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Chap.

1, 2 Nature of Law
Nature, Divisions and Sources of Law (7)
y y y Competing approaches to law and its relationship with social and political factors can influence judicial decision-making. Canadian law has several sources: Aboriginal law, common law, civil law, international law, etc. There is a strong juxtaposition of statutory law and common law in Canada.

Legal Theory in Relation to Public Law


Positivism and Natural Law y y y Legal positivism reflects the belief that law is nothing more than the rules and principles that govern or regulate a society. Law is completely independent of morality. Natural law theory reflects the belief that laws are only properly so called if they adhere to certain moral truths, usually universal and immutable. Natural law does not deny the necessity of positive law for functioning of society (which often requires clear rules and not vague moral concepts for everyday transactions) but where positive law contravenes natural law, the contravening positive law are held by natural law theorists not to be true law in the sense that a person owes allegiance to it. Both positivism and natural law are descriptive theories of law, in that they are principally concerned with identifying what the law is, rather than what it ought to be. (Feminism, critical legal studies, and law & economics approaches are often critical and oriented toward reform.) o Drummond shows an appeal to natural law. o Noble and Wolf shows an appeal to the certainty of positive law.

Re Drummond Wren (1945) y FACTS: A lot had a covenant that it should not be sold to Jews or others of objectionable nationalities. Workers Educational Association (WEA) challenged this covenant on the basis that it was against public policy, and also that it violated Racial Discrimination Act. o Mackay J: (quoting other cases) The principles of public policy remain the same, though the application of them may be applied in novel ways. Whatever is injurious to the interests of the public is void, on the ground of public policy. o Ontario and Canada are a province and country of minorities It appears to be a moral duty, at least, to lend aid to all forces of cohesion, and similarly to repel all fissiparous tendencies which would imperil national unity. The common law courts have obviated the need for rigid constitutional guarantees in our polity by their wise use of the doctrine of public policy as an active agent in the promotion of the public weal [in holding this covenant as against public policy] I would be applying well-recognized principles of public policy to a set of facts requiring their invocation in the interest of the public good.

My opinion in no way depends on the terms of the Racial Discrimination Act, save to the extent that such Act constitutes a legislative recognition of the policy which I have applied. ORDER: Covenant is void and of no effect. o

Re Noble and Wolf (1948) y FACTS: Lots near Lake Huron were not to be sold to Jews, Negroes, etc. Relying on the precedent set in Drummond, Wolf, an interested lot buyer, applied to have the covenant set aside. Other lot owners represented by the Beach o Pines Protective Association banded together to fight this, saying the area s character could be lost. o Schroeder J: Mackay J reached his conclusion that the particular covenant was against public policy in that it tends to create or deepen divisions between religious and ethnic groups, and is in conflict with the prevailing public opinion I am in disagreement. o Mackay J seems to have evolved a new head of public policy To hold that there is a public policy which prohibits the use of and renders void any covenant such as the one under review, seems to involve an arbitrary extension of the rules which say that a given contract is void as being opposed to public policy. It is trite law that common law rights are not to be deemed to be abrogated by statute unless the legislative intent to do so is expressed in very clear language. It follows logically that for a Court to invent new heads of public policy and found thereon nullification of established rights or obligations is a mode of procedure not to be encouraged or approved. o While it may be fairly assumed that the public policy of this country is opposed to the taking of affirmative action by any competent legislative authority which would be inconsistent with the sentiments or ideas expressed in treaties or enactments, it would be a radical departure from established principle to deduce therefrom any policy of the law which may be claimed to transcend the paramount public policy that one is not to lightly to interfere with freedom of contract. o Whatever view I may entertain, based on my conception of justice, morality or convenience, I must always have present to my mind the proper conception of the judicial function, namely, to expound and interpret the law and not to create the law based on my individual notion or opinion of what the law ought to be. y ORDER: Motion dismissed. Covenant is valid and enforceable. Feminism y y y A normative theory describing how current systems fail to achieve an external objective. Edwards v AG Canada (1930) is a Privy Council appeal against an SCC ruling that women were not qualified persons to hold a Senate seat. R v Morgentaler (1988) is an SCC decision, where Justice Wilson, agreeing with the majority, rendered a separate opinion which is an example of a modern feminist approach to a public law concern.

Edwards v AG Canada (1930) y FACTS: SCC ruled that women were not qualified persons to hold a Senate seat. Decision was appealed to the Privy Council. Lord Sankey went on about the origins of the exclusion of women, saying it is a relic of times more barbarous. o Lord Sankey: Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive. o Over and above that, their Lordships do not think it right to apply rigidly to Canada of today the decisions and the reasonings therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries to countries in different stages of development The appeal to Roman Law and to early English decisions [that the SCC relied on] is not of itself a secure foundation on which to build the interpretation of the BNA Act, 1867. o The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits o If Parliament had intended to limit the word persons to male persons it would surely have manifested such intention by an express limitation o Having regard to (1) the object of the BNA Act (2) the fact that the word person is ambiguous (3) that in some sections of the Act, person includes females (4) that in some sections male persons is used but not in others and (5) the Interpretation Act; we have come to the conclusion that qualified persons includes members of both the male and female sex. y ORDER: Appeal allowed. R v Morgentaler (1988) y FACTS: Abortion criminalization was challenged by doctors on the basis that it violated s.7 of the CCRF, the guarantee to life, liberty and security of the person. In effect, the challenged statutes required a woman to seek a committee s order for an abortion from a doctor. There was evidence led of delays and difficulty getting access to abortion services. CJ and others struck down the provision on procedural grounds, but Wilson J said that the primary issue ought to be tackled first. (In other words, what s the point of dealing with the procedures of something that might be unconstitutional in the overall sense?) o Wilson J: At the heart of this appeal is the question whether a pregnant woman can, as a constitutional matter, be compelled by law to carry the foetus to term. o Does [the impugned section], which limits the pregnant woman s access to abortion, violate her right to life, liberty and security of the person? o In my view, this right grants the individual a degree of autonomy in making decisions of fundamental personal importance The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does. o The decision [has] profound psychological, economic and social consequences for the pregnant woman It is a decision that deeply reflects the way the woman thinks about

herself and her relationship to others and to society at large... It is a profound social and ethical [decision] Her response to it [is] the response of the whole person. o The recent struggle for women s rights has been a struggle to eliminate discrimination, to achieve a place for women in a man s world, to develop a set of legislative reforms in order to place women in the same position as men. It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women s needs and aspirations are only now being translated into protected rights. o Given then that the right to liberty gives a woman the right to decide for herself whether or not to terminate her pregnancy, does [the impugned section] violate this right? Clearly, it does. The purpose of the section is to take the decision away from the woman and give it to a committee... [which bases its decision] on criteria entirely unrelated to the [pregnant woman s] priorities and aspirations. o [The flaw in the system] goes deeper than that. [It asserts that] the woman s capacity to reproduce is not the subject of her own control. It is to be subject to the control of the state [This] is not just a matter of interfering with her right to liberty in the sense of her right to personal autonomy in decision-making It is a direct interference with her physical person as well. She is truly being treated as a means [to an end] which she does not desire [and over which] she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. ORDER: Impugned Criminal Code section declared invalid.

Critical Legal Studies y Critical legal theory, based in the political left, that law and legal systems are indeterminate, full of subjective interpretation and incoherency. It is argued that law institutionalizes and legitimates the authority and power of particular social groups or classes. Basically (1) laws are said to be created in a free and liberal, market-driven economy, (2) these beliefs are eventually presented as necessary, real and objective once they are in place, making them incontrovertible and (3) established laws and legal thinking make everyone think things are peachy (e.g. There is no discrimination, look at the CCRF! ) when in fact they are not (e.g. Discrimination is rampant despite the CCRF. ) Law is basically another form of politics and its neutrality is illusory. R v R.D.S. (1997) is a case that shows various SCC judges and their different approaches in trying to determine how to keep preconceived notions out of the law to preserve its neutrality. Essentially, the point is that a critical legal studies approach to these various judgments would say that they are evidence that the law is not neutral, and simply cannot be neutral because all judges bring to the table their own life experiences and prejudices; the goal is simply to try to minimize the effects of these experiences when necessary in order to preserve the closest thing we can find to true justice.

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Law and Economics

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Law and economics theories approach the law less in moral theory and more in ideas about efficiency. A 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. 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, referred to the state of Pareto optimality. These theories question why certain laws or legal systems seem to act counter to the public good. What, in economic terms, is the problem that a legal rule or structure is attempting to resolve? What effect does this rule have on society? Should we have different laws? Duncan Estate v Baddeley (1997) shows how the Alberta Court of Appeal relies on economic theory, public choice, legislative policy, common law and morality to come to a decision. Bhaudaria v Board of Governors of Seneca College (1979) shows how public choice theory (the theory that disjointed and fragmented groups have less effect on the law than tight-knit, organized groups) can affect the interpretation of legislation.

Duncan Estate v Baddeley (1997) y FACTS: Main issue in this appeal was whether a claim in tort for loss of future earnings survives the death of the victim, and, if it does, how to calculate such a claim. Duncan s estate was appealing a decision that his claim did not survive his death. Appeal court agreed, below. o Kerans JA: [Basically says that claim survives due to explicit legislation, and then says that the real question is whether this claim falls under the definition of real financial loss , which is what survives the victim. Then he goes on a dialogue about why the loss is financially real using common law, economics, common sense and morality.] o For example: [If only pecuniary losses were real financial losses, there would be senselessness because] If two people are killed by the same tortfeasor, the estate of the wealthy one who never worked in his life but who has lost his Cartier watch as well as his life would recover the value of the watch [because that loss could be considered real ] but the estate of the victim who is a working man, and who must rely on his ability to earn, would receive nothing on the ground that to treat the loss of his ability to earn [as a real financial loss ] would create a[n unjust] windfall. o Cote JA: Why should a tortfeasor escape scot-free if the plaintiff dies the day before judgement is pronounced? Worse still, why should the tortfeasor who has made death imminent escape scot-free if he manages to drag out the litigation long enough that he produces the very death in question, before judgement? Bhaudaria v Board of Governors of Seneca College (1979) y FACTS: Indian Ph.D. lady wanted to teach at Seneca and got no job interviews. Naturally, in true Canadian fashion, she sued for discrimination basically came up with two alleged causes of action. Firstly, tried to create a common law tort of discrimination, and secondly, said that the Ontario Human Rights Code essentially created a statutory tort of discrimination. Ontario court bought this baloney; said that the Code is evidence that we want to give full protection to

people against discrimination, and that therefore, there is a common law action for discrimination. Clearly they were high on mushrooms at the time they said this. SCC set the hippies straight and told them to eat a dick, and that you can t go around creating torts, and that the Code is extremely detailed in its enforcement and thus upholds public policy against discrimination without the common law needing to invent a new tort. o Wilson JA (Ontario): Assuming that 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 cause of action under the Ontario Human Rights Code? In my view, they give rise to a cause of action at common law. While no authority cited has recognized a tort of discrimination, none has repudiated such a tort [The law of torts is anything but static When it becomes clear that the plaintiff s interests are entitled to legal protection the mere fact that the claim is novel will not of itself operate as a bar to the remedy ] There can be no doubt that the interests of persons of different ethnic origins are entitled to the protection of the law. o Laskin CJ (SCC): WTF? LOL! RTFM! o In this Court, considerable emphasis was laid on the question whether a breach of the Code could itself be sufficient to establish civil liability without calling in aid common law principles relating to intentional invasions of legally protected interests. o The [argument] that a right of action springs directly from a breach of the Code cannot succeed. The reason lies in the comprehensiveness of the Code in its administrative and adjudicative features o [There is no support for] the contention that the Code itself gives or envisages a civil cause of action, whether by way of election of remedy or otherwise. o [Also, the premise relied upon by Wilson JA, that the public policy behind a statute, rather than the statute itself, can give rise to unenforceability or a statutory invalidation, having come from Re Drummond, was dealt with again in Re Noble and Wolf and was decided differently but this was not mentioned by Wilson JA.] o For the foregoing reasons not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law 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 ORDER: Appeal allowed, suck it Bhaudaria.

Canadian Legal Inheritances (47)


Aboriginal Title
The recognition and acknowledgement of aboriginal law and rights has come to the forefront of the legal debate in Canada since the 1980s, when the CCRF entrenched and protected existing aboriginal and treaty rights of the aboriginal peoples of Canada. An interesting discussion takes places in Mitchell, while Delgamuukw provides an overview of recent developments in the area of aboriginal rights in the context of aboriginal title to land.

Mitchell v Canada (Minister of National Revenue) (2001) y FACTS: For discussion purposes only. o McLachlin CJ: The common law status of aboriginal rights [after British Crown assumed control of the land] rendered them vulnerable to unilateral extinguishment This changed in 1982, when Canada s constitution was amended to entrench existing aboriginal and treaty rights The enactment of s. 35(1) elevated existing common law aboriginal rights to constitutional status (although it is important to note, the protection also extends beyond the aboriginal rights recognized at common law: Delgamuukw v BC.) Henceforward, aboriginal rights falling within the constitutional protection of s.35(1) could not be unilaterally abrogated by the government. However, the government retained the jurisdiction to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and compelling public objectives. Delgamuukw v British Columbia (1997) y FACTS: Aboriginal band claimed a property interest in 58 000 square kilometres in BC based on historical association with those lands. BC said there was no interest, and if there was, the claim ought to be against the Government of Canada, for compensation. o Lamer CJ: This appeal raises a set of questions which revolve around the nature and scope of the constitutional protection afforded by s. 35(1) to common law aboriginal title.  The content of aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming that right. However, nor does aboriginal title amount to a form of inalienable fee simple.  There is an inherent limit that lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group s claim to aboriginal title. y This limit is a manifestation of the sui generis nature of aboriginal title. y Implicit in the protection of historic patterns of [land] occupation is recognition of the importance of continuity of the relationship of an aboriginal community to its land over time Uses of the land that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title. y It is for this reason also that these lands cannot be alienated. o Aboriginal title at common law is protected in its full form by s. 35(1) On a plain reading of the provision, the section did not create aboriginal rights; rather it accorded constitutional status to those rights which were existing in 1982. o In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria:  The land must have been occupied prior to sovereignty;  If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation; and  At sovereignty, that occupation must have been exclusive.

Common Law and Civil Law Traditions (53)


Canadian law remains a largely European inheritance; how were Canada s dominant common and civil law traditions received from their European origins? The Privy Council decision in Cooper v Stuart highlights the basic principles surrounding the rules of reception. (In practice, the rule of conquest was applied to central Canada and the rule on settlement everywhere else.) Cooper v Stuart (1899) y FACTS: Case focussed on rule against perpetuities; not relevant to this discussion. Case was about the Colony of New South Wales NSW 4 life!!! o Lord Watson: The extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to circumstances.  There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law. o In the case of the latter, the Crown may by statute declare what parts of the common and statute law of England shall have effect But when that is not done, the law of England must (subject to well-established exceptions) become from the outset the law of the Colony and be administered by its tribunals. In so far as it is reasonably applicable the law of England must prevail until it is abrogated or modified.

Nature of the Common and Civil Law


The 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; and (2) all 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. In strict terms, the common law is the law constructed out of a series of cases. Unlike the English common law, civil law arises out of Roman law. The civil law is based not on cases but established laws, generally written as broad legal principles. It also includes doctrinal writings and interpretations written by learned scholars. In civil law jurisdictions, legislation is seen as the primary source of law. Judgments normally rely on the provisions of codes and statutes, from which solutions in particular cases are derived. Judicial reasoning is based extensively on the general principles of the rule or code. On the other hand, common law methodology employs analogical reasoning from statutory provisions to fill in the gaps. Canada is a mixed-law jurisdiction, with common law as the basis of private law in all provinces except Quebec. Canadian federal law, which applies in all provinces, is also derived from the common law. Private law in Quebec is based on the French civil law tradition, but the Quebec legal system has many aspects of a common law jurisdiction. (For example, stare decisis has heavy weight in decisions, and dissenting opinions in judgments are permitted and happen often.)

The Operation of the Common Law and Precedent


Reliance on previous cases is called the principle of stare decisis. (Stand with the Decision) This is the formal term indicating that common law relies on precedent. Precedent aids in stability and coherence of the law, makes it more predictable and provides fairness in decision-making. It also promotes efficiency and eliminates sources of error, such as bias. A general rule given explaining reasoning is called the ratio decidendi. Everything else said by a judge in a case is called obiter dicta. In theory, the ratio is binding on lower courts and the obiter is not. Canada Trust Co. v Ontario Human Rights Commission (1990) y FACTS: Case illustrates how ratio can be narrowed by other courts in some cases; judge here took Laskin CJ s reasoning from Bhaudaria and constrained it to those facts, permitting a claim to proceed. Tarnopolsky JA invoked the cy-pres doctrine to bring a trust into accord with public policy, permitting it to remain a scholarship. o Tarnopolsky JA: First, in Bhaudaria this court had attempted to advance the common law in filling a void by creating a new tort of discrimination. The Supreme Court held that not to be necessary because of the comprehensive scheme of the Ontario Human Rights Code. Here, however, we are concerned with the administration of a trust, over which superior courts have had inherent jurisdiction for centuries and, in particular, with respect to charitable or public trusts o Second, we are not concerned here with a typical proceeding under the Human Rights Code [The Board probably doesn t have the power to act in this case] and resort to a court would have to be made to determine authoritatively whether such power exists. o Finally, this is not a case where the fact-finding role of the Commission and a board of inquiry would be required We are concerned with a question of law; there are no facts in dispute.

Common Law and Equity


Equity is formally defined as the body of law developed by the Court of Chancery prior to its dissolution, in most common law countries just after 1873. These courts were originally separate from common law courts, so its body of law developed independently. It was the court of conscience as opposed to the court of law. They were used as a device to combat the perceived harshness of the common law. Common law and equity are now administrated together in singular courts. IN A CONFLICT BETWEEN COMMON LAW AND EQUITY, EQUITY PREVAILS. y Re DeLaurier is an example of a case in which the equitable doctrine of fiduciary (being compelled to act in the best interests of another, in this case, a child) was invoked to protect the religious upbringing of a child. The court relies on equitable principles to interpret a statutory provision. Guerin v Canada and KLB v BC show that the Crown may be under a fiduciary obligation to particular individuals or groups.

Re DeLaurier (1934) y FACTS: Appellants (Roman Catholics) applied for custody of their infant Thelma, who for about 10 years had been in care of the respondents (Protestants). Child had identified with the Protestant Church. Appeal was brought to SCC. o Hughes J: In equity, a principle was early established that the court might control or ignore the parental right but in so doing it should act cautiously, and should act in opposition to the parent only when judicially satisfied that the welfare of the child required that the parental right should be suspended or superseded. o Crocket J: If the general welfare of the child requires that the father s rights in respect of the religious faith in which his offspring is to be reared, should be suspended or superseded, the courts in the exercise of their equitable jurisdiction have undoubted power to override them, as they have power to override all other parental rights, though in doing so they must act cautiously. y RESULT: Child remains in care of the respondents, raised as a Protestant, because it is in her best interests as shown by the evidence. Guerin v Canada (1984) y FACTS: Indian Band s land was leased by the Crown to a golf club. The law requires that Indians wishing to give their land to a third party can only give it to the Crown, and the Crown will act on the Indians behalf to give it to the third party. This is to prevent exploitation of the Indians. Parliament has given the Crown a discretion to decide for itself where Indians best interests lie. Did the Crown breach any duty by leasing the Indian land to a golf club? o Dickson J: In my view, the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect. o The discretion on the part of the Crown, far from ousting, as the Crown contends, the jurisdiction of the courts to regulate the relationship between the Crown and the Indians, has the effect of transforming the Crown s obligation into a fiduciary one. o The hallmark of a fiduciary relation is that the relative legal positions are such that one party is at the mercy of the other s discretion . Where by statute, agreement or unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary s strict standard of conduct. y RESULT: [While the Crown s obligation to the Indians with respect to their land interests is not a public law duty, and while it is not a private law duty in the strict sense either because of the sui generis nature of the relationship between Indians and the Crown], it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.

K.L.B. v British Columbia (2003) y FACTS: Appellants were kids abused in foster homes. Appeal raises the question of whether, and on what grounds, the government can be held liable for the tortious conduct of foster parents toward children whom the government has placed under their care. o McLachlin CJ: The parties do not dispute that the relationship between the government and foster children is fiduciary in nature The government is the legal guardian of children in foster care, with power to direct and supervise their placement. The children are doubly vulnerable, first as children, and second because of their difficult pasts and the trauma of being removed from their birth families. The parties agree that, standing in the parents stead, the government has considerable power over vulnerable children and that placement decisions and monitoring may affect their lives and well-being in fundamental ways.'  Where the parties disagree is over the content of the duty that this fiduciary relationship imposes on the government over what actions and inactions amount to a breach of this duty.  Appellants argue that the duty is simply to act in the best interests of foster children; the government argues for a duty to avoid certain harmful actions that constitute a betrayal of trust, of loyalty and of disinterest. o The government s view must prevail.  There are certain common threads running through fiduciary duties that arise from relationships marked by discretionary power and trust however, the obligations imposed may vary in specific substance according to the relationship.  In determining the content of the fiduciary obligation here at issue, we should focus generally on cases dealing with the relationship of children to caregivers. o The essence of the government s misconduct was negligence, not disloyalty of breach of trust. There is no suggestion of serving anyone s interest but that of the children. The fault was not disloyalty but a failure to take sufficient care. y RESULT: The government did not breach its fiduciary duty to the appellants.

International Law (71)


In the modern legal system, two different species of law exist: international and domestic.

Domestic Law
Domestic law includes statutes, common law, private and public law, torts, contracts and property law; judicial decisions and constitutional law pertaining to domestic matters also form part of domestic law.

International Law
The two significant sources of international law are: y Treaties;

Customary international law.

Treaties are agreements or covenants between particular states. Customary international law binds all states, excepting only those have been sufficiently persistent in rejecting it prior to its emergence as a binding norm. The content of a treaty is deemed from its words; customary law is much more amorphous, and is formed by general and universal state practice, undertaken with a sense of legal obligation, called opinio juris. When state practice and opinio juris become sufficiently widespread throughout international states, the practice in question is said to become legally binding as customary international law.

Receiving International Law


Canada is a dualist jurisdiction when it comes to TREATIES this means that Canada considers domestic law and treaty law as two distinct universes. In the dualist tradition, a treaty has no effect in domestic law until domestic legislation is passed to transform or implement it into domestic law. Dualism is good because: y y The Executive makes treaties, but Parliament makes domestic law; therefore there is a balance of power to keep the Executive in check. The Federal Executive is prevented from making treaties that may govern Provincial matters.

Dualism is bad because: y y Parliament may fail to implement international treaties for many years, making Canada look like a polished turd in the international sphere. Dilemmas are caused in the Federal and Provincial legislatures over how to best implement the treaty into domestic law: legislation must be drafted, but it may not always correctly address the needs of the treaties, for example. There are great uncertainties. Courts may sometimes have to ensure adherence to other existing statutes and constitutions, which means that they might have to interpret or read down international treaty obligations to create a sort of partial application of treaties that satisfies neither the treaties themselves nor the desires of the legislatures, which have not expressly implemented particular treaties.

However, CUSTOMARY INTERNATIONAL LAW is automatically part of Canada s domestic law, and domestic laws should be interpreted to be consistent with customary international laws, as far as possible. So in this way, Canada is a monist (rather than dualist) country when it comes to customary law. A problem arises when Parliament legislates specifically contrary to some customary international law, and Canada ends up in breach of international obligations because of its domestic law.

Statutory Law (76)


Parliament is free to enact statutes to displace the common law. They are also free to legislate in new areas altogether. One basic principle of common law interpretation is that a statutory rule will supersede a judge-made rule.

The case of Halpern shows some interplay between statute, common law and the constitution. Halpern v Canada (AG) y FACTS: Case questioned the validity of same-sex marriage, and the historical common law definition of marriage as the union of one man and one woman to the exclusion of all others. o THE COURT: The central question in this appeal is whether the exclusion of same-sex couples from this common law definition breaches sections 2(a) or 15(1) of the CCRF o We make [some] preliminary observations:  The definition of marriage is found at common law;  The common law is subject to CCRF scrutiny where government action or inaction is based on a common law rule; o Marriage does not have a constitutionally-fixed meaning the term has the constitutional flexibility necessary to meet changing realities of Canadian society y RESULT: Common law definition of marriage infringed s. 15(1) of the CCRF and was not saved by s. (1) of the CCRF. o To remedy the infringement, we:  Declare the existing common law definition of marriage to be invalid to the extent that it refers to one man and one woman.  Reformulate the common law definition as the voluntary union for life of two persons to the exclusion of all others.  Order the declaration of invalidity and the reformulated definition to have immediate effect y RESULT: In July 2003, the Federal government drafted a Bill redefining marriage and put it to the SCC for review of its validity. It is now proclaimed as the Civil Marriage Act, allowing for samesex marriages in all provinces.

Chap. 3 Constitutional Themes


Recurring Constitutional Themes in Canadian Public Law (89)
A constitution establishes the foundational law through which the Rule of Law can occur. It establishes who can make law over the land and limits on the content of this law. A constitution also establishes the respective relationships between the institutions of the state that perform the functions necessary to make effective law in society.

Constitutionalism in Canada
Six key principles derived from Canada s constitutional structure are: y y y y y y Rule of Law Constitutional Supremacy Parliamentary Supremacy Federalism Statutory Authority Judicial Independence.

The Rule of Law


This is the rule that a society should strive to operate on the rule of law, rather than the rule of men or women. Even the most powerful state organs and officials are subordinate to the law. There is to be arbitrary, unrestrained power in any body. The Constitution serves as a law to make law and assigns certain powers to certain parties, and defines their boundaries. y Roncarelli is an example of a case (pre-CCRF) where an official tries to use his power arbitrarily and the courts smack him in the face with the long dick of the law.

Roncarelli v Duplessis (1959) y FACTS: Liquor Commission director revoked a license because licensee was a Jehovah s Witness. o Rand J: It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute. o The duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the discretion of the Commission; but that means that decision is to based on a weighing of considerations pertinent to the object of the administration. o In public regulation of this sort there is no such thing as absolute or untrammelled discretion Discretion implies good faith in discharging public duty

What Comprises the Constitution of Canada?


Canada has a written Constitution, embodied in two documents: y y Constitution Act, 1867 o Establishes powers and federalism. Constitution Act, 1982 o Establishes the CCRF and provides an express definition of the Constitution s legal status in Section 52.

Canada also has unwritten principles that append the written Constitution. Secession Reference helps understand the relationship between the text of the Constitution of Canada and its unwritten principles. Principles can help interpret the Constitutional text, but some may have the force of law and impose substantive limits on the powers of government. BC v Imperial Tobacco is a case showing how the unwritten principle of the Rule of Law was invoked to try to strike down legislation that was retrospective and targeted at a specific class or group. Reference re Secession of Quebec (1998) y FACTS: SCC asked to investigate whether Quebec had the legal power to separate from Canada. o The Court: The Constitution of Canada includes the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state These support principles are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with in the text of the Constitution. o [They] emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning [These principles include but are not limited to:]  Federalism;  Democracy;  Constitutionalism;  Rule of Law. o Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations . These principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. o In the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada. British Columbia v Imperial Tobacco Canada Ltd. (2005) y FACTS: British Columbia (AKA the Hippie Douche Province) went after tobacco companies by enacting a law that let them sue for the costs of treating smoking health problems. Basically created a cause of action for a particular plaintiff (BC) against a particular defendant (tobacco companies.)

Major J (writing for unanimous SCC): This Court has described the rule of law as embracing three principles [(1) the law being supreme; (2) the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principles of normative order; (3) that the relationship between the state and individual be regulated by law, in other words, the state must be able to point to the legal source of its power against the individual.]  Considerable debate surrounds the question of what additional principles the rule of law might embrace, and the extent to which they might mandate the invalidation of legislation based on its content.  The debate underlies [the observation] that advocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be. o [The tobacco companies (appellants)] submit that the rule of law requires that legislation (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial None of these requirements enjoy constitutional protection in Canada.  First, many of the requirements of the rule of law proposed by the appellants are simply broader versions of rights contained in the CCRF. (i.e. if it s written, it s written for a reason, and the reason is they don t exist as general principles.)  Second, the arguments overlook the fact that [other constitutional principles say we should strongly favour] upholding the validity of legislation that conforms to the express terms of the Constitution. (i.e. if the legislation conforms to the written Constitutional text, general principles outside the text probably should not interfere; rule of law is not an invitation to trivialize Constitution s written terms.) RESULT: The Act does not implicate the rule of law in the sense that the Constitution comprehends that term. It follows that the Act is not unconstitutional by reason of interference with it. o

Constitutional Conventions
These are another form of unwritten constitutional norms. They represent accepted understandings of how organs of government operate. Conventions come into existence on the basis of three factors: y y y A practice or agreement developed by political actors; A recognition by political actors that they are bound to follow the convention; The existence of a normative reason a purpose for the convention.

Conventions are NOT law and as such cannot be enforced by the courts. They attain and retain their binding force by agreement. However, courts may recognize a convention.

The Patriation Reference (1981) y The Court: 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. Being based on custom and precedent, constitutional conventions are usually unwritten rules; some of them however may be reduced to writing and expressed in the proceedings and documents of conferences, or in preambles of statutes. They are often recognized in statements made by members of governments. y Perhaps the main reason why conventions cannot be enforced by the courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules. The conflict is not of a type which would entail the commission of any illegality. It results from the fact that legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all.

The Principle of Constitutional Supremacy


A discussion of the interplay between democracy and constitutionalism is below, as it pertains to the principle that the Constitution is the supreme law of the state. (It indicates a shift from parliamentary supremacy to constitutional supremacy over time, especially after the introduction of the CCRF.) Reference re Secession of Quebec (1998) y The Court: The argument that the Constitution may be legitimately circumvented by resort to majority vote is superficially persuasive, probably because it seems to appeal to the same principles that underlie the legitimacy of the Constitution itself, namely democracy and selfgovernment. o However, this argument is unsound because it misunderstands the meaning of the popular sovereignty and the essence of a constitutional democracy. o Canadians have never accepted that ours is a system of simple majority rule Constitutional government is predicated on the idea that the political representatives of the people of a province have the capacity and the power to commit the province to be bound into the future by the constitutional rules being adopted. These rules are binding not in the sense of frustrating the will of a majority of a province, but as defining the majority which must be consulted in order to alter the fundamental balances of political power, individual rights, and minority rights in our society. o Of course, those constitutional rules are themselves amenable to amendment, but only through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled.  In this way, our belief in democracy may be harmonized with our belief in constitutionalism.  Constitutionalism facilitates indeed makes possible a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather they are essential to it.

The Exercise of Public Power in Canada (117)


The Separation of Powers Doctrine
This refers to the division of governmental function between the legislative, executive and judicial branches of the state. The tradition of Canada is to give pre-eminence to the legislative branch, to which the executive is made subordinate, though there is overlap of personnel. Important is the recognition that each of these powers represents a unique form of authoritative decision-making. Legislative decision making is prospective, broad in impact and open-ended. Judicial decision-making is retrospective, localized and narrow in outcome. Executive decision-making shares features of both legislative and judicial decision-making, and is the most difficult to define. y Babcock provides a recent example of how the court has approached Parliamentary sovereignty/supremacy as a principle in Canadian constitutional law.

Babcock v Canada (Attorney General) (2002) y FACTS: Government sought to rely on a statutory right of non-disclosure of Cabinet documents, even though documents had already been disclosed in litigation. Babcock 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. Court found that parliamentary sovereignty decided the issue. o McLachlin CJ: Unwritten principles must be balanced against the principle of Parliamentary sovereignty  Quoting Strayer JA in Singh: 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: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit. o It is well within the power of the legislature to enact laws as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government.

Legislative Power and Federalism


As the SCC has stated, the recognition of provincial legislatures with extensive areas of jurisdiction was the keystone of Confederation for the leaders and people of Quebec and the Maritime provinces. The court recognized federalism as an unwritten principle of the Canadian Constitution, with the textual source of division of powers primarily found in ss. 91 and 92 of the Constitution Act, 1867. As was said in Reference re Separation of Quebec:

It is up to the courts to control the limits of the respective sovereignties of the Federal and Provincial governments. In interpreting the Constitution, the courts have always been concerned with the federalism principle. The principle recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. Federalism also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to its diversity.

Executive Power
The executive branch is tough to define. It includes all ministries of government and their employees, the armed forces and Crown corporations. Lines are not always easy to draw. Marginal institutions include universities, hospitals, professional regulatory bodies, etc. In law, the executive is subordinate to the legislature. The executive must locate any authority it has to act in a statutory source. Also, by constitutional convention, the executive is responsible to the legislature. This is the essential meaning of responsible government. Convention requires that the PM command the confidence of a majority of elected legislators otherwise, the PM and his government must fall.

Judicial Power
The Constitution Act, 1867 contains judicature provisions in ss. 96-101. Under these sections, Parliament can create courts for various purposes. The Constitution Act, 1982 appears to have entrenched changes to the SCC s composition and the process for appointment of justices, but the SCC otherwise does not have constitutional status. 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. In Canada, superior courts also exercise a supervisory jurisdiction with respect to exercises of executive government authority. This is the subject matter of administrative law. Because the executive derives all its power from statute, it is implied that this power is limited by and to the jurisdiction granted by the statutory delegation from the legislature. The courts act as umpires by allowing individuals to petition for judicial review of administrative action. The SCC has said that judicial review of executive powers is a hallmark of s. 96 jurisdiction, and so cannot be withdrawn from those courts by provincial legislatures and that Parliament is also constitutionally barred from infringing this core jurisdiction of s. 96 courts. Judicial independence ensures that judges are at complete liberty to decide individual cases on their merits without interference, insulating them from retaliation from other branches. It also preserves the separation of powers by depoliticizing the relationship between the judiciary and the other branches. The legislature and executive cannot, cannot appear to, exert political pressure on the judiciary, and conversely 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.

Two Approaches to Constitutional Interpretation


Two general approaches are employed in textual interpretation of the Constitution. y Historical/Originalist Approach o Constitutional text should be understood as having a single, unchanging meaning, the meaning intended by those who wrote and ratified the text. If the meaning ceases to speak to the needs of society, the text ought to be changed formally. o Adheres very strictly to the notion that the Legislature and the people should make the laws as they see fit, rather than leaving law-making to judges. Living Tree/Progressive Approach o Favoured by the SCC. o Conceives of the Constitution as not frozen in meaning but gives a reasoned reading of the text that makes sense at the time it is being interpreted. o This approach often removes or relieves the pressure for constitutional amendment, which is a very difficult and drawn-out process.

Constitutional Amendment (131-134)


The process of amending the Constitution is set out in Part V of the Constitution Act, 1982 which sets out five distinct amending formulae applying to different circumstances. Interestingly, in Reference re Secession of Quebec, the SCC said at paragraph 88: y The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire [of a province] to pursue secession by [its] population would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. o The amendment of the Constitution begins with a political process undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation. Those representatives may, of course, take their cue from a referendum, but in legal terms, constitution-making in Canada is undertaken by the democratically-elected representatives of the people. o The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation of the existing constitutional order would confer legitimacy on the demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conduct them in accordance with the underlying principles already discussed.

IN OTHER WORDS: Overarching principles of federalism and democracy, combined with a serious rejection of the existing constitutional order would compel parties to Confederation to the negotiating table and while negotiations would have to be made in good faith, there are no promises that those negotiations would have to lead to any particular result. o NOTE: In Hogan v Newfoundland (2000) at paragraph 101, the court said these comments ought to be viewed in the sense of when a situation arises where constitutional amendment is attempted by ways OTHER than the five methods specified in Part V of the Constitution Act, 1982. o (In that case, where Newfoundland had made amendments according to one of the five methods, appellants were trying to use the SCC s reasoning to say that the amendment was invalid because Newfoundland had to negotiate first with other parties who might be particularly affected by the amendment, essentially turning the principle-based freebie that the SCC offered up in Secession into a constitutional amendment requirement, superimposed on the amendment process. This failed.)  It was another case of taking principles (in that case, the principle of respect for minorities in combination with the principles of federalism and democracy) beyond the explicit text of the Constitution. o The structure [Constitutional amendment] is designed not to prevent amendment but to ensure, by making the process more difficult that the rights [in this case, of minorities] are given due regard and protection. The appropriate provision in Part V of the Constitution, having been complied with, [means that] the validity [of the amendment] cannot be questioned.

Chap. 4 Parliament
Structure and Operation (153)
Section 17 of the Constitution Act, 1867 creates a Parliament consisting of the Queen, Senate and House of Commons. Section 10 says the Governor General does the Queen s work. Section 24 expressly anticipates the appointment of senators by the GG. Convention dictates the GG follows the advice of the PM. Section 37 anticipates that the House of Commons is elected. y y y O Donohue challenges the way the Queen is selected in the UK as a violation of human rights. Brown challenges the validity of appointing senators as violating democratic principles. Figueroa strikes down the rule that a registered party must run candidates in at least 50 ridings because it violates principles of participation in the political process.

O Donohue v The Queen (2003) y FACTS: Roman Catholics are barred from being monarchs of the UK by the Act of Settlement, 1701. These laws are a part of the laws of Canada, and arguably infringe the CCRF. But if Act is part of the Constitution, then Act is not justiciable (CCRF cannot be used against Constitution); arguably even if not part of the Constitution, it may be beyond role of the Courts and against convention for a court to interfere in this regard anyway. o Rouleau J: A constitutional monarchy is at the root of our constitutional structure. o In light of the [Constitution Act, 1867] preamble s clear statement that we are to share the Crown with the UK, it is axiomatic that the rules of succession for the monarchy must be shared and in symmetry with those of the UK One cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected.  If courts were free to review rules of succession, Canada would break symmetry with Great Britain and could conceivably recognize a different monarch or reanimate the debate resolved by the Act of Settlement. This would be clearly contrary to settled intention and would see the courts changing rather than protecting our fundamental constitutional structure. o ALSO:  The Statute of Westminster is a part of the Constitution of Canada [because reference is made to it in the Constitution Act and it recognizes [particular rules of succession.] Unilateral changes by Canada to the rules of succession 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 to the Constitution Act. y RESULT: These rules of succession, and the requirement that they be the same as those of GB, are necessary to the proper functioning of our constitutional monarchy and therefore, the rules are not subject to CCRF scrutiny.

Brown v Alberta (1999) y FACTS: Alberta tried to be AMERICAN DOUCHEWADS and held senator elections the goal being for the Albertans to elect senators-in-waiting, which the PM would then be politically forced to appoint to the Senate. Chretien just ignored this, because, hey, whatever. NonSenator Brown tried to get a declaration that the provisions for appointment of senators in the Constitution Act, 1867 are undemocratic. Original court threw case out because it saw no legal rights issue to adjudicate, rather just a political stunt to draw attention to senator appointment processes. Appellant contends there is a legal issue based on a violation of unwritten democratic principles which the SCC espoused in the Quebec Secession Reference, and wanted the court to declare that senators-in-waiting, democratically elected, basically have to be appointed in order to comply with the SCC s statements. o The Court: The appellant does not ask the court to declare that appointments made inconsistently with [Alberta s wacky law] are unconstitutional. Rather, he requests that the court declare that any such appointments would be undemocratic.  In order for the court to make such a statement, it must have jurisdiction to do so. It will have jurisdiction only where there is a legal issue. o The appellant is asking the court to be an arbiter of the democratic character of senatorial appointment The appellant seeks to invoke the democratic principle, per se, divorced of its interpretive role and devoid of legal issues, simply because a declaratory order from the court would have considerable [political] persuasive effect  We cannot find that the appellant raises a legal issue. y RESULT: Appeal dismissed. Samson v Attorney General of Canada (1998) y FACTS: Reform Party sought injunction restraining any appointment of a senator from Alberta unless that person had been elected according to the wacky law. o McGillis J: The GG s power to appoint is purely discretionary A limitation could only be imposed on that power by means of a constitutional amendment o It is also purely political in nature A purely political decision to be made by politicians, without the intervention of the Court. y RESULT: Application is dismissed. Figueroa v Canada (2003) y FACTS: Appeal raises questions in respect of the democratic process the purpose and meaning of s. 3 of the CCRF. Does federal legislation restricting access to certain benefits to political parties that have not nominated candidates in at least 50 ridings violate s. 3? o Iacobucci J: In interpreting the scope of a CCRF right, courts must adopt a broad and purposive approach that seeks to ensure that duly enacted legislation is in harmony with the purposes of the CCRF.  The right to effective representation contemplates more than the right to an effective representative in Parliament The purpose of s. 3 includes not only the right of each citizen to have and to vote for an elected representative but

also the right of each citizen to play a meaningful role in the electoral process. This is a more complete statement of the purpose of s. 3 of the CCRF.  Defining the purpose of s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the composition of Parliament subsequent to an election, better ensures that the right of participation that s. 3 explicitly protects is not construed too narrowly.  Participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections The fundamental purpose of s.3 is to promote and protect the right of each citizen to play a meaningful role in the political life of the country Does the 50-candidate threshold [for benefits] violate s. 3, in the sense of interfering with the capacity of individual citizens to play a meaningful role in the electoral process? YES, because:  Political parties that nominate candidates in fewer than 50 ridings do play a meaningful role in the electoral process AND withholding benefits from [these parties] undermines the right of each citizen to have meaningful participation in the electoral process. Is the infringement saved by s. 1 of the CCRF? NO, because:  The test of proportionality fails the Oakes test.

Parliamentary Procedure (172)


Section 38 of the Constitution Act, 1867 empowers the GG to summon the House of Commons. After the House of Commons is summoned, there occurs the: y y y Formal opening; Speech from the Throne; Address in reply to the Speech from the Throne.

Prorogation ends a session, but does not dissolve Parliament. Prorogation abolishes all pending legislation and quashes further committee activity. Between prorogation and the next session of the same Parliament, the House is said to be in recess, or a long adjournment. Both the Constitution Act, 1867 (s. 5) and the CCRF (s. 4(1)) limit the duration of a Commons session to 5 years except in times of war or insurrection. Occasionally a PM might be forced to seek dissolution by convention or after a no confidence vote. The confidence of the House of Commons lies at the heart of responsible government. The cabinet must be responsible for its actions to an elected legislature. However, not all failed Government votes mean the Government must fall. Precedent shows that responsible government does not break down when the executive bows to the wishes of the House on a wide variety of matters in a wide variety of circumstances.

As a rule, the GG accepts the advice of the PM, but in certain cases the GG can refuse. The exercise of this reserve power is rare, but may be used for example, in refusing an immediate request for dissolution or where a government seeks dissolution soon after an election. Provision for the Speakership in the House of Commons is assured not only by tradition and convention, but also by the Constitution, in ss. 44, 45, 46, 47 and 49. Election of the Speaker is by secret-ballot.

Parliamentary Privilege (186)


Parliamentary privileges are those rights necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts. Privilege in this context often means the legal exemption of some duty, burden, attendance or liability to which others are subject. Privilege is wider than simply being able to say particular things or others; it extends to being able to determine how the House of Commons does its legislative work. It permits the House to establish its own rules of operation and be left alone by the courts or other bodies wishing to meddle. y y y Vaid analyzes parliamentary privilege, its scope and the role of the courts in deciding its existence. Bacon says that provided they are constitutionally sound, Parliament can make any law it wants because it is sovereign. Turner involved the Parliament being tricked into legislating something, possibly because the executive or Crown didn t disclose certain information tough bananas, the courts have to stay out. Parliament should conduct its own inquiry.

Canada v Vaid (2005) y FACTS: Speaker s chauffeur was shit-canned by the Speaker; sued for discrimination. Is the Speaker s conduct in shit-canning the chauffeur privileged, meaning it cannot be investigated or reviewed by the Human Rights Commission, or is it outside the privilege, given that the chauffeur is not a Member of the House (too far removed from the operations of the House)? (Question is relevant to maintaining separation of powers, as Parliamentary privilege keeps the courts out of the legislature.) o Binnie J: The purpose of privilege is to recognize Parliament s exclusive jurisdiction to deal with complaints within its privileged sphere of activity The focus is not the grounds on which a particular privilege is exercised, but the prior question of the existence and scope of the privilege asserted in the first place.  IN OTHER WORDS: If it s privileged, the Parliament can do whatever it wants. What we have to know is where the privilege starts and ends. o VARIOUS WELL-ESTABLISHED TENETS OF PRIVILEGE: See pages 188-189.  Privilege includes the necessary immunity that the law provides for legislators to do their legislative work And necessity is to be read broadly.

If a matter falls within the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege.  Proof of necessity is required only to establish a sphere of matters over which there is privilege. Once it is established, courts must butt out and let Parliament decide whether the exercise of the privilege was proper. o Parliamentary privilege is defined by the degree of autonomy necessary to perform Parliament s constitutional function.  I have no doubt that the privilege attaches to the House s relations with some of its employees but there is no evidence to support a sweeping immunity, or indeed any evidence of necessity at all [that privilege must attach to relations with all employees.] RESULT: No privilege; permission for investigation granted according to the ordinary employment and human rights law that Parliament has enacted with respect to employees within federal legislative jurisdiction. 

Bacon v Saskatchewan Crop Insurance (1999) y Wakeling JA: The statement that the law is supreme over the acts of both government and private persons is nothing more than an acceptance that the law as it exists is applicable to both government and private persons. It is a fundamental statement of the obligation of governments which is not challenged by any of the parties to this appeal. o However, the law, including the common law, is subject to change by legislation and when changed it is this changed law which is the one law for all. The law, which is applicable to us all, cannot be taken as static and unchangeable. o The statement [that nobody is beyond the law] does not create a restriction on Parliament s right to make laws, but is only a recognition that when they are made they are then applicable to all, including governments. y Courts [do not provide protection] in relation to the passage of arbitrary legislation. Turner v Canada (1992) y Mahoney JA: That procedural fairness is not required in a legislative process is well established. y While the CCRF and the Canadian Bill of Rights may undoubtedly affect the validity and construction of legislation they do not bear on the process of legislating. Wells v Newfoundland (1999) y FACTS: Wells got a job with the Board of Whatever. Government dissolved the board. Wells wanted damages for breach of contract. Government argued that it had the power to eliminate the position, regardless what the terms of the contract were and did not have to do anything because it has parliamentary supremacy. o Major J: There is no dispute that the Parliament has the authority to structure the public service as it sees fit, and to eliminate or alter positions in the process. But can it escape the financial consequences for doing so without explicitly extinguishing the rights they have abrogated? No.

While the legislature may have the power of passing a law to specifically deny compensation to an aggrieved individual with whom it has broken an agreement, clear and explicit statutory language would be required to extinguish existing rights previously conferred on that party. o In a nation governed by the rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to. IN OTHER WORDS: As a sovereign legislature, you can eliminate the guy s position, but that doesn t automatically eliminate the rights he has against you unless you specifically legislate against the poor guy directly, creating a law that specifically says his rights are toast. You have a right to do this, as a sovereign legislature (at which point that legislation may be a violation of the CCRF or not, but that s a different question.) Another way to look at it is to say that while a Parliament is competent to pass any bad laws it wants to (say, extinguishing a poor guy s rights) provided they are constitutionally valid, it is not presumed that it means to do so. o

Authorson v Canada (Attorney General) (2003) y FACTS: Government made legislation that denied claims for pension moneys owed prior to 1990; basically, this meant the Feds appropriated decades-worth of veteran pension money interest without compensation. For the record, the respondent was a WW2 veteran, deceased by the time this case rolled around. (If the fucking Nazis didn t kill them, it seems that the Feds will.) y Veterans argued that the quasi-constitutional Human Rights Act of 1960 obligated Parliament to engage in a fair process before adopting the legislation (because the Act guarantees due process of law before appropriation), and therefore, the expropriation of money ought to be prohibited. o Major J: The governmental expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear and unambiguous language to do so. o Due process protections cannot interfere with the right of the legislative branch to determine its own procedure.

Ethics in Parliament (204)


Parliament may be sovereign but individual parliamentarians are not. Ethics rules exist both in statutory law and in the internal procedural rules governing each house of Parliament. The Criminal Code, the Parliament of Canada Act and the Canada Elections Act all have ethics sections, as so the Standing Orders of the House of Commons and the Rules of the Senate. The Conflict of Interest Code for Members of the House of Commons is available at 209-215. Typically, conflict of interest regimes incorporate a combination of controls, such as disclosure, avoidance and recusal. Various interests can put a legislator into a conflict situation. y y Investments; Debts;

y y y y y y y

Corporate positions; Outside employment; Lobbying; Government contracts and activities; Gifts and honoraria; Inside information; Spouse and dependent children.

Bribery, the most extreme form of conflict of interest, is a criminal offence.

Parliament s Law-Making Procedure (215)


If Parliament is free to determine its own procedure and pass laws as it pleases, what rules does it follow? If you wish to die of boredom, visit pages 215-221.

Chap. 5 Exercise of Executive Authority


Exercise of Executive Authority (223)
The executive branch refers to those institutions responsible for implementing and enforcing laws, whether those laws are formulated by the legislature or the judiciary. It is not a single institution but a varied assorted of institutions and officials ranging from the GG to independent boards, tribunals and Crown corporations. The word administrative is often used interchangeably with executive. At the heart of administrative law is the requirement that officials act in the public interest and not their own, especially given the fact that many administrative positions are unelected.

Rise of the Administrative State (224)


The growth of a federal administrative structure in Canada is best described as an aspect of the evolution of government rather than as a planned constitutional development. It takes its shape from pragmatic responses to emerging problems over the years. Well-accepted propositions such as the rule of law and responsible government take us into a less well defined area between law and politics the field of public administration. Given the scope of current governmental operations by officials with little direct contact with the public and who are only remotely responsible to Ministers of Parliament, and the degree of discretionary power exercised by these officials, sources of law additional to judicial ones must be depended upon if administrative law is to be bolstered to meet existing needs. A historical review of the rise of administrative bodies is available at 226-231.

The Executive Branch Defined


The Queen y Section 9 of the Constitution Act, 1867 states that the Executive is hereby declared to continue and be vested in the Queen. Thus, the Crown is the formal legal entity of government.

PM and Cabinet y Ministers and the PM comprise the ministry a term usually used interchangeably with Cabinet. The PM is first among equals in the ministry, and other Cabinet members serve at the pleasure of the PM. Cabinet is in most matters the supreme executive authority; it determines the legislative agenda of the government in Parliament and is responsible for the administration of individual

departments of the government. Cabinet ministers often have wide-ranging discretionary decision-making powers within their respective departments. The Public Service y y y Employees of various ministries are also part of the executive branch. They are politically neutral and retain their employment even with changes in government. Three principles govern the relationship between ministers and the public service: o Ministerial responsibility requires that presiding ministers be held politically accountable for all matters arising within their departments, including policy-decisions by civil servants. o Political neutrality requires that civil servants carry out their responsibilities loyally to the government in power regardless of personal views. o Public service anonymity provides that bureaucrats should be held accountable to their political overseers but are not answerable to Parliament.

Fraser v Canada (1985) y Dickson CJ: The federal public service is part of the executive Its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain characteristics. Knowledge is one, fairness another, integrity a third. A further characteristic is loyalty. y [Subject to some qualifications], a public servant must not engage in sustained and highly visible attacks on major government policies. This shows a lack of loyalty to the government inconsistent with duties as an employee of the government. y Employment in the public service involves acceptance of certain restraints. One of those restraints is to exercise caution when it comes to making criticisms of the government. Independent Administrative Agencies y Boards, commissions, authorities, councils, agencies are words used to describe administrative bodies. There are few restrictions placed on legislators who want to create an administrative body and delegate powers to it. The Human Rights Commission is an example, described at 239-241.

Ocean Port Hotel v British Columbia (2001) y McLachlin CJ: This appeal raises the issue of the degree of independence required of members sitting on administrative tribunals empowered to impose penalties. o IN OTHER WORDS: How independent from political pressure does a tribunal need to be in order to legitimately impose penalties and preserve the appearance of independence? y Absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the Parliament

that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence intended. o IN OTHER WORDS: Tribunals are not courts; courts are an independent branch and are fiercely independent. Tribunals are part of the executive and implement policy; there is no fierce independence unless specified in the enabling legislation. Crown Corporations y y Where there is a strong commercial aspect to government service, it may require that decisions be made free from political influences that may unduly interfere with commercial objectives. The government has in many cases the authority of appointment of corporate directors and key officers, and there are often directive powers in legislation that permit the government to compel a Crown corporation to act in a particular way, when this is in the public interest. (This is an extraordinary power and requires consultation between appropriate ministers and boards of directors of affected Crown corporations.)

Municipalities y y These are not a separate level of government in the sense of being constitutionally recognized. They are really subject to restraints put on them by provincial governments, and are may be restructured or eliminated. However, they are desirable because they account for local circumstances and values, and provide a variety of services such as road, sewer and water services tailored to specific small groups of people.

Shell Canada v Vancouver (1994) y FACTS: Vancouver Town Council ate falafel and bean sprouts for lunch, made a drum circle and sang Beatles tunes, and then passed a resolution that Vancouver would not do business with companies doing business in South Africa, due to apartheid. Shell was one of these companies, and was like, Suck our Dutch balls. The Court said this resolution was bogus, and that municipalities don t have these broad powers, but McLachlin J dissented, probably because she was on drugs and empathized with the hippies. y NOTE: The town charter wording said that the Council can provide for the good rule and government of the City of Vancouver. o McLachlin J: Courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. o Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt benevolent construction and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

NOTE: Various cases other than Shell have said that courts should be careful interpreting what municipal government powers entail, as often they can be taken as residual, and cover whatever the municipality tries to legislate over. Subsidiarity is the concept that municipalities should be left with open legislative boundaries because they know what s best for the locals and are more democratically responsible. This is a bit of a newer concept and should be applied carefully.

Enforcement: Police and Prosecutors y The executive employs policy, but also has to enforce it.

R v Campbell (1999) y Unlike other civil servants, enforcement agencies are not subject to political oversight in the sense that they must exercise their powers without direction from political officials or in furtherance of partisan political activities. On the other hand, they cannot operate without accountability. Thus, there are tensions between independence and accountability. o Binnie J: A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office initially defined by the common law and subsequently set out in various statutes.  Quoting other cases: A constable s authority is original, not delegated... He is a ministerial officer exercising statutory rights independently of contract  We are dealing with the holder of a public office, engaged in duties connected with the maintenance of public order and preservation of the peace o The Commissioner [of the RCMP] is not to be considered a servant or agent of the government while engaged in a criminal investigation. He is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and no doubt, to his conscience  Quoting Lord Denning: The Commissioner must enforce the law of the land, [and so forth] but in all these things he is not the servant of anyone, save of the law itself. Krieger v Law Society (Alberta) (2002) y FACTS: Krieger was a Crown subject to a complaint to the Law Society. Sought to prevent review of the matter on the basis that to review would interfere with his prosecutorial discretion. He lost the case on other grounds but the SCC recognized that he rightly observed the unique and important role of the AG and his agents as distinct from private lawyers. o Iacobucci and Major JJ: It is a constitutional principle in this country that the AG must act independently of partisan concerns when supervising prosecutorial decisions Courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. o The acknowledgement of the AG s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one

litigant s decision-making process rather than the conduct of litigants before the court is beyond the legitimate reach of the court.

Sources of Executive Power (258)


Prerogative Powers
The Crown prerogatives are those powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown. In exercising these powers, the Crown is restricted to executive acts. These powers are not static and can only diminish over time, as Parliament legislates over more and more over new areas and ousts the prerogative. Black v Chretien (2001) y FACTS: Prime Minister Johnny Cretin rightfully went out of his way to be a dick and recommended against the conferral of a foreign honour on a Canadian Citizen and noted douche, Conrad Black. Black said this was outside Johnny Cretin s powers for various reasons. Court engaged in a discussion of the prerogative. o Laskin JA: The Crown prerogative is the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown It is a branch of the common law because decisions of courts determine both its existence and its extent. o The Crown prerogative can be limited or displaced by statute Legislation has severely curtailed the scope of the Crown prerogative down to a very narrow compass.  Nonetheless, the granting of honours has never been displaced.  ALSO: Nothing requires that prerogative powers be exercised exclusively by the GG. As members of the Privy Council, the PM and other Ministers of the Crown may also exercise it. o Is the prerogative power exercised by the PM reviewable by the courts?  The CCRF applies to Parliament and the Government of Canada in respect of all matters within the authority of Parliament. The Crown prerogative lies within the authority of Parliament. Therefore, if an individual claims that the exercise of a prerogative power violates that individual s CCRF rights, the court has a duty to decide the claim.  Apart from the CCRF the House of Lords emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source If the subject matter is amenable to the judicial process it is reviewable; if not, it is not reviewable. y The exercise of the prerogative will be amenable to the judicial process if it affects the rights or legitimate expectations of individuals. y RESULT: No Canadian has a right to or legitimate expectation of receiving an honour, so no individual rights or expectations are affected by the exercise of the prerogative in this case. Therefore, the matter is not justiciable and tough bananas for Black.

Statutory Powers
The vast majority of executive powers originate from a delegation of authority by the legislature by statute. However, there are some limits to Parliament s ability to delegate power. Examples of limitations on delegations: y y The legislature cannot in law delegate powers that exceed the legislature s own power; The legislature in incapable of delegating power that is not bounded by the purpose for which the statute was enacted; in other words, no delegate can be authorized to exercise an absolute discretion; A delegation must not amount to a complete abdication of legislative authority.

Re Gray (1918) y FACTS: Case involved the legality of changes to conscription rules enacted by Cabinet pursuant to a general delegation of powers. Legislature let the executive do basically anything deemed necessary for the war, at any time. Argument that the delegation amounted to an unconstitutional abdication of legislative powers to the executive was rejected. o Anglin CJ: Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament, and needless to say the acts of the executive, under its delegated authority, must fall within the ambit of the legislative pronouncement by which the authority is measured. o Parliament is the delegating authority and it is for that body to put any limitations on the power conferred upon the executive. y NOTE: So, while a principle exists that complete abdication is not permitted, the scope of permitted abdication is pretty wide. AG NS v AG Canada (Nova Scotia Inter-delegation) (1951) y FACTS: Concerns the principles that neither the federal Parliament nor the provincial legislature may delegate legislative powers to the other. Inter-delegation would upset the constitutional division of powers in ss. 91 and 92 of the Constitution Act, 1867. o Rand J: That Canadian legislatures may delegate has long been settled Notwithstanding the plenary nature of the jurisdiction enjoyed by them, it is conceded that neither Parliament nor Legislature can either transfer its constitutional authority to the other or create a new legislative organ in a relation to it similar to that between either of these bodies and the Imperial Parliament. o Can either of these legislative bodies, then, confer upon the other or can the latter accept and exercise in such a subsidiary manner legislative power vested in the former?  These bodies were created solely for the purposes of the constitution by which each, in the traditions and conventions of the English Parliamentary system, was to legislate on the matters assigned to it and no other.

To imply a power to shift [power] of either to the other is to permit the substance of transfer to take place, a dealing with and in jurisdiction utterly foreign to the conception of federal organization. So exercising delegated powers would not only be incompatible with the constitutional function with which [the province] is endowed and an affront to constitutional principle and practice, it would violate also the interest in the substance of Dominion legislation which both the people and the legislative bodies of the other provinces possess. 

Nature and Function of Administrative Powers (271)


The major types of decisions commonly made by administrative decision-makers include, the following, and obviously may overlap: y Rule Making (regulations or delegated legislation ) o Regulations must stay within the scope of the authority that the enabling Act grants and must not conflict with it or restrict or extend the scope of its application. o Endless details about rule-making process in pages 273-282. Dispute Resolution o In some cases, administrative tribunals are very similar in their form to courts in that they adjudicate claims between competing parties strictly on the basis of existing law, they cannot initiate proceedings themselves, and they are given similar powers to courts, such as the power to summon witnesses and to award costs. o Distinct tribunals can be established to hear appeals by parties dissatisfied with a decision from an administrative decision-maker in the first instance. o Tribunals not normally bound by precedent, as they administer public policy rather than the law, necessarily. Benefit or Obligation Determination o The most prevalent and most diverse group of administrative decision-makers are those empowered to determine whether a person will be granted a particular public benefit, such as welfare entitlement of the issuance of a license, will be subject to a tax or other obligation, or will be assessed a penalty. o May involve granting or denial of licenses, for example. Problematic because involves issues of fairness, and the fact that many times decisions are made from a distance, with little contact with the party whose interests are in question. Enforcement Decisions o Those decisions and activities that are required to promote compliance with legal obligations, including criminal and quasi-criminal enforcement proceedings. o It is quite common for statutes to confer investigatory powers on other administrative bodies for the purposes of a particular scheme and to confer upon them special powers such as the right to conduct searches and interviews, and require the production of documents.

Limits on the Exercise of Delegated Authority (285)


The overarching principle is that delegated authority must be exercised within the confines of the delegation itself. Recipients of delegated authority have no inherent jurisdiction to act. The rule that a delegated authority can exercise only those powers that are granted to it is conceptually straight-forward and tends to turn on questions of the interpretation of the authorizing legislation. Another jurisdictional rule requires that delegated authority must be exercised by the specific delegate to whom the authority is granted one agent cannot lawfully appoint another agent to perform the duties of his agency. The rule applies wherever the authority involves a trust or discretion in the agent for the exercise of which he is selected, but does not apply where it involves no matter of discretion, and it is immaterial whether the act be done by one person or another, and the original agent remains responsible to the principal. The rule is delegatus non protest delegare. (Matters that are merely administrative may be lawfully sub-delegated, and sub-delegation is permitted when expressly provided for in the enabling statute.)

The Duty to be Fair (287)


Administrators are required by the common law to act fairly toward those persons affected. The duty is to provide FAIR PROCEDURE, rather than a duty to provide a substantively FAIR OUTCOME. This is known as following the rules of natural justice. Over time, natural justice has moved from purely judicial or quasi-judicial proceedings into a wider arena, in acknowledgement that administrative decision-making has serious consequences in many circumstances, just like the rulings of courts. This happened in Canada in the case of Nicholson v Haldimand-Norfolk Police Commissioners (1979). The duty to be fair is considered in Knight and in Baker. Knight v Indian Head School Division No. 19 (1990) y FACTS: Knight was a contract worked, canned when appellant wouldn t agree to a longer term for the renewal of the contract. Knight argued he was owed a duty of fairness prior to dismissal. o L Heureux-Dube J: The existence of a general duty to act fairly will depend on the consideration of three factors:  The nature of the decision to be made by the administrative body; y (Decisions of a legislative or general nature vs. more administrative and specific nature, which do not entail a duty.) y (The finality of the decision; more chances for appeal means less requirement of the duty to be fair.)  The relationship existing between that body and the individual; and  The effect of that decision on the individual s rights. y (There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual.) y (Loss of employment is usually significant.) o So what does it mean to act fairly?

 

Content of the duty is decided in the specific context of each case. But it is necessary to temper assertions that the concept of fairness is a purely subjective one.

Baker v Canada (Minister for Citizenship and Immigration) (1999) y FACTS: Jamaican woman with mental health issues, on welfare, with 4 children in Jamaica and 4 Canadian children. She is getting deported after living in Canada for 11 yrs. Applied on Humanitarian and Compassionate (H&C) grounds to be exempt from having to apply for permanent residency from abroad. o L Heureux-Dube J: The fact that a decision is administrative and affects the rights, privileges or interests of an individual is sufficient to trigger the application of the duty of fairness and it has long been recognized that the duty of fairness applies in H&C decisions  BUT: The concept of procedural fairness is eminently variable and its content is to be decided on the specific context of each case. o Several factors have been recognized as relevant to determining what is required by the common law duty of procedural fairness (List is NOT exhaustive.)  The closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision-making.  The nature of the statutory scheme and the terms of the statute pursuant to which the body operates Greater protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.  The importance of the decision to the individual or individuals affected.  The legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. o Are reasons for decisions required to be provided?  Generally, the traditional position at common law has been that the duty of fairness does not require that reasons be provided for administrative decisions In certain circumstances the duty of procedural fairness will require the provision of a written explanation for a decision.  In cases such as this where the decision has important significance when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. o Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.  The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.

That test is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly? RESULT: Reasonable apprehension of bias found in immigration officer s notes connecting mental illness, 4 kids, history as a domestic maid, etc. and concluding that the individual would be a drain on the system for the rest of her life would cause the informed and reasonable person to conclude that the administrator did not decide fairly. 

Bad Faith, Improper Purpose, Irrelevant Considerations (300)


The problem with broad discretion is that it is open for decision makers to exercise that discretion in ways that were not contemplated by the legislature and for purposes that do not reflect the public interest. In this section, the issue is the substance of the decision-making process, rather than the fairness of the procedure. Bad faith and unreasonableness are not the same: in many administrative contexts, the decision maker s discretion includes the right to make decisions that appear unreasonable to a reviewing court. Bad faith goes beyond this it amounts to a jurisdictional error because it is implied that no legislature would have intended, in the statute enabling a decision maker, for the decision maker to act with some improper or ulterior purpose. Courts also control discretion by taking into account the nature of the considerations the decision maker took into account while making a decision. (Were mandatory considerations ignored? Were irrelevant considerations taken into account?) Failure to take into account mandatory considerations is almost always fatal; not taking certain considerations into account, or taking account irrelevant considerations are also sources of reviewable error. Equity Waste Management v Halton Hills (1997) y FACTS: Municipal land-use bylaw was attacked on the grounds that it passed for reasons of political expediency and not for land-use planning reasons, a purpose alleged to amount to bad faith. The attack failed because a court should not be quick to find bad faith because members of a municipal council, influenced by their constituents, express strong views about a project. o Laskin J: Bad faith includes arbitrary or unfair conduct and the exercise of power to serve purposes at the expense of the public interest.  The court is prohibited from quashing a by-law on the ground of unreasonableness provided it was passed in good faith, but unreasonableness may be given in evidence to establish want of good faith.  Powers must be exercised bona fide and the action of members must not be founded on fraud, oppression, or improper motives.  A by-law may be quashed if it was to subserve the interest of private persons.

Baker v Canada (Minister of Citizenship & Immigration) (1999) y L Heureux-Dube J: It is necessary to consider the approach to judicial review of administrative discretion o Discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision makers by courts in reviewing the exercise of that discretion and determining the scope of the decision maker s jurisdiction. o The pragmatic and functional approach recognizes that the standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others to less. Three standards of review have been defined:  Patent unreasonableness; (i.e. The decision is not that important or significant; there can be patent unreasonableness in a decision; the court should not interfere almost at all.)  Reasonableness simpliciter; (i.e. The decision is important; there ought to be reasonableness in the decision, in other words, the decision must stand up to a somewhat probing examination, or the court will interfere.)  Correctness. (i.e. The decision is of such importance that unless there is correctness in the decision, the court will interfere.) o Considerations such as the expertise of the tribunal, the nature of the decision being made, the language of the provision and the surrounding legislation [determine the scope of the discretionary power accorded by Parliament. y RESULT: Court decided that immigration officials did not give enough weight to the Baker s Canadian children, and the harm the deportation might do to them. They instead focussed too much on her as a dead weight to society. Decision was set aside, notwithstanding the important deference (respect for the reasons given) that should be accorded to the officer. The reasons the officer gave show his decision was inconsistent with the values underlying the grant of discretion (i.e. close attention to the interests of the children.)

Chap. 6 The Courts and Judiciary


Structure of the Canadian Court System (309)
y y Section 92(14) of the Constitution Act, 1867 gives exclusive power to provincial legislatures with respect to the administration of justice including the organization of the courts. Section 96 provides that the GG appoints judges, and s. 100 says that federal Parliament controls tenure, salaries and so forth of these s.96 courts. (Provincial s. 96 courts are known as Superior Courts. ) Section 101 means the federal government can create courts, including a general court of appeal for Canada (SCC); the Federal Court of Appeal; the Tax Court of Canada. (Federal s. 101 courts are created by federal statute.)

NOTE: Provinces appoint judges and salaries for non-s96 courts that they decide to create from time to time. You d expect this erodes the Superior Court. However, the SCC has ruled repeatedly against powers to strip jurisdiction from the Superior Courts, saying that s. 96 acts as a limit on provincial competence in creating courts. It limits the provinces to creating tribunals exercising s.96 judicial powers and therefore implicitly limits provincial competence to endowing a provincial tribunal with such powers, rather than creating courts. Three part test for determining whether the provincial grant of power is valid, from Re Residential Tenancies Act (1981): y Ask whether the impugned tribunal would have had the powers it is exercising at the time of Confederation, by virtue of sharing those powers with s.96 courts; if yes, then powers are OK and can be validly exercised by a provincial tribunal. If the powers in question were not shared with s. 96 courts at the time of Confederation, one must ask whether the power in question is to be exercised in a judicial manner; that is, do the tribunal s proceedings concern a dispute that is to be determined on legal as opposed to policy grounds? If yes, then the power should remain with the s. 96 court and not be bestowed upon the tribunal. Third part of the test requires a consideration of whether the institutional setting itself is fundamentally judicial. Inquiry looks at whether the tribunal is ancillary to a broader administrative scheme; only where a tribunal Is found not to be ancillary to an administrative scheme will the tribunal s authority be found to be unconstitutional.

Overview of the Canadian court system is available at 312-317.

Judicial Appointments (317)


How are the right people selected to fill the role of judges? Processes for selection vary internationally. Three models are common: y y y Confirmation hearings; Nominating committees; and Direct elections.

Provincial judicial appointments in Canada rely on selection by the executive, often following a shortlisting process involving an advisory committee. In many cases candidates fill out applications, are interviewed and have references investigated, are short-listed and then the AG of the Province selects the candidates to fill vacancies from that short-list. Federal judicial appointments in Canada vary. Section 96 court, Federal Court and Tax Court judges are appointed by the governor in council (effectively the Cabinet) following a review of candidates by an advisory committee. No such advisory committee has existed for the SCC. SCC justices have traditionally been simply appointed by the governor in council. Common criticisms of the current federal appointment process may be summarized as follows: y y y Too much discretion in the hands of the government; No transparency or accountability because there is no formal scrutiny to support the choice; Patronage appointments of candidates who have supported political parties.

A discussion of how things are done in the USA and some other jurisdictions is at 318-320. A discussion of non-SCC federal and provincial superior court judicial appointments is at 322-328. Criticisms around appointments and some suggested ways around them is at 330-336.

Judicial Independence (336)


Judicial independence is the notion that judges are at arm s length from the other branches of government. It 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 without improper interference from any other entity in other words, that the executive and legislative branches of government not impinge on the essential authority and function of the court. y y y Section 99 of the Constitution Act, 1867 says that superior court judges are removable only for breach of good behaviour until the mandatory age of retirement at 75. Section 100 indicates that salaries, allowances and pensions of superior court judges have their security guaranteed. Section 11(d) of the CCRF guarantees trial by an independent and impartial tribunal.

Reference re Remuneration of Judges (the Provincial Judges Reference (1997) y Lamer CJ: Judicial independence is at root an unwritten constitutional principle... The existence of that principle is recognized and affirmed by the preamble to the Constitution Act, 1867. The specific provisions of the CA, 1867 to 1982, merely elaborate that principle in the institutional apparatus which they create or contemplate. y However, there are serious limitations to the view that the express provisions of the Constitution comprise an exhaustive and definitive code for the protection of judicial independence. o The preamble identifies the organizing principles of the Constitution Act, 1867 and 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. o The preamble s reference to a Constitution similar in principle to that of the UK was a textual recognition of the principle of judicial independence. y In fact, it is that preamble which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. Ell v Alberta (2003) y Major J: Historically, the principle of judicial independence was confined to the superior courts. As a result of the expansion of judicial duties beyond that realm, it is now accepted that all courts fall within the principle s embrace. o Its extension to [other offices] depends on whether they exercise judicial functions that relate to the bases upon which the principle is founded.

Assessing Independence (345)


How is independence measured? The SCC has said that the general test for the presence or absence of independence consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status. There are also two species of independence: individual and collective. The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal. Security of tenure, financial security and administrative control with respect to court business are the three elements the SCC has said are crucial to maintaining the independence of the judiciary. y Security of Tenure o Security of tenure has both an individual and an institutional dimension. o Individual security or tenure means that judges may not be dismissed by the executive before the age or retirement except for misconduct or disability. Institutionally, 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 an opportunity to be heard. o A discussion of the process for finding misconduct is at 348-349. o An example of an inquiry into a judge s misconduct is at 350-364. Financial Security o Financial security protects against an unscrupulous government that could utilize its authority to set judges salaries as a vehicle to influence the course and outcome of adjudication.

Reference re Remuneration of Judges (the Provincial Judges Reference (1997) y Lamer CJ: Financial security has both an individual and an institutional or collective dimension Financial security for the courts as an institution has three components, which all flow from the constitutional imperative that, to the extent possible, the relationship between the judiciary and the other branches of government should be depoliticized. o First any changes to or freezes in judicial remuneration require prior recourse to a special process, which is independent, effective and objective, for determining judicial remuneration, to avoid the possibility of, or appearance of, political interference through economic manipulation. o Second under no circumstance is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature. o Third any reductions to judicial remuneration, including de facto reductions through the erosion of salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge. y The imperative of protecting the courts from political interference through economic manipulation is served by interposing an independent body a judicial compensation commission between the judiciary and the other branches of government. o The commission must be independent, objective and effective. Provincial Court Judges Assn. of NB v New Brunswick (2005) y The Court: A commission s report is consultative. The government may turn it into something more. Unless the legislature provides that the report is binding the government retains the power to depart from the commission s recommendations as long as it justifies its decisions with rational reasons. These rational reasons must be included in the government s response to the commission s recommendations. o Reasons that are complete and that deal with the commission s recommendations in a meaningful way will meet the standard of rationality.

Administrative Independence o This requires that courts themselves have control over the administrative decisions that bear directly and immediately on the exercise of the judicial function, such as

assignment of judges, sittings of the court, and court lists, as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. Canada (Minister of Citizenship and Immigration) v Tobiass (1997) y FACTS: Judicial independence was impaired by a private meeting between a senior Dept. of Justice official, and the CJ of the Federal Court (basically telling the court to hurry up and deal with some cases that were coming up, where the Dept. of Justice was a litigant.) CJ went to the ACJ and told him to get a move on no bad faith, just trying to speed things up. o The Court: First, counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case. o Second, a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views. o In short, the evidence supports the conclusion that the appearance of judicial independence suffered a serious affront as a result of the meeting This affront seriously compromised the appearance of judicial independence. A reasonable observer apprised of the workings of the Federal Court and of all the circumstances would perceive that the CJ and ACJ were improperly and unduly influenced by a senior officer of the Dept. of Justice. o However, there is no persuasive evidence of bad faith nor is there any solid evidence that the independence of the judges in question was actually compromised.

Chap. 7 Statutory Interpretation


There is a threshold in Canadian constitutional law a point at which parliamentary supremacy gives way to constitutional supremacy; now we look at the relationship between the courts and the other branches of government. We now focus on the rules of statutory interpretation: the doctrines that direct how courts should interpret the legislative will expressed in statutes and regulations. NOTE: THE CASES IN THIS SECTION ARE MAINLY ILLUSTRATIVE; they are not reprised in these notes. Important cases include: Chartrand (399) McIntosh (407), Daoust (395) and Rizzo (419).

Overview of Statutory Interpretation (378)


There are three sources of interpretation law: interpretation acts, interpretation rules in individual statutes and regulations, and common law. Interpretation Acts y Every Canadian jurisdiction has an Interpretation Act that contains various rules applicable to statutes in general. The federal Act for example, has rules respecting corporations, offences, evidence, the appointment of civil servants, the exercise of administrative powers , reports to Parliament, the coming into force of legislation, the impact of amendment and repeal, how to calculate majorities and time periods, and more. It also contains a list of defined terms that are found throughout the federal statute book such as bank, holiday, person, month, Her Majesty, etc. These definitions apply unless the context indicates otherwise. Interpretational rules are also found in general acts governing the making of regulations. The federal Act applies only to federal legislation; provincial or territorial legislation is governed by the relevant local Act.

y y

Interpretation Rules in Acts and Regulations y y Individual acts and regulations often contain definitions, application provisions, purpose statements, and the like. Preambles and purpose statements, at the beginning of statutes, indicate the reasons for the new legislation the concerns addressed, the values reflected in the legislation, and the anticipated benefits.

Common Law Rules

y y

y y

Statutory interpretation is also rooted in at common law, in a body of principles, presumptions and conventions known as the rules of statutory interpretation. They operate as guidelines and offer interpreters a checklist of relevant considerations, suggesting various lines of inquiry and ensuring that no possibility has been overlooked. o Rule of Equitable Construction: when interpreting, the judge should focus on the intent of the legislation and not what it really says; this is not really huge anymore because it is a remnant of centuries ago, where legal documents were written by hand and often confusing or hard to come by. o Parliamentary sovereignty and Rule of Law: the judge should focus on the words of the legislation ( The Plain Meaning Rule ), as the plain words are the best indication of a lawmaker s intent; but, where the plain meaning would lead to absurdity or inconsistency with the rest of an instrument or its otherwise stated intent, it may be wise to modify the written words so as to avoid that absurdity or inconsistency, but no further. ( The Golden Rule ) o There is usually a point at which even the most committed literalist is prepared to sacrifice literal meaning to avoid the unthinkable. The approaches today are integrated: intention, textual meaning, and acceptability of consequences are all legitimate concerns for interpreters. If legislative text seems clear, then a pragmatic judge assigns it significant weight. The clearer it is, the greater the weight it receives. The weight accorded to the text is also affected by: o How the text is drafted, how detailed, how concrete, how precise; o The audience to which it is addressed, whether the public in general, a narrow and specialized group or those charged with administration of the legislation; o The importance of certainty and predictability in the context. How much weight is given to legislative intent depends on: o Where the evidence of intent is coming from and how compelling it is; o How directly the intention relates to the circumstances of the dispute to be resolved. Judges are also concerned with rationality, coherence, fairness and other legal norms. The weight attached to these depends on: o Cultural importance of the norm engaged; o Its degree of recognition and protection in law; o Seriousness of the violation; o Circumstances and possible reasons for the violation; o The weight of competing norms.

Overview of the Rules of Statutory Interpretation (390)


Some rules of statutory interpretation include: y Ordinary meaning rule: The meaning that spontaneously comes to the mind of a competent reader upon reading a legislative text is presumed to be the meaning intended. However, the

presumption can be rebutted. (Note: ordinary meaning is NOT dictionary meaning; although dictionaries can help determine ordinary meaning.) Technical meaning rule: It is presumed that words are used in their popular, non-technical sense. However, when legislation deals with a specialized subject and uses language that people governed by the legislation would understand in a specialized way, that specialized understanding is to be preferred. o A person who claims that a legislative text has a technical meaning different from its popular, non-technical meaning has the burden of establishing the technical meaning of the word or expression AND that the technical meaning was intended in the context. Shared meaning rule: If one version of a bilingual text lends itself to two interpretations while the other version can plausibly bear only one of those interpretations, the interpretation that is shared should be adopted. Original meaning rule: The meaning of words used is fixed at the time of enactment, but its application to facts over time is not fixed. In static interpretation, the text is applied as it would have been when the legislation was first enacted. In dynamic interpretation, the text is applied in light of circumstances and assumptions existing at the time of application. Language that is technical, concrete and specific attracts static interpretation; language that is general or abstract attracts dynamic interpretation.

Some presumptions relied on to analyze the meaning of a text include: y Straight-forward expression: The legislature chooses the clearest, simplest and more direct way to state its meaning. y Uniform expression: The legislature uses words and techniques to express the same meaning and different words and techniques to express different meanings. y No tautology/no redundancy ( the legislature does not legislate in vain ): There are no superfluous words in legislation every word, every feature of the text is there for a reason and plays a meaningful roles in the legislative scheme. y Internal coherence: All the provisions of a legislative text fit together logically and work together coherently to achieve the purposes of the legislation. Maxims of interpretation include: y Implied exclusion (expression unius est exclusion alterius): If something is not mentioned in circumstances where one would expect it to be mentioned, it is impliedly excluded. y Associated words (noscitur a socciis): The meaning of a word or phrase is affected by other words or phrases with which it is linked in a sentence. y 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 only other things within the identifiable class. y The legislature would have said x : A legitimate basis for rejecting a proposed interpretation is to point out that had the legislature intended the proposed interpretation, it would have framed the legislation in a different way.

Other rules of interpretation that reflect the fact that all legislation is enacted for a purpose: y Legislative purpose: Interpreters must always try to determine the purposes of legislation and, in so far as the text permits, adopt an interpretation that promotes or is at least consistent with those purposes. y Interpretation Acts: Each Act 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. y Legislative scheme: The provisions of an Act are presumed to work together as parts of a coherent scheme designed to implement the legislature s goals. It is often helpful to look at the titles, headings, and subheadings and at the sequence of marginal or sectional notes to get an indication of the scheme. Knowing how a particular provision contributes to the scheme generally is a good indicator of how it should be interpreted. Mistakes and gaps in the legislative scheme may lead to: y Corrigible mistakes: When there is persuasive evidence that text does not reflect the rule that the legislature intended to enact, the courts have jurisdiction to correct such mistakes, unless the mistake amounts to a gap in the legislative scheme. (It is suggested that re-drafting a provision is acceptable when there is (1) a manifest absurdity; (2) a traceable error; and (3) an obvious correction.) y Incorrigible gaps: Curing an underinclusive scheme amounts to reading in which is generally undesirable, unlike reading down which is not. y Supplementing legislation by reliance on common law: Although courts cannot cure underinclusive legislation by expanding its scope beyond what the text allows, it can rely on supplemental sources of law to complement what the legislative scheme provides. In doing so, it must often address the question of the relationship between statute and the common law. Various presumptions of legislative intent exist, imputed because courts assume that the legislatures intend to abide by certain norms that the courts consider important: y Strict construction of penal legislation; y Strict construction of legislation that interferes with individual rights; y Strict construction of exceptions to the general law; y Liberal construction of human rights codes; y Liberal construction of remedial legislation; y Liberal construction of social welfare legislation; y Liberal construction of legislation relating to aboriginal peoples; y Presumed compliance with constitutional law and values; y Presumed compliance with the rule of law; y Presumed compliance with international law; y Presumed continuation of common law; y Presumed non-interference with common law rights; y Presumption against the extra-territorial application of legislation; y Presumption against the retroactive application of legislation;

y y

Presumption against interference with vested rights; and Presumption against applying legislation to the Crown and its agents.

How does statutory interpretation relate to other legislation and other sources of law? y Constitutional law: It is presumed that legislatures intend to enact constitutionally valid law and in particular to comply with any limitations on their jurisdiction. y Regulations: Regulations must be read in light of their enabling statutes as a whole. Regulations and enabling statutes are presumed to constitute an integrated scheme. y 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 same subject. y The statute book: Even if statutes do not relate to the same subject, it is often useful to compare provisions in different enactments that deal with a particular matter. Drafters are presumed to be consistent in their used of language so the similarities and differences can form the basis for inferring intent. y Common law: Provincial legislation sometimes incorporates common law concepts or terms, and federal legislation sometimes incorporates both common law and civil law concepts or terms. In such cases, resort to common law or civil law sources is appropriate to determine the meaning of a concept or term. y International law: It is presumed that legislatures intend to comply with international law, both customary and conventional. This presumption operates most strongly in the case of implementing legislation that is, legislation enacted for the purpose of making an international agreement an effective part of domestic law. However, the presumption has also been applied to help resolve ambiguities in non-implementing legislation. Extrinsic aids to interpretation include: y Legislative source: 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 in part. y Legislative history: Consists of material formally brought to the attention of the legislature during the legislative process, including ministerial statements, committee reports, recorded debates, tabled background material, etc. y Legislative evolution: Consists of the successive amendments and re-enactments a provision has undergone from its initial enactment to the time of application. y Expert opinion: Consists of precedent, administrative opinion, and scholarly legal publications, as well as expert testimony. In recent years, the SCC has also said that when counsel is arguing statutory interpretation, it should consider both ENGLISH and FRENCH versions of the law to inform their arguments. In principle, both versions must say the same thing but occasionally there is a discrepancy. Normally the court will assess both and look for a shared meaning, inferring that the shared meaning is a good indicator of what Parliament intended. Even then, there is a range of possibilities:

y y y y

A is ambiguous while B lends itself to only one of the possible meanings of A. B is the shared meaning; A and B are ambiguous, but both lend themselves to a single, particular meaning; this is the shared meaning; A and B are clear but say different things; there is no shared meaning; or A is broader in scope than B; either the narrower version is the shared meaning or the two say different things so that there is no shared meaning.

Medovarski v Canada (Minister for Citizenship and Immigration) (2005) y McLachlin CJ for the Court: In interpreting bilingual statutes, the statutory interpretation should begin with a search for the shared meaning between the two versions The interpretation of bilingual statutes is subject to a two-part procedure. o First, one must apply the rules of statutory interpretation to determine whether or not there is an apparent discordance, and if so, whether there is a common meaning between the English and French versions. Where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning The common meaning is the version that is plain and not ambiguous. If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version. o Second, one must determine if the common meaning is consistent with Parliament s intent.

Interpreting Human Rights Legislation (435)


Interpreting human rights legislation tends to be a little bit of a different beast, at least according to some judges. The following case discusses this issue. Canada (AG) v Mossop (1993) y FACTS: Mossop was a gay man who basically had a marriage-like relationship of many years with another man; the other man s father died, and Mossop asked for bereavement leave from his job, which was denied by the powers-that-be because the CBA of the workplace specified bereavement leave was for immediate family/spouses only. He was given special leave instead, but took the matter all the way to the SCC as a violation of human rights, saying that this CBA regulation was discrimination against family status , which is listed as a prohibited ground of discrimination by the Human Rights Act. The case turns on what family status means: does it mean marital status , or something broader that can include homosexual relationships? y Note that the judgment here is a dissenting judgment. o L Heureux-Dube J (in dissent): 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

Courts must interpret human rights legislation in a manner consistent with its overarching goals, recognizing that such legislation is often the final refuge of the disadvantaged and the disenfranchised.  Quoting Dickson CJ: Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained. o In short, though traditional interpretational tools ought not be ignored, they must be applied in the context of a broad and purposive approach. [Long discussion of the English and French versions of the Human Rights Act, and the fact that other acts distinguish between marital status and family status and therefore family status must mean something different.] o Though the members of Parliament may perhaps not have envisaged that family status would be interpreted by the Tribunal so as to extend to same-sex couples, the decision to leave the term undefined is evidence of clear legislative intent that the meaning of family status be left for the Commission and other tribunals to define. o Even if Parliament had in mind a specific idea of the scope of family status , in the absence of a definition in the Act which embodies this scope, concepts of equality and liberty which appear in human rights documents are not bounded by the precise understanding of those who drafted them They are documents that embody fundamental principles, but which permit the understanding and application of these principles to change over time. These codes leave ample scope for interpretation o The living-tree doctrine is particularly well-suited human rights legislation. The enumerated grounds of discrimination must be examined in the context of contemporary values, and not in a vacuum. RESULT (According to L Heureux-Dube J, who was in dissent): The Tribunal identified Mossop s claim as one of discrimination on the basis of family status. Based on the purpose of the Act, the purpose of the benefit, and all the evidence before it, it was perfectly reasonable [to do so.] o Lamer CJ, Sopinka and Iacobucci JJ all said that because sexual orientation was specifically NOT included in the list of prohibited grounds of discrimination in the Human Rights Act, it meant that Parliament had specifically meant that protection should not extend to this ground and that since Mossop s claim was so closely intertwined with sexual orientation, to say that the vagueness of family status opens the door for sexual orientation to work its way into the Act, would be to effectively introduce into the Act a prohibition that Parliament specifically decided not to include. o

Chap. 8 Constraints on Legislative and Administrative Action


The Justification for Constitutional Judicial Review (454)
With the patriation of the Canadian Constitution in 1982, the principle of constitutional supremacy was expressly enshrined in s. 52(1) of the Constitution Act, 1982, which reads: The Constitution 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.

The Limitations of Judicial Review (456)


Not all actions of the political branches of government are justiciable. 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. Operation Dismantle v The Queen (1985) y FACTS: CCRF challenge to the Canadian government s decision to allow the USA to test out some missile technology in Canadian soil, based on the argument that this could bring about a greater threat of nuclear war. Question was justiciability. Lower courts said it was not justiciable because there were no real facts or evidence to try, only conjecture, so the court has no ability to try the issue. This was generally concluded at the SCC level also, except for Wilson J. While she arrived at the same conclusion of non-justiciability, Wilson J took a different approach than the other Justices. o Wilson J: The real issue is not the ability of the judicial tribunals to make a decision on the questions presented, but the appropriateness of the use of the judicial techniques for such purposes. I cannot accept the proposition that difficulties of evidence or proof absolve the court from making a certain kind of decision if it can be established on other grounds that it has a duty to do so. I think we should focus our attention on whether the courts should or must rather than on whether they can deal with such matters. We should put difficulties of evidence and proof aside and consider whether as a constitutional matter it is appropriate or obligatory for the courts to decide the issue before us. o If the court were simply being asked to express its opinion on the wisdom of the executive s exercise of its defence powers in this case, the court would have to decline. It cannot substitute its opinion for that of the executive to whom the decision-making power is given by the Constitution. Because the effect of the action is to challenge the wisdom of the government s defence policy, it is tempting to say that the court should in the same way refuse to involve itself.

However, I think this would be to miss the point, to fail to focus on the question which is before us. The question before us is not whether the government s defence policy is sound but whether or not it violates rights under s. 7 of the CCRF. This is a totally different question This is a question for the courts. o Therefore, if we are to look at the Constitution for the answer to the question whether it is appropriate for the courts to second guess the executive on matters of defence, we would conclude that it is not appropriate. However, if what we are doing is deciding whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is out obligation under the CCRF to do so. RESULT: Wilson J eventually said this was not justiciable because even if it was taken for granted that the missile tests would raise the threat of nuclear war, this would not violate s. 7 anyway the facts simply cannot add up to a real cause of action. 

Limitations on Enforcement (467)


The practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions. How aggressive may the courts be in usurping the executive or legislative function and imposing solutions? Doucet-Boudreau v Nova Scotia (Minister of Education) (2003) y FACTS: Nova Scotians wanted a French school; trial judge said they had a right to one according to CCRF language rights; ordered one built by the best efforts of the NS government and ordered periodic reports on its progress. (No bullshit! This judge is definitely not a Chandler.) The main issue is whether the court has the authority to retain jurisdiction to hear reports on the status of those efforts as part of its remedy under s. 24(1) of the CCRF. o Iacobucci and Arbour JJ: In the context of constitutional remedies, courts must be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of the other branches Deference ends however, where the constitutional rights that the courts are charged with protecting begin.  Determining boundaries of the courts proper role however, cannot be reduced to a simple test or formula: it will vary according to the right at issue and the context of each case.  The order in this case was in no way inconsistent with the judicial function.  Section 24(1) of the CCRF requires that courts issue effective, responsive remedies that guarantee full and meaningful protection of CCRF rights. Meaningful protection may in some cases require the introduction of novel remedies. A superior court may craft any remedy that it considers appropriate and just in the circumstances. o LeBel and Deschamps JJ (dissenting): In the context of constitutional remedies, courts fulfill their proper function by issuing orders precise enough for the parties to know what is expected of them, and by permitting the parties to execute those orders. Such

orders are final. A court purporting to retain jurisdiction to over implementation of a remedy will likely be acting inappropriately on two levels:  First, by attempting to extend the court s jurisdiction beyond its proper role, it will breach the separation of powers principle.  Second, by acting after exhausting its jurisdiction, it will breach the functus officio doctrine. ( Having performed its duty. ) If the reporting hearings were intended to hold the Province s feet to the fire the character of the relationship between the judiciary and the executive was improperly altered and separation of powers was breached. We would reiterate at this point the importance of clarity and certainty in the provisions of a court order. If the trial judge had precisely defined the terms of the remedy, in advance, then the ensuing confusion surrounding his role may not have occurred. Moreover, by complying with this essential element of fair procedure, he may have been able to avoid the constitutional breach of the separation of powers that followed.

Reference re Language Rights under s. 23 of the Manitoba Act, 1870 (1985) y FACTS: Manitobans were a bunch of dicks and ignored the Constitutional requirement (that they themselves wrote up) that legislation be in both official languages; they kept doing everything in English only even though courts repeatedly told them this was unconstitutional, and violates language rights. Court had to go outside the box to fix this bullshit. o The Court: Failure to comply with constitutional provisions dealing with the manner and form of the enactment of legislation will result in inconsistency and thus invalidity. o The difficulty with the fact that the unilingual Acts of the legislature of Manitoba must be declared invalid and of no force or effect is that, without going further, a legal vacuum will be created with consequent legal chaos in Manitoba. (i.e. all non-bilingual legislation enacted in the last 150 years will be invalidated.) o The only appropriate solution for preserving the rights, obligations and other effects which have arisen under invalid Acts is to declare that, in order to uphold the rule of law, these rights, obligations and other effects have, and will continue to have, the same force and effect they would have had had they arisen under valid enactments, for that period of time [that Manitoba needs to bilingualize everything.]  (This is basically analogous to applying the doctrine of state necessity, which provides a justification for otherwise illegal conduct of a government during a state emergency.)

Issues of Legitimacy (484)


Most criticisms of constitutional judicial review can be reduced to two core complaints. First, it is said that under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial legislatures. Second, criticism is sparked by the substantive approach taken by the courts to particular rights, rights that may protect unpopular elements of society,

or prompt decisions disliked by those holding particular political, social or religious views. So, how much deference should courts show elected officials? Vriend v Alberta (1998) - Cory and Iacobucci JJ: It seems hardly a day goes by without some comment or criticism to the effect that under the CCRF courts are wrongfully usurping the role of the legislatures. I believe this allegation misunderstands what took place and what was intended when our country adopted the CCRF. o When the CCRF was introduced, Canada went from a system of Parliamentary supremacy to constitutional supremacy. o It was the deliberate choice of our legislatures in adopting the CCRF to assign an interpretive role to the courts and to command them under s. 52 to declare unconstitutional legislation invalid. Our Charter s introduction and the consequential remedial role of the courts were choices of the Canadian people through their elected representatives as part of a redefinition of our democracy. Our constitutional design was refashioned to state that henceforth the legislatures and executive must perform their roles in conformity with the newly conferred constitutional rights and freedoms. That the courts were the trustees of these rights insofar as disputes arose concerning their interpretation was a necessary part of this new design. o So courts in their trustee or arbiter role must perforce scrutinize the work of the legislature and executive not in the name of the courts, but in the interests of the new social contract that was democratically chosen. The CCRF has given rise to a more dynamic interaction among the branches of governance. This has been aptly described as a dialogue. o This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it. Reference re Remuneration of Judges of PEI (1997) - It should be noted that some judges, even in the SCC, have occasionally expressed the concern that the courts may be exceeding the proper boundaries of the role in adjudication. This case dealt with judicial independence being threatened. o La Forest J (dissenting): [The legitimacy of judicial review] is imperiled when courts attempt to limit the power of legislatures without recourse to express textual authority. o To the extent that courts in Canada have the power to enforce the principle of judicial independence, this power derives from the structure of Canadian, and not British, constitutionalism (i.e. one that supports constitutional supremacy rather than that of Parliament).  Our Constitution expressly contemplates both the power of judicial review (in s. 52 of the Constitution Act, 1982) and guarantees of judicial independence (in ss. 96-100 of the Constitution Act, 1867 and s. 11(d) of the CCRF). While these provisions have been interpreted to provide guarantees of independence that are not immediately manifest in the language, this has been accomplished

through the usual mechanisms of constitutional interpretation, not through [other recourses such as recourse to preamble.] The legitimacy of this interpretive exercise stems from its grounding in an expression of democratic will, not from a dubious theory of an implicit constitutional structure. The express provisions of the Constitution are not elaborations of the underlying, unwritten and organizing principles found in the preamble to the Constitution Act, 1867. On the contrary, they are the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review.

Different Types of Judicial Review of Legislative Action (504)


The Constitution Act, 1867 establishes the basic institutional structure of the federal and provincial levels of government, and assigns their respective roles. In terms of the potential to generate litigation, the most important features of the Act are in ss. 91-95, that distribute legislative power between the levels. (i.e. which level of government has the appropriate head of power to deal with a particular issue, or when both do, which set or sets of laws apply in a particular case?) The resolution of federalism disputes typically turns on the way a court decides to characterize a particular law or activity. Characterization is an important part of CCRF litigation as well. Qu Appelle Indian Residential School v Canada (1988) - FACTS: Indian residential school council tried to self-characterize as a corporation that runs a school , so it would beoutside the scope of federal review for the purposes of labour relations (i.e. not a matter of Indians , which is federal), and would be under the province instead, since the provinces normally handle labour relations. o Pinard J: The matter of labour relations is usually considered to fall within the provincial realm of legislative competence as being in relation to property and civil rights However, there are generally considered to be 4 exceptions.  Where labour relations are an integral part of or necessarily incidental to the headings enumerated under s. 91;  Where labour relations are in respect to Dominion Government employees;  Where labour relations are in respect to works and undertakings under ss. 91(29) and 92(10); and  Where labour relations are in respect of works, undertakings or businesses in Canada but outside of any province. o It is not where an entity operates or whom it employs that is determinative of the jurisdictional issue, but what the entity does. In this case I consider that the nature of the functions of the Council can and should be characterized as forming an integral part of the primary federal jurisdiction over Indians and Indian Lands. It should be characterized as coming within federal jurisdiction by virtue of subsection 91(24) of the CA, 1867. o I fully agree with the fact that the School is designed and operated for Indians, governed solely by Indians, that its enrolment is limited to Indians, that the stated

objects are to promote Indian traditions, and the curriculum includes Indians language and culture all served to identify the very Indianness of the operation and link it to Indian rights, status and privileges. RESULT: By the traditional and functional test, therefore, the facts in this case indicating that the nature of the operations of the Indian Residential School is primary federal, that School is subject to federal legislation regarding labour relations

CCRF Constitutional Litigation (509)


Another type of legislative action that can be reviewed involves applying the CCRF. In the Taylor case, the SCC does two important things: (1) defines a substantive right protected by the CCRF; and (2) discusses the relationship between substantive rights and the justification of limits on those rights under s. 1 of the CCRF. Canada v Taylor (1990) - FACTS: Legislation banned phone conversations delivering hate speech. Challenged as violating the freedom of speech under the CCRF s. 2(b). It did violate s. 2(b) but ultimately it was upheld, supported by reasonable limits under s. 1. o Dickson CJ: The 2(b) guarantee is infringed if it can be shown that either: (i) the purpose of the impugned government regulation is to restrict expressive activity; or (ii) the regulation has such an effect, and the activity in question supports the principles and values upon which the freedom of expression is based. (under the first ground)  I have no doubt that the activity [banned] is protected by s. 2(b) of the CCRF. o I should make brief reference to an argument in support of excluding the hate propaganda entirely from the scope of 2(b). This argument posits that the expression prohibited by the [legislation] is the very antithesis of the values supporting the freedom of expression guarantee and therefore is not deserving of protection under s. 2(b). I cannot accept this argument.  The approach taken [in the test above] depends upon a large and liberal interpretation of the s. 2(b) freedom, and the gravamen of this approach is the refusal to exclude certain expression because of content.  The section protects all content of expression irrespective of the meaning of message sought to be conveyed.  The more refined and searching analysis of the restricted expression is better done in the context of s. 1. o According to Oakes, there are two aspects to this portion of the s. 1 inquiry.  First, it is necessary to ask whether the objective of the challenged measure is sufficiently important to warrant limiting a CCRF right or freedom. If yes, the second inquiry arises.  The second inquiry is that of proportionality. The requirement is met where an impugned measure is well-suited to carry out the objective and its impact upon an entrenched right or freedom is not needlessly or unacceptably severe.

SUBSTEPS: Is there a rational connection between the impugned legislation and its objective? Does it only cause the minimum impairment of rights required to attain the objective? What is the balance between the rights being curtailed versus the benefit of curtailing them? o [After a long analysis] [The impugned legislation] is saved under s. 1 of the CCRF as a limit reasonable in a free and democratic society. NOTE: McLachlin J (in dissent) said that the benefits secured by the impugned legislation fell short of outweighing the seriousness of the infringement on the freedom of expression therefore, it failed the proportionality test and was not saved by s. 1. y

Judicial Review of Administrative Action (523)


As courts have become more sophisticated in their approach to judicial review, they have been 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 a pragmatic and functional standard of review analysis that has become the first step a court must take when reviewing an administrative decision. The SCC s pragmatic and functional test is designed to extract Parliament s intent as to how intense judicial scrutiny of administrative action ought to be. The basic question is: how deferential should the courts be to executive branch interpretations of the mandate accorded them by statutes? Dr. Q v College of Physicians and Surgeons of BC (2003) - McLachlin J (for the Court): Findings of fact or credibility [made by an administrator] are generally due considerable deference [Standards of proof] do not instruct a reviewing court on how to scrutinize the decision of the administrative decision-maker. This is solely a question of standard of review, to be resolved by applying the pragmatic and functional approach. o In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. o The pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo significant searching or testing, or be left to the near exclusive determination of the decision-maker. These various postures of deference correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness. o It is no longer sufficient to slot a particular issue into a pigeon hole of judicial review and, on this basis, demand correctness from the decision-maker. In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors: o The presence or absence of a privative clause or statutory right of appeal;

The expertise of the tribunal relative to that of the reviewing court on the issue in question; o The purposes of the legislation and the provision in particular; and o The nature of the question law, fact, or mixed law and fact. The overall aim is to discern a legislative intent [of how much deference the Parliament meant the court to give to the decision-maker.] o IN OTHER WORDS: Those factors come together to tell the court just how far the long dick of the law can go into the anus of the unsuspecting decision-maker, based on what the courts can glean that Parliament intended. o

The Standard of Review in Operation (534)


MacLean and Quigley (534-541) apply the standard of review and serve as illustrations of the points made above. However, another interesting point emerges. In MacLean, the court addresses arguments that the Human Rights Commission breached procedural fairness but it doesn t do a standard of review analysis, as would be expected after reading all the above. Why not? Because, in procedural fairness situations, the common law rules governing fair procedure already build in a degree of flexibility that takes into account the institutional setting in which the decision was taken.

Remedies (541)
What remedies are available where judicial review of administrative action is successful? Where rights of appeal t the courts are not made available, it is usually open to those affected by administrative decisions to seek relief using a series of judicial review remedies: Certiorari; Prohibition; Mandamus; Habeas Corpus; Injunction.

Relationship of Aboriginal People To the Canadian State


Royal Proclamation of 1763: It is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. Constitution Act, 1867: 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 91(24). Indians, and Lands reserved for the Indians. Constitution Act, 1982: RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Mtis peoples of Canada. (3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. 35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the Constitution Act, 1867 , to section 25 of this Act or to this Part, (a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and (b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

The Crown s Fiduciary Relationship with Aboriginal Peoples (By: Mary Hurley) Emphasizing the Crown s concern with great frauds and abuses committed by purchasers of Aboriginal lands, the Royal Proclamation of 1763 reserved to the Crown the exclusive right to negotiate cessions of Aboriginal title. Later, 91(24) of the CA, 1867 granted legislative power over Indians and lands reserved for Indians. Surrenders and designations of reserve land under the Indian Act reflect the protective provisions of the Royal Proclamation. In practice, federal governments negotiated surrenders of vast territories in major treaties concluded throughout the 19th and 20th centuries. Finally, section 25 of the CA, 1982 recognizes and affirms existing Aboriginal and treaty rights. In R v Van der Peet (1996) the SCC commented that: The doctrine of aboriginal rights exists, and is recognized and affirmed 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. It is this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status. (emphasis in original) Judicial Interpretation The SCC has adapted private law concepts of fiduciary relationships to the context of Crown-Aboriginal relations. The landmark decision of Guerin v R (1984) found that: The fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement, outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown; 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 so as to regulate Crown conduct when dealing with the land for the Aboriginal group; In the unique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is sui generis, or one of a kind.

R v Sparrow (1990), the first s. 35 decision, extended the scope of the fiduciary concept significantly; it determined that: The general guiding principle for section 25 is that the Government has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship. The honour of the Crown is at stake in dealings with Aboriginal peoples. The special trust relationship and the responsibility of the government vis--vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified.

The standard to be met in the justification test may place a heavy burden on the Crown, while inquiries such as whether an 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 test.

R v Adams (1996) the court found that: In light of the Crown s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unobstructed discretionary regime which risks infringing aboriginal rights in the absence of some explicit guidance.

In Delgamuukw v BC the court ruled that: The degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue. The Crown is under a moral, if not a legal, duty to enter into and conduct negotiations [with Aboriginal peoples] in good faith.

In Wewaykum Indian Band v Canada (2002), a non-section 35 case, the court clarified certain aspects of the fiduciary duty: Fiduciary obligations are not restricted to section 35 rights or to existing reserves: they come into play to facilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples. The fiduciary duty does not exist at large. Because not all obligations between the parties to a fiduciary relationship are necessarily of a fiduciary nature, the focus should be on the particular obligation of interest in dispute and whether or not the Crown had assumed discretionary control sufficient to ground a fiduciary obligation. Rather than providing a general indemnity the content of the Crown s fiduciary duty varies with the nature and importance of the interest sought to be protected. The Crown is not an ordinary fiduciary and is obliged, depending on the context, to have regard to the interests of many parties, not just the Aboriginal interest.

R v Sparrow (1990) - The constitutional question was whether a net length restriction contained in a Band's fishing licence was inconsistent with s. 35(1) of the Constitution Act, 1982. o Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does not revive extinguished rights. An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. The phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. o An aboriginal right is not extinguished merely by its being controlled in great detail by the regulations. The nature of government regulations cannot be determinative of the

content and scope of an existing aboriginal right. Government policy can, however, regulate the exercise of that right but such regulation must be in keeping with s. 35(1). o Section 35(1) is to be construed in a purposive way. A generous, liberal interpretation is demanded given that the provision is to affirm aboriginal rights. Any law or regulation affecting aboriginal rights will not automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1). o Federal power to legislate over Indians must be reconciled with federal fiduciary duty over them and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. o The government bears the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1). The test for justification requires that a legislative objective must be attained in such a way as to uphold the honour of the Crown and be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. Section 35(1) does not promise immunity from government regulation in contemporary society but it does hold the Crown to a substantive promise. o The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. What are the characteristics or incidents of the right at stake? o To determine whether rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. (The onus of proving an infringement lies on the party challenging the legislation.)  Is the limitation unreasonable?  Does the regulation impose undue hardship?  Does the regulation deny to the holders of the right their preferred means of exercising that right? o If a prima facie interference is found, the analysis moves to the issue of justification. This test involves two steps.  Is there a valid legislative objective? This should be clear and specific, not vague like general public interest.  If there is a valid legislative objective: the honour of the Crown in dealings with aboriginal peoples comes into question because of the special trust relationship and responsibility of the government vis--vis aboriginal people o Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry. These include: whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. This list is not exhaustive.

R v Van der Peet (1996) - Various elements of aboriginal rights were discussed. Important was the discussion of what can be classified as an aboriginal right under s. 35(1). o 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.  A court must first identify the nature of the right being claimed. In other words, what is the claimant claiming as a right? The right to fish? The right to fish and trade in fish? The right to fish in certain areas?  A number of factors must then be considered in applying the integral to a distinctive culture test: y To be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question -- one of the things which made the culture of the society distinctive. y 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 with European society. y A court must ensure that the practice, custom or tradition relied upon in a particular case is independently significant to the aboriginal community claiming the right. The practice, custom or tradition cannot exist simply as an incident to another practice, custom or tradition. Incidental practices, customs and traditions cannot qualify as aboriginal rights through a process of piggybacking on integral practices, customs and traditions. y A practice, custom or tradition, to be recognized as an aboriginal right need not be distinct, meaning "unique", to the aboriginal culture in question. The aboriginal claimants must simply demonstrate that the custom or tradition is a defining characteristic of their culture. y The fact that that practice, custom or tradition continued after the arrival of Europeans, and adapted in response to their arrival, is not relevant to determination of the claim; European arrival and influence cannot be used to deprive an aboriginal group of an otherwise valid claim to an aboriginal right. Haida Nation v BC (2004) - The government s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously. o While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.

The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. o 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. Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35 of the Constitution Act, 1982, demands. 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. o The content of the duty varies with the circumstances and each case must be approached individually and flexibly. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake. Third parties cannot be held liable for failing to discharge the Crown s 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. o This does not mean, however, that third parties can never be liable to Aboriginal peoples.

Taku River v BC (2004) - The Crown s duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown, which derives from the Crown s assertion of sovereignty in the face of prior Aboriginal occupation. The Crown s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1). o The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. 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. Delgamuukw v BC (1997) - What is the content of aboriginal title, how is it protected by s. 35(1) of the CA, 1982? o Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal

cultures. The protected uses must not be irreconcilable with the nature of the group s attachment to that land. o Aboriginal title is sui generis, and so distinguished from other proprietary interests, and characterized by several dimensions. It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown. Another dimension of aboriginal title is its sources: its recognition by the Royal Proclamation, 1763 and the relationship between the common law which recognizes occupation as proof of possession and systems of aboriginal law pre-existing assertion of British sovereignty. Finally, aboriginal title is held communally. What is required for proof of aboriginal title? o In order to establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title (pre-sovereignty occupation), that it occupied those lands exclusively (exclusivity), and that it continues to occupy them today (continuity.)  Under common law, the act of occupation or possession is sufficient to ground aboriginal title and it is not necessary to prove that the land was a distinctive or integral part of the aboriginal society before the arrival of Europeans. y The fact of physical occupation is proof of possession at law, which in turn will ground title to the land. y If present occupation is relied on as proof of occupation presovereignty, there must be continuity between present and presovereignty occupation. y The fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. y At sovereignty, occupation must have been exclusive.

R v Marshall; R v Bernard (2005) - Delgamuukw requires that in analyzing a claim for aboriginal title, both aboriginal and European common law perspectives must be considered. The court must examine the nature and extent of the pre-sovereignty aboriginal practice taking place on land claimed to be under aboriginal title, and translate that practice into a modern common law right. Since different aboriginal practices correspond to different modern rights, the question is whether the practices, viewed from the aboriginal perspective, correspond to the core of the common law right claimed. o If yes, then the aboriginal person is entitled to undertake those activities on Crown lands by virtue of aboriginal title to those lands. Tsilhqot in Nation v BC (2007) - This case is an excellent summary of various other cases. - See pages 160-190 of the judgment too long to reproduce here.

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