to be applied at judge’s discretion – this would weaken international respect for us (ii) Courts’ use (or lack thereof) of presumption of legislative intent (see article): uncertainty of the effect of that presumption in context of Charter interpretation; unclear, thanks to Baker, as to whether presumption applies equally to Canada’s international obligations and non-binding international norms; particularly suspect in context of interpreting customary international norms – Baker = “values” of international instruments may help inform contextual approach to statutory interpretation if dealing w/ unimplemented norm, but what about presumption? Although int. instrument in that case was unimplemented, it was binding on Canada (via ratification) and SCC should have appealed to presumption (iii) Suresh approach of allowing unimplemented treaties aid interpretation of legislation (potential problem) (iv) Unclear what SCC’s position is re: customary international law: There is no unequivocal statement on whether custom is part of Canadian law or not. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more.

(4) Unwritten constitutional principles

Positives include: (1) These are fundamental concepts about which everyone can agree, so it makes sense that they will affect judicial decision making (even the highest court of India has recognized almost identical unwritten principles, with the addition of one more); (2) Problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive definition for our system of government; (3) They are only resorted to when the express wording of the Constitution is insufficient to solve a problem (which is a valuable limit on the doctrine, and prevents it from being used inappropriately); (4) We are used to unwritten legal principles (that’s what our common law system is built on)

(b) Negatives include: (1) by swaying away from written text, we get into a realm of uncertainty, ambiguity; (2) they are so broad that they can be found to apply to any issue; (3) To recognize these principles can be seen as an unauthorized judicial expansion of their power in the constitutional sphere; (4) A written constitution promotes certainty and predictability.

(5) Constitutional conventions - what are they? Give some examples?: a. See book for definition

b. Examples include: (i) Selecting a governor general: the Queen follows the Canadian PM’s recommendations (based on an “instrument of advice”); in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet of their respective government (ii) Selecting members for the Senate: the governor general follows advice of the PM (iii) The governor general calls Parliament into session on the advice of the PM (i.e. summoning Parliament) (iv) Parliament can be prorogued through a speech by the governor general in the Senate Chamber (v) PM to resign his or her government or seek parliamentary dissolution after a “no confidence” vote by the House (vi) Responsible government (and all of its understood “rules”) (vii) The individual commanding the confidence of the House of Commons (that is, the majority) is appointed PM (viii) Only privy councillors who are in the Cabinet are entitled to exercise the powers of the Privy Council (ix) The PM, leader of the Cabinet/government, possess authority to exercise so-called personal prerogatives, e.g., he/she may select people to fill some important appoints that are technically made by the governor general (x) Formal executive bodies are limited to the governor general and lieutenant governors, federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers, including the civil service (6) Bijuralism (7) Advantages and disadvantages of precedent a. Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (talk about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive) b. Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to

be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution) (8) Is the Parliament of Canada truly “supreme”? Discuss: a. Arguments for: Consider that the scope of Parliament’s law-making jurisdiction is endless, so law is it conforms to the Constitution (rules governing division of powers between fed and prov legislatures), and constitutionally protected individual rights and liberties found in the Charter (this goes back to parliamentary supremacy); Consider that Parliament is free to pass careless or bad laws; Consider that even if the ministry tricks Parliament into passing a law, that alone is insufficient for a court to strike it down (see Turner v Canada); Consider that Canadians aren’t entitled to due process or procedural fairness in the law-making process (so long as the procedures in the Constitution have been met); Consider that there can be expropriation without compensation by way of legislation that makes such an intent clear (Authorson v Canada) b. Arguments against: Consider the division of powers found in ss 91 and 92 which identify certain subjects in respect of which Parliament cannot legislate; consider the limitations put on it by the Charter; (9) Critically analyze the limits on delegated legislation (10) Do you think there needs to be a reforming of the judicial appointment process? Why/why not?: a. Strengths? A number of filters exist before judges are selected; flexibility in appointing allows for ability to tailor bench to needs of society at the time b. Concerns? Political patronage; abundance of discretion; lack of transparency/accountability; the appointment process is simply policy, and cannot be legally enforced, which gives rise to concerns that it may be manipulated in individual rather than societal favour; c. What should be done? d. Note: discuss both times of federal appointments – non Supreme Court and Supreme Court (and note the unique concerns w/ Supreme Court appointments) (11) Discuss, and give examples demonstrating, the significance of the rule of principle in Canadian society and law (12) Do you think Canada should abolish prorogation? (13 ) Aboriginal rights/s 35 question ANSWERS TO POTENTIAL QUESTIONS TRUE AND FALE (1) There are 4 fundamental and organizing principles of the Canadian Constitution FALSE – The SCC in the Succession Reference said that there were 4 fundamental principles that were relevant to the determination of that case; federalism; democracy, constitutionalism and the rule of law and respect for minorities. However, the SCC also said that these principles were not exhaustive, merely that these were the principles that were relevant to the case at hand. (2) Every citizen of Canada is constitutionally guaranteed the right to vote in all federal and provincial elections TRUE - every citizen of Canada is constitutionally guaranteed the right to vote in all federal and provincial elections. This is guaranteed by s3 of the charter (3) In considering whether cabinet decision are subject to judicial review on Charter grounds, there is no distinction to be made between decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative.

TRUE – this was decided by the SCC in Operation Dismantle, where the SCC said that a decision to allow testing of cruise missiles in Canada, although taken on the basis of the prerogative, was nonetheless reviewable by the court because it was alleged that the decision has impacted charter rights. This was confirmed by the Black case. (4) Courts will determine whether a constitutional convention exists, but not whether it has been exercised in accordance with its terms. False – Courts will determine whether a constitutional convention exists and whether it has been violated in a particular instance. The fact that a constitutional convention is not legally enforceable is a different point from that stated here. Although courts have affirmed that they will not enforce conventions, they will declare whether conventions exist, and they will also determine whether a convention has been satisfied in a particular case. Thus in the Patriation Reference the SCC found that there was a convention requiring provincial consent and that it has not been satisfied in the circumstances where only 2 prov were supporting the fed gov’t’s constitutional amendments proposals. The statement in the questions would be more correct in describing parliamentary privileges; the courts will determine whether a privilege exists, but will not review the manner of exercise of the privilege (5) Aboriginal and treaty rights can only be overridden by a statute for a period of 5 years, after which time the override must be renewed. FALSE – the s33 override does not apply to Aboriginal rights protected by s35; the latter is outside the Charter and not subject to s33. In any event, s33 only permits the override of right guaranteed by ss2 and 7 – 15, which does not include s35. (6) Parliamentary Privileges are part of Canada’s Constitutional Conventions FALSE – Parliamentary privileges are legal rules, derived from common law, that are legally enforceable by the courts. Convention in contrast are political understandings that govern political behaviour but which are not legally enforceable. (7) British Authority to legislate for Canada was Terminated in 1982 TRUE – The Canada Act, enacted by the UK Parliament in 1982, terminated British Authority to legislate for Canada. Since 1931, the only authority Britain had was to amend the Canadian Constitution on request from Canada. This British authority was abolished in 1982, as referenced in the Secession Reference. (8) The Rule of Law requires that the constitution safeguard fundamental human rights and individual freedoms which might otherwise be susceptible to gov’t interference FALSE – the rule of law merely requires that gov’t be conducted according to law. It does not require that the constitution contain guarantees for individual rights. In 1959, the Roncarelli case affirmed the importance of the principle of the rule of law, and yet the constitution did not contain guarantees for individual rights (9) The purpose of s52(2) of the Constitution Act 1982 is to entrench certain unwritten principles of the Canadian Constitution FALSE – although the courts have held that s 52(2) if not exhaustive and therefore unwritten principles have been interpreted as being included with the Can constitution, the purpose of the enactment of s52(2) was to entrench a written constitution – to identify those core documents which take priority over all other legal instruments in Canada (10) The main purpose of constitutional conventions is to ensure that the legal framework of the state is operated in accordance with the prevailing constitutional values of the period. TRUE – constitutional conventions limit the exercise of broad legal powers in order to ensure that those powers are exercised in a manner consistent with contemporary values, such as democracy or federalism: Partition Reference (11) The SCC decided in Morgantaler that delay in the provision of abortion services violates the Charter PARTIALLY TRUE – it is true that in Morgentaler the SCC said that the delays associated with the existing scheme for abortions was a violation of “security of a person” Justice Beetz also said that a revised system even one that involved some delay might well be constitutional. Therefore it would not be correct to say that delay in the provision of abortion services is per se unconstitutional.

(12) The use of the word “existing” in s35 of the Constitution Act 1982 means that rights protected by s35 are not subject to s1 or 33 of the Charter. FALSE – this is because s35 is outside charter, not because of the use of the word “existing” in s35. “Existing” refers to rights that were unextinguished in 1982. (13) The rule of law principle cannot be used to declare statutes invalid UNCERTAIN – as understood in Roncarelli, the statement is true: the rule of law ensures that nobody is above the law and that statutes are interpreted and applied in accordance with their terms and objectives. On this view, the rule of law does not constrain parliamentary supremacy. However, constitutional supremacy is an element of the rule of law in Canada (s52 of the constitution Act) and one could argue that the rule of law is vindicated whenever statutes are declared invalid on constitutional grounds. Moreover, beginning in the Manitoba Reference and later in the Succession Reference, the SCC elevated the rule of law to the status of an independent and fundamental constitutional principles that can be used to place substantive limits on gov’;t action. (14) Judges show a great deal of deference when reviewing the decisions of admin tribunals FALSE – JR of admin tribunals takes place along a spectrum from very little deference to a great deal of deference. The statement is true only when a court selects patent unreasonable as the appropriate SOR. To determine the SOR to apply the courts consider the 5 “contextual factors” discussed in Dr Q – the presence or absence of a privitive clause or a right to appeal, the relative expertise of the tribunal, the purposes of the legislation and the particular provision at issue, and the nature of the question . Only when all or most of these factors point towards deference, will the judges show a great deal of deference to admin decisions. In both Dr Q and Baker a consideration of these factors led to the adoption of a “reasonableness” (some deference) SOR. (15) The availability of Judicial review for jurisdictional errors by admin tribunals is essential to the maintenance of the rule of law. TRUE – the rule of law requires that there be a constitutionally valid legal source for all exercise of public power (Secession Reference, Roncarelli). One of the role of the superior courts is to police the limits of power exercised by the executive branch of gov’t. Admin tribunals cannot be free to define the limits of their own jurisdiction. Privative clauses are not legally effective to prevent jurisdictional review of admin tribunals by superior courts. Living tree doctrine and marriage see page 2 of exam 1 ESSAY QUESTIONS (1) The Federal Government Has Recently revised the process for making appointments to the SCC. In the post charter era the SCC exercises a considerable amount of power over the evolution of public policy. Therefore, it is important that a selection method for members of the court br more through, accountable and insulated from partisan influence than it previously was. First, there must be an advisory committee on place similar to those in place in several provinces. Members drawn from parliament the bar and the judiciary and the public will review candidates and submit a short list to the justice minister from which appointees must be selected. The compilation of short lists by non partisan advisory committee is preferable to having short lists compiled by political actors. Should some sort of parliamentary involvement in the selection of monies from the short list be created? There are two ways this can be done. First, the justice minister would appear before the committee to answer questions about the suitability of his chosen nominee. The power to select the new justice would remain with the executive. Parl would not have the right to vote on or to veto judicial nominees. Second, reflects the US method. The method would be similar to the first but an ad hoc committee would have the right to interview candidates and to debate and vote on nominees before they could be appointed by the exec, thus meaning effective control of appointments no longer rested with the exec alone. There are disadvantaged to this second methods, public grilling can turn into a personal inquisition that could deter qualified candidates from putting their names forward. Partisan politics might lead to the selection of safe of politically acceptable candidates rather than the more qualified candidates.

There are compelling reasons to implement a parliamentary approval process. As Ziegel writes the fed govt should be responsible to PARL for its actions. It follows that PARL should be able to hold the govt accountable. It does suggest that PARL should at least be given the opportunity to review and debate candidates. Nominees should be exempt from appearing before a committee at all. Justice minister can appear before the committee to answer any question regarding the candidate. Ultimate control over appointments should no longer rest solely with the exec. An appointments committee (party representation in the H of C, representatives from the bar, the judiciary and public) should be formed that has the power to make bind recommendations to the Minister of justice from short lists compiled by the advisory committee. (b) To what extent have these changes responded to criticisms associated with the previous appointments process? The criticisms that have been voiced at the previous appointment process to the SCC are as follows: lack of transparency, lack of accountability, potential for partisan appointments. The above listed criticisms have been gaining increasing scrutiny, especially since the post charter era due to the important role that the SCC is playing in the development of public policy. Many authors that a properly functioning democratic system should not leave the PM with the discretion to select the justices of the SCC w/o some form of checks and balances. According to the Minister of Justice, Proposal to Reform the SCC Appointments Process there is a 4 stage process that should be followed. First, consultations by the Minister leading to the preparation of a short list with 5 – 8 names. Second, referral of that short list to an advisory committee, that includes members of all recognized political parties, a retired judge, and a number of other representative of legal organizations, plus at least 2 persons who are not lawyers. The committee will not interview candidates but candidates will consent to have their name on the original short list so they will be aware that they are under consideration. The committee will then present the Minister with a list of 3 names from the original short list. The names will not be ranked. Third, the Minister will make a recommendation of the PM who will make the final selection. In most cases the PM will select from the short list provided by the committee. Fourth, the Minister will appear before the H of C justice committee to explain the choice This reform does not impose sweeping changes to the previous method of selection of judges to the SCC. The overall power of the PM and the Minister of justice to make the appointment is maintained. The fact that a list must be provided to an advisory committee that includes members of opposition parties is itself an important check. There will likely be a requirement to have a balance on the list, certainly in terms of gender and diversity. The advisory committee is useful as it is responsible for narrowing down the list and the PM will, the majority of the time, select from that list. However, it is important to note that the transparency problem was not dealt with in this reform. (b) Will these changes make a difference in who is appointed to the SCC? The persons appointed are unlikely to change, although candidates who are somewhat more “risky” or not currently sitting on the bench at the time of selection, seem to be disadvantaged by this process. In the past there have been practicing lawyers who were appointed to the bench straight from practice. However, with the requirement that of placing their name on the list they may reject this opportunity. However, in considering all the factors the outcome is likely not to be significantly different from the past system of appointment of SCC judges. (c) What further changes should be made to the appointment process? - guarantees of seats on the SCC for women or for certain minority groups or for aboriginals. However, such requirements might cause some tension on a 9 member court due to regional representation. For example, should an aboriginal be appointed from the prairies because there is a vacancy from that region, even though there is a stronger abo candidate from Ont? The complications of such proposals must be considered in before they are implemented. (1. a)Federal Judicial Appointment Process (other than SCC judges) (CB 322 – 333) Judicial independence is a fundamental principle of the Canadian Consti and is provided for expressly in ss96 – 100 of the Constitution Act 1867, s11(d) of the Charter and in statutes. Judicial independence includes security of tenure, financial

security and administrative independence: Provincial Judges Reference. The above mentioned sources do not mention the appointment process and as such the executive is invested with the discretion to appoint judges. This is not seen as a violation of judicial independence in the Canadian constitution. Unconstrained executive appointments pose a risk of creating a judiciary with a particular ideological bias. The underlying purpose of judicial independence is to secure a judiciary that is free of influence from the other branches of govt. This purpose is best secured if the role of the other 2 branches of gov’t in the appointment process is free of partisan political considerations. Just as the judicial compensation commission require by the SCC opinion in the Provincial judges Reference serve as an institutional filter aimed at depoliticizing the relation between the judiciary and the other branches of gov;t. Like compensation, judicial independence requires an institutional filter in the appointments process in the form of a judicial appointments advisory committee that is independence, effective, and objective. The federal judicial appointment process has been heavily criticized. The current process leaves too much power in the hands of the Minister of Justice. Judicial independence would be better served if the Minister dfid not control that membership pf the majority of committees. If the committees role were defined in statute, if the criteria for merit were stipulated by statute pr regulation, and if the committees recommendations effectively constrained the Minister by limited the Ministers discretion to choose from a large range of candidates. In order to obtain such changes with regards to s96 judges there must be a constitutional amendment, because s96 entrenches the executives discretion to make the final decision on appointments. The federal judicial appointments process is already under heavy criticism for being insufficiently insulated from partisan politics. (2) Identify and discuss mechanisms of gov’t accountability and how they operate so as to make public officials answerable to the public (ie corruption) (1) The democratic process - Elections (Charter s 3 – 4) - The parliamentary process (role of opposition, question period, legislative committees, (2) Judicial Review - Rule of law (Roncarelli) - Constitution (constitutional conventions, Charter - connection between told of judicial review as an accountability mechanism and the independence of the judiciary (judicial remuneration cases), the SCC appointment process, notion of the dialogue between courts and legislatues (Hogg, Bushnell, Morton) (3) Public Inquiries (Gomery commission) (4) Criminal Law (RCMP investigations coming out of Gomery Inquiry) (5) Media (role of media in raising constitution convention, role of media in sponsorship scandal) NB: organize them into legal v non legal mechanisms. Make an argument on how these mechanisms as a whole and or individuals would impact on corruption. (3) What is the significance of the preamble of the Constitution Act 1867? First, while the preamble itself contains no force of law, it does contain organizing principles of the Constitution to enable the various courts to fill the gaps. Where legal principles are involved (judicial independence, parliamentary privilege) and where political actors are involved, constitutional conventions Second, the expressed organization principles set out in the preamble are:

(a) federalism

(b) constitutional monarchy and (c) a constitution similar in principle to that of the UK

Third, there should be discussion on the above mentioned principles embodied in the preamble and the way they have fed Canada’s constitutional development. The discussion should be along the following lines:

(1) Constitution similar in principles a. This imports both legal rules and constitutional conventions (GG as a rubber stamp, cabinet, privy

council) b. Legal rules are enforced by the courts and thus include constitutional common law principles

i. Eg. Judicial independence: Judges remuneration Case ii. Parliamentary privilege

c. Constitutional Conventions are created and enforced by political actors. Indeed conventions often conflict with legal rules. They include:

i. Responsible gov’t and democracy. Discuss what these are. ii. Parliamentary systems and institutions, including the office of the PMO

iii. Limited separation of powers (parliamentary supremacy being the general rule with cases like the Judges Remuneration Case and vesting’s of crown prerogative.

iv. Limitations on crown behaviour eg. Powers of the GG are effectively exercised by the PM. v. The above illustrates that conventions often conflict with legal rules in the sense that the

GG has extensive legal powers under the constitution, the office of the PM does not even exist as a legal matter and yet the PM exercises most of the GGs legal power by convention

d. Rule of law/constitutionalism i. This is a principle feature of our constitution embodied in the preamble (Succession

Reference). The Rule of law principle means that statutes must be interpreted in accordance with its dictates (Roncarelli) as must br the constitution (Judges Remuneration Case). This principle is the basis of cases like Roncarelli where the Premier of QUE could not exercise power in an arbitrary way, and the judges Remuneration Case where an independent judiciary is a necessary condition for the rule of law

e. The same sort of analysis applies to the rule of law principle can be applies to minority rights where court have protected such rights by invoking principles such as the rule of law (Roncarelli), federalism and the integrity of the parliamentary system.

(2) Federalism a. Much of the federalism constitutional rules are explicitly included in the written constitution. However,

even in the federalism area, the preamble is useful in relation to unwritten legal rules. Ef are full faith and credit that courts of one province give tot hose of another and the paramountcy doctrine.

(3) Constitutional Monarchy a. Discuss the legal and conventional rules surrounding the monarch.

i. Legal rules – crown prerogative ii. Conventional rules – responsible govt, respective roles of PM and GG

(4) Conclusion a. The preamble of the Constitution Act 1867 is a significant feature of the Can Consti in that the gaps in

the written consti can be filled b. The gaps are filled by both written and unwritten conventional and legal rules which are often as

significant as the written legal rules. (4) Describe a (i) function performed by the legislature other than making laws (ii) a function performed by the exec other than implementing laws (iii) a function performed by the judiciary other than adjudicating disputes. Legislature: the legislative branch of gov’t performs many representative and accountability functions, in addition to passing laws, which are essential in a Parliamentary democracy. For example, in a system of responsible gov’t the legislature holds

Ministers and their departments accountable for their actions. A gov’t that ha slost the confidence of the H of C must resign or call an election. Executive: The exec branch of gov’t also performs many functions other than enforcing and administering laws. For example, exec bodies, such as Cabinet and admin agencies, are frequently given extensive law making powers. Most scholars concede that the statutory delegation of law-making powers from the legislature to the exec is necessary because the complexity and volume of law making exceeds the capacity of the legislative process. However, delegated law making by the exec is problematic from a democratic perspective because it often occurs through procedures that are less open, accountable and participatory than the legislative process. Judiciary: The judiciary doe snot simply adjudicate disputes. For example, when the SCC or a provincial CA gives advice onn reference questions, there is no factual dispute at issue. They are giving legal advice to the gov’t, a role normally preformed by members of the exec branch. The reference procedures set out in the Supreme Court Act and in provincial legislation thus violates the traditional undertsanisng of the separation fo powrrs and risks drawing courts into a political role. The reference procedure has enabvled gov’ts to receive timely, authoriatative advice from appellate courts on legal questions for years. References now play an accepted and significant rile in the evolution of Canadian constitutionalism (Succession Reference, the Patriation Reference, Manitoba reference, and the Provincial Judges Reference) (5) Treaties Formation: Treaty making is a prerogative of the federal crown (although the constitution does not mention this. Ratification: In Canada treaties become binding upon ratification, which is also purely an exec act. The executive is not required to obtain parliamentary approval prior to ratification Implementation: Canada is a dualist nation. International treaties and domestic law are not necessarily harmonized. Treaties do not become domestic law until they are implemented by legislation. Jurisdiction to pass laws implementing treaties is divided between PARL and provincial legislatures depending on the subject matter of the treaty. With regards to federalism - provincial autonomy would be significantly compromised if PARL could pass laws on any treaty matter. Unimplemented treaties are not legally binding. It is incorrect that unimplemented treaties have no influence on the interpretation of domestic law. Some assert that domestic law should always be interpreted in a manner that conforms to Canada international obligations the use of unimplemented treaties appears to be discretionary. Unimplemented treaties are frequently used to inform the interpretation of domestic law. (5) Describe how the court in these three references used its powers of interpretation creatively in ways not clearly dictated by legal sources Patriation Reference: The majority opinion can be defended on the grounds that unilateral patriation would have offended the principles of democracy and federalism. By encouraging continuing negotiations with the provinces the majority opiion helped the nation avoid an even more profound constitutional crisis. Succession Reference: Discovered unwritten principles and drawing on Provincial judges Reference can be used to full the haps in the express provisions of the constitutional text and may impose substantive obligations on gov’t/. For example, the court found that teh federalism principle, in conjunction with the principle of democracy imposed a duty to negotiate succession in good faith following a clear majority vote on a clear question. Also, the court found that unilateral succession would violate the principle of democracy the rule of law and federalism and minority rights. To invent new legal obligations that are constitutionally binding without a clear textual mandate enacted by the people or their representatives is undemocratic. As La Forest J held in Provincial Judges Reference “the express provisions of the constitution... are the constitution. To assert otherwise is to subvert the democratic foundation of JR.” Manitoba Reference: The court used the rule of law to fashion a creative remedy, never before use in Canadian Constitutional Law, of temporarily suspending declarations of invalidity regarding 90 years of unilingual Manitoba statutes

passed in violation of the bilingual requirements of s23 of the Manitoba Act. The courts remedy is not easily reconcilable with the principle of constitutionally supremacy embodied in s52 of th Constitution Act 1867. The text of s52 states that laws will be of no force and effect to the extent of their inconsistency with the Constitution. As the Manitoba Act is part of the constitution it is hard to understand how s52 and the rule of law permit another other than an immediate declaration of invalidity. Such an approach would have created an intolerable situation of a “lawless” province. The court’s opinion may have been problematic but it was a bold and innovative one that avoided the even more problematic alternatives. (6) Aboriginal rights of self-government may become constitutionally protected through litigation in the courts or through the conclusion of treaties with the Crown TRUE - s35(1) of the Constitution Act, 1982 recognizes and affirms “existing abo and treaty rights”. Abo rights include any practices customs or traditions integral to a distinctive aboriginal culture (Van Der Peet) that were not fully extinguished through the clear and plain intention of the Crown prior to 1982 (Sparrow). (7) Summarize the nature of La Forest js disagreement with the majority in the Provincial Judges Reference and explain whether you agree or disagree with justice La Forest position. See page 6 of exam 1. (8) Discuss the dialogue between the judicial and legislative branches A primary critique of the dialogue model first put forth by Hogg and Bushell is that the courts occupy such privileged position in the exchange by virtue of the binding effect of their “end of conversation” on Parliament, that the dialogue is much closer to a monologue or at least the dialogue that takes place between one who gives the order and one who follows them. Where one body in the exchange must have the final word, the argument is that body must be the one wit the democratic mandate. According tot heir critics Hogg and bushel fail to establish the case that the final word in fact does rest with Parliament since their available responses to a judicial ruling are often foreclosed by the ruling itself. None the less the court in Vriend has embraced the dialogue theory as expounded by Hogg and Bushell. Note although s33 could be used to override a courts decision this would be political suicide. Also s33 only applies to s 2 and 7 – 15. It is limited.