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Foundations of Canadian Law Notes GOOD FOR ARTICLE SUMMARIES http://www.scribd.

com/doc/92688023/Legal-Foundations-of-Canadian-Law-Exam-Notes VERY GOOD GOOD Check position in current text book (Craik, N. et al, eds. Public Law: Cases, Materials and Commentary, Second Edition) on conflicts in parliament (PARTICULARY RE FEDERAL ACCOUNTABILITY ACT] and Margaret Young, Conflict of Interest Rules for Federal Legislators (2003)) Check latest draft of text book on prorogation chapter 4 to see if it deals with the constitutional crisis that occurred in 2007 1. Basic Theories of Law Positivism and Natural law Legal Positivism - Looks at what the law is - Law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings) - Insists on separation between law and morality; focuses on describing laws without reference to justness/legitimacy/fairness - Legal positivism is only concerned with what is legally valid, not what is morally valid - The common slogan of legal positivists is the existence of a law is one thing; its merit or demerit is another. Thus, on this view, the Nazis had a legal system used for evil ends and the British had a legal system used for good ends; both, however, were legally valid. Natural Law - Believes that laws are only those rules which adhere to certain moral truths, most often of a universal and immutable nature eg. laws legal authority depends upon an external moral standard that holds across all societies. 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 laws 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.)

Re Drummond Wren (1945) 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. Mackay J: 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. (Halsbury 7) 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. I do not conceive that I would be breaking new ground were to hold this covenant to be void as against public policy. I would be applying wellrecognized principles of public policy to a set of facts requiring their invocation in the interest of the public good. Held in the case that the restrictive covenant is void under public policy grounds. He states, my conclusion therefore is that the covenant is void because it is offensive to the public policy of this jurisdiction. NOTE APPEARS TO GIVE WEIGHT TO SANFRANCISO CHARTER AND ATLANTIC INTERMATIONAL LAW PRECURSOR TO BAKER? applied. Re Noble and Wolf (1948) 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 of Pines Protective Association banded together to fight this, saying the areas character could be lost. 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. He suggests that public policy is not a clear principle and often creates uncertainty in the law since it is decided based subjectively on that lawyers upbringing, education, experience etc. He states that public policy should not interfere with the freedom of contract. He says, I cannot conceive of any established principle of law or any principles recognized in the courts or by the State as part of our public law which enables me to conclude that the covenant under review should be struck down as offending against the policy of the law. 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. 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. 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. Held Covenant is valid and enforceable. Feminist Perspectives on Law - Reflects and criticizes liberalism theories (from 17th century) - does not take into account women's needs, etc and even led to oppression

Feminist legal philosophy began in the late 19th century. It began with voting rights for women and reform of marriage laws. They were successful and then the next stage were attacks on discriminatory employment practices and criminal laws. It was not until the 60s that feminism matured into a defined movement and developed widespread currency Early formalist feminism Attempted to replace laws that favoured men w/ more gender neutral laws. Prior to 1916 women in Canada could not vote. During that time women in Manitoba, Saskatchewan, and Alberta had political struggle. They were then allowed in vote. In 1918, Parliament passed the Womens Suffrage Act 1918, which gave every British female over 21 the right to vote, as long as she possessed the same qualifications required for men. But, women could not hold a seat at Senate. They relied on s24 of the British North America Act (Constitutional Act 1867, now), which said only qualified persons were eligible to be appointed to the Senate. Government argued that women were not qualified persons when the act was passed. In 1926, reps of suffrage movement petitioned to have the Government direct the Supreme Court to rule on the constitutional question whether s24 whether women could be considered candidates for the Senate. They found that qualified persons did not include women. They appealed to the Privy Council. The case was Edwards v AG Canada [1930]The PC looked at how the word persons is ambiguous and may include members of either sex. He held that since other sections of the Act refer to only male members, s24 persons includes members of both male and female sex and therefore, women are eligible to be become members of the Senate of Canada. Appeal allowed. Noted that British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. Contemporary Feminism Contemporary feminism consists of different sects with different beliefs - More complex, relying on different areas eg. sociology, criminology to analyse issues such as violence against women. Liberal feminists such as Davies who argue there can be gender equality within a liberal conceptual framework. Other more radical feminists such as Millet see the divisions of men and women are more fundamental and attributable to the liberal conceptual framework. General gist of feminism is that law, justice is male-centric and paternalistic given the ability to reconstruct society women would do better. Over the last 30 years abortion has been a large public debate. In: R v Morgentaler [1988]- the Supreme Court had to decide whether s251of the Criminal Codecriminalizing the procurement of abortion unless authorized by a therapeutic abortion committee and then carried out by a separate physician at an approved hospital was contrary to s7 of the womans right to life and liberty of the Charter of Rights and Freedoms. 3 doctors were charged with conspiracy to procure a miscarriage contrary tos251 and s423(1)(d) of CC. There must be 3 doctors on the Committee. Wilson J said, given that the right to liberty guaranteed by s 7 gives the woman the right to decide for herself whether or not to terminate the pregnancy does s251 of the CC violate this right? Clearly it does. The fact that a decision to terminate a pregnancy is in the hands of a Committee is just as great a violation of the womans right to personal autonomy in decisions of an intimate and private nature as it would be if a committee were established to decide whether a woman should be allowed to continue

her pregnancy. Both violate her right to liberty by deciding for her something that she has the right to decide for herself. S251 takes the decision away from the woman at all stages of her pregnancy. A womans right to security of the person as well as right to liberty are violated. Also, offends a womans freedom of conscience and religion. Justice Bertha Wilsons judgment changed the law and feminists heralded her for showing a true understanding of the plight of women in Canadian law. Critics argue she used the Charter to expand the role of a judge beyond her jurisdiction. Critical Legal Studies - Similar to feminism in that it expresses more radical ideas of legal theory (rejects that there is any natural legal theory that comes from objective discovery) - Often very philosophical and theory driven, aims to deconstruct traditional legal theory (traditional law reproduces the oppressive characteristic of Western society) Critical legal studies theory developed in the 80s in the USA. They reject that there is any kind of natural legal order discoverable by objective means. A. Thomson argues that CLS is a direct attack on traditional legal theory, scholarship and education. Law does not look at justice but institutionalizes and legitimates the authority and power of particular social groups or classes. The rule of law is not a rational, quasi-scientific ordering of societys norms, but is indeterminate, full of subjective interpretation and a large degree of incoherency. Much of CLS theory is post-Marxist and leftist. 3 stages governing CLS ideas: 1. Hegemonic Consciousness - Western laws are influenced by liberal market-driven economy which upholds interests of dominant class 2. Reification - Beliefs that maintain Western laws are presented as essential, necessary and objective. The laws that prop up this belief system necessarily follow suit, becoming equally incontrovertible. 3. Denial - Laws and legal thinking aid in denial of real truth. For a CLS scholar, the denial occurs between the promise of a certain state of law- such as equality-and the reality-such as the vast amounts of discrimination or racism that can be found so readily in society if only we look. Therefore the law for CLS theorist is another form of politics. See R v R.D.S: Compare how the judges in this case dealt with the issue of race with the judges in Re Drummond Wren and Re Noble and Wolf R v R.D.S [1997]Facts - A white police officer arrested a black 15 year old boy who had allegedly interfered with the arrest of another youth. The accused with charged with three offences of dealing with unlawfully assaulting and unlawfully resisting a police officer. There were no witnesses and the events from the cop and youth differed widely. The youth court weighed the evidence and determined that the accused should be acquitted. The Judge stated that police officers had been known to mislead the court in the past, that they had been known to overreact particularly with non-white groups, and that would indicate a questionable state of mind but that her comments were not tied to the police officer here. The Crown appealed to the Supreme Court that the trial judges remarks gave rise to a reasonable apprehension of bias. The majority held that: they will allow the acquittal of the appellant R.D.S. Noted that judges must be impartial and appear to be impartial. Neutrality and fairness are key for a judge. This doesnt mean that they should disregard their life experiences but should not give impression that an issue was predetermined or decided on stereotypical assumptions or generalisations. Judges may, on basis of expert evidence, refer to relevant social conditions in reasons for judgment.

Judge must treat all witnesses equally, without regard to race, religion, nationality etc. Any judicial indication that police evidence is to be preferred to that of black accused would give rise to a reasonable apprehension of bias. But it might be acceptable for a judge to acknowledge that racism in society might be an influencing factor. Note Cory in majority said that some of trial judge Sparks comments may create a perception that the findings of credibility have been made on the basis of generalizations, rather than the conduct of the particular police officer. He thought the remarks were worrisome and come very close to the line. Corys view of RAB was that all judges are subject to fundamental duty to be and appear to be impartial. LHeureux-Dube and McLachlin JJ disagreed RAB test reflects the reality that while judges can never be neutral in the sense of purely objective, they can and must strive for impartiality. They did not feel these comments were close to the line - They reflected an entirely appropriate recognition of the facts in evidence and of the context within which this case arose -- a context known to the judge and to any well-informed member of the community. However, Major J in his dissenting speech states, this appeal should not be decided on questions of racism but instead on how courts should decide cases. A right to a fair trial is based on bias free; did the judge make her decision based on evidence or something else? In my opinion the comments of the trial judge fall into stereotyping the police officer. The trial judge erred in law by failing to base her conclusions on evidence. Judge presumably called upon her life experience to decide the issue, this she was not entitled to do. Which of the opinions reflect the CLS theory? The majority or minority dissenting judgment? Law and Economics Looks at law differently, less moral theory and more ideas about efficiency - applied economic analysis to explain various areas of law 1. Traditional Law & Economics approach - Applies economic methodology to law to see if approach will result in efficient outcomes. Criticised for ignoring questions respecting distributative justice. 2. Public Choice Theory - applies basic economic theory to try to understand public policy (attempts to explain government intervention as way of correcting market failure) - Can also try to understand why some gov't policies seem to run counterproductive to public good - Also says that policy makers try to maximize political support not social welfare - motivated by self interest One of the themes in public law is to show how common law has been displaced by policy formation (in the form of legislation) as the primary means of social regulation. A number of important questions lie at the heart of this analysis: (1) 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? Why do we have the laws that we have? Should we have different laws? Duncan Estate v Baddeley [1997]This case dealt with the issue of how to calculate damages for an estate arising out of a negligence action for wrongful death. Should future earnings be included or not? While the court did not do any explicit calculations or economic reasoning, there was a clear subtext that the judge had to consider the wider social-economic implications of allowing for recovery of future earnings or not).

Consider how the CA relies on economic theory, public choice, legislative policy, common law jurisprudence, and morality in this decision. F- Family wanted to sue the tortfeasor for loss of future earning of the deceased. The Alberta court had to decide if they would allow such a claim. The question was whether the potential to earn income is an actual loss? Kerans JA In Alberta, a claim for loss of future earnings does survive the death of the victim. Notes the class distinctions a wealthy man who never worked but owns a nice watch and a working man both get killed. For the tortfeasor to have to pay the estate for the nice watch but to say the loss of earnings of the working man is a windfall is unwarranted and reflects societal attitudes that are not part of the law individual class distinction and he wants no part of it. Says, if I am wrong, let legislature correct me. Cote JA (concurring) states, why should the tortfeasor escape scot-free if the plaintiff dies the day before judgment 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 judgment?. They involve justice! (Here is a economic and moral perspective). Lieberman JA (dissenting) disagreed with the majority, concluding it was the intent of the legislature in framing the survival or actions act to eliminate the claim of the victim, who died instantaneously as a result of the tort of a wrongdoer, for damages for loss of expectation of life including the loss of future income. He also could not agree that a victim who was killed instantaneously as a result of a tort has suffered actual as opposed to a potential or a speculative loss. (This is a more literal/ positivist perspective). Bhadauria v Board of Governors of Seneca College of Applied Arts & Technology (1979) - Ontario Cof A This case provides an interesting backdrop to the idea of public choice theory. Notice how the Supreme Court and CA define the legislative choices differently. Public choice theory behind the Court of Appeals decision; the Court recognised, on public policy grounds, a new tort of discrimination. But, at the Supreme Court level, this idea was rejected this idea of a new economic tort. Facts - Lady qualified for the jobs not given interview alleges because of her ethnic background (east Indian). She claimed under a writ for damages instead of the Ontario Human Rights Code. She claims to have loss of opportunity and suffered mental distress, frustration, and loss of dignity and selfesteem. Wilson JA (Court of Appeal) (1979): I regard the preamble to the Code as evidencing what is now the public policy of this Province respecting fundamental human rights. Notes law of torts is not static The Code does not impede the appropriate development of the common law in this important area (right not to be discriminated against because of ethnic origin). In his view, the allegations of B give rise to a cause of action at common law, while no authority is cited to him has recognized a tort of discrimination, none has repudiated such a tort. Found- it is unnecessary, in my view that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action. I would allow the appeal.

Bhadauria v Board of Governors of Seneca College of Applied Arts & Technology [1981] - Supreme Court Laskin CJ The issue is whether this court should affirm the recognition by the Ontario CA of a new intentional tort. The tort was recognized to protect against unjustified invasion of his or her interest not to be discriminated against in respect of a prospect of employment on grounds of race or national origin there is no authority and the claim cannot succeed. If the CA is correct in its conclusion, is a species of an economic tort, new in its instance and founded, even if indirectly, on a statute enacted in an area outside a fully recognized area of common law duty. Appeal allowed. I would hold that not only does the Code foreclose any civil action based directly on a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code Referred to Drummond Wren and Re Noble and Wolf Noted that Re Noble and Wolf did not refer to public policy and also that SCC did not decide Re Noble and Wolf on public policy grounds either. Bank of America Canada v. Mutual Trust Co. (2002) SCC Facts o Trust company breaches contract with bank. Bank claims compound interest for a loan against a trust company Issue o Is the interest rate compound interest or simple interest Held o Bank should be awarded compound interest to compensate for opportunity cost incurred Analysis o Purpose of judgment interest is to ensure plaintiff is fully compensated o Change to simple rate of interest at post-judgment stage would be unfair to plaintiff o Award of compound interest satisfies expectation and restitution damages principles o Value of money decreases with passage of time o Three factors account for depreciation of the value of money (i) opportunity cost money that could have been used otherwise (ii) risk and (iii) inflation o Compound interest compensates lender for decrease in value of money which is due but as yet unpaid because unpaid interest is treated as unpaid principle o Simple interest makes artificial distinction between money owed as principle and money owed as interest o Compound interest is the norm in the banking and financial systems in Canada Ratio o Common law now incorporates the economic reality of compound interest o By charging plaintiff simple interest rate upon judgment at post judgment phase, it would delay, but not eliminate the period when defendant gains a benefit that belongs to the plaintiff by not paying compound interest (opportunity cost) This encourages defendant to delay paying judgment awarded Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 Discusses: 1) Positivism v Natural Law; 2) CLS; and 3) Law and Economics The appellant M, accompanied by representatives of the appellant Church of Scientology, held a press conference on the courthouse steps. M, who was wearing his barrister's gown, read from and commented upon allegations contained in a notice of motion by which Scientology intended to commence criminal contempt proceedings against the respondent, a Crown attorney. The notice of

motion alleged that the respondent had misled a judge and had breached orders sealing certain documents belonging to Scientology. The remedy sought was the imposition of a fine or his imprisonment. At the contempt proceedings, the allegations against the respondent were found to be untrue and without foundation. He thereupon commenced an action for damages in libel against the appellants. Both appellants were found jointly liable for general damages in the amount of $300,000 and Scientology alone was found liable for aggravated damages of $500,000 and punitive damages of $800,000. Largest libel award in Canada. This judgment was affirmed by the Court of Appeal. The major issues raised in this appeal are whether the common law of defamation is consistent with the Canadian Charter of Rights and Freedoms and whether the jury's award of damages can stand. HELD: Even though private parties owe each other no constitutional duties and cannot found a cause of action upon a Charter right, the Court concluded that the common law tort of defamation reflected an appropriate balance between freedom of expression values and the legislative objectives underlying the law. As such, there was no need to amend or alter the legislation. Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. Further, reputation is intimately related to the right to privacy, which has been accorded constitutional protection. Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not extend in the absence of state action. The most that the litigant can do is argue that the common law is inconsistent with Charter values. In the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values. Charter values, framed in general terms, should be weighed against the principles which underlie the common law. NATURAL LAW IN APPLICATION. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary. The party who is alleging that the common law is inconsistent with the Charter should bear the onus of proving both that the common law fails to comply with Charter values and that, when these values are balanced, that the common law should be modified. So, it is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with the Charter values but also that its provisions cannot be justified. Even though Charter doesnt apply directly to this action, Common law should be interpreted with reference to Charter values (as per obiter in Dolphin). If common law is inconsistent with Charter values, and not justifiable, the common law should be modified. ALSO NOTE THERE WAS ISSUE OF QUANTUM OF DAMAGES LOOK AT LAW AND ECONOMICS APPROACH JURY ABLE TO ASSESS GENERAL DAMAGES. AGGRAVATED DAMAGES PUNATIVE DAMAGES.

International Law and the Public/Private Law Distinction - Rostam Josef Neuwirth Background The role of law is to provide rules to coordinate reciprocal behavior amongst various members of a social order, in order to avoid conflicts or detrimental effects amongst these members. A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible In the present world with its decreasing importance of boundaries (via mobility of people, goods, services, information), it is the ill-defined notion of international law that is called to face the challenge of a menacing disorder spreading over the emerging international community. The two categories of public international and private international law are most likely to fulfil this function in the emerging international community. Public international law, or the law of the nations, is defined as the system of law governing the relations between states. Private international law, or the conflict of laws, is a system co-ordinating the different laws from different countries, and it responds to the question of applicability of foreign or domestic law within domestic courts Many voices have called for convergence of public international and private international law but this has not happened. In the present time, complex interactions between states and private individuals occurs, and harmony between public and private international law cannot be confirmed any more. The decline of state sovereignty and the increasing insufficiency of a pure positivist theory of law to explain phenomena on the legal plane, are two examples of how global change has shattered the fundaments of doctrinal thinking on which the classical doctrine was built. OBJECT OF THE ESSAY IIS TO COMPARE PUBLIC AND PRIVATE INTERNATIONAL LAW AND TO CONTRIBUTE TO THE ELABORATION OF A METHOD TO ASSIST THEIR COORDINATION. Legal pluralism and legal polycentricity in international law The world community of today is formed by a great number of diverse societies; each political society has its own law which is based on its own traditional religious, cultural or social values. The first steps in the recognition of the diversity of the world community are found in the terms of legal pluralism (parallel existence of different legal systems or orders in one geographical or in one topical area) and legal polycentricity (consisting in a critique of the single value approach to law, a denial of radical relativism and in an acceptance of moral pluralism). Considering the very nature and rationale of public and private international law both dealing with interactions amongst these various societies, whether organised as states, peoples, groups or individuals, that together form the world community - different legal traditions must be given their equal and due place in the international legal order, This can be achieved by emphasising the continuity in the evolution of law; an evolution that has constantly been influenced by the exchange of many different cultures. The Critical Point: Tendencies in Contemporary Law

The second half of the 20th century has faced dynamic development in all areas affecting human society, and driven by the theory of legal positivism. Law was not spared from this development and underwent, and is undergoing, significant changes Law has reached a critical point which is cause for hope and concern the critical point is understood as two parallel yet mutually antagnostic trends. The evolution of technology has affected the evolution of law law has rapidly evolved, but the question is whether it has progressed or regressed? Law has progressed EXTERNALLY almost every action in daily life is subject to law (i.e. broad scope of application to states and individuals). From an INTERNAL point of view, as far as the FUNCTION OF LAW WITH RESPECT TO JUSTICE IN GENERAL (thus including morality, predictability and continuity) is concerned, the issue is less clear. The huge quantity of norms (i.e. laws) enacted gives rise to concern. Result is two competing effects in various fields gain in legal security by the omnipresence of law in society is compensated by the loss in orientation by the huge mass of norms. Problem of the dichotomy of public and private is the question as to whether subjects of public international law (states) or subjects of private international law (individuals) are supposed to slip through the web of norms and thus be denied legal protection. Answer to the problem is found in the nature of law as it is traditionally percieived. A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible. Aristotle pointed out that every law is laid down in general terms, while there are matters about which it is impossible to speak about in general terms. So where it is necessary to speak in general terms, but impossible to do so correctly, legislator lays down what holds good for the majority of cases (being aware that it does not hold good for all). But the defect lies not in the law, but in the nature of the subject matter. Because of this flaw apparently inherent in law, the challenge in the near future is to examine the traditional perception of the theory underlying law. This flaw, and various opposite tendencies in the evolution of law, call for new theoretical approaches to the law regulating the present world order. From a practical perspective, it calls for a simpler general theory, allowing for a rapid orientation but also a just application of the vast variety of norms. A Law for the World of Today The present challenge is to find a legal notion that faces the challenges of the new realities that a global political world order has created. Such a notion would not only have to cover the different categories of law, but also it would have to meet the implications of an immense cultural diversity of legal systems created by a large number of states In this process of adaptation, the preliminary step is to bring about the desired change by redefining existing notions, or by creating new notions used in legal discourse Since codification the process whereby legal ideas become positive law is taking place extensively, changes in the ideas do not automatically result in changes of the written positive law (i.e. the more codification, the more difficult it is to change notions). Therefore, when new legal ideas emerge, they are still expressed through notions that gave shape to their previous legal norms. The new ideas may then stand in clear contradiction to each other. This fate is shared by the notion of international law (especially when approached from the perspective of the different categories of private and public international law).


The notion of international law This seems to be an outdated concept, not fit for responding to new realities. Author then lists (pp12-15) numerous notions related to international law: e.g. International Law, International Uniform Law, European Community Law, Global Law, Universal Law A synthetic search for a suitable notion When contemplating the variety of notions that exist for the law of today, it is hard to make a choice. Each notion has appeared in a different time and context, but they are all interrelated and overlap. The essay will use the term international law, because its covers broadest range of these contexts. Instead of trying to change the term itself the focus will be on a change of its understanding and scope of application. The Dynamism of Public/Private Dichotomy Public international law foundationsThe evolution of public international law reveals the strong influences that theories exercise on the shape of law and its institutions; on the other hand, the theories themselves are shaped by influences stemming from the factual developments occurring in this world. This becomes obvious when one considers the two main theories competing in international law: natural law and positive law, the first emphasising moral standards and the latter a more practical approach. While a naturalist view dominated the 17th and 18th centuries, the positivist view gained importance throughout the 19th century. Since WW II, the naturalist and positivist views can be said to co-exist in parallel. The atrocities committed by the Nazi government that culminated in World War II revived the popularity of natural law. Since then, the naturalist and positivist view can be said to co-exist in parallelPrinciple sources of international law (Art 38 of the Statute of the International Court of Justice): (i) international conventions (contract treaties, law making treaties) establishing rules expressly recognised by contesting states (corresponds more with positivist thought) (ii) international custom the evidence of a general state practice accepted as law. To have legal value the rule must consist of reported continuous and repetitive state practices and the absence of persistant objection (corresponds with naturalist thought); (iii) general principles of law recognised by civilized nations is this referring to general principles of national or international law? Perhaps it is both. (iv) judicial decisions, academia (iii) and (iv) are subordinate in the heirachy. Not sure about which of (i) and (ii) has precedence treaties codify custom but on other hand treaties can be replaced by customary laws. Treaty law is more frequently used but does not have the universally binding force of custom (ius cogens, i.e. peremptory norms, which is based upon an acceptance of fundamental and superior values within the system and ins some respects is akin to the notion of public order or public policy in domestic legal orders). A further expression of the naturalist character expressed by custom is found in the concept of obligations erga omnes (rights or obligations owed toward all.). New sources emerging acts of international organizations (e.g. UN), unilateral acts of states may give rise to international obligations, acts of regional organizations and their organs (e.g. EU), natural law and equity concepts, sciences potentially.


Private international law foundations - Conflict of laws in its widest sense deals with 3 subjects: jurisdiction, choice of law and recognition of foreign judgments- The body of rules called private international law fulfills a coordinating function between legal orders of different states, in search for a greater decisional harmony- From a theoretical perspective, the historical development of private international law was dominated by 2 major ideas: (1) personal quality of a social order (2) territorial quality of a social order As a reconciliation between the two, the principle of domicile entered the foreground. Four main approaches to recognition of foreign law within a states territory: (a) lex fori law of the forum complete ignorance/lack of recognition of foreign rights and laws (b) multi-lateral jurisdiction selecting rules referring to one or other legal system to resolve the issue by means of connecting factors (c) unilateral focus less on specific legal systems by avoiding exclusive application of one or the other. (d) substantive law approach uniform rules (international/interstate rules that contain substantive norms) are applied to the issues at stake. Sources of private international law are hard to determine due to national character in most cases the constuitution and form of govt of a state will determine the question of the authoritative source of private international law. Preliminary questions: 1. Public vs Private: (a) individuality and collectivity balance has evolved over time, emergence of nation state strengthened public realm, then in reaction to claims of monarchs/parliaments to unrestrained law making power, there was a staking out of private speheres against encroachment by state, then welfare state focus on state, then facism and totalitarianism meant there was a return to individual. Battle of capitalism vs communism. Free market won now after 2007, look back to state? (b) Dynamism between public and private sphere private sphere has been pared back individuals subject to more transparency in private sphere child abuse statistics increase because of this (not because people are committing it more). Welfare state. Criminal law. Competition law. Public sphere has spread its wings over the private. Also technology has meant privacy is being eroded. Telecoms, banks all have access to private info. 2. Private law and public law (a) Law and politics important in civil law system to distinguish between Private law and public law but not so much in common law system. (b) Legal Systematisation of public and private law. The classical distinction is that public law governs the relations between the state and its nationals, while private law governs their relations amongst themselves. Three major theories for distinction between public law and private law: (i) Theory of Interest does a legal norm address/serve interests of general public or individual (Roman concept) (ii) Theory of Subjection aims at organizational structure governing the relation of the subject private law represents relation between coordinate subjects of equal standing legally (voluntary and consensual) public law represents relation between a superordinate and a subordinate (unilateral imposition)


(iii) Theory of Subject quality by virtue of which a legal subject acts. Public if the act is especially authorized organ becomes active. Private if there is no such authority exists. The implementation of international law - The way a state approaches this depends on whether the state practice is influenced by the monist (international and municipal law are two different but equal, independent, separated systems of law) or dualist (common ground unity between international and municipal law) concept- The reception and implementation of the international norm in the national realm is necessary because a state, the traditional subject of international law, can in some cases only achieve compliance w/ international obligations by assuring that the behaviour of its nationals is in conformity w/ international obligations entered by the same stateCustomary international law and treaties: Distinguish between these two, the two main sources of international law. International customary law is considered to be part of municipal law if incorporated. The incorporation can be made on the basis of a relevant constitutional provision or by judicial practice. Incorporation doesnt automatically give such law higher standing within the national legal order. A later national law is capable of nullifying the obligation set forthTreaties : The way treaties are transferred into the national legal system not only depends on the constitution but also the character of the treaty. The CONSTITUTION determines the process from the beginning of negotiations until the final administration of a negotiated treaty within a national legislation. From a constitutional point of view, the implementation of a treaty can take place through a special or general transformation. Special = international norm must be adopted by legislation/regulation; general =declared part of municipal law without any special legislation. Treaties can either be selfexecuting or non-self executing, the former requires implementation by way of statute. Advantages/disadvantages of direct applicability of international laws in a municipal court: advantages include the increase for the effectiveness of international law, a better fulfillment of relevant treaty obligations etc. Disadvantages are recognized when one considers democratic participation in the international law making process, the adaption of international norms to domestic particular circumstances, the adequate fulfillment of the respective international obligations, possible conflicts between international and other nations norms


- The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System (2008), 40 S.C.L.R. (2d) 655-686 Introduction As we reflect on the 25 year anniversary of the Charter, much will be written about the impact this document has had on those living on the margin. Has the Charter given any hope to Aboriginal and racialized communities? While there is reason to be optimistic about the possibilities for future reform, the Charter to date has had very little impact on racial injustice in Canada We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets flourishes The utility of using litigation to address racial injustice Some argue that oppression is too deeply rooted to expect a document focused on individual rights and applied by White, middle class judges to make any meaningful structural change. However, successful litigation brings with it considerable attention media, community organizations etc and can help raise public consciousness, stimulate academic research and political action. And one of the most important political responses could be the collection of data which will reveal the extent and scope of racial injustice Absence of any racial profiling legislation, and the passing of Anti Terrorism Legislation, and the Conservative Criminal Code amendments, all of this has had a disproportionate impact on racialized communities. So, Charter litigation remains as important means of addressing fundamental injustice. While I place considerable reliance on Charter litigation to address racial injustice, there is no question that other legal and extra-legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigation fails. Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actors etc are all examples of strategies that can work together with litigation The problem is not with the Charter but with those who argue and interpret it 1. Adjudication and the failure to act Narrow approaches to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter litigation on racial injustice. In a number of key cases addressing issues such as bail (because blacks are more likely to be detained), jury selection (because blacks are less likely to be found on juries), the use of peremptory challenges and racial profiling, courts have refused to adopt critical race standards or arguments when they were advanced. R v Laws Accused argued that citizenship requirement for jury duty violated s15(1) because it had a disproportionate ipact on African Cannadians rejected on narrow and statistical grounds. 34.1% of black residents in Toronto are non-citizens and only 14.4% of whites. Cof A held this was only a slight statistical advantage in allowing non-citizens to sit on juries wont materially increase possibility that a black juror will be selected. This failed to note concerns raised by Ontario Systematic Racism Commission that main barriers for black and other racialised people on trial juries appears to be citizenship requirement (doesnt apply to JPs, lawyers, judges) . R v Hall - Constitutional challenge to section 515(10)(c) of the Criminal Code (discretion deny bail to people with no flight risk). Racial disparities in pre-trial detention decisions: White accused were more likely to be released by the police or not detained following a bail hearing than Black accused.


White accused were treated more favourably even though they were more likely than Black accused to have a criminal record and to have a more serious record. In drug cases, White accused were twice as likely to be released by the police than Black accused. Black accused were three times more likely to be denied bail than White accused. These submissions made by Criminal Lawyers Association of Ontario were not considered in majority or minority decisions. R. v. Pan; R. v. Sawyer Sawyer, who is White, was tried together with Galbraith, who is Black, on a charge of assault. Following the conviction, a juror contacted Sawyer and told him that she had been under undue pressure to come to a verdict and that certain racial comments were made by other members of the jury. The accused argued that the common law jury secrecy rule needed to be altered under section 7 of the Charter to ensure that verdicts were not tainted by racism. The argument was rejected. R. v. Gayle - The accused argued that the trial judge had erred in not expanding the scope of the questions on a R. v. Parks challenge for cause to ensure a more effective means of detecting unconscious racial bias. The standard Parks question asks whether the juror would be able to judge the evidence without bias, prejudice or partiality knowing that the accused is Black and, if applicable, the victim is White. In Gayle, the defence wanted to ask more detailed questions such as: Would you agree or disagree that some races are, by their nature, more violent than others? Argument rejected but CofA did recognize there might be a way to weed out racist jury members with help of expert anlalysis. Courts have refused to expand Parks question since then R. v. Spence - the victim was South Asian and the accused was Black. The African Canadian Legal Clinic (ACLC) argued that the racial background of the victim should be part of the Parks challenge for cause question to ensure that racial partiality directed at the victim did not infect the trial process. The Court focused on the issue from the perspective of the accused and on juror sympathy or empathy (i.e., whether a juror would convict because of a racebased sympathy for the victim) rather than the broader question of partiality. In other words, it did not consider that a juror could vote to acquit because of bias towards the victim and the societal interest in ensuring that verdicts are not racially tainted. Peart v. Peel Regional Police Services Board The African Canadian Legal Clinic argued for a reverse onus in racial profiling civil cases (i.e., placing the burden of proof on the police). The argument was rejected but judge left the issue open The reality of racial profiling cannot be denied. There is no way of knowing how common the practice is in any given community. I am not prepared to accept that racial profiling is the rule rather than the exception where the police detain black men. I do not mean to suggest that I am satisfied that it is indeed the exception, but only that I do not know. Charkaoui v. Canada (Citizenship and Immigration) C argued that the Court should factor in the racial profiling problem when interpreting the constitutionality of provisions enacted in the national security context. Security certificate regime violates section 15(1) of the Charter because it is being applied in a discriminatory manner by targeting Arab and Muslim men. Although the Supreme Court did strike down the security certificate it did not address the racial profiling arguments/ R. v. Lines - Crown brought a motion seeking a declaration that section 15(1) prevented the defence from exercising its peremptory challenges to remove Black jurors. The case involved a White police officer charged with shooting a young Black male who was running away. The motion was dismissed. Defence counsel used one of his peremptory challenges to exclude a Black hospital diet clerk from the jury after she had been found to be impartial by the two triers of fact. Author says it is reasonable to infer racial discrimination was at least part of the reason for the exclusion (e.g. of the seven peremptory challenges counsel used, four were used to exclude racialized jurors).


A more obvious case of intentional discrimination occurred in the trial of Houghton and Johnston, two White men charged in the brutal death of an Aboriginal woman. It took 15 years before the RCMP charged three of the four men, even though the men were identified as the killers by the police in 1972. During jury selection, defence counsel used six of his peremptory challenges to exclude all of the Aboriginal jurors that had made it to the jury box. Defence counsels conduct was specifically cited by the Manitoba Aboriginal Justice Inquiry as an instance of racism. Note: it has been argued that the Rules of Professional Conduct now ethically prevent a lawyer from using peremptory challenges in this fashion. R. v. Gayle - Black accused charged with shooting and killing a White police officer. During jury selection, the Crown used two of its peremptory challenges to exclude two Black jurors. On appeal, the accused argued that his section 11(f) and 15(1) Charter rights were violated by the Crowns conduct. He also argued that the section 15(1) rights of the two Black jurors had been violated. The Court of Appeal held that the accused had no standing to vindicate the rights of the jurors. The Court also declined to decide whether his rights had been breached because the issue was raised on appeal for the first time and, in the Courts view, an insufficient evidentiary record existed. 2. Hostile Adjudication In a number of cases, trial judges have been or appeared hostile when asked to adjudicate a race issue. Sometimes the hostility can be implied from the reasoning employed by the Court to dismiss the argument. A number of challenge-for-cause cases outside Metropoliton Toronto that were dismissed on the grounds that defence counsel had failed to establish that racism extended beyond the borders of Toronto. R. v. Wilson Sternly worded judgment from McMurtry C.J.O. against this: It is unrealistic and illogical to assume that anti-black attitudes stop at the borders of Metropolitan Toronto. ... The possibility therefore of anti-black racism taking root in communities outside of Metropolitan Toronto ... should be a matter of concern for the criminal justice system. Other times, the disdain of the trial judge can be implied from the manner in which he or she controls the proceedings. R. v. Watson, Ontario Court of Appeal agreed that the trial judges interjections at trial compromised trial fairness by impeding the defences ability to effectively cross-examine the police witnesses on critical areas of their testimony including, in particular, on the defence assertion that the activities of the police were motivated by racial profiling. R. v. Brown the Ontario Court of Appeal held that the trial judges conduct raised a reasonable apprehension of bias. That conduct included a suggestion in his reasons for sentence that Brown apologize to the officer for raising racial profiling becausethe allegations were completely unwarranted. These instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change. Increasing the diversity of the bench is one of the most pressing issues facing the justice system and that it will have a big impact on increasing the cultural competence of the judiciary. As for judicial conservatism, while the cases discussed earlier are very troubling, it may still be premature to reach any conclusions given that our courts are not, generally speaking, being asked to develop critical race standards or adjudicate race cases with any regularity.


3. The Sounds of Trial Silence With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once critical race standards have been established by the courts. The most cogent evidence of this is the small number of racial profiling cases that have been litigated following the decision of the Ontario Court of Appeal in R. v. Brown despite the fact that there are likely hundreds of such cases each year. Also, no one has, since racial profiling emerged as a live issue in Charter jurisprudence, challenged the legitimacy of R. v. Ladouceur, the case that has provided the police with a racial profiling writ of assistance. Nor has there been a post-Pearson challenge to the reverse onus for drug offences at bail hearings given the findings and recommendations of the Ontario Systemic Racism Commission. There have been few attempts to apply R. v. Parks outside of the challenge for cause process. Parks established a number of propositions about the nature of racial bias that are now capable of being judicially noted. They include: Racism, and in particular anti-black racism, is a part of our communitys psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. ... The criminal trial milieu may also accentuate the role of racial bias in the decision-making process. Anti-black attitudes may connect blacks with crime and acts of violence. A juror with such attitudes who hears evidence describing a black accused as a drug dealer involved in an act of violence may regard his attitudes as having been validated by the evidence. That juror may then readily give effect to his or her preconceived negative attitudes towards blacks without regard to the evidence and legal principles ... Binnie J. observed in Spence, Parks show[s] that a black accused has reason to fear that some members of the ... community may be wrongly influenced by the colour of his or her skin. Two contexts where Parks and Williams are very relevant include Crown motions to introduce bad character evidence and defence motions to limit the cross-examination of the accused on his or her criminal record. I.e - open for counsel to develop an argument that systemic racism and stereotyping is a relevant factor to take into account when assessing the admissibility of character evidence and criminal record in a case involving a racialized accused. Why are trial lawyers not raising race when it is appropriate to do so? While the perception of judicial hostility is an easy scapegoat for many lawyers, Author thinks real reason for the silence is some lawyers are not seeing the issue, while others are uncomfortable engaging in race talk before the courts. With respect to not seeing the issue, this occurs because, for the most part, Whites do not see themselves as a race or everyday conduct as the product of White privilege. 4. The Sounds of Appellate Silence On a number of occasions, appellate lawyers have also failed to raise the issue of race on appeal. For example, no argument was made in R. v. Law, despite uncontradicted evidence from one of the officers that amounted to racial profiling. He was keeping information in relation to a file named Asian Crimes. The accused, who operated a restaurant, were charged with an offence under the Excise Tax Act. The Court held that officer;s conduct constituted an unreasonable search but did not deal with the racial profiling issue as it wasnt raised. Appellate lawyers also face the hurdle of not having a record from which to work (i.e race issues may not be raised at the trial level)/


While appellate lawyers may be constrained in alleging racial profiling for the first time on appeal in the absence of a fresh evidence application, they face no such impediment in raising race in other contexts for the first time on appeal. For example, some Charter arguments do not require the accused to testify and an appellate court can consider race as a contextual factor. Conclusion This refusal of judges to act and lack of race consciousness by lawyers are having a direct impact on the ability of the Charter to remedy racial injustice The two bright spots have been race-based challenges for cause, and the recognition of the existence of racial profiling by our courts. But even in these areas, there is still room for improvement



Sources of Law:

Early Relations with Aboriginal Peoples It is important for a legal system to recognize that Canada was populated by aboriginal people prior to its colonization by the European empires Aboriginals cultural, political, economic and legal systems/rights not protected after colonization. But in 1982, with the patriation of the Constitution, aboriginal rights were constitutionally entrenched in s 35 of the Constitution Act, 1982.. The provision protects existing aboriginal and treaty rights of the aboriginal peoples of Canada Mitchell v Canada [2001] When Crown asserted sovereignty over the land an obligation arose to treat aboriginal peoples fairly and honorably and to protect them from exploitation arose. A duty characterised as fiduciary in Guerin v The Queen [1984]. Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty and were absorbed into the common law as rights, unless (1) they were incompatible with the Crowns assertion of sovereignty (2) they were surrendered voluntarily via the treaty process or (3) the government extinguished them. Common law status of AR rendered them vulnerable to unilateral extinguishment until Constitution Act 1982 elevated AR to constitutional status. Aboriginal rights falling within the constitutional protection of s.35(1) could not be unilaterally abrogated by the govt. However, the govt retained the jurisdiction to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and compelling public objectives. Delgamuukkw v British Columbia [1997]The nature and scope of the constitutional protection afforded by s35 CA 1982 to common law aboriginal title. To make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: 1. The land must have been occupied prior to sovereignty 2. If present occupation is relied on as proof of occupation pre sovereignty, there must be a continuity between present and pre sovereignty occupation; and 3. At sovereignty that occupation must have been exclusive Reception of European Law Canada law remains a largely European inheritance. British concepts of reception determined how Canadas common law and statute law was received. Cooper v Stuart (1889) -Highlights the basic principles surrounding the rules of reception. 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.


In North America, the problem of determining which of these rules of reception would apply was compounded by two facts: (1) aboriginal peoples were already present, so true settlement in Blackstones definition could not apply; (2) France also had an interest in much of British North America, and claimed part of New France. In practice, the rule of conquest was applied to central Canada, and the rule on settlement everywhere else. Civil law was created, which consisted of the Coutume de Paris supplemented by Roman law, legislation and Canon laws. The Civil Code of Lower Canada codified these various sources in 1866. The Maritimes and western provinces were regarded as settled although Peter Hogg states 3 of the Maritime Provinces were acquired by cession from France, but ended up with reception of English law and have been explained falsely as settled when they were NOT. ([30-31] Constitutional Law of Canada ,2004, sec. 2.1). The rules of reception dictated that the entire body of English law, both statutory and common, was imported into the settled colony. Local exceptions and variances were allowed where the received laws would be unsuitable to the circumstances of the colony. With statute law, the date of reception was important because it was used to determine which English statutory law applied: all statutes passed prior to such date were automatically received unless clearly unsuitable and remained in force. Those passed after such a date did not apply unless, expressly or by clear implication, they were intended to apply. The date of reception for Common law decisions operated retrospectively and applied to colonies equally since once a decision was made all common law jurisdictions were bound. Nature of the Common and Civil law - Common law: Common law is an English invention. It is judge-made law, developed through the common law courts (as opposed to the Court of Chancery). Two fundamental ideas permeate common law theory: (1) Judges do not make the law but merely declare it; (2) all the relevant past decisions are considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance. Cases generally remain a key source of law which statutes are seen as incursions into the common law. - Civil law: Quebec inherited civil law (arises out of Jusitians Corpus Juris Civilis). Civil law is based on established laws, normally written as broad legal principles. The difference between civil and common law lies more in their different methodological approaches as opposed to codification per se. In civil law countries, legislation is seen as the primary source of law. Judgments normally rely on the provisions of codes and statutes. Judicial reasoning is based extensively on the general principles of the rule or code. On the other hand, common law methodology, even where statutory sources of law are present, employs analogical reasoning from statutory provisions to fill in gaps. Bijuralism remains largely intact in Canada today. Common law is the basis of private law in all provinces other than Quebec. Federal law is based on common law. Civil law is the basis of private law in Quebec due to overwhelming influence of common law, Quebec legal system has many aspects of common law tradition. Quebecs private law comes from Civil Code of Quebec, provincial statutes and federal private law. But Quebec also has a lot of common law influence and there is a harmonisation process going on eg: Legislative, judicial, executive and administrative institutions belong to English tradition Private laws are civil


Quebec judges are not graduates of school for judiciary (as in other civil law jurisdictions) but are drawn from practising lawyers as common law judges are. Quebec superior courts are responsible for administration of all laws, federal and provincial. Most civil law systems separate jurisdiction into public and private disputes. The Operation of Common Law and Precedent Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."[2] In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. Reliance on past cases is called the principle of stare decisis (let the decision stand) and is related to the doctrine of precedent. Precedent serves a variety of purposes: it aids in the stability and coherence of the law, making it more predictable; it provides fairness in decision making (i.e. same question cannot be decided in two opposite ways); it promotes efficiency and eliminates sources of error, such as judicial bias; and it fulfils a symbolic role by recognizing the relationship between the courts and the legislature. It therefore has independent value. Problem is determining what parts of a precedent are binding in subsequent cases i.e. finding the ratio decidendi. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge supported anyway, but ignoring it in order to change precedent with which the judge disagreed. Other disadvantages of stare decisis rigidity, bulk complexity, slow growth and depends on litigation for rules to emerge. Lord Denning, the former Master of the Rolls has argued: If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. Each case needs to be looked at from two points of view 1. that of the narrowest rule that a subsequent unkind court will concede has been laid down and 2. the widest rule a friendly court could use to support a more novel position. In Bhadauria SCC held (on a wide reading) that no claim based on a breach of Ontario Human Rights Code or public policy found within it is available to any future litigant. In Canada Trust v Ontario Human Rights Commission (1990) Tarnopolsky JA takes a much narrower reading by distinguishing Bhadauria and constraining it to its facts to allow a claim for discrimination in a trust claim. Canada Trust v Ontario Human Rights Commission (1990) Terms of scholarship trust contrary to public policy as it restricted applicants based on race. HRC argued trial judge should have deferred to them on jurisdiction (per Bhadauria ) But Tarnopolsky JA says Bhadauria was different as court had attempted to advance the common law to


create a tort of discrimination. Here, it is administration of a trust where superior courts have had jurisdiction for centuries. Also, not a typical HR proceeding where mandate of the HRC is to effect a settlement. In this case, trustee cannot enter into settlement that breaches terms of the trust. The HRC cannot grant an adequate remedy here only the court can. Finally, this is not a case where the fact finding role of HRC is required clear question of law here. Judge invoked the cy-pres doctrine to bring the trust into accord with public policy by removing all offensive restrictions, thus permitting it to remain a scholarship. Common Law and Equity Equity is law developed by Chancery Court (separate to common law courts). Original function was to provide a remedy to perceived harshness of common law. Started as fluid, pragmatic, conscience based system of law - anti-formal and anti-establishment. There is no strict doctrine of precedent. Law as a body of rules is by its nature concerned with generalities groups or classes of persons and events, rather than individuals and discrete happenings. Because of this, law sometimes fails to achieve adequate justice in a particular case In Canada it plays a role in private law. In 1873, equitable and common-law systems were infused by the Judicature Acts. Since then, equitable principles have continued to develop alongside the common law and equity are now applied concurrently in all superior courts, with equity prevailing in cases of conflict. Re DeLaurier (1934) is an eg of the equitable doctrine of fiduciary was invoked to protect the religious upbringing of a child. Crocket J held that Any authority that the father may possess under common law as to religious upbringing of child must be measured by the rules of equity which recognize the welfare of the child as the predominant consideration. If the general welfare of the child requires that the fathers right in respect of religious faith should be superseded, the courts in the exercise of their equitable jurisdiction have undoubted power to override them as they have the power to override all other parental rights The equitable doctrine has also extended to the public realm. Guerin v Canada [1984] Dickson J held 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, It does not amount to a trust in a private law sense, Rather, it is a fiduciary duty. K,L.B v British Columbia [2003]- McLaughlin CJ held that the relationship between government and foster children is fiduciary in nature. In this case, KLB suffered abuse in two foster homes. Held the fiduciary duty is to avoid certain harmful actions that constitute a betrayal of trust, of loyalty and of disinterest (not a wider duty to act in best interests of foster child). Statute (Protection of Children Act) cannot imply a duty to act in best interests of foster child on superintendent the intention is that they be placed in private homes and this eliminates govts ability to exercise close supervision superintendent cannot ensure on day to day basis that childrens best interests are promoted. . Superintendent was negligent but not breach fiduciary duty. International Law Domestic law is the body of principle most people encounter most of the time. It exists in legislation enacted by legislatures or made as regulations by the executives.


Two most significant sources of international law are treaties (law-making contracts between states) and customary international law (entrenched norms binding on all states, except those who have repudiated them by practice). Customary international law is soft law and is formed by general and universal state practice, undertaken by states with a sense of legal obligation (or opinio juris). An example is the Universal Declaration of Human Rights introduced in 1948. A Canadian minister has said that Canada regards this as entrenched in customary international law binding on all governments. International law as part of Canadian Law: The Federal govt negotiates treaties on behalf of Canada. Once a Treaty is signed and ratified, Canada is bound and must comply with it. The government must ensure that the domestic law does not run counter to international law. Note, the interaction with domestic law will depend on whether it is a treaty or customary international law. (a) Treaties Dualism: Canada is a dualist jurisdiction (c.f. monist like Germany). In the dualist tradition an international treaty has no direct effect in domestic law until domestic legislation passed to transform or implement the law into Canadian law by an act of Parliament (if a federal matter) or provincial Legislatures (if a provincial matter). Dualism responds to concerns about the democratic legitimacy of the treaty-making process. Executive enters into treaties and if that automatically creates law, it takes away from Parliaments powers. It does, however, create real problems. When parliament fails to implement treaty laws into domestic law the result is an unfortunate legal quandary: Canada is bound by the Treaty as a matter of international law, and yet its policy-makers need not to abide by the treaty under the terms of domestic law. This problem is remedied if the Federal government delays ratification until Parliament and the provincial legislatures revise laws to bring them into compliance with the anticipated international obligation. As globalization increases, this dilemma will become progressively more acute. The uncertainties of dualist reception There are no clear rules on when a treaty has been transformed or implemented into Canadian law. In many cases, existing statutes already conform to these obligations; in other cases, Canada can meet it international obligations through the formulation of policies. When the law needs to be changed subsequent to the treaty, there are clear ways to achieve this e.g when legislation names a treaty in its text. But should such a definite reference be required for implementation? Does silence or lack of detail in a statute mean non-implementation of a treaty obligation? Baker v Canada [1999] the SCC held that, despite the legislation having lots of references to best interests of the child (similar to requirements for Convention on Rights of the Child language), the Convention has not been implemented. SCC didnt state how implementation was achieved. Seems to require that the statute must specifically reference the treaty requirement massive changes needed in all statutes though Suresh v Canada[2002] the court considered whether the deportation to torture violated Canadian constitutional law. Canadian immigration law at the time permitted deportation of refugees on national security grounds even when their life or freedom would be threatened. It was silent on the question of torture- a UN treaty which Canada has ratified- expressly bars deportation to torture. The Supreme Court considered it had not been implemented but still followed it. This approach is a problem because courts are now prepared to seek inspiration from unimplemented treaties. Since


Canada is dualist it because the treaties are not really law and courts may ignore the actual requirements of these treaties and devise some hybrid standard of their own. (b) Customary international reception. Canadas approach to CI law is very different from its dualist treaty reception doctrines. Once a rule becomes recognized as Customary Law, it is automatically part of the Canadian common law. With Customary international law, Canada is a monist rather than a dualist jurisdiction. Several obvious issues are raised by this approach. First, when a legislature does legislate in a manner that displaces CIL, Canada may be subsequently in violation of its international obligations. Second, if CIL is part of the common law of Canada, its existence as domestic law is a matter determined by the courts exclusively. This CIL is itself created by the international system in an organic rather than negotiated fashion. If customary international law is subsequently incorporated directly into Canadian law by the courts, there may never be any clear and direct input by political branches of government into the rules by which law in Canada is binding. On a third, related point, since the content of customary international law is sometimes uncertain and disputed, courts asked to apply it as the domestic law of Canada, rely on expert testimony from international lawyers and academics, raising further questions of legitimacy. Bijuralism and Harmonization: Genesis Note general points from other articles: History until 1970s Federal Acts were drafted in English and translated into French by people without particular legal skills. 1978 start of co-drafting one Francophone trained in civil law and one Anglophone trained in common law. 1995 legislative bijuralism policy and in 1997 stated a program to harmonise federal law with civil law of Quebec. The Honourable Mr. Justice Michel Bastarache (February 4, 2000) Bijuralism in Canada signifies the co-existence of the English common law and the French civil law traditions, within a country organized along federal lines. Bastarache does not consider it correct to speak of a "common law" or a "civil law" per se. Rather, in his opinion, there is one legal family in Canada which contains the common law systems and another legal family which contains the civil law systems. Language An integral issue relating to Canada's bijuralism is that of "language". Linguistic duality has been a constant concern in Canada. The sources of the common law were established in the English language. Translation often results in some very significant problems for the practice of the common law in French. The same holds true for the practice of civil law in English. Some concepts are quite hard to translate. It is hard to avoid confusion when civil law terminology must be relied on. It is also hard for lawyers to present their arguments in French in courts where the judges are not fluent in that language. The suitability of judges educated in the common law tradition hearing cases involving civil law issues has been the subject of some debate in Quebec and has even led to some opinion favouring a distinct Supreme Court for Quebec or a separate civil law division within the existing Supreme Court. There is also a perception that while Ontario courts often serve as persuasive authority in other


Canadian provinces, decisions of Quebec courts that are rendered in French are not fully heeded in other jurisdictions, undoubtedly due to the language barrier. His experience has taught me that French is not the exclusive linguistic vehicle for the expression of the civil law tradition nor is English the exclusive vehicle for the expression of the common law. No mystical connection between the French language and the civil law tradition and the English language and the common law tradition. Bilingual Legislation Federal legislation in Canada should apply consistently across the provinces and territories. This goal is not easily attained, since federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Federal legislation must simultaneously address four different groups of persons: 1. anglophone common law lawyers; 2. francophone common law lawyers; 3. anglophone Quebec civilian lawyers; and 4. francophone Quebec civilian lawyers. These audiences should be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory. More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. Per Lionel A. Levert, Q.C., Special Advisor - Drafting techniques used include "neutrality" technique and the doublet. Whenever possible, Parliament prefers to use "neutral" terms or phrases, that is those that have no particular connection to either of the two legal systems in Canada. Where it is not possible to use neutrality a doublet will be used set out in separate paragraphs the different forms that a rule of law may take as it is applied in different regions of the country. A simple doublet, involves expressing a given legal concept through the terminology of each separate legal system. Interpreting Bilingual Legislation The requirement in Canada that legislation be enacted in both English and French has important implications. Both versions of a bilingual statute are original, official and authoritative expressions of the law. Neither is a copy or translation and neither is paramount. The "equal authenticity rule" must be applied by courts in interpreting federal bilingual legislation. (SCC in C.P.R. v. Robinson 1891) French and English versions of a statute are equally authoritative. In Mekies v. Directeur du Centre de dtention Parthenais, it was held that to properly interpret bilingual legislation of Canada, the English and French versions must be read in light of each other, taking into account the context of such legislation, including the intent of the legislature that each provision of the act be read consistently with the others and that the act as a whole be read in light of the legal family or system of law applicable in the particular jurisdiction. The Policy on Legislative Bijuralism, adopted by the Department of Justice in June of 1995, formally recognizes this. This policy and approach is also followed by judges in their interpretation of bilingual legislation.


Gulf Oil Canada Ltd. v. Canadien Pacifique Lte. A provision of the Federal National Transportation Act wherein the English version provided that carriers were not liable for loss caused by "acts of God" while the French version provided non-liability for "cas fortuit" or "force majeure". The Quebec Superior Court took into consideration the civil law system in interpreting this provision, concluding that, while the acts of third parties do not meet the definition of "acts of God" in the common law system, they nevertheless may constitute "cas fortuit" or "force majeure" in Quebec law. The Court in this case recognized that, in its English and French versions of this provision, the legislature sought to take into account the two legal systems in Canada. The rule of equal authenticity also requires the courts to extract the "highest common meaning" from the two versions that is consistent with the context of the provision. Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute in Reference re Education Act of Ontario and Minority Language Education Rights, the Court of Appeal dealt with the interpretation of subsection 23(3) of the Canadian Charter on minority language rights. English version "minority language educational facilities" while the French version tablissements d'enseignement de la minorit linguistique". Common meaning of these terms reduced to their lowest common meaning was equivalent to a guarantee of classrooms, the Court of Appeal opted for the highest common meaning and accorded a guarantee of schools managed by francophones. Dor v. Verdun, SCC Justice Gonthier maintained that a court is free to reject a shared meaning between the two versions of a statute if it appears contrary to the intention of the legislature. Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit, intent and meaning of an enactment and that best ensures the attainment of its objectives. Harmonization The interaction of law emanating from the federal and provincial levels and the potential conflicts between them and possible harmonization is a complex issue. Pursuant to the division of powers under the Constitution Act, 1867, Parliament has enacted a considerable number of laws aimed at regulating private law issues. Certain public law statutes, when applied in Quebec, require that recourse be had to the Civil Code of Quebec to identify the precise nature of the juridical act in question. In order to have effect, legislation concerning bankruptcy, bills of exchange or bank security depend on the existence of contracts such as loans, sales and hypothecs. Divorce, extra-contractual liability of the Crown, and the Income Tax Act (which determines the tax consequences of sales, assignments of claims, gifts and legacies) also raise issues. The Bankruptcy and Insolvency Act contains several provisions that demonstrate the required reference to the Civil Code for its effect. For example, s. 95 of the Bankruptcy and Insolvency Act allows the trustee in bankruptcy to void a preferential payment made within three months preceding the bankruptcy. However, s. 95 does not apply where "a debtor-creditor legal relationship does not exist" between the bankrupt and the third party. Thus, if no legal transaction exists pursuant to the Civil Code of Quebec, the payment shall not be voided. There are many examples where the Civil Code governs private law relationships that come into contact with federal law which determines the consequences of such relationships. There are also situations where the civil law plays an active role, directly applying to private law federal statutes. As such, civil law is called upon to fill the gaps left by the federal law. Consequently, there are several areas of law found in federal statutory enactments which require harmonization with Quebec private law, expressed primarily in the Quebec Civil Code.


Quebec North Shore Paper Co. v. Canadian Pacific 1977 SCC held there is no general "federal judicially-created common law" which fills the gap where Parliament has not legislated on a certain matter. In other words, the law of Quebec is called upon as the droit commun even with respect to some matters within the federal competence when that jurisdiction has not been exercised by the federal Parliament. In so doing, the possibility of a further duality of common laws within Quebec was avoidednamely, a judicially created one by the Federal Court in addition to that already in place in Quebec by reason of French civil law in matters of property and civil rights and English law in non-civil matters. While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not be applied uniformly throughout the country in every respect. Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly across Canada; this requires respect for the character and uniqueness of the concepts and principles of each legal system. The fact that provincial legislatures may pursue distinctive legal policies which might each be different as well as different from those of Parliament, is a principal justification for federalism. If uniformity was our goal, what would be the purpose of our federal system and bijural culture? The need to recognize diversity should not, however, inhibit the need for coherence and the need to reduce conceptual and linguistic incongruence. Convergence and Progress There is evidence of convergence between the civil law and common law traditions in Canada. Result of frequent contact with other legal systems, the growth in the number of sources of international law, the mobility of persons, and the growing use of legislation, even in common law jurisdictions, to enable the law to adapt quickly to societal change. This move may also result from the commercial activity of Quebec enterprises outside of Quebec coupled with the desire to attract foreign investment into Quebec. Such activity creates pressures to adopt commercial law devices from Anglo-American jurisdictions. One example of the convergence of the two legal traditions is acceptance in Quebec the trust. SCC has forged a sui generis conception of ownership in the trustee (not envisaged in the Civil Code). The new Civil Code of Quebec later put in place the idea of a trust upon the basis of the patrimonya concept of civilian derivationin order to avoid importing the concepts upon which the common law trust functions. This new formulation rejects the vision of the Supreme Court in which the trustee was attributed a sui generis title. In the spirit of this comparative technique, however, the goal was to seize upon the experience gained from the common law tradition with a view to adapting it to Quebec's own "pense juridique". The result can therefore be seen as the same, yet the principles adopted remain consistent with Quebec's legal tradition. Canadian National Railway Co. v. Norsk Pacific Steamship Co. Ltd. BC Supreme Court resorted to civilian authority for resolution of a common law tort case. Chief Justice McLachlin stated that looking to how other courts in different jurisdictions deal with this issue provides perspective both on the nature of the problem and possible solutions. Such decisions demonstrate the utility that can be derived from our bijural tradition. Constant change and evolving institution and concepts are the essence of law. Bijuralism in Canada is more than the mere "co-existence" of the two legal traditions. It involves the sharing of values and traditions. Conclusions Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone. It must evolve in light of our background and needs. The interpenetration of the two legal systems is seriously flawed. Instead try to determine how the concepts of the two systems can be reconciled. Comparative law must evolve to become a true legal discipline and contribute directly to the development of the law.


The codification of the law is increasingly extensive in both systems. There are more and more new sources of substantive law, including international law and native law. The equal authenticity of the two versions of the Canadian Charter of Rights and Freedoms, a "first" in Canadian Constitutional law, should encourage judges and jurists alike to draw from the best elements of both traditions. The existence of a second authoritative version of our Charter marks an important step in Canada which can only serve to enrich its bilingualism, bijuralism and multiculturalism. It can also be said that, as a result of the advent of the Canadian Charter of Rights and Freedoms, and of the Charter's influence on all legal fields, we are moving farther and farther from the traditional common law method of interpretation and of application of precedents. The same is true in England, where the case law on human rights has given the House of Lords and the Privy Council much difficulty. The negative side is that French-language books, articles and cases from Quebec continue to be inaccessible to the common law provinces and territories. I have also noticed that the bilingualism of many young Quebec jurists is insufficient to give them full access to English-language legal sources. On the flip-side, if French is not understood in most of English Canada, how can we be expected to make use of the insights it offers in resolving legal disputes? There are not enough points of contact between the two systems, which is an obstacle to the harmonious development of the law in Canada. St-Hilaire v. Canada (Attorney General), 2001 FCA 63, [2001] 4 F.C. 289 Mrs. St-Hilaire, a Quebec resident, stabbed her husband during a violent domestic quarrel. She was charged with second-degree murder and pleaded guilty to a reduced charge of manslaughter. Mrs. StHilaire, as sole heir and surviving spouse, claimed the surviving spouses allowances under the Public Service Superannuation Act. The Treasury Board refused to pay, on account of the common law rule of public policy that no one may profit from his or her crime. Mrs. St-Hilaire applied to the Federal Court Trial Division for a declaratory judgment that civil law rules applied and that these rules entitled her to the benefits provided in the PSSA. Justice Blais allowed Mrs. St-Hilaires application and ordered the Treasury Board Secretariat to pay her the amounts claimed. The Trial Division decided that under the civil law of Quebec, no rule applied to disallow Mrs. St-Hilaires claim. The Federal Court of Appeal allowed the appeal. The Court was divided on the interpretation of the civil law rules of succession but unanimous on the issue of the complementarity of federal legislation and provincial private law where the former is silent on the meaning of a concept. Justice Dcary rejected the argument that provincial private law is to complete only federal private legislation as opposed to public legislation: [65] What, in my view, should determine whether or not it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact, quite simply, that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. In some ways the circle is closed and we come back to the point of departure, in section VIII of The Quebec Act, 1774: when these affected persons are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. In short, the civil law applies in Quebec to any federal legislation that does not exclude it. He concluded that the concept of succession is a private law concept and consequently that it must be interpreted in light of the private law of the province in which the provision is to be applied:


I do not think there can be any doubt that this part of the Act, which refers to "succession" without defining it, should be interpreted in Quebec in light of the civil law. This is a good example of the danger in concluding that a federal statute is either public law or private law and that once it is public law any reference to a private law concept must be interpreted in light of the common law. I have a hard time imagining how, in the case at bar, Mr. Morin's succession would be determined otherwise than under the Civil Code of Qubec. In my opinion, there is no avoiding the fact that a federal statute, albeit one characterized as public law, that refers to a private law concept such as succession without defining it, should be interpreted in Quebec in terms of the civil law. In keeping with this decision, one will first need to determine if the federal legislation refers to a private law rule, principle or concept. Then, one will have to determine whether the federal legislation contains its own private law rule. If federal legislation is silent (as in the St-Hilaire case) or relies upon provincial private law to complete it, then reference is to be made to provincial private law. Dcary MJ : Unless indicated otherwise, no document other than the Civil Code shall serve as ordinary law, in private law, in the federal legislation applicable to Quebec. Whenever a federal statute that is to be applied to Quebec resorts to a private law concept without defining it, and the Interpretation Act is likewise silent, or the federal statute does not fully occupy the possible field of private law jurisdiction in question, it is the Civil Code that supplies the necessary conceptual support for an intelligent application of that statute - In Quebec it is trite law that the ordinary law of the province is constituted by the Civil Code of Qubec and the Code of Civil Procedure - Of course, there are a number of situations in which the civil law is required to assume what might be called a passive role. Such situations include every instance where, in furtherance of its own purposes, a federal statute assigns certain effects to juridical acts or facts governed by the Civil Code. More frequent, however, are situations in which the civil law plays an active role by applying directly to complement federal private law statutes, just as it does with regard to provincial statutes of the same type. Most of the time, of course, these laws do not contain all that is necessary for their application. In one way or another, they are almost always incomplete. They employ civil law concepts without defining them; they refer to institutions enshrined in the Civil Code or fail, wittingly or unwittingly, to state all of the principles that apply to the field they regulate. The civil law is therefore called upon to fill in the lacunae or gaps left by federal law - What, in my view, should determine whether or not it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact, quite simply, that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. - It is also worth remembering the complementary nature of federal and civil law: all of the Federal statutes created do not create an independent legal system. Because these Acts derogate from or add to the jus commune of each province, they are supplemented by the relevant provincial law, which is used to interpret them and to apply them. There is, therefore, a complementary relationship between federal legislation and the jus commune of the provinces


- I do not think there can be any doubt that this part of the Act, which refers to succession without defining it, should be interpreted in Quebec in light of the civil law. The answer is not so obvious when it comes to defining the rights of the surviving spouse. This expression, as I said earlier, is defined in the Act and furthermore does not correspond to any concept that is defined in the Civil Code of Qubec. The Act appears, prima facie, to constitute a complete code in this regard. But is this really the case? What we are looking for here is not who is the surviving spouse. We know her. What we are asking ourselves, rather, is whether this surviving spouse is eligible to receive the benefit provided by the Act. - Since the Act is silent on the question of eligibility, the Attorney General submits that the legislative void must be filled by the common law. This argument cannot succeed, since the question of eligibility is a question of civil rights and the applicable rule is one of private law, and thus, in this case, of civil law - The Civil Code of Qubec recognizes the principle that no one should profit from his or her crime. The question then is what the civil law understands by the principle that no one should profit from his or her crime. - In ab intestate and testamentary succession, there is unworthiness by operation of law only if the heir is convicted of making an attempt on the life of the deceased. Should the circumstances of the crime in the case at bar lead to the disqualification of the respondent, given that the respondent has been convicted of manslaughter? I think so. It would be too easy for anyone charged with murder to avoid the civil consequences of a conviction for murder by pleading guilty to a reduced charge of manslaughter and avoiding a trial in the course of which all of the relevant facts would be disclosed. The civil court, faced with a plea of guilty to a charge of manslaughter, may be sceptical and conclude, from the scant evidence at its disposal, and given the balance of probabilities, that there was a sufficient intention to kill. - In sum, the respondent was forfeited from her entitlement to the benefits payable to a surviving spouse under subsection 13(3) of the Act, but she was entitled in her capacity as heir, to the minimum amount of $75,202.50 payable under subsection 27(2) of Part I of the Act and to the supplementary death benefit of about $81,750. Analysis of complementarity Noted that the Superannuation Act did not contain any provision concerning the disqualification of a beneficiary for attempting to take the contributor's life. In order to properly identify the issue of complementarity, the judge stated six principles governing questions of private law and public law in Quebec: 1. The Quebec Act, 1774 sealed the fate of the two legal systems in Quebec by providing in Article VIII that French civil law would govern anything affecting property and civil rights, while the common law would govern anything affecting the public law in Canada and in Quebec. 2. Provincial public law in Quebec is composed on the one hand of the written law (the provincial statutes) and on the other hand of the common law that is public in character. 3. Federal public law in Quebec is composed on the one hand of the written law (the federal public law statutes) and on the other hand of the public common law. 4. Federal private law in Quebec is composed of the private law defined in a statute of the Parliament of Canada and the civil law if it is necessary to resort to an external source in order to apply a federal statute. 5. The Parliament of Canada may derogate from the civil law when it legislates on a subject that falls within its jurisdiction. 6. The Federal Court of Appeal is not bound to apply only federal law in cases before it.


Mr. Justice Dcary then noted that the Constitution of Canada provides that a a federal law that resorts to an external source of private law will not necessarily apply uniformly throughout the country. According to the judge, it is wrong to associate systematically all federal legislation with common law. Mr. Justice Dcary stated that, as a general rule, where a federal enactment is applied in a dispute from Quebec, the suppletive law is the civil law. In view of the differences between the private law of the provinces, he concluded that asymmetry is the rule under the Constitution. Furthermore, he noted that this principle is recognized in subsection 39(1) of the Federal Court Act, where it is provided that, except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions are governed by the law of the province in which the cause of action of the proceeding arose. If Mr. Justice Dcary wanted to make it clear that asymmetry was the general rule, he was nevertheless careful to take into account the decision in Construction Brou in which the Federal Court of Appeal attempted to harmonize the effects of federal statutes throughout the country wherever this is possible in the private law. This explains Mr. Justice Dcary's opinion that, where a federal enactment is silent concerning the applicable private law, a Quebec litigant is entitled to expect that his civil rights will be defined by the Quebec civil law, even if the adverse party is the federal government. Analysis of the suppletive law applicable to the dispute Following his analysis of complementarity, Mr. Justice Dcary addressed the issue of what law was applicable to the dispute. The appellant argued that the Superannuation Act is a federal public law that is based on the common law. The appellant also argued that the question of the relationship between the federal administration and its employees is a part of administrative law that is governed by the rules of public law and thus by the common law. Mr. Justice Dcary found two flaws in the appellant's argument. First, it was his opinion that the Superannuation Act is not a statute that is exclusively administrative in nature. Second, the common law rule argued by the appellant was not a rule of public law but a rule of private law. With regard to the type of rule in question, Mr. Justice Dcaryrecognized that it may be difficult on occasion to distinguish public common law from private common law. In this case, it is fairly clear that the rule invoked by the appellant is a private law rule. The source of the rule is not found in the public character of the federal government. As for the characterization of the Superannuation Act, Mr. JusticeDcary recognized that it has some of the characteristics of an administrative law and hence a public law enactment. But it also has some characteristics peculiar to a private law enactment. Citing a judgment of the Quebec Court of Appeal, he commented that an employee's superannuation plan is a factor in the employee's working conditions and fits within the employee's labour relations. According to Mr. Justice Dcary, the specific rights at issue in this case were rights of a private nature. Mr. Justice Dcary went on to address the issue of the implied dependency of federal legislation in relation to the civil law. He referred, among other things, to various studies of the Department of Justice concerning the harmonization of federal statutes with civil law and concluded that it is not enough to establish that a statute is public or private in nature in order to determine whether it is necessary to resort to provincial private law: What, in my view, should determine whether or not it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact, quite simply, that the federal enactment in a given case must be applied to


situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. In some ways the circle is closed and we come back to the point of departure, in section VIII of The QuebecAct, 1774: when these affected persons are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. In short, the civil law applies in Quebec to any federal legislation that does not exclude it. He later adds: In my opinion, there is no avoiding the fact that a federal statute, albeit one characterized as public law, that refers to a private law concept such as succession without defining it, should be interpreted in Quebec in terms of the civil law. The final element to be analysed in terms of complementarity was the issue of eligibility to receive the benefits prescribed by theSuperannuation Act. The appellant claimed that the common law had to considered since the Superannuation Act was silent on the question of eligibility. But, in fact, according to Mr. JusticeDcary, the issue of eligibility is one of civil rights, and the applicable rule is a rule of private law. He thus concluded that he was inclined to interpret Parliament's silence on the issue of the eligibility of the spouse as an acquiescence in the application of the principle of legal asymmetry that characterizes Canadian federal law. It is on the basis of this analysis that Mr. Justice Dcaryconcluded, with the concurrence of his colleagues of the Federal Court of Appeal, that resort had to be had to the civil law of Quebec in order to determine whether Ms. St-Hilaire was entitled to the benefits provided by the Superannuation Act. Unworthiness to inherit Although Mr. Justice Ltourneau and Madam Justice Desjardins agreed with the analysis of Mr. Justice Dcary on the question of complementarity, they nonetheless concluded that Ms. St-Hilaire was unworthy of inheriting. The majority did not agree with Mr. JusticeDcary's restrictive analysis of this issue. In the opinion of those judges, Ms. St-Hilaire had made an attempt on the life of the deceased; she was unworthy of inheriting under the Civil Code and thus was not entitled to any of the benefits and allowances provided by theSuperannuation Act. The question on which Mr. Justice Dcary, dissenting on this issue, focused was whether manslaughter constituted an attempt on the life of the deceased under article 620 C.C.Q. He chose to interpret this article to mean that only a person who voluntarily kills would be automatically disqualified. In cases where the deceased himself had provoked the crime that led to his death, committed by an heir in a fit of anger, unworthiness would not be automatic but would have to be shown. Therefore, it would be necessary to apply to the Court to declare the heir unworthy under article 623 C.C.Q. He concluded that the respondent, Ms. St-Hilaire, was not unworthy by operation of law and, accordingly, that she would be entitled to the supplementary death benefit, as heir to Mr. Morin's succession, and to the minimum amount payable under subsection 27(2) of the Superannuation Act. However, she would not be entitled to the benefits payable to the surviving spouse under subsection 13(3) of the Superannuation Act,because of the Civil Code's specific rules on insurance.


John Borrows, Indigenous Legal Traditions (2005) Indigenous legal traditions can have great force and impact in peoples lives despite their lack of prominence in broader circles. Indigenous legal traditions are a reality within Canada and should be more effectively recognized as such. Pre-European Indigenous Legal Traditions Some have said that indigenous peoples in North America were pre-legal. Those who take this view believe that societies only have laws if proclaimed by some recognized power that is capable of enforcing such proclamation. For legal positivists, centralized authority and explicit command are necessary for a legal system. But a society does not need to have such institutions such as courts and legislatures to possess law. Europeans pronouncements that indigenous peoples had no government or law were contradicted by their practice of dealing with them through treaties and agreements. There was a long period of interaction between indigenous peoples prior to the arrival of Europeans and explorers from other continents. There were treaties, inter-marriages, re-settlements, war and extended periods of peace. For example, the Haudenosaunee of the eastern Great Lakes maintained a sophisticated treaty tradition about how to live in peace that involved all of their relations: the plants, fish, animals, members of their nations, and members of other nations. They also had legal traditions that governed a confederacy of relations between nations: the Mohawk, Oneida, Onandoga, Seneca and Cayuga - known as the Great Law of Peace. Indigenous-to-indigenous treaty occurred between the Haudenosaunee and the Anishinabek in 1701 near Sault St. Marie. The agreement was orally transacted and is recorded on a wampum belt (a mnemonic device with shells forming pictures sewn onto strings of animal hide and bound together). The belt has an image of a bowl with one spoon. It references the fact that both nations would share their hunting grounds in order to obtain food. The single wooden spoon in the bowl meant that no knives or sharp edges would be allowed in the land, for this would lead to bloodshed. This agreement is still remembered by the two nations today. European Recognition of Indigenous Legal Traditions In the early days of contact, agreements between indigenous peoples and others often followed Aboriginal legal customs and traditions. In the early 1700s, the French entered into treaties with the Anishinabek of the Great Lakes by using Anishinabek forms, wampum belts and ceremony. In 1764, when the British were able to assert an interest in North America after the Seven Years War, they used indigenous legal traditions to transact business and bind themselves to solemn commitments. First Nations laws, legal perspectives and other indigenous frameworks have been present throughout the entire span of the treaty-making process in Canada. Since 1982, existing treaty rights have been recognized and affirmed by the Constitution, thus enjoying the highest possible status in Canadas legal order. The continuation of treaty rights and obligations entrenches the continued existence of indigenous legal traditions in Canada. In terms of private law, many early traders and explorers adopted indigenous legal traditions and participated in their laws. A perusal of the fur trade literature reveals that commercial transactions were often conducted in accordance with indigenous traditions. The giving of gifts, the extension of credit, and the standards of trade were often based on indigenous legal concepts. Early marriage relationships between indigenous women and European men were formed according to indigenous legal traditions.


In the first year of Canadas confederation, the Quebec Superior Court affirmed the existence of Cree law on the Prairies and recognized it as part of the common law. In arriving at this position, Justice Monk wrote: Will it be contended that the territorial rights, political organization such as it was, or the laws and usages of Indian tribes were abrogatedthat they ceased to exist when these two European nations began to trade with [A]boriginal occupants? In my opinion it is beyond controversy that they did notthat so far from being abolished, they were left in full force, and were not even modified in the slightest degree . . . .[i.e. the doctrine of continuity] R v. Mitchell, Chief Justice McLachlin wrote for a majority of the Court: European settlement did not terminate the interests of aboriginal peoples arising from their historical occupation and use of the land. To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights. . . . Indigenous legal traditions continued to exist in Canada unless, as Chief Justice McLachlin wrote: (1) they were incompatible with the Crowns assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them. Criticises Chief Justice Lamers Delgamuukw v. British Columbia description of the social role of Aboriginal oral histories because the Court seemed to overlook the broader social function of Canadian law generally. The broad social role of indigenous tradition, as the expression of the values and mores of culture is not very different from what occurs in the common law and civil law traditions. Yet, by contrasting Aboriginal and non-Aboriginal traditions in a dichotomous manner, the Supreme Court did not give sufficient emphasis to the common or civil laws broad social function. Stereotypes about indigenous law make indigenous principles and traditions appear overly subjective and non-legal because of their broad social role. A fair account of the similarities and differences between indigenous, civil and common law traditions would pay equal attention to the cultural aspects of each form of law. Canadas two most dominant legal traditions, the civil and common law, also have deep cultural roots. Indigenous Legal Traditions Laws can arise whenever human interactions create expectations about proper conduct. Indigenous legal traditions developed in this fashion and were based on the customs and practices of their people. Customary laws are inductive and are discerned by examining specific routines and procedures relating to conduct within a community. The laws of England operated largely through custom until precedent and consolidation took place during the 1700s. Indigenous legal traditions are best understood through the lens of customary law. Indigenous peoples in Canada developed various spiritual, political and social customs and conventions to guide their relationships. These diverse customs and conventions became the foundation for many complex systems of law. Contemporary Canadian law concerning indigenous peoples partially originates in, and is extracted from, these legal systems. To ensure that important ideas are preserved, memory devices are an important part of these traditions. Memory devices can include wampum belts, masks, totem poles, medicine bundles, culturally modified trees, birch bark scrolls, petroglyphs, button blankets, land forms, crests, and more. Indigenous traditions are often recorded in oral form. Oral history in numerous indigenous groups is conveyed through interwoven layers of culture that entwine to sustain national memories over the lifetime of many generations. The transmission of traditions in these societies is bound with


the configuration of language, political structures, kinship, clan, economic systems, social relations, intellectual methodologies, morality, ideology and their physical world. These factors assist people in knitting historic memories more tightly in their minds. There are many types of traditions that are a product of this process: memorized speech, historical gossip, personal reminiscences, formalized group accounts, representations of origins and genesis, genealogies, epics, tales, proverbs and sayings. Indigenous legal traditions also often rely upon elders or sanctioned wisdom keepers to identify and communicate law. In their aggregation, each of these cultural strands are wound together and reinforced by specific practices. These practices include such complex customs as pre-hearing preparations, mnemonic devices, ceremonial repetition, the appointment of witnesses, dances, feasts, songs, poems, the use of testing, and the use and importance of place and geographic space to help ensure that certain traditions are accredited within the community. Oral tradition does not stand alone, but is given meaning through the context of the larger cultural experiences that surround it. As noted, indigenous legal traditions sometimes find their articulation in ceremony. Ceremonies often consist of formalized rituals that enable participants to directly participate in law. Each group created its own distinctive ceremonies and formalities to renew, celebrate, transfer or abandon legal relationships. Each groups ceremonies and stories varied according to its history, material circumstances, spiritual alignment and social structure. Whatever the source and structure of indigenous legal tradition, the important point is that they rely less on centralized proclamation and enforcement than Canadas other legal traditions. Indigenous legal traditions, like all legal traditions, require a translation process. Canadas civil and common law traditions are also embedded in a culture of argument. Each tradition contains a degree of ambiguity that requires judgment and application beyond its initial formulation. Judges and lawyers interpret the civil and common law through case law judgments. Parliament and legislatures promulgate administrative regulations to further implement and clarify statutory grants of power. Indigenous traditions also require further explication beyond bare practice and presentation in order to understand and apply their meaning. Canadians are largely familiar with the process of resolving ambiguities in civil and common law traditions through judicial decision-making and executive regulation-making. They may be much less familiar with how ambiguities are addressed in indigenous legal traditions. In trying to present a general picture of how these ambiguities are worked out, one is presented with a particular challenge; there are many indigenous legal traditions and each might possess a different method of interpretation. The best way to understand how to overcome ambiguity within an indigenous tradition is to become familiar with that systems contours. It can be difficult to communicate how ambiguities should be overcome. Nevertheless, some idea of how indigenous peoples might engage in the process of interpretation within their traditions can be conveyed. The following story is indicative of the general methodology one must follow to interpret and apply indigenous laws. [STORY RE HIDING KNOWLEDGE IN MAN] This story teaches the importance of participation in the interpretation of indigenous legal traditions. The power of interpretation and judgment is not vested solely in greater beings, such as the Creator or powerful animals. As this story indicates, even the smallest animals might have something to contribute to a decision or to the resolution of an issue. If we analogized this story to contemporary indigenous traditions, we would conclude that all powers of interpretation and judgment should not be vested in legislators or judges. Those in society with less formal power also have a role in deciding how customs and practices should apply to them. Decision-making in indigenous communities should not necessarily occur through those who are distant, professionalized and impersonal; indigenous dispute resolution has the potential to involve a greater range of people in determining the


consequences for actions. Dispute resolution following this model would enable indigenous people to take responsibility for their own actions, and simultaneously be accountable for them. The Relationship of Canadas Legal Traditions Indigenous legal traditions are an important source of legal guidance for Aboriginal peoples. For centuries, indigenous laws have assisted Aboriginal peoples in the resolution of their disputes. Certain aspects of these traditions continue to guide indigenous communities in contemporary settings. However, these laws have often been ignored or overruled by non-indigenous laws. Their influence has thus been eroded within indigenous communities. Yet, they embody precepts and practices that connect Aboriginal and non-Aboriginal Canadians to land in a way that is not always possible under the current administration of the common or civil law. For example, the common and civil law has often been applied in Canada to separate indigenous people from their lands and environments. This has occurred through the dispossession of the countrys original inhabitants, or through the doctrine of Crown title that underlies non-indigenous peoples land rights in Canada. On the other hand, indigenous peoples stories, ceremonies, teachings, customs and norms often flow from very specific ecological relationships, and are interwoven with the world around them. Relationships of family law, the law of obligations, and property law hinge upon connections to land and resources. The symbols of the Potlatch system reflect the specific locale, as cedar bent boxes, house posts and big houses provided the setting and gifts that permitted the memorialization of west coast indigenous laws. II. ENTRENCHING MULTI-JURIDICALISM IN CANADA Recently, the concept of bi-juridicalism has been frequently referenced in Canada. This phrase refers to a state of facts: the coexistence of two contemporaneous legal systems in Canada. While the concept behind bi-juridicalism is fair, it is also problematic because it is under-inclusive. Numerous indigenous legal traditions continue to function in Canada in a systemically important way. Canada would better be described as multi-juridical or legally pluralistic. The issue of indigenous law requires a pluralistic approach to understanding relations between Canadas legal traditions. A. Indigenous Governments Indigenous communities could apply their legal traditions more explicitly in making decisions and resolving disputes, particularly in their management and regulatory systems. This would enable indigenous governments to become more fully accountable to their people and would allow their communities to become more selfsufficient. It could create a stronger tradition of positivistic indigenous law to rest beside more customary traditions. Indigenous governments could play a greater role in recognizing structures that facilitate access to their own legal values. This could occur through the development of indigenous Constitutions or through the application of their other culturally appropriate legal traditions. The federal government could extend or amend its policies to support and recognize indigenous governments in these matters, and pass governance recognition legislation. In exercising the right of self-determination, indigenous peoples in Canada could act to freely determine their political, economic, social and cultural development by determining legal issues within their own communities in accordance with their own values. If they did this, the first line of protection for indigenous culture would occur through the operation and recognition of indigenous peoples own laws, legal systems, policies and protocols. This could be done in tribal courts, potlatches, feasts, councils, administrative agencies, or any other forum a group chooses to protect its


culture. These institutions should flow from the specific cultures that wish to protect their ideas, objects and expressions. Indigenous peoples should draw upon their and other cultures best practices and procedures in the law-making powers. They should compare, contrast, accept and reject governmental and legal standards from many sources, including their own. Some might call this revisionist, and seek to undermine indigenous governance and law by the use of this label. Such a critique would be invidious. All law and governance is revisionist, as it must be continually re-interpreted and reapplied in each generation to remain relevant to changing conditions. Law would become unjust and irrelevant if it was not continually revised. Aboriginal governance and law is no different, and should not be held to higher standards. Indigenous legal traditions could be recognized as existing Aboriginal and treaty rights under section 35(1) of the Constitution Act of 1982. This result may flow from the very wording of the section itself: The existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada are hereby recognized and affirmed. In Calder v. A.G.B.C, Justice Judson wrote: [T]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means. Indigenous peoples power of self- organization pre-existed the Crowns assertion of sovereignty and was in fact strong enough to hold rights to land. These governance and legal powers were not voluntarily surrendered by the Crowns act of assertion. Indigenous peoples continued to exercise their powers of governance in many ways after the Crowns assertion of sovereignty. As noted, these powers are evident in matters internal to their societies and in their external relationships with Canada through treaties, trade and conflict. Aboriginal governance is an independent legal right, not dependent for its existence on any grant of authority from the executive or legislative bodies in Canada. It is a preexisting right that vested in Aboriginal groups prior to the arrival of the common law in Canada. A policy statement issued in 1995 stated: The Government of Canada recognizes the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982 . . . Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources. B. Indigenous Courts and Dispute Resolution Bodies Indigenous governments should recognize and/or recreate institutions to exercise dispute resolution powers over matters internal to their communities. Indigenous governments should affirm the powers of these institutions in a manner consistent with their legal traditions. Law must embrace a communitys deeper normative values to be a just and effective force in facilitating peace and order. Non-indigenous legal traditions do not sufficiently engage indigenous values and thus do not encourage indigenous participation. Indigenous adjudicative institutions using indigenous principles would correct this oversight. By and large, the current structures frustrate the participation of Indian people in Canadas constitutional structure. They falsely rest on public institutions (Indian Act and other non-indigenous bodies under federal creation and delegated and ministerial authority) that are largely inconsistent with the Constitution of the country because they constrain Aboriginal rights to exercise decision-making power under section 35. Indigenous governance would enjoy greater accountability and legitimacy if their own institutions were able to resolve their disputes. The power of Aboriginal people to judge and hold their own


members accountable for their actions is an Aboriginal right that was integral to First Nations communities prior to the arrival of Europeans. Further, this right has not been extinguished, and can be exercised in a contemporary form. What must be recognized is the power of Aboriginal peoples under section 35 of the Constitution Act to sit in judgment over their own citizens when issues of rights, responsibility and accountability are raised. They will be in the best position to articulate legal principles that will have the deepest meaning and legitimacy in their communities. In the United States, independent tribal courts have been an important force in holding the leadership of Indian communities to the highest standards of accountability, in accordance with broader principles of stewardship. While the organization of tribal courts was initially suspect because of their heavy reliance on the Bureau of Indian Affairs to administer justice, in the last twenty-five years they have grown to become independent bodies capable of addressing the most challenging issues courts can face. One particularly strong example of this power comes from the decision In Re Certified Question II: Navajo Nation v. MacDonald, where the Navajo court was asked to consider, among other things, whether their tribal chairman had breached any fiduciary duties by receiving bribes and kickbacks from contractors doing business with the Navajo Nation. In MacDonald, the Navajo court drew upon western principles of law to articulate the fiduciary duty that a tribal executive officer owes to the members of the tribe. In so finding, it did that which any other court would have done. It examined general principles of law and applied them to the facts of the case to arrive at an appropriate solution. However, in finding that the chairman owed and violated fiduciary duties to the nation, the court referred to other legal norms that only it would be qualified to draw upon in facing this problem. In particular, the Navajo justices drew on Navajo common law to give meaning to the fiduciary duty in the context of principles of normative order within their communities. The Supreme Court of Canada gave its approval for the recognition of difference as a mechanism to achieve equality in the case of Law v. Canada. Justice Iacobucci observed: [T]rue equality does not necessarily result from identical treatment. Formal distinctions in treatment will be necessary in some contexts in order to accommodate the differences between individuals and thus to produce equal treatment in a substantive sense . . . Correspondingly, a law which applies uniformly to all may still violate a claimants equality rights. Just because a person is subject to differential treatment does not always mean that person is not receiving the equal benefit and protection of the law In further considering indigenous dispute resolution and the argument that it departs from the standard of one law for all Canadians, one should take into account that Canada is a federal system. There are ten provinces, three territories and one central government that create and enforce a variety of different legal rules throughout the country. Some of these laws even contradict one another. For example, some provinces permit state funded denominational schools, while others prohibit them. Some provinces are constitutionally obligated to fund religious schools, while others have no such constraint. The fact that different, sometimes contradictory laws are passed by different legal regimes in Canada does not bring the legal system into disrepute. In fact, the respect it enjoys is heightened because the passage of different laws demonstrates a much-needed ability to respond to local circumstances. When one adds to this mix the idea that provincial governments each pass different regulations under identical federal laws when given the responsibility to administer such statutes, these variations are usually applauded because they allow legislators to be sensitive to purely local matters. Few would suggest that such provincial and regional variation is a departure from the principle of one law for all Canadians.


Sometimes the idea that Canadians live under one law is an overly simplistic view of how legal regimes interact within the country. Even the Criminal Code, a federal statute, is administered differently in each province. There is a great deal of variation between the provinces in their criminal law regimes, despite the common source of their laws. C. Indigenous Law Recognition and Harmonization Acts In order to recognize and affirm indigenous legal traditions, the Federal Parliament should pass legislation recognizing indigenous laws on their own terms and create mechanisms to harmonize these laws with Canadas other legal traditions. This legislation should be developed jointly with Aboriginal governments and organizations. This law should recognize the inherent rights of indigenous peoples to their legal traditions. It should also protect people and groups against discrimination in the operation of indigenous legal traditions. As such, the law should contain: A clause providing that the Indigenous Law Recognition Act would not abrogate or derogate from any Aboriginal or treaty right under section 35(1) of the Constitution Act, 1982; A clause stating that indigenous legal traditions must treat men and women equally, and that any indigenous legal traditions inconsistent with section 35(4) are of no force and effect; A clause stating that indigenous legal traditions must be consistent with the provisions of the International Declaration of Human Rights to be binding on any person or group; A clause noting that the Act would only come into force with the consent of an Aboriginal community and its government. In addition to a Recognition Act, the Federal Parliament should pass legislation harmonizing indigenous legal traditions with other legal traditions in Canada. The Federal Law-Civil Law Harmonization Act, effective June 1, 2001, is the first in a series of Acts that will harmonize hundreds of federal statutes and regulations. This exercise is part of the Harmonization Program undertaken as a result of the coming into force of the Civil Code of Qubec in 1994, which substantially changed the concepts, institutions and terminology of civil law. This Act states: 8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a provinces rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied. 8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces. Principles and structures similar to those found for the harmonization of civil and common laws could be created for indigenous legal traditions. These could be regarded as an equally authoritative and necessary part of Canadian law. An Associate or Assistant Deputy Minister could be responsible for its administration, with resources comparable to those available for dealing with harmonization of the civil law in Canada. The harmonization process would have to deal with issues of protocol and the power imbalance that indigenous peoples will be concerned with in the identification and implementation of their legal traditions. Some of the issues that would have to be addressed by statute or regulations are: The role of Elders; Concerns about appropriation and culture property; The impact of colonialism on certain indigenous laws;


The problem of gender stereotyping, discrimination or imbalance; and The potential harms certain traditional laws could cause for vulnerable individuals within indigenous communities. It is important that indigenous legal traditions embrace contemporary human rights concerns. It is also important that human rights concerns do not become an excuse to further colonize indigenous societies. D. Canadian and Indigenous Legal Institutional Development The recognition, implementation and harmonization of indigenous legal traditions would involve other Canadian legal institutions. Provincial law societies would play a role in facilitating indigenous legal traditions. In the United States, the recognition of indigenous legal traditions has led to the development and existence of indigenous law societies. The Indigenous Bar Association (IBA) could be developed to take on a governance role in accreditation or coordination of lawyers or other practitioners who may participate in indigenous legal systems. The IBA could be an educational and disciplinary body, as its members would have expertise with most indigenous groups in Canada. The further recognition and implementation of indigenous legal traditions would also create a greater role for indigenous legal education. The First Nations University of Canada and other indigenous educational institutions could work with indigenous leaders to develop programs specific to indigenous groups and their laws. The First Nations Governance Centre could provide valuable information and education as well. First Nations law schools or programs would facilitate the dissemination and acquisition of knowledge necessary to implement these traditions. There are numerous other societal initiatives that could be undertaken to support the dissemination and application of indigenous legal traditions throughout the country. CONCLUSION Canadas balanced, and somewhat decentralized, federal state is one of the countrys great strengths. It facilitates the reconciliation of diversity with unity. It creates the potential for experimentation in the social laboratory that each constituent part of our federation encourages. More explicit recognition of indigenous legal traditions could lead to useful experimentation and innovation in solving many of Canadas pressing problems. Furthermore, affirmation of indigenous legal traditions would strengthen democracy in the country by placing decision-making authority much closer to the people within these communities. Aboriginal peoples would be better served in Canadas federation if they had the recognition and resources necessary to refine the law in accordance with their perspectives. This is important because central and provincial governments are more remote from Aboriginal peoples, both physically and culturally, and tend to be less responsive to the Aboriginal electorate than would their own governments exercising greater responsibility for their own affairs. Greater recognition of indigenous legal traditions could provide some counter-weight to the biculturalism and bi-elitism that sometimes infects Canadas polity. The recognition of indigenous legal traditions in the Canadian state is bound to be contested and create difficulties in law and policy. Laws dealing with indigenous peoples must take account of the totality of cultural practices and expressions that belong to them. Recognizing and affirming indigenous legal traditions would facilitate the rule of law within indigenous communities as they lived closer to their values and principles. It would enable the exercise of greater responsibility for their affairs, and allow them to hold their governments and one another accountable for decisions made within their communities. If properly implemented and harmonized with Canadas other legal traditions, such an approach would be consistent with their human rights as peoples while ensuring that others rights were not abrogated. Creating a national


framework to facilitate the implementation of indigenous legal traditions would help to ensure that non-indigenous rights and interests are also respected. It is easier to envision fairer and more effective laws when rights are determined on more even playing field, with greater indigenous influence and participation. The proposals outlined in this paper are directed at creating laws and institutions that will find an appropriate balance between the interests of recognizing and respecting indigenous cultural, political, economic and social integrity and the interests of society as a whole. The paper advocates formal indigenous participation in dispute resolution because there are problems in treating questions about indigenous knowledge as a discrete, de-contextualized subject of inquiry to be used and judged by other normative systems, rather than treating it as an active system that contains its own values, norms, uses, standards, criteria and principles for the use of such knowledge. To avoid this difficulty, indigenous intellectual methodologies that express indigenous legal concepts must be embedded in the very structure of indigenous dispute resolution. Aboriginal vantage points should form part of an appropriate balance from a rights perspective when judging issues of indigenous legal traditions. This paper has tentatively suggested ways in which indigenous norms could provide criteria for such judgment. As indigenous normative concepts are extended into dispute resolution regimes at the local, provincial and national level, a greater range of options will be available to tailor solutions that fit particular issues and disputes. This is consistent with the sui generis approach to judging indigenous rights outlined by the Supreme Court of Canada. It would also meet the task outlined in R v. Van der Peet: The challenge of defining [A]boriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined . . . a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives.


Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (skim headnote for factual context, read paragraphs 69-71, 78-81) Facts:

Ms Baker, a citizen of Jamaica, entered Canada on a visitor permit, but overstayed illegally for many years. Had 4 children here (so they are Canadian citizens). Due to diagnosed depression and schizophrenia, she went on welfare and 2 children went to father, other 2 to foster care, but she took these 2 back when recovered. When discovered to be living in Canada illegally she is ordered to be deported under the Immigration Act. Her last resort under the Act is application to the Minister to be allowed to stay in Canada on humanitarian and compassionate grounds. Her written application includes medical evidence that if deported she will likely become ill again with no medication, and that she is sole caregiver for 2 children and closely connected with the other 2 (so all children will suffer if she is deported). Application reviewed by junior Immigration Officer and recommends she not be allowed to stay on humanitarian and compassionate grounds. Recommendation sent to senior Immigration Officer who agrees, so application denied (with no oral hearing and initially no reasons given). When Bakers counsel asks for reasons, senior Immigration Officer sends notes from junior Immigration Officer. Notes appear inflammatory e.g. capitalized her total number of children (4 in Canada, plus 4 in Jamaica), says she will be a tremendous strain on our social welfare system, say that fact she is still in Canada is an indictment of our system, and Canada can no longer afford this kind of generosity, recommends refusal but warns of potential for adverse publicity.

LHeureux-Dub J. held (b) International Law Another indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of childrens rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. The important role of international human rights law as an aid in interpreting domestic lawhas also been emphasized in other common law countries. It is also a critical influence on the interpretation of the scope of the rights included in the Charter. The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that childhood is entitled to special care and assistance. A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments.


The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child needs special safeguards and care. The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power IACOBUCCI J. - I agree with LHeureux-Dub J.s reasons and disposition of this appeal, except to the extent that my colleague addresses the effect of international law on the exercise of ministerial discretion pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2. The certified question at issue in this appeal concerns whether federal immigration authorities must treat the best interests of the child as a primary consideration in assessing an application for humanitarian and compassionate consideration under s. 114(2) of the Act, given that the legislation does not implement the provisions contained in the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, a multilateral convention to which Canada is party. In my opinion, the certified question should be answered in the negative. It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation: Capital Cities Communications Inc. v. Canadian RadioTelevision Commission, [1978] 2 S.C.R. 141. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Courts jurisprudence concerning the status of international law within the domestic legal system. In my view, one should proceed with caution in deciding matters of this nature, lest we adversely affect the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to bind citizens without the necessity of involving the legislative branch. I do not share my colleagues confidence that the Courts precedent in Capital Cities, supra, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process ofstatutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament. The primacy accorded to the rights of children in the Convention, assuming for the sake of argument that the factual circumstances of this appeal are included within the scope of the relevant provisions, is irrelevant unless and until such provisions are the subject of legislation enacted by Parliament. In answering the certified question in the negative, I am mindful that the result may well have been different had my colleague concluded that the appellants claim fell within the ambit of rights protected by the Canadian Charter of Rights and Freedoms. Had this been the case, the Court would have had an opportunity to consider the application of the interpretive presumption, established by the Courts decision in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and confirmed in subsequent jurisprudence, that administrative discretion involving Charter rights be exercised in accordance with similar international human rights norms.


Brunnee, Jutta & Stephen Toope. A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts in David Dyzenhaus (ed.), The Unity of Public Law, Hart Background - Today, Courts appear to recognize the relevance of international norms whether or not they have been implemented through Canadian legislation, and whether or not they are binding on Canada - In Baker, the Court held that the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review - Canadian courts are grappling more with the practical application of international law - Canadian courts, however, are still inclined to avoid deciding cases on the basis of international law: and the avoidance strategy is subtle even when they invoke international law, Canadian courts generally do not give international norms concrete legal effect in individual cases. - After the Baker decision, there appears to be a trend towards treating all international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner as relevant and persuasive, but not determinative (this comes implicitly from the decision, not explicitly) - The point is the Supreme Court and other courts have confused, rather then clarified the domestic impact of international law - Job for academics and judiciary to attack international law questions in a more principled manner. Same with courts particularly because they influence the development of customary international law. When is international law directly applicable in Canada? To what extent are the legal effects of international law dependent on its domestic implementation? Under what circumstances can international law that is binding on Canada have legal effects in Canada? Under what circumstances, if any, can international norms that are not binding on Canada have legal effects in Canada? - The SCC in Baker and in Suresh said that the relevant international instrument was not implemented in Canada (but we think its arguable that there is implied implementation because of the Charter and its protections) - We argue that it is not enough to treat ALL normative threads as potentially persuasive, but not mandatory over time, this approach risks weakening the fabric of the law. CONCERN: If international law is merely persuasive, it becomes purely optional, and it can be ignored at the discretion of the judge - We argue that in the case of norms that are binding on Canada under international law, Canadian courts have an obligation to interpret domestic law in conformity with the relevant international norms as far as possible. By contrast, norms that arent binding (e.g. soft law) can help inform the interpretation of domestic law and may be persuasive. Implemented Treaties


- In Canada, the executive controls both the signature and ratification of international treaties. If the treaty is in force and Canada has ratified it, the treaty is binding on Canada as a matter of international law; but this does not answer the question of whether the treaty is effective within the Canadian domestic legal system - International treaties are not directly applicable in Canada but require transformation. - Canadian courts struggle not only to determine when international norms require implementation through legislation but also to determine whether such implementation has actually occurred. They wrestle as well with the implications of the common law principle that Parliament is not presumed to legislate in breach of a treaty or in a manner inconsistent with the comity of nations and the established rules of international law. In the case law, it remains unclear when this principle comes into play and how it relates to the implementation requirement. - So while the power to enter into an agreement rests with the federal executive, transformation generally requires legislation that enacts treaty obligations into domestic law. - Transformation must occur w/in the jurisdictional framework set out by the Constitution Act 1867. - It is unclear what constitutes implementation, and there are potentially many ways this can be done in a statute. Least common practice is inferred implementation - When a treaty is explicitly transformed into Canadian law, its provisions should be determinative in the interpretation of domestic legislation - When the purpose of a statute is to implement an international treaty, the Court must adopt an interpretation consistent with Canadas obligations under the treaty. - A court must rely on the treaty to interpret the statute and on the international rules of treaty interpretation to interpret the treaty and resolve any textual ambiguities - Canadian courts have tended towards a narrow construction of the implementation requirement, effectively equating implementation with statutory implementation - But surely there can be implicit implementation, e.g. by way of the Charter. - In Ahani, it was stated that absent implementing legislation, international law has no effect - Traditionally, however, Canadian law did not categorically require statutory implementation Unimplemented treaties - There are cases where treaties are genuinely unimplemented. - What is the legal effect of such treaties? We submit that a treaty that is binding on Canada, while not directly applicable in Canada, is nonetheless subject to the presumption of legislative intent to Act consistently with Canadas international obligations. - As we understand the presumption, it applies to all of Canadas international obligations, whether treaty based or rooted in customary international law - This understanding leads to the inference that courts should make every effort to interpret Canadian law so as to conform to Canadas international obligations


- Unfortunately, Canadian case law has not taken a consistent approach to the presumption of conformity w/ international law. - First, there is an uncertainty of the effect of that presumption in the context of Charter interpretation. The SCC has tended to draw upon international norms merely to inform its interpretation of the Charter. In the Charter context, a weaker version of the presumption of conformity has emerged. - Secondly, the case law since Baker is unclear on whether the presumption applies equally to Canadas international obligations and non-binding international norms - The ambiguous state of the case-law in this regard is reflected in the Courts decision in Baker. One of the principle causalities of this lack of clarity is customary international law. The central ruling in Baker was that even though Canada had never explicitly transformed its obligations under the Convention of the Rights of the Child into domestic law, the immigration official was bound to consider the values expressed in that Convention when exercising discretion. Therefore, the Conventions emphasis upon the best interests of the child should have weighed heavily in considering Ms Bakers application. - How did majority arrive at the conclusion that the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review? More specifically, the central question is how the majority conceived of this principle in relation to the traditional presumption of statutory conformity with international obligations. - It would seem that the primary question for the majority with respect to the relevant international instrument was how to give effect to the unimplemented treaty. As said above, the majority took the narrow view on the question of implementation and observed that, absent implementation by Parliament, its provisions have no DIRECT application in Canadian law. Yet the values reflected in the Convention could shape statutory interpretation. - In our view the majority erred for 2 reasons: (1) While the provisions in that instrument were not directly applicable IN Canadian law, they were binding ON Canada and therefore relevant to statutory interpretation through the presumption of conformity (from the standpoint of this presumption, the Court wouldnt have had to distinguish between the provisions and values, and could have used both). The Court simply failed to adopt the presumption which they should have, based on the very quote which they relied to cite authority for the presumption; it would have been clearer for them to just have used the presumption in arriving at the conclusion; (2) By avoiding the presumption, the interpretation of the international instrumental taken was overly narrow - Baker results in 2 questions: (1) How should courts approach international treaty norms that are binding on Canada, but absent implementation, not directly applicable in Canada? (2) How should they approach norms that do not bind Canada but reflect important international values? - Some have suggested to ignore the rigid distinction between binding and non binding. Doing so risks some norms being ignored completely, simply because they are not legally binding. Similarly, legal norms produce a false sense of security when it is assumed that they require nothing other than mechanical application by a judge. According to Knop, an approach focused on persuasiveness of norms can improve the domestic application of both types of norms. Knop therefore likes Bakers approach - But we are worried that Baker has not signaled a positive shift. Worry is that Baker signals a path towards treating all international law as persuasive authority, which the Court MAY use to inform its interpretation of domestic law. By treating both binding and non-binding


international norms in this manner, courts move away from their duty to strive for an interpretation that is consistent with Canadas international obligations. - Binding international norms are not only persuasive, they are obligatory. If we fail to uphold our obligations, we undermine respect for law internationally [Note: binding = ratified; implemented = implemented by statute] Customary international law - The existence of a binding rule of custom is proven with reference to two distinct, but interrelated, elements: state practice and opinio juris. - The proper application of customary international law has emerged in a series of cases after Baker as a major question for the Supreme Court. To what extent can international customary law inform domestic legal processes? The best view appears to be that customary law can operate directly within the Canadian legal system - We hope that the SCC intended to suggest that the precautionary principle can inform statutory interpretation even if it should not yet have become customary international law. If this reading is correct the Court would have confirmed a principle that it alluded to in Baker: in appropriate cases, international norms that are not legally binding on Canada may inform statutory interpretation and judicial review - Another case after Spraytech that the SCC commented on customary international law was in Suresh. Jus cogens norms are a particularly compelling form of customary international law. Summary - Customary international law (a peremptory norm of customary international law which emerges by general consensus of the international community): should be directly applicable (it is a part of Canadian law). Courts should strive to interpret statutes and common law to be consistent with obligations under customary law. However, the approach of Canadian courts to customary international law is unclear. There is no unequivocal statement on whether custom is part of Canadian law or not. If anything, there are some indications that our courts may be retreating from custom. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more. - International treaty law: A treaty that has been explicitly implemented by statute is part of our domestic law and should be determinative in the interpretation of Canadian statutes. Courts must interpret implementing legislation with the underlying treaty. Treaties can be transformed implicitly or on account of prior conformity of Canadian law and policy with treaty obligations. LCC NOTE IS IT FOR COURTS TO RULE ON THIS WHAT IF THEY GET IT WRONG AND LEGISLATURE SAYS WE NEVER INTENDED TO IMPLEMENT IT IN THIS MANNER. WHAT IS THE TEST? Treaties that Canada has ratified but not implemented are not binding in Canada as part of domestic law. Nonetheless, because they are binding on Canada under international law, the presumption of conformity should apply. Canadian courts should, where possible, interpret domestic law in a manner that comports with Canadas obligations under the treaties. LCC NOTE DOES THIS INCREASE POWER OF EXECUTIVE AND HINDER PARLIAMENTARY SOVERIEGNTY? Authors say no.


Applying the presumption of conformity to all of Canada's international obligations also does not mean that the legislative authority of Parliament or the provincial legislatures would be undermined. As we have stressed at various points, with the possible exception of the Charter, for which a different interpretative approach appears to have evolved in any event, Canadian legislatures retain full control over domestic law. The presumption of conformity is to be applied only "where possible," and, of course, it can be rebutted by an explicit legislative act. If Canadian legislators choose to ignore Canada's international obligations, they can do so.

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


De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436. FACTS: Ms Gs application to have her sons sponsored for admission to Canada was refused under the Immigration and Refugee Protection Regulations (she had said in her own application for residency years earlier that she was unmarried and only had a daughter). Ms G argued, inter alia, that the relevant provision is invalid. One ground was that it is inconsistent with international human rights instruments to which Canada is a signatory, and which protect the right of families to live together and the best interests of children. G argues that priority should be given to international instruments which prevail over any inconsistent provision in either the Immigration and Refugee Protection Act (IRPA) or the regulations. ISSUE: Is paragraph 117(9)(d) [essentially says that someone is not considered family if the sponsor hadnt disclosed them as family in the sponsors original permanent residence application] invalid because it renders the IRPA non-compliant with international human rights instruments to which Canada is signatory REASONING: - To conclude that the terms of the IRPA, which have been debated and approved by Parliament, are overridden by a conflicting international legal instrument does not respect the legislative process in this country. Only express indication of such a principle by Parliament would allow such an outcome i.e. if Parliament wanted to give priority to the international instruments, it would have said so. - But the applications Judge took an overly narrow view on the value of international law - International law can be used to interpret the Charter and it can influence the common law - In Baker, Court endorsed the use of international law to interpret a statutory provision as requiring immigration officers to give great weight to the best interests of any affected children when exercising discretion, EVEN IF NOT IMPLEMENTED - Further, Brunnees and Troope in A Hesitant Embrace argue that courts have not always made it clear how influential international law should be in the interpretation of domestic legislation. Sometimes it is treated as merely persuasive, while at other times it is presumed to be determinative, unless the statutory text is irremediably inconsistent with international law. In an attempt to bring greater clarity to the analysis in the evolving domestic jurisprudence, the authors suggest that Parliament should be presumed not to legislate in derogation of international legal norms that are binding in Canada. In contrast, non binding international norms should not be given the same interpretive weight, but should be regarded as no more than persuasive and contextual I conclude that paragraph 3(3)(f) (This Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.) does not incorporate into Canadian law international human rights instruments to which Canada is a signatory, but merely directs that the IRPA must be construed and applied in a manner that complies with them. Against the background of comparatively recent developments in the common law and in constitutional law,respecting the interpretative use of international human rights law, I now consider the scope of paragraph 3(3)(f). First, the words shall be construed and applied in a manner that complies with are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the IRPA. By providing that the IRPA is to be interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of the IRPA, in the absence of a clear legislative intent to the contrary. Second, the sources of international law described in paragraph 3(3)(f) comprise some that are binding on Canada in international law, and some that are not. The paragraph applies to instruments to which Canada is signatory. An international instrument is not legally binding on a signatory State until it has also ratified it, unless the instrument provides that it is binding when signed. Signature


normally evinces an intention to be bound in the future, although it may also impose an immediate obligation on the signatory not to take measures to undermine the agreement. For example, on November 10, 2001, Canada signed the Optional Protocol to the Convention on the Rights of the Child, on the sale of children, child prostitution and child pornography, May 25, 2000,. However, Canada did not ratify it until September 14, 2005. Nonetheless, paragraph 3(3)(f) applied as soon as Canada signed the Protocol, and mandated that the IRPA was to be interpreted and applied in a manner that complied with it, even before it was legally binding on Canada. Third, the term international human rights instrument is not defined in the IRPA and arguably could apply to a wide range of sources of international human rights norms of varying degrees of authoritativeness and specificity. However, its scope is limited by the fact that paragraph 3(3)(f) only applies to those instruments of which it can be said that Canada is signatory. However, in view of the considerations outlined above regarding such instruments, I am inclined to think that Parliament intended them [international law] to be used as persuasive and contextual factors in the interpretation and application of the IRPA, and not as determinative. Head note: International human rights instruments do not prevail over conflicting IRPA provisions. The direction in paragraph 3(3)(f) that the IRPA must be construed and applied in a manner that . . . that complies with international human rights instruments to which Canada is signatory must not be interpreted as giving priority over the IRPA to international human rights instruments which are not specifically identified in the IRPA, may not have been subject to parliamentary scrutiny and may not even have existed when the IRPA was enacted. However, in reaching its decision, the Federal Court adopted an unduly limited view of the effect of the burgeoning common law when holding that it was required to consider the international human rights instruments merely as context when interpreting ambiguous provisions of the immigration law. This view did not take proper account of the expanding role that the common law has given to international law in the interpretation of domestic law. This aspect of the evolution of the common law is an important part of the context against which paragraph 3(3)(f) must be interpreted. Paragraph 3(3)(f) does not incorporate into Canadian law international human rights instruments to which Canada is signatory but merely directs that the IRPA must be construed and applied in a manner that complies with them. The words shall be construed and applied in a manner that complies with are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the IRPA. The international law sources described comprise some that are binding on Canada in international law and some that are non-binding. Paragraph 3(3)(f) only applies to instruments to which Canada is signatory. An international instrument is not legally binding on a signatory State until it has also ratified it unless the instrument provides that it is binding when signed. Moreover, paragraph 3(3)(f) of the IRPA does not require that each and every provision of the IRPA and the Regulations comply with international human rights instruments. Rather, the question is whether an impugned statutory provision, when considered together with others, renders the IRPA non-compliant with an international human rights instrument to which Canada is signatory. The IRPA must be interpreted and applied in a manner that complies with the international human rights instruments that are binding on Canada. It was not necessary in the case at bar to decide the effect of paragraph 3(3)(f) with respect to non-binding international instruments to which Canada is signatory because only the binding instruments were relevant to this case. However, the Court (with the exception of Malone J.A.) was inclined to think that Parliament intended them to be used as persuasive and contextual factors in the interpretation and application of the IRPA, and not as determinative. A reviewing court should consider an impugned provision in the context of the entire legislative scheme. Determining the effect of paragraph 117(9)(d) on Canadas international obligations requires the Court to consider whether other provisions in the IRPA mitigate its impact on a right guaranteed


by an international human rights instrument to which Canada is signatory. If the statutory provision in question is a regulation and is held to render the IRPA non-compliant, the Court must then determine whether the relevant enabling section of the IRPA authorizes the Governor in Council to enact a regulation which renders the IRPA non-compliant with a binding international human rights instrument to which Canada is signatory. In view of paragraph 3(3)(f), only a clear legislative intention to the contrary will warrant a conclusion that the regulation-making power could lawfully be exercised in this manner. Because the international human rights instruments relied on by the appellant create legal obligations that are binding on Canada, paragraph 3(3)(f) makes them determinative of the meaning of the IRPA in the absence of a clearly expressed legislative intention to the contrary. However, when considered in the context of the legislative scheme as a whole, particularly section 25, paragraph 117(9)(d) does not render the IRPA inconsistent with an international human rights instrument to which Canada is signatory. Therefore, it was not necessary to conduct the second step and decide if section 14 of the IRPA should be interpreted as not authorizing the making of a regulation that renders the IRPA noncompliant with an instrument within the scope of paragraph 3(3)(f). The certified question was answered negatively.


3. Fundamental Principles of the Canadian Legal System: Six principles: 1. Rule of law all exercises of legitimate public power must have a source in law, and every state official or agency is subject to the constraint of the law 2. Constitutional supremacy the Constitution is the supreme law of the society and any ordinary law that is inconsistent with the Constitution is of no force or effect 3. Parliamentary supremacy subject to the Constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it sees fit 4. Federalism - legislative sovereignty in Canada is divided between a national legislature or Parliament and provincial legislatures, according to a division of law-making powers or jurisdictions set out in the Constitution 5. Statutory Authority - The executive branch of the state derives all its authority to act from statutory grants of power from the legislative branch, save and except for certain powers derived from royal prerogative and constitutional convention. 6. Judicial Independence - the judicial branch must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional law functions. A constitution establishes the foundational law through with the rule of law can occur. Does so in two ways 1. It establishes as a matter of law who can make the ordinary law of the land and also spells out any limits on the content of the ordinary law. This is called a rule of recognition the constitution allows us to recognize ordinary law and determine whether it is proper. 2. It establishes the respective relationships between the institutions or branches of the state that perform the functions necessary to operationalize (or make effective) law in society. E.g. under Canadas constitutional system role of legislature is to make the law, role of judiciary is to interpret it and role of executive is to implement it. Accurate in general sense but these classic functions are not the exclusive monopoly of any of these branches. Rule of Law Purpose of rule of law is to ensure that even most powerful state organs and officials are subordinate to the law. Achieve the rule of law by placing a supreme constitution over ordinary law and state functions. Secession Reference Court said constitutionalism principle requires that all govt action comply with the Constitution. The rule of law principle requires that all govt action comply with the law, including the Constitution. Roncarelli v. Duplessis, [1959] SCC held that Premier could not direct the revocation of a liquor licence of a Montreal restauranteur just because he was posting bail for Jehovahs Witnesses. First, even though the licence had been formally cancelled by the Quebec Liquor Commission, the latter had acted on Premier/AGs orders. Second, the authorities had been motivated by a desire to curb what they perceived to be seditious activities of the Jehovahs Witnesses and to punish R. Duplessis lacked legal basis for acting and so did the commission, notwithstanding the wording of the relevant statutory provision, which stipulated that the commission could cancel any permit at its discretion. Discretion to be exercised legally has to be exercised for legitimate purposes (that is, there are implied limits on it, which come from purpose of statute). There is always a perspective


within which a statute is intended to operate, and any clears departure from its lines or objects is just as objectionable as fraud or corruption In public regulation of this sort there is no such thing as absolute and untrammeled discretion Discretion necessarily implies good faith in discharging public duty What comprises the Constitution of Canada? Constitution Act 1867 - federalism division of powers between national Parliament and provincial legislatures Constitution Act 1982 primarily know for the Canadian Charter of Rights and Freedoms guaranteeing individual and minority rights. Constitution Act 1982 also deals with aboriginal rights, equalization, and constitutional amendment. 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. (2) The Constitution of Canada includes (a) the Canada Act, 1982, including this Act; (b) the Acts and orders referred to in the Schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b). Note: refers to includes so there may be more elements than those listed. Secession Reference Court confirmed that the Constitution also contained unwritten principles. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 This Reference requires us to consider momentous questions that go to the heart of our system of constitutional government. The questions posed by the Governor in Council (i.e.GG acting on the advice of the federal Cabinet) read as follows: 1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to selfdetermination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? 3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada? 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. In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.


Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. The effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, 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". [i.e cannot override] Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations, which constitute substantive limitations upon government action. This case expanded judicial authority in the constitutional sphere. British Columbia v Imperial Tobacco Canada Ltd [2005] Facts Health Care Recovery Act allows Province to sue tobacco manufacturers to sue for health care costs associated with smoking Includes different evidentiary and procedural rules, etc, aimed at the government (Govt has a direct and distinct action against a manufacturer to recover health care costs. Places burden of proof on manufacturer to show that its breach did not give rise to disease. Joint and several liability. Retrospective effect.)

Rule of Law The rule of law is a fundamental postulate of our constitutional structure that lies at the root of our system of government. It is expressly acknowledged by the preamble to the Constitution Act, 1982, and implicitly recognized in the preamble to the Constitution Act, 1867. According to SCC, the rule of law as embraces three principles: 1. the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. 2. requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order 3. requires that the relationship between the state and the individual . . . be regulated by law It is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content - none of the principles that the rule of law embraces speak directly to the terms of legislation. The rule of law does have some normative force. Unwritten constitutional principles including the rule of law are capable of limiting government actions. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed). Imperial submitted 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. And they argue that the Act breaches each of these requirements, rendering it invalid. (This conception of the rule of law can fairly be said to fall at one extreme of the spectrum of possible conceptions).


A brief review of this Courts jurisprudence will reveal that none of these requirements enjoy constitutional protection in Canada. But before embarking on that review, it should be said that acknowledging the constitutional force of anything resembling the appellants conceptions of the rule of law would seriously undermine the legitimacy of judicial review of legislation for constitutionality. That is so for two separate but interrelated reasons. First, many of the requirements of the rule of law proposed by the appellants are simply broader versions of rights contained in the Charter. Second, the appellants arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by this Court most notably democracy and constitutionalism very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put differently, the appellants arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. (1) Prospectivity in the Law Except for criminal law, the retrospectivity and retroactivity of which is limited by s. 11(g) of the Charter, there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of our Constitution. It might also be observed that developments in the common law have always had retroactive and retrospective effect. A court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively. The ruling will have a retrospective effect so far as the parties to the particular dispute are concerned This observation adds further weight, if needed, to the view that retrospectivity and retroactivity do not generally engage constitutional concerns. (2) Generality in the Law, Ordinary Law for the Government and Fair Civil Trials Two decisions of this Court defeat the appellants submission that the Constitution, through the rule of law, requires that legislation be general in character and devoid of special advantages for the government (except where necessary for effective governance), as well as that it ensure a fair civil trial. Air Canada. Court affirmed the constitutionality of 1981 amendments to the Gasoline Tax Act, 1948, R.S.B.C. 1960, c. 162, that retroactively taxed certain companies in the airline industry. The amendments were meant strictly to defeat three companies claims, brought in 1980, for reimbursement of gasoline taxes paid between 1974 and 1976. Authorson v. Canada (Attorney General), Court unanimously upheld a provision of the Department of Veterans Affairs Act, R.S.C. 1985, c. V-1, aimed specifically at defeating certain disabled veterans claims, the merits of which were undisputed, against the federal government. The claims concerned interest owed by the government on the veterans benefit accounts administered by it, which interest it had not properly credited for decades. Additionally, the appellants conception of a fair civil trial seems in part to be of one governed by customary rules of civil procedure and evidence. Tobacco manufacturers will receive a fair civil trial: they are entitled to a public hearing, before an independent and impartial court, in which they may contest the claims of the plaintiff and adduce evidence in their defence. The court will determine their liability only following that hearing, based solely on its understanding of the law as applied to its findings of fact. The fact that defendants might regard that law (i.e., the Act) as unjust, or the procedural rules it prescribes as unprecedented, does not render their trial unfair.


British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873, 2007 SCC 21

British Columbias Social Service Tax Amendment Act (No. 2), 1993 imposed a 7 percent tax on the purchase price of legal services ostensibly to fund legal aid in the province. C, a litigation lawyer, challenged the constitutionality of the legal service tax, claiming that the net effect of the tax was to make it impossible for some of his low-income clients to retain him to pursue their claims. The chambers judge found that the tax breached a fundamental constitutional right to access to justice for low-income persons and declared it unconstitutional to that extent. The majority of the Court of Appeal upheld the decision (constitutional principle of the right to be represented by a lawyer in court or tribunal proceedings where a persons legal rights and obligations are at stake, in order to have effective access to the courts or tribunal proceedings). SCC Analysis This general right to be represented by a lawyer in a court or tribunal proceedings where legal rights or obligations are at stake is a broad right. It would cover almost all cases that come before courts or tribunals where individuals (and arguably corporations) are involved. It would also cover related legal advice, services and disbursements. Logical result would be a constitutionally mandated legal aid scheme for virtually all legal proceedings, except where the state could show this is not necessary for effective access to justice. It is clear from a review of these principles [see 3 principles above in Imperial] that general access to legal services is not a currently recognized aspect of the rule of law. However, in Imperial Tobacco, this Court left open the possibility that the rule of law may include additional principles. The issue, however, is whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law. In our view, it is not. Access to legal services is fundamentally important in any free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondents contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law. Charter only provides for a right to legal services in one specific situation - s. 10(b) on arrest or detention. If the reference to the rule of law implied the right to counsel in relation to all proceedings where rights and obligations are at stake, s. 10(b) would be redundant. Nor has the rule of law historically been understood to encompass a general right to have a lawyer in court or tribunal proceedings affecting rights and obligations. The right to counsel was historically understood to be a limited right that extended only, if at all, to representation in the criminal context. We conclude that the text of the Constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.


Constitutional Conventions Are another species of unwritten constitutional norms. Because the Constitution Act 1867 sought to effect a constitution similar in Principle to that of the UK, Canada inherited these conventions, and the very concept of conventions, from the British constitutional structure. Conventions represent accepted understandings of how organs of government operate. The following is a case where a specific convention was recognized: Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753 (The Patriation Reference) FACTS: The References in question were prompted by the opposition of eight provinces to a proposed Resolution containing an address to be presented the Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty with the appended statutes. The proposed Resolution was adopted by the House of Commons and by the Senate. SCC: The nature of constitutional conventions A substantial part of the rules of the Canadian constitution are written. Another part of the Constitution of Canada consists of the rules of the common law. Those parts of the Constitution of Canada which are composed of statutory rules and common law rules are generically referred to as the law of the constitution. Important parts of the constitution of Canada when citizens exercise their right to vote at federal and provincial elections, are nowhere to be found in the law of the constitution. E.G. a fundamental requirement of the constitution is that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. It is also a constitutional requirement that the person who is appointed prime minister or premier by the Crown and who is the effective head of the government should have the support of the elected branch of the legislature. None of these essential rules of the constitution can be said to be a law of the constitution. Dicey called them the "conventions of the constitution" - the principles and rules of responsible government, which regulate the relations between the Crown, the prime minister, the cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of custom and precedent during the nineteenth century and were exported to such British colonies as were granted self-government. Necessarily conventional rules spring up to regulate the working of the various parts of the constitution, their relations to one another, and to the subject. 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. Conventional rules of the constitution present one striking peculiarity. In contradistinction to the laws of the constitution, they are not enforced by the courts. Unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves. Nor are they in the nature of statutory commands which it is the function and duty of the courts to obey and enforce. Perhaps the main reason why conventional rules cannot be enforced by the courts is that they aregenerally 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. Whether the convention exists Counsel for Canada, Ontario and New Brunswick argued that there is no constitutional convention to first obtain the agreement of the provinces. Counsel for Manitoba, Newfoundland, Quebec, Nova Scotia, British Columbia, Prince Edward Island and Alberta argued that the convention does exist and it requires the agreement of all the provinces. Counsel for Saskatchewan argued that the convention does exist and requires a measure of provincial agreement but the Resolution has not received a sufficient measure of provincial consent. SCC Agrees with this. Requirements for establishing a convention The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative. We adopt the following passage of Sir W. Ivor Jennings, The Law and the Constitution: We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it. It would not be appropriate for the Court to devise in the abstract a specific formula which would indicate in positive terms what measure of provincial agreement is required for the convention to be complied with. Conventions by their nature develop in the political field and it will be for the political actors, not this Court, to determine the degree of provincial consent required. It is sufficient for the Court to decide that at least a substantial measure of provincial consent is required and to decide further whether the situation before the Court meets with this requirement. The situation is one where Ontario and New Brunswick agree with the proposed amendments whereas the eight other provinces oppose it. By no conceivable standard could this situation be thought to pass muster. It clearly does not disclose a sufficient measure of provincial agreement. A reason for the rule The reason for the rule is the federal principle. Canada is a federal union. The preamble of the B.N.A. Act states that the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. The federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities. It would indeed


offend the federal principle that "a radical change to ... [the] constitution [be] taken at the request of a bare majority of the members of the Canadian House of Commons and Senate" The general principle is that the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces. Conclusion We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required for the passing of the "Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada" and that the passing of this Resolution without such agreement would be unconstitutional in the conventional sense.


Constitutional Supremacy With s 52(1) of the Constitution Act, 1982, the Canadian system of government now operates under a principle of constitutional supremacy Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [Note: previous section was on rule of law and unwritten principles this is on constitutional supremacy] (d) Constitutionalism and the Rule of Law The principles of constitutionalism and the rule of law lie at the root of our system of government. The 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. With the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch. They may not transgress its provisions. Their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source. Why is a constitution is entrenched beyond the reach of simple majority rule?. There are three overlapping reasons. First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. Third, a constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally. The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a province-wide referendum is superficially persuasive - the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty must (it is argued) also permit "the people" in their exercise of popular sovereignty to secede by majority vote alone But Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer. Constitutional government is necessarily 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 (including the spheres of autonomy guaranteed by the principle of federalism), individual rights, and minority rights in our society. In this way, our belief in democracy may be harmonized with our belief in constitutionalism. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an "enhanced majority" to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted. *********** The doctrine of constitutional supremacy carries with it other aspects of public law Hierarchy of law: to state that the constitution of Canada is supreme law implies a hierarchy of law. Constitution sits above ordinary law. W.i ordinary law, statute sits above common law (pursuant to parliamentary supremacy doctrine). Adjudication: to effect constitutional supremacy requires a mechanism for adjudicating alleged inconsistencies between the constitution and ordinary law, including the power to declare and enforce the invalidity of inconsistent ordinary law. Also means legislature is checked by judiciary with power to interpret and apply Constitution. Need judicial independence. Counter-majoritarianism: Constitutional supremacy represents a check on majoritarian democracy. It places limits on, or obstacles in the way of, majority preferences. The limits may favour individuals, minority groups, or regional populations. The point is that there is no need for a supreme constitution other than to place checks on legislative majorities. The adjudicative body that interprets and enforces the constitution must therefore be recognized as having the legitimate function of ruling against majority preferences. Amendment by Super-Majority: constitutional supremacy implies that a constitution cannot be amended in the same way that ordinary legislation is enacted. The processfor amending a constitution must involve a super-majority, which brings in more or other elements of society than comprise a legislative majority. It requires majorities of federal and provincial legislatures to agree on proposed changes. Constitutional Supremacy and Human Rights Laws Separation of Powers This refers to the division of governmental functions between the legislative, executive and judicial branches of the state. Each branch is defined by its relationship to law: the making of law, (legislative) the implementing of law (executive), and the interpreting and applying of law (judiciary). The absence of a strict separation of powers doctrine has led some to question the utility of the concept for Canadian constitutional law. For ex: Dickson CJ in Re Residential Tenancies Act [1981] there is no general separation of powers in the BNA1867. Our constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government exercise only its own function.


The principle of separation of powers is important to public law and serves two purposes: 1) a functional purpose of identifying the institutional homes each of the 3 major forms of public power, and 2) a normative purpose of providing general boundaries for the operation of each institution. The recognition of these powers represents a unique form of authoritative decision-making: Legislative decisions are prospective, broad in impact and open ended in terms of impact Judicial decisions are retrospective, localised in impact and narrow in outcome Executive decisions feature aspects of both the above. S24(1) of Charter of Rights and Freedoms says anyone whose rights and freedoms have been infringed or denied may apply to court to obtain a remedy as the court considers appropriate and just in the circumstances Doucet-Boudreau v. Nova Scotia (Minister of Education) [2003], the court dealt with a challenge by provincial govt to constitutionality of s24(1) order that obliged Ministry of Education to complete construction of new schools for minority French language instruction but also report to the judge on compliance periodically. Government argued this improperly placed the Court in an administrator role and ursurped functions of executive govt. 2 dissenting judges agreed but majority upheld trial judge they did say there is a need to maintain a boundary between judicial and executive function. Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 Khadr, a Canadian citizen, detained by the USA at Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr from Guantanamo Bay to Canada. For the reasons that follow, we agree with the courts below that Mr. Khadrs rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadrs return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part. Is the remedy sought precluded by the fact that it touches on the Crown prerogative over foreign affairs? A connection between the remedy and the breach is not the only consideration. As stated in Doucet-Boudreau, an appropriate and just remedy is also one that must employ means that are legitimate within the framework of our constitutional democracy and must be a judicial one which vindicates the right while invoking the function and powers of a court. The government argues that courts have no power under the Constitution of Canada to require the executive branch of government to do anything in the area of foreign policy. The prerogative power is the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown It is a limited source of non-statutory administrative power accorded by the common law to the Crown. The decision not to request Mr. Khadrs repatriation was made in the exercise of the prerogative over foreign relations. In exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny. It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether a


prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter or other constitutional norms. The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution. This said, judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. In the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the governments foreign affairs prerogative is exercised in accordance with the constitution. Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canadas broader national interests. For the following reasons, we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadrs s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter. In some situations, courts may give specific directions to the executive branch of the government on matters touching foreign policy. For example, in Burns, the Court held that it would offend s. 7 to extradite a fugitive from Canada without seeking and obtaining assurances from the requesting state that the death penalty would not be imposed. The Court gave due weight to the fact that seeking and obtaining those assurances were matters of Canadian foreign relations. Nevertheless, it ordered that the government seek them. The specific facts in Burns justified a more specific remedy. The fugitives were under the control of Canadian officials. It was clear that assurances would provide effective protection against the prospective Charter breaches: it was entirely within Canadas power to protect the fugitives against possible execution. Moreover, the Court noted that no public purpose would be served by extradition without assurances that would not be substantially served by extradition with assurances, and that there was nothing to suggest that seeking such assurances would undermine Canadas good relations with other states. The present case differs from Burns. Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court. Legislative Power In Canada, the legislative branch is divided between the federal legislature or parliament, comprising the elected House of Commons and an appointed Senate, and the elected legislatures in each province. Both levels of legislature derive their powers to make laws from the Constitution of Canada. The division of the two legislative levels is a feature of federalism. Other law-making bodies get their power from delegation from the legislatures and do not otherwise have sovereign status under the Constitution. The principle of Parliamentary Supremacy: In Succession Reference SCC held at [73]: with the adoption of the Charter, parliamentary supremacy was substantially transformed from a system of parliamentary supremacy into constitutional supremacy.


Parliamentary supremacy was adopted from the UK in UK the principle is unwritten. Why did Canada adopt in writing then? Ans Federalism Canada founded on the basis of dividing legislative power between Parliament and provincial legislatures. Constitution Act 1982, which contained the Charter set out significant new limits on the substantive laws that could be passed by either level of legislature. The limits placed on substantive law making by the Charter, together with limits on who can pass which laws set out in s91 amd 92 of 1867 Act virtually required a recognition of the written constitution as being the supreme source of the lawmaking authority in Canada. However, s33 of the Charter contains a notwithstanding clause to reassert parliamentary sovereignty. Allows Parliament and legislatures to enact legislation in contravention of certain Charter rights if there is an explicit declaration pursuant to s 33 Babcock v Canada The Treasury Board of Canada set the pay of Department of Justice lawyers working in the Toronto Regional Office at a higher rate than that of lawyers working elsewhere. Vancouver staff lawyers brought an action in the Supreme Court of British Columbia, contending that by failing to pay them the same salaries as Toronto lawyers the government breached their contracts of employment and the fiduciary duty toward them. The action proceeded, and the parties exchanged lists of relevant documents in December 1996, as required by the B.C. Supreme Court Rules. A supplemental list of documents was delivered by the government in June 1997. The government listed a number of documents as producible. The government, nearly two years after it delivered the first list of documents, changed its position on disclosure of documents. It delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, objecting to the disclosure of 51 documents and any examination thereon, on the ground that they contain "information constituting confidences of the Queen's Privy Council for Canada". Issues: 1. What is the nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished? 2. Is s. 39 of the Canada Evidence Act constitutional? Cabinet confidentiality is essential to good government. The right to pursue justice in the courts is also of primary importance in our society, as is the rule of law, accountability of the executive, and the principle that official actions must flow from statutory authority clearly granted and properly exercised. Yet sometimes these fundamental principles conflict. How are such conflicts to be resolved? That is the question posed by this appeal. Section 39 of the Canada Evidence Act is Canada's response to the need to provide a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. Section 39(1) permits the Clerk to certify information as confidential. It does not restrain voluntary disclosure of confidential information. The respondents in this case challenge the constitutionality of s. 39 and argue that the provision is ultra vires Parliament because of the unwritten principles of the Canadian Constitution: the rule of law, the independence of the judiciary, and the separation of powers. Although the unwritten constitutional principles are capable of limiting government actions, I find that they do not do so in this case.


The unwritten principles must be balanced against the principle of Parliamentary sovereignty. On the basis of a thorough and compelling review of the principle of parliamentary sovereignty in the context of unwritten constitutional principles, Strayer J.A. held that federal Crown privilege is part of valid federal law over which Parliament had the power to legislate. I share the view of the Federal Court of Appeal that s. 39 does not offend the rule of law or the doctrines of separation of powers and the independence of the judiciary. It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government. The principle of Federalism In Succession Reference, the court recognized federalism as an unwritten principle of the Canadian constitution, describing it as the means of recognizing regional cultural diversity at the founding of Canada, particularly with respect to the distinct nature of Quebec with French-speaking society. it is undisputed that Canada is a Federal state. Our political and constitutional practice has adhered to an underlying principle of federalism and has interpreted the written provisions of the constitution in this light. The principle of federalism recognizes the diversity of the component pats of the Confederation and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. Underlying principle of federalism has exercised a role of considerable importance in the interpretation of the written provisions of the Constitution SCC noted that in Haig v Canada it was held that the differences between provinces are a rational part of the political reality in the federal process. s91 and 92 of the CA 1867 set out subject matters or areas of regulatory or legilsative concern that fall within the exclusive jurisdiction of the respective legislative bodies. Federal jurisdiction for criminal law, trade and commerce, banking. Provincial jurisdiction for hospitals, municipalities, property and civil rights all private patters contract tort family law per Quebec Act 1774. So provinces have more extensive jurisdiction over regulation of economic matters in Canada other than those relating to interprovincial and international trade. Executive Power This branch replicates the duality created by federalism, with executives at the federal and provincial levels. The executive includes all ministries of government and their employees- the civil service. It also includes the armed forces and Crown corporations. Note, line isnt always easy to draw as some point control of the entity is drawn more from private sources and such statutory created bodies may not constitute part of executive e.g. registered societies, universities, hospitals, professional regulatory bodies formed In law, the executive branch is subordinate to the legislature. The relationship between them has two important features. First, subject to the relatively minor sources of power found in the royal prerogative and the constitution, the exec branch derives any power it has solely from the laws or statutes passed by the legislature. The exec must locate any authority it has to act in Canadian society from a statutory source. The second feature is by constitutional convention; the exec is responsible to the legislature. This is the essential meaning of responsible government in the parliamentary


tradition. Convention requires that the prime minister and his or her ministry command the support or confidence of the majority of elected legislators. Judicial Power The Constitution Act 1867 contains the provisions on Judicature in s96 to 101. Section 96 provides that the federal executive shall appoint the justices of the countrys superior, county, and district courts. Although this power is assigned to the federal govt, it is the provinces, exercising their authority over the administration of justice in s92(14) of the Constitution Act 1867, that establish these courts in their respective jurisdiction. Each province also has a system of non-section 96 courts, to which the province has the authority to appoint judges. S101 gives Parliament authority to create courts for the better administration of the laws of Canada. Using this authority, Federal Courts Act was passed. S101 also gives Parliament authority to create court of appeal Supreme Court Act. Slender foundation text in Constitution has not stopped courts themselves from carving out an indispensable and unassailable position in Canadas constitutional system. SCC has identified the core jurisdiction of the superior courts which encompasses two crucial public law powers: (1) the jurisdiction to rule on the constitutional validity of all ordinary laws in Canada; (2) the jurisdiction to supervise the activities of executive government and other statutorily delegated actors to ensure that they act within their statutory authority. The former role represents the superior courts constitutional law jurisdiction; the latter role represents its administrative law jurisdiction. 1.The Judiciarys Constitutional Law Jurisdiction: The principle of constitutional supremacy presupposes a role for an adjudicative institution to rule on whether ordinary legislation has violated the limits on legislative power set out in the Constitution. The principal remedy adopted by the judiciary in constitutional cases has been declaring laws invalid and of no force and effect. Since the adoption of the Charter of Rights and Freedoms, the question of remedies has become somewhat more complex. Section 24 of the Charter authorizes courts of competent jurisdiction to grant remedies in individual circumstances for Charter breaches, including the exclusion from the criminal process of evidence obtained as a result of a breach where not to do so would bring the administration of justice into disrepute. The question of s24 scope has received little elaboration by the courts to date. 2.The Judiciarys Administrative Law Jurisdiction: In Canada, superior courts exercise a supervisory jurisdiction with respect to exercise of executive government authority. This is the subject matter of administrative law. In practice, the role is performed by allowing all persons adversely affected by government action to petition the superior courts seeking judicial review of whether the executive official has acted within the bounds of his or her statutory power. This administrative law or judicial review jurisdiction is understood to be a matter of common law development, and therefore not itself dependent on being granted by legislatures. The significance of this common law supervisory jurisdiction has been underlined by the Supreme Court of Canadas identification of judicial review of executive action as having constitutional status. 3.The Principle of Judicial Independence: This is an elemental constitutional doctrine, closely tied to the separation of powers. The Supreme Court has described this as the lifeblood of constitutionalism in democratic societies Beauregard v Canada [1986].


Judicial Independence ensures that judges as the arbitrators of disputes are at complete liberty to decide individual cases on their merits without interference- Ellv Alberta [2003]. It insulates judges from retaliation from other branches of government from their decisions and guarantees that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. It also preserves the separation of powers between the judiciary and the other two branches: the legislative and the executive cannot exert political pressure on the judiciary. Required Readings: Reference re Secession of Quebec,[1998] 2 S.C.R. 217, paras. 35-48 & 49-82; Done 49-54 and 70-78 Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. The Constitution Act, 1867 was an act of nation-building. Federalism was the political mechanism by which diversity could be reconciled with unity. A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada. Canada's evolution from colony to fully independent state was gradual. The Imperial Parliament's passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4, confirmed in law what had earlier been confirmed in fact by the Balfour Declaration of 1926, namely, that Canada was an independent country. Thereafter, Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution and re-affirmed Canadas commitment to the protection of its minority, aboriginal, equality, legal and language rights, and fundamental freedoms as set out in the Canadian Charter of Rights and Freedoms. We think it apparent from even this brief historical review that the evolution of our constitutional arrangements has been characterized by adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability. We now turn to a discussion of the general constitutional principles that bear on the present Reference. (3) Analysis of the Constitutional Principles (a) Nature of Principles {i.e. unwritten}covered above (b) Federalism


It is undisputed that Canada is a federal state. Yet many commentators have observed that, according to the precise terms of the Constitution Act, 1867, the federal system was only partial. This was so because, on paper, the federal government retained sweeping powers which threatened to undermine the autonomy of the provinces. Here again, however, a review of the written provisions of the Constitution does not provide the entire picture. Our political and constitutional practice has adhered to an underlying principle of federalism, and has interpreted the written provisions of the Constitution in this light. For example, although the federal power of disallowance was included in the Constitution Act, 1867, the underlying principle of federalism triumphed early. Many constitutional scholars contend that the federal power of disallowance has been abandoned In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitution. The principle of federalism 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. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself. (c) Democracy Democracy is a fundamental value in our constitutional law and political culture. While it has both an institutional and an individual aspect, the democratic principle was also argued before us in the sense of the supremacy of the sovereign will of a people, in this case potentially to be expressed by Quebecers in support of unilateral secession. It is useful to explore in a summary way these different aspects of the democratic principle. The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers. Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means. Democracy is not simply concerned with the process of government. On the


contrary, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. A sovereign people exercises its right to self-government through the democratic process. The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. Historically, this Court has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters/ In addition, the effect of s. 4 of the Charter is to oblige the House of Commons and the provincial legislatures to hold regular elections and to permit citizens to elect representatives to their political institutions. The democratic principle is affirmed with particular clarity in that s. 4 is not subject to the notwithstanding power contained in s. 33. It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level. The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance. (d) Constitutionalism and the Rule of Law [Covered above] (e) Protection of Minorities The fourth underlying constitutional principle we address here concerns the protection of minorities. There are a number of specific constitutional provisions protecting minority language, religion and education rights. Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises. As this Court observed in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1173, and in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at pp. 529-30, the protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated


Similar concerns animated the provisions protecting minority language rights, as noted inSocit des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 564. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples.

The invocation by the appellants of the unwritten principles of the Constitution was derived principally, Strayer J.A. remarked, from the general comments of the Supreme Court in the Provincial Court Judges Reference and the Quebec Secession Reference. I do not interpret them as having put an end to another constitutional principle, namely the supremacy of Parliament and the supremacy of legislatures when acting in their own domain. After citing a passage from Dickson C.J.s judgment in the Auditor Generals Case, where the Supreme Court, in declining to order the executive government to produce documents sought by the Auditor General, stated that [t]he grundnorm with which the courts must work in this context is the sovereignty of Parliament, Justice Strayer stated that it appeared that the appellantssubmissions were largely based on the premise that parliamentary sovereignty is not one of the principles of the Constitution, or at least ceased to be at some time around 1982 when the Charter was adopted and section 52 of the Constitution Act, 1982 . . . was enacted. The appellants had relied upon the long passage in paragraph 72 of the Quebec Secession Reference relating to constitutionalism and the rule of law, and, inter alia, the Supreme Courts observation therein that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. Strayer J.A. remarked that [i]t is uncertain what significance should be given to this statement, since the supremacy of the Constitution was established well before 1982 and even before Confederation in 1867,329 notably through the Colonial Laws Validity Act, 1865 and later the Statute of Westminster, 1931, Imperial statutes ensuring the supremacy of the British North America Acts (now styled the Constitution Acts) in Canada. Both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution.


Singh v. Canada (Attorney General), 2000 CanLII 17100 (F.C.A.), paras. 13-44 [on Parliamentary Soveriegnty]; A challenge to the constitutional validity of section 39 of the Canada Evidence Act on the grounds that it was inconsistent with the principles of judicial independence, the rule of law and the separation of powers. The case arose out of the events surrounding the APEC (Asian Pacific Economic Cooperation) Conference in November 1997, and the hearings of the Royal Canadian Mounted Police Public Complaints Commission into alleged misconduct by members of the RCMP in connection with demonstrations that had been held during the APEC Conference. In partial response to a request from the RCMP Complaints Commissions counsel requesting that the Government of Canada disclose to the Commission panel all government records relevant to the hearing, the Clerk of the Privy Council filed certificates under section 39 of the Canada Evidence Act certifying that the information contained in certain documents constituted Cabinet confidences and thus the documents would not be disclosed. Subsection 39(1) provides that [w]here a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or other body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queens Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body. The invocation by the appellants of the unwritten principles of the Constitution was derived principally, Strayer J.A. remarked, from the general comments of the Supreme Court in the Provincial Court Judges Reference and the Quebec Secession Reference. I do not interpret them as having put an end to another constitutional principle, namely the supremacy of Parliament and the supremacy of legislatures when acting in their own domain. (i) Parliamentary Sovereignty In Canada (Auditor General) v. Canada (Minister of Energy Mines and Resources),13 a case where the Supreme Court of Canada declined to order the Executive to produce documents sought by the Auditor General, Chief Justice Dickson said: The grundnorm with which the courts must work in this context is that of the sovereignty of Parliament. The appellants' arguments are largely based on the premise that parliamentary sovereignty is not one of the principles of the Constitution, or at least ceased to be at some time around 1982 when the Charter was adopted and section 52 of the Constitution Act, 1982 was enacted. They explicitly relied on the argument before the Trial Division on a statement by the Supreme Court in the Quebec Secession Reference (that adoption of Charter meant Canada moved from a system of Parliamentary supremacy to one of constitutional supremacy. Prima facie the Parliament of Canada in enacting section 39 is dealing with a matter intrinsically within federal jurisdiction, namely the degree to which traditional federal Crown immunities in litigation are to be modified and the extent to which disclosure of confidential documents is to be justiciable. Noted Chief Justice Dickson comments in the Auditor Generalcase that ultimately, the courts are constitutionally charged with drawing the boundaries of justiciability, except as qualified by s. 33 of the Charter. Noted SCC Court has recognized the validity of a predecessor of section 39 and rejected attacks on it based on the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. Such


legislation is clearly within the legislative power of Parliament and the exercise of its supremacy, absent any clear constitutional limitation to the contrary. The rationale for legislation of this type is obvious. I need not add to the literature on the importance, to our system of government, of secrecy of Cabinet deliberations. This legislation, of course, gives an absolute assurance to members of Cabinet and their advisors that the classes of documents specified in section 39 will not even be subject to review by a judge for confidentiality, and therefore it puts beyond doubt the continued secrecy of the document. Prima facie, then, this appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-established and well-accepted principles of Cabinet secrecy. In the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective. (ii) Separation of Powers The appellants argue that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive. They characterize the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial in nature because it involves a determination of whether a court should have access to certain evidence. Noted that in UK there is no true separation of powers - the Lord Chancellor is head of the judiciary, a member of Cabinet, and Speaker of the upper house of Parliament. Also, in UK (similarly to Canada) the Executive is subject to control by the legislature and members of the Executive are required by convention to be members of the legislative branch of government as well. In the U.S. Constitution where a true separation of powers is prescribed. Notes that Constitution Act 1867 sought to effect a constitution similar in Principle to that of the UK. Also notes there are many other examples of the mixing of functions among the various branches of government, the most obvious being the statutory power of the Supreme Court of Canada to give advisory opinions, a function not countenanced in systems of true separation of powers such as the United States. Quebec Secession Reference it was held: Moreover, the Canadian Constitution does not insist on a strict separation of powers. Parliament and the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation, and such opinions are traditionally obtained by the executive from the law officers of the Crown, there is no constitutional bar to this Court's receipt of jurisdiction to undertake such an advisory role. Difficult to see how, even on the basis of the separation of powers, the refusal of one branch of the Executive, the Privy Council Office, to give to another branch of the Executive,31 the Royal Canadian Mounted Police Public Complaints Commission, both governed by the laws of Parliament, access to certain Cabinet information, can be seen to be a violation of the separation of powers. Not sure why a determination by the Clerk of the Privy Council is necessarily judicial. It is the certification of a fact which in effect is binding on the courts because of the particular nature of the subject-matter, just as would be, for example, a certificate from the Secretary of State for Foreign Affairs as to which government is recognized by Canada as the Government of China. This function appears to me to be consistent with the traditional bounds of mutual respect owed by each "branch" of government to the others. As McLachlin J. wrote in the New Brunswick Broadcasting case:


Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.34 (iii) The Rule of Law The appellants maintain that government must not only be conducted in accordance with law, but that such law must never exclude the courts from the decision-making process of government. Advocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be. A recent pronouncement by the Supreme Court of Canada in the Quebec Secession Reference, reiterated with approval its description of the rule of law in Reference re Manitoba Language Rights.35 In summary the Court there confirmed the elements of the rule of law to be: 1. that the law is supreme over the acts of both government and private persons ("one law for all"); 2. that an actual order of positive laws be created and maintained to preserve "normative order"; and 3. that "the exercise of all public power must find its ultimate source in the legal rule". As they said, put another way, "the relationship between the state and the individual must be regulated by law". This is precisely the situation where section 39 of the Canada Evidence Act is applied to preserve the immunity from disclosure of Cabinet documents. The situation is clearly regulated by law, namely section 39. Strayer J.A. then quoted at length from the judgment of the Court of Appeal of Saskatchewan in Bacon v. Saskatchewan Crop Insurance Corp., supra (which had also been cited with approval by McKeown J. for the Trial Division of the Federal Court). After respectfully concurring in Wakeling J.A.s observations that the Quebec Secession Reference surely was not meant to effect a foundational change in Canadas constitutional system by subjecting parliamentary sovereignty to the scrutiny of judges for arbitrariness in the context of the rule of law, Strayer J.A. agreed with the trial judge that 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. (iv) Independence of the Judiciary Appellants proposition it is that section 39 is beyond the powers of Parliament because it prevents either the Commission or this Court from looking at the documents covered by the certificate of the Clerk of the Privy Council. Essentially their position is that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary. [39]The Trial Judge, correctly I believe, held that this did not constitute an interference with independence as measured by the now well-established rules in Valente v. The Queen et al.38 Section 39 in no way interferes with the security of tenure, the financial security, or the administrative independence of judges as dealt with in that case. Section 39 is a public law enacted by Parliament applicable in a variety of circumstances, not for the purposes of interfering in a particular case before the Court.


- Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (S.C.C.): FACTS: Certain statutes/regulations created by provincial governments reduced the pay of provincial court judges. Persons found guilty by a provincial court in one of the relevant provinces has suffered a breach of his or her s 11(d) rights (right to be heard by an independent and impartial tribunal). Lamer C.J. (majority): Intro: Financial security must be understood as merely an aspect of judicial independence, which in turn is not an end in itself. Judicial independence is valued because it serves important societal goals it is a means to secure those goals. One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule. It is with these broader objectives in mind that these reasons, and the disposition of these appeals, must be understood. Sources of Judicial Independence Finds that judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867 -- in particular its reference to a Constitution similar in Principle to that of the United Kingdom -- which is the true source of our commitment to this foundational principle. Noted that s11(d) protects the independence of a wide range of courts and tribunals which exercise jurisdiction over offences. Also, ss. 96-100 of the Constitution Act, 1867, separately and in combination, have protected and continue to protect the independence of provincial superior courts. Serious limitations to the view that the express provisions of the Constitution comprise an exhaustive and definitive code for the protection of judicial independence. The first and most serious problem is that the range of courts whose independence is protected by the written provisions of the Constitution contains large gaps e.g. ss. 96-100 only protect independence of superior, district and county courts and not in a consistent manner. ss. 96 and 100 protect the core jurisdiction and the financial security, respectively, of all three types of courts (superior, district, and county), s. 99, on its terms, only protects the security of tenure of superior court judges. Moreover, ss. 96-100 do not apply to provincially appointed inferior courts, otherwise known as provincial courts. To some extent the gaps are offset by s11(d) of Charter which applies to a wide range of tribunals and courts but its scope is limited to offences. Second problem of reading s11(d) and ss96-100 as an exhaustive code of judicial independence is that some of these provisions dont refer to this objective. S100 provides that Parliament shall fix salaries of superior, district and county court judges this is therefore a subtraction from provincial jurisdiction over admin of justice under s92(14). Read in the light of the Act of Settlement 1701, ti s a partial guarantee of financial security (vests responsibility in Parliament not executive). Nevertheless s100, also requires that Parliament must provide salaries that are adequate, and that changes or freezes to judicial remuneration be made only after recourse to a constitutionally mandated procedure. S96 seems to also be a subtraction from provincial jurisdiction over admin of justice under s92(14). But through a process of judicial interpretation, s. 96 has come to guarantee the core jurisdiction of the courts which come within the scope of that provision.


His point is that the interpretation of ss. 96 and 100 has come a long way from what those provisions actually say. The only way to explain the interpretation of ss. 96 and 100, in fact, is by reference to a deeper set of unwritten understandings which are not found on the face of the document itself. 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. This approach applies to the protection of judicial independence. In Beauregard, SCC held that the preamble of the Constitution Act, 1867, and in particular, its reference to a Constitution similar in Principle to that of the United Kingdom, was textual recognition of the principle of judicial independence. An example where the Court has inferred a basic rule of Canadian constitutional law despite the silence of the constitutional text is the doctrine of paramountcy (where both the Parliament of Canada and one or more of the provincial legislatures have enacted legislation which comes into conflict, the federal law shall prevail). Noted Valente which identified three core characteristics of judicial independence: 1. security of tenure 2. financial security 3. administrative independence C.J. Lamer also noted the two dimensions of judicial independence, the individual independence of a judge and the institutional or collective independence of the court or tribunal of which that judge is a member. The conceptual distinction between the core characteristics and the dimensions of judicial independence suggests that it may be possible for a core characteristic to have both an individual and an institutional or collective dimension. Not in all cases but certainly in the case of financial security. Institutional Independence In Beauregard SCC expanded the meaning of Institutional Independence by contrasting it with individual independence. Individual independence was referred to as the historical core of judicial independence, and was defined as the complete liberty of individual judges to hear and decide the cases that come before them. It is necessary for the fair and just adjudication of individual disputes. By contrast, institutional independence was said to arise out of the position of the courts as organs of and protectors of the Constitution and the fundamental values embodied in it rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. The institutional independence of the courts emerges from the logic of federalism, which requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. Institutional independence also inheres in adjudication under the Charter, because the rights protected by that document are rights against the state. But the institutional independence of the judiciary reflects a deeper commitment to the separation of powers between and amongst the legislative, executive, and judicial organs of government: see Cooper, supra, at para. 13. This is also clear from Beauregard, where this Court noted (at p. 73) that although judicial independence had historically developed as a bulwark against the abuse of executive power, it equally applied against other potential intrusions, including any from the legislative branch as a result of legislation.


The institutional role demanded of the judiciary under our Constitution is a role which we now expect of provincial court judges. I am well aware that provincial courts are creatures of statute, and that their existence is not required by the Constitution. However, there is no doubt that these statutory courts play a critical role in enforcing the provisions and protecting the values of the Constitution. Collective or Institutional Financial Security Financial security has both an individual and an institutional or collective dimension. The facets of collective financial security all flow from the imperative that the relationship between the judiciary and other branches of government be depoliticized . This imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse. The institutional independence of the courts is inextricably bound up with the separation of powers, because in order to guarantee that the courts can protect the Constitution, they must be protected by a set of objective guarantees against intrusions by the executive and legislative branches of government. What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized: That is, the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice. The depoliticization is largely governed by convention. The depoliticization of these relationships is so fundamental to the separation of powers, and hence to the Canadian Constitution, that the provisions of the Constitution, such as s. 11( d) of the Charter, must be interpreted in such a manner as to protect this principle. However, the depoliticized relationships I have been describing create difficult problems when it comes to judicial remuneration. On the one hand, remuneration from the public purse is an inherently political concern, in the sense that it implicates general public policy. On the other hand, the fact remains that judges, although they must ultimately be paid from public monies, are not civil servants With respect to the judiciary, the determination of the level of remuneration from the public purse is political in another sense, because it raises the spectre of political interference through economic manipulation. An unscrupulous government could utilize its authority to set judges salaries as a vehicle to influence the course and outcome of adjudication The challenge which faces the Court in these appeals is to ensure that the setting of judicial remuneration remains consistent to the extent possible given that judicial salaries must ultimately be fixed by one of the political organs of the Constitution, the executive or the legislature, and that the setting of remuneration from the public purse is, as a result, inherently political with the depoliticized relationship between the judiciary and the other branches of government. Our task, in other words, is to ensure compliance with one of the structural requirements of the Canadian Constitution Given the importance of the institutional or collective dimension of judicial independence generally, what is the institutional or collective dimension of financial security? To my mind, 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 be depoliticized. As I explain below, in the context of institutional or collective financial security, this imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse. First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. However, 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 the appearance of, political interference through economic manipulation. What judicial independence requires is an independent body, along the lines of the bodies that exist in many provinces and at the federal level to set or recommend the levels of judicial remuneration. Those bodies are often referred to as commissions, and for the sake of convenience, we will refer to the independent body required by s. 11(d) as a commission as well. Governments are constitutionally bound to go through the commission process. The recommendations of the commission would not be binding on the executive or the legislature. Nevertheless, though those recommendations are non-binding, they should not be set aside lightly, and, if the executive or the legislature chooses to depart from them, it has to justify its decision if need be, in a court of law. As I explain below, when governments propose to single out judges as a class for a pay reduction, the burden of justification will be heavy. Also notes that judicial independence can be threatened by measures which treat judges either differently from, or identically to, other persons paid from the public purse - salary reductions which treat superior court judges in the same manner as civil servants undermine judicial independence precisely because they create the impression that judges are merely public employees and are not independent of the government. In addition political interference through economic manipulation can arise not only from reductions in the salaries of superior court judges, but also from increases and freezes in judicial remuneration. Second, under no circumstances is it permissible for the judiciary not only collectively through representative organizations, but also as individuals to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. As I explain below, salary negotiations are indelibly political, because remuneration from the public purse is an inherently political issue. Moreover, negotiations would undermine the appearance of judicial independence, because the Crown is almost always a party to criminal prosecutions before provincial courts, and because salary negotiations engender a set of expectations about the behaviour of parties to those negotiations which are inimical to judicial independence. When I refer to negotiations, I utilize that term as it is traditionally understood in the labour relations context. Negotiations over remuneration and benefits, in colloquial terms, are a form of horse-trading. The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration. Third, and finally, any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge. Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation, as is witnessed in many countries. The commission must be independent, objective and effective.


1 independent have members appointed by judiciary on one hand and legislature and executive on the other 2. Objective decisions must be made on objective criteria rather than political expediencies so must receive and consider submissions from judiciary, executive and legislature. 3. Effective constitutional obligation on govt not to change remuneration (or freeze) until report is received from commission, commission must meet within a fixed period of time since last report so inflation doesnt cause reduction by govt inaction, reports must have a meaningful effect on determination of judicial salaries (i.e. make report binding, or automatic acceptance unless negative resolution of legislature passed or affirmative resolution procedure). HELD: Prince Edward Island The salary reduction imposed was unconstitutional since it was made by the legislature without recourse to an independent, objective and effectiveprocess for determining judicial remuneration. In fact, no such body exists in P.E.I. However, if in the future, after P.E.I. establishes a salary commission, that commission were to issue a report with recommendations which the legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational, and hence justified, because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds. Since the province has made no submissions on the absence of an independent, effective and objective process to determine judicial salaries, the violation of s. 11(d) is not justified under s. 1 of the Charter. Section 12(1) of the Public Sector Pay Reduction Act, which permits negotiations between a public sector employer and employees to find alternatives to pay reductions, does not contravene the principle of judicial independence since the plain meaning of a public sector employee does not include members of the judiciary. Discretionary benefits do not undermine judicial independence (act conferred a discretion on the Lieutenant Governor in Council to grant leaves of absence due to illness and sabbatical leaves). The location of the Provincial Courts offices in the same building as certain departments which are part of the executive, including the Crown Attorneys offices, does not infringe the administrative independence of the Provincial Court because, despite the physical proximity, the courts offices are separate and apart from the other offices in the building. Fact that the Provincial Court judges do not administer their own budget does not violate s. 11(d). This matter does not fall within the scope of administrative independence, because it does not bear directly and immediately on the exercise of the judicial function. The designation of a place of residence of a particular Provincial Court judge by the Chief Judge pursuant to s. 4 of the Provincial Court Act, does not undermine the administrative independence of the judiciary. Upon the appointment of a judge to the Provincial Court, it is necessary that he or she be assigned to a particular area. Furthermore, the stipulation that the residence of a sitting judge only be changed with that judges consent is a sufficient protection against executive interference. Alberta The salary reduction imposed by the Payment to Provincial Judges Amendment Regulation for judges of the Provincial Court is unconstitutional for same reasons as PEI


Section 17(1) of the Provincial Court Judges Act, which provides that the Lieutenant Governor in Council may set judicial salaries, violates s. 11(d) of the Charter. Section 17(1) does not comply with the requirements for individual financial security because it fails to lay down in mandatory terms that Provincial Court judges shall be provided with salaries. Section 13(1)(a) of the Provincial Court Judges Act, which confers the power to designate the place at which a judge shall have his residence, and s. 13(1)(b), which confers the power to designate the day or days on which the Court shall hold sittings, are unconstitutional because both provisions confer powers on the Attorney General to make decisions which infringe upon the administrative independence of the Provincial Court. Section 13(1)(a)s constitutional defect lies in the fact that it is not limited to the initial appointment of judges. Manitoba The salary reduction imposed by s. 9(1) of Bill 22 violated s. 11(d) of the Charter, because the government failed to respect the independent, effective and objective process -- the JCC -- for setting judicial remuneration which was already operating in Manitoba. The Manitoba government also violated the judicial independence of the Provincial Court by attempting to engage in salary negotiations with the Provincial Judges Association. The purpose of these negotiations was to set salaries without recourse to the JCC Finally, the Manitoba government infringed the administrative independence of the Provincial Court by closing it on a number of days. Control over the sittings of the court falls within the administrative independence of the judiciary. Per La Forest J. (dissenting in part): There is agreement with substantial portions of the majoritys reasons but not with the conclusions that s. 11(d) of the Charter prohibits salary discussions between governments and judges, and forbids governments from changing judges salaries without first having recourse to judicial compensation commissions. While salary commissions and a concomitant policy to avoid discussing remuneration other than through the making of representations to commissions may be desirable as matters of legislative policy, they are not mandated by s. 11(d). To read these requirements into that section represents both an unjustified departure from established precedents and a partial usurpation of the provinces power to set the salaries of inferior court judges pursuant to ss. 92(4) and 92(14) of the Constitution Act,1867. The guarantee of judicial independence inhering in s. 11(d) redounds to the benefit of the judged, not the judges. Section 11(d) therefore does not grant judges a level of independence to which they feel they are entitled. Rather, it guarantees only that degree of independence necessary to ensure that tribunals exercising criminal jurisdiction act, and are perceived to act, in an impartial manner. Judicial independence must include protection against interference with the financial security of the court as an institution. However, the possibility of economic manipulation arising from changes to judges salaries as a class does not justify the imposition of judicial compensation commissions as a constitutional imperative. By employing the reasonable perception test, judges are able to distinguish between changes to their remuneration effected for a valid public purpose and those designed to influence their decisions. Although this test applies to all changes to judicial remuneration, different types of changes warrant different levels of scrutiny. Changes to judicial salaries that apply equally to substantially all persons paid from public funds would almost inevitably be considered constitutional. Indeed, a reasonable, informed person would not view the linking of judges salaries to those of civil servants as compromising judicial independence. Differential increases to judicial salaries would


warrant a greater degree of scrutiny, and differential decreases would invite the highest level of review. In determining whether a differential change raises a perception of interference, regard must be had to both the purpose and the effect of the impugned salary change. In considering the effect of differential changes on judicial independence, the question is whether the distinction between judges and other persons paid from public funds amounts to a substantial difference in treatment. Trivial or insignificant differences are unlikely to threaten judicial independence. Finally, in most circumstances, a reasonable, informed person would not view direct consultations between the government and the judiciary over salaries as imperiling judicial independence. If a government uses salary discussions to attempt to influence or manipulate the judiciary, the governments actions will be reviewed according to the same reasonable perception test that applies to salary changes. Since the governments of P.E.I. and Alberta were not required to have recourse to a salary commission, the wage reductions they imposed on Provincial Court judges as part of an overall public economic measure were consistent with s. 11(d) of the Charter. There is no evidence that the reductions were introduced in order to influence or manipulate the judiciary. A reasonable person would not perceive them, therefore, as threatening judicial independence. As well, since salary commissions are not constitutionally required, the Manitoba governments avoidance of the commission process did not violate s. 11(d). Although Bill 22 treated judges differently from most other persons paid from public funds, there is no evidence that the differences evince an intention to interfere with judicial independence. Differences in the classes of persons affected by Bill 22 necessitated differences in treatment. Moreover, the effect of the distinctions on the financial status of judges vis--vis others paid from public monies is essentially trivial. The Manitoba scheme was a reasonable and practical method of ensuring that judges and other appointees were treated equally in comparison to civil servants. A reasonable person would not perceive this scheme as threatening the financial security of judges in any way. However, the Manitoba governments refusal to sign a joint recommendation to the JCC, unless the judges agreed to forego their legal challenge of Bill 22, constituted a violation of judicial independence. The government placed economic pressure on the judges so that they would concede the constitutionality of the planned salary changes. The financial security component of judicial independence must include protection of judges ability to challenge legislation implicating their own independence free from the reasonable perception that the government might penalize them financially for doing so. There is also disagreement with the assertion concerning the protection that provincially appointed judges, exercising functions other than criminal jurisdiction, are afforded by virtue of the preamble to the Constitution Act, 1867. At the time of Confederation, there were no enforceable limits on the power of the British Parliament to interfere with the judiciary. By expressing, by way of preamble, a desire to have a Constitution similar in Principle to that of the United Kingdom, the framers of the Constitution Act, 1867 did not give courts the power to strike down legislation violating the principle of judicial independence. The framers did, however, by virtue of ss. 99-100 of the Constitution Act, 1867, entrench the fundamental components of judicial independence set out in the Act of Settlement of 1701. Because only superior courts fell within the ambit of the Act of Settlement and under constitutional protection in the British sense, the protection sought to be created for inferior courts in the present appeals is in no way similar to anything found in the United Kingdom. Implying protection for judicial independence from the preambular commitment to a British-style constitution, therefore, entirely misapprehends the fundamental nature of that constitution. 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. 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 Charter). Given that the express provisions dealing with constitutional protection for judicial independence have specifically spelled out their application, it seems strained to extend the ambit of this protection by reference to a general preambular statement. It is emphasized that these express protections for judicial independence are broad and powerful. They apply to all superior court and other judges


specified in s. 96 of the Constitution Act, 1867 as well as to inferior (provincial) courts exercising criminal jurisdiction. Nothing presented in these appeals suggests that these guarantees are not sufficient to ensure the independence of the judiciary as a whole. Should the foregoing provisions be found wanting, the Charter may conceivably be brought into play.


Basic architecture, and workings, of the Canadian legal system Introduction to the nature and function of judicial review, basic approaches to statutory interpretation, and the 0Canadian governmental and constitutional system. The nature and function of judicial review. The basic approaches to statutory interpretation. Relationship between branches of government: judicial review; constraints on power of each branch. o Executive Branch: Structure; powers (i.e. delegated legislation); introduction to nature and role of administrative tribunals o Legislative Branch: Structure and operation of Parliament; legislative process; formation of statute versus regulations; ethics and accountability o Judicial Branch: Canadian court system; appointment of judges; judicial independence Required Readings:


Craik Chapter 4 Parliament and the Legislative Process Structure and operation of Parliament Section 17 of the Constitution Act 1867 creates a Parliament of Canada consisting of the queen, the senate, and the HC. The Monarch and Governor General The monarch plays a double role in Canadian Constitutional framework. The monarch is a part of the Parliament and also under the Constitution Act 1867 vests the Executive Government in the Queen. The queen is Canadas official head of state, by her powers are practiced by the GG. S10 of the CA 1867 provides: GG extend and apply to for the time being of Canada carrying on the Govt of Canada on behalf of the Queen. The monarch is selected by birth, and is not elected. The monarch is determined by the UK according to the rules of heredity and laws of succession, the Act of Settlement 1701. This statute bars Catholics from assuming the Crown, and even precludes the monarch from marrying a Roman Catholic. This was challenged in ODonohue v The Queen [2003]It was argued that the Act of Settlement 1701 was discriminatory against Roman Catholics and offensive. Preamble to the Constitution Act 1867 confirms not only that Canada is a constitutional monarchy, but also that Canada is united under the Crown of the United Kingdom of Great Britain. A constitutional monarchy, where the monarch is shared with the United Kingdom and other Commonwealth countries, is, in my view, at the root of our constitutional structure. The office of the Queen is such a fundamental part of our constitutional structure that amendments to the Constitution in respect of that office require the unanimous consent of the federal and provincial governments (see s.41 of the Constitution Act 1982). If the courts were free to review and declare inoperative certain parts of the rules of succession, Canada could break symmetry with Great Britain, and could conceivably recognize a different monarch than does Great Britain. In fact, Canada could arguably reanimate the debate regarding the heir to the throne, an argument that was resolved by the Act of Settlement. This would clearly be contrary to settled intention, as demonstrated by our written Constitution, and would see the courts changing rather than protecting our fundamental constitutional structure. The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. These rules of succession, and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny. In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth


countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure. The application is dismissed. Selecting the GG: In practice, the monarch appoints the GG. By Convention, the queen follows the Prime Ministers recommendations in appointing the GG. She takes her advice from the instrument of advice- a personal letter from the Prime Minister. The prime ministers selection is a political decision. Senate: Unusually for a modern democracy, Canada has an unelected upper chamber of the federal legislature. Section 24 of the CA 1867 expressly anticipates the appointment of senators by the GG. In exercising this power, the GG follows the advice of the PM, as required by Convention. Appointments process is criticized as the party in power appointed friends/supporters. Alberta has enacted the Senatorial Selection Act this allows people to vote for senators and those selected are put forward to federal govt to appoint when vacancies arise. But does the federal govt need to follow this provincial act? Brown v. Alberta (1999) The appellant commenced proceedings by originating notice seeking an order declaring the provisions of the Constitution Act 1867 that allow for the appointment of senators by the Governor General to be contrary with democratic principles. To conform with these principles senators must be elected in a manner consistent with the provisions of Albertas Senatorial Selection Act (Brown was nominated under the act). The originating notice was struck out because there was no legal interest engaged. Brown argues he should be allowed an appeal because of the statements made by the SCC in the Secession Reference. He claims this on 2 basis: o 1) the statements made by the SCC our political institutions are premised in the democratic principle and so an expression of the democratic will of the people of a province carried weight o 2) his own status as a senate nominee elected through a democratic process. The Court argues that the appellant does not show how the statements about democratic principles would change the law as to what constitutes a legal issue or whether this case brings up a legal issue. Brown wants an order declaring that senators appointed from Alberta must be appointed in a manner consistent with Senatorial Selection Act. Court only has issue/jurisdiction where there is a legal issue. There is no legal issue found so the appeal is dismissed. Samson v. Attorney General of Canada (1998) The applicants applied for an interlocutory injunction to restrain the GG from appointing to the Senate a qualified person from Alberta unless he has been elected according to the Senatorial Selection Act. The Court is to consider whether the applicants have established that there is a serious issue to be tried in this matter. Sections 24 and 32 of the CA 1867 gives the GG unfettered discretion to appoint qualified persons.


There are no procedural limitations here any curtailment of power would have to be done through a Constitutional Amendment. o Thus the court cannot impose limitations. The applicants relied on the statements made by the court in the Secession Reference The Court says that there is nothing that allows the court to ignore the provisions of the constitution there. o The court also claimed that the Secession case dealt with a constitutional void there is no void here. The election of a man by the Senatorial Selection Act does not constitute a precedent of convention which can alter the Constitution Act. The court determined that the claim was ultimately political and not legal. Application Dismissed.

House of Commons: Elections Canada, Canadas Electoral System (Ottawa: Chief Electoral Officer of Canada, 2001 Representation in the HC is based on geographical divisions known as electoral districts, constituencies or ridings. Each riding elects one member to the HC, and the number of ridings is established through a formula set out in the Constitution. Independent commissions, taking into account population and social and economic links establish riding boundaries. New commissions are det up after each 10 year censue to make revisions. First Past the Post: Canadas electoral system is known as a single-member plurality or first past the post system. In every electoral district the candidate with the most votes (not majority) wins a seat in the HC and represents that riding as its Member of Parliament, or MP. Reference re Prov. Electoral Boundaries (Sask.) [1991] McLachlan J: This appeal involves a constitutional challenge to provincial electoral distribution in the province of Saskatchewan. My conclusion is that the electoral boundaries created by The Representation Act, 1989, S.S. 1989-90, c. R-20.2, do not violate the right to vote enshrined in s. 3 of the Canadian Charter of Rights and Freedoms. I am of the view that it is the boundaries themselves which are at issue on this appeal. The questions focus, not on the Act, but on the constitutionality of "the variance in the size of voter populations among [the] constituencies" and "the distribution of those constituencies among urban, rural and northern areas". The basic question put to this Court is whether the variances and distribution reflected in the constituencies themselves violate the Charter guarantee of the right to vote. The content of the Charter right to vote is to be determined in a broad and purposive way, having regard to historical and social context. Doctrine of the living tree. The broader philosophy underlying the historical development of the right to vote must be sought and practical considerations, such as social and physical geography, must be borne in mind. The Court, most importantly, must be guided by the ideal of a "free and democratic society" upon which the Charter is founded. Those who start from the premise that the purpose of the section is to guarantee equality of voting power support the view that only minimal deviation from that ideal is possible. Those who start from the premise that the purpose of s. 3 is to guarantee effective representation see the right to vote as comprising many factors, of which equality is but one. The contest, as I see it, is most fundamentally between these two views, although the submissions before us vary in the emphasis they place on different factors and hence on where they would draw the line.


It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one's grievances and concerns to the attention of one's government representative Conditions of "effective representation"? The first is relative parity of voting power. A system which dilutes one citizen's vote unduly as compared with another citizen's vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or her representative. The result will be uneven and unfair representation. Notwithstanding the fact that the value of a citizen's vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors. First, absolute parity is impossible. It is impossible to draw boundary lines which guarantee exactly the same number of voters in each district. Voters die, voters move. Even with the aid of frequent censuses, voter parity is impossible. Secondly, such relative parity as may be possible of achievement may prove undesirable because it has the effect of detracting from the primary goal of effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed. It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced. Only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed. In summary, the evidence supplied by the province is sufficient to justify the existing electoral boundaries. In general, the discrepancies between urban and rural ridings is small, no more than one might expect given the greater difficulties associated with representing rural ridings. And discrepancies between particular ridings appear to be justified on the basis of factors such as geography, community interests and population growth patterns. It was not seriously suggested that the northern boundaries are inappropriate, given the sparse population and the difficulty of communication in the area. I conclude that a violation of s. 3 of the Charter has not been established. Elections: Any number of candidates may run for election in an electoral district but each candidate can only run in one district either independently or under banner of a registered political party. Each party may only endorse one candidate per riding. A political party is a group of people who together establish a constitution and bylaws, elect a leader and other officers, and endorse candidates for election to the HC. To obtain the right to put the party name on the ballot, under the names of the candidates it endorses, the party must register with the Chief Electoral Officer. A political party is a defined entity in s2 of the Canada Elections Act: an


organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election. After an election, party with the most elected representatives usually becomes the governing party. The leader of the party becomes the Prime Minister. The party with the second largest number of MPs is called the official opposition. All of the elected candidates have a seat in the HC, where they vote on draft legislation (bills) and thus have an influence on government policy. Elections to the HC: s3 of the Charter says, Every citizen of Canada has the right to vote in an election of members of the HC or of a legislative assembly and to be qualified for membership therein. Until recently, the Canada Elections Act required a registered party to run candidates in at least 50 electoral districts. The Supreme Court struck down this rule in 2003 in Figueroa v Canada [2003]. Figueroa v Canada [2003]. Challenges Canada Elections Act on the basis of unfairness limits the ability to participate in the electoral process Legislation restricted certain benefits to parties registering more than 50 candidates o Writing tax receipts for donations, transferring unspent election funds to the party after the election, and the right to have party affiliation on the ballot Looks to s.3 of the Charter every citizen has the right to vote in an election and the right to be qualified to be elected On its bare reading it is a narrow provision but Charter analysis requires courts to look beyond the words of the section Courts have concluded that the purpose of s.3 is effective representation. This Court has already determined that the purpose of s. 3 includes not only the right of each citizen to have and to vote for an elected representative in Parliament or a legislative assembly, but also to the right of each citizen to play a meaningful role in the electoral process. This, in my view, is a more complete statement of the purpose of s. 3 of the Charter. The free flow of diverse ideas is central to our way of democracy need different views Participation in the electoral process has an intrinsic value independent of the outcome of elections The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option; the right to vote provides each citizen with the opportunity to express support for the ideas and opinions that a particular candidate endorses. The question that thus arises is whether the 50-candidate threshold interferes with the right of such citizens to play a meaningful role in the electoral process. For these reasons, I conclude that the 50-candidate threshold does infringe s. 3 of the Charter. It undermines both the capacity of individual citizens to influence policy by introducing ideas and opinions into the public discourse and debate through participation in the electoral process, and the capacity of individual citizens to exercise their right to vote in a manner that accurately reflects their preferences. In each instance, the threshold requirement is inconsistent with the purpose of s. 3 of the Charter: the preservation of the right of each citizen to play a meaningful role in the electoral process. Saved by s1? The government must demonstrate that the limitation is reasonable and demonstrably justifiable in a free and democratic society. No. While the objective of ensuring the cost-efficiency of the tax credit scheme is pressing and substantial, the 50-candidate threshold does not meet the proportionality branch of the Oakes test.


There is no connection whatsoever between the objective and the threshold requirement with respect to transfers of unspent election funds or listing party affiliations on ballot papers. Nor is the restriction on the right of political parties to issue tax receipts for donations received outside the election period rationally connected to the objective. The connection between legislation that has no impact upon either the number of citizens allowed to claim the tax credit or the size of the credit and the objective is tenuous at best. Moreover, the government has provided no evidence that the threshold actually improves the cost-efficiency of the tax credit scheme. The legislation also fails the minimal impairment test because cost savings can be achieved without violating s. 3. Further, any benefits associated with the reduced costs of the tax credit scheme do not outweigh the deleterious effects of this legislation. While preserving the integrity of the electoral process is a pressing and substantial concern in a free and democratic state, this objective provides no justification for the restriction on the right of candidates to list their party affiliation on the ballot papers. The same is true of the restriction on the right to issue tax credits and the right to transfer unspent election funds to the party. Furthermore, even if the restrictions on the right to issue the tax credit and the right to retain unspent election funds prevent the misuse of the electoral financing regime, the legislation fails the minimal impairment test. In each instance, the government has failed to demonstrate that it could not achieve the same results without violating s. 3 of the Charter. Lastly, articulating the objective as ensuring a viable outcome for responsible government in the form of majority governments is problematic. In any event, the 50-candidate threshold fails the rational connection test and its salutary benefits have not been shown to outweigh its deleterious effect LeBel in dissent questions the validity of allowing smaller parties to have these benefits o Worries more about the possibility of smaller regional parties not being able to form because of the rule limits the ability of those regional groups to participate Bringing the constituent elements of Parliament together A Parliament is not a permanent feature, meeting indefinitely. Summoning: s38 of the Constitution Act 1867 empowers the GG from time to time, in the Queens name, to summon and call together the HC. It is now constrained by constitutional convention and the Charter. By constitutional convention, the GG calls Parliament to session on the advice of the PM. This convention is codified in the Writ of Election, enacted as Schedule 1 in the Canada Election Act. This empowers the monarch to set the date for a new parliament by and with the advice of the PM. House of Commons, Precis of Procedure (Ottawa: HC, 2003) Formal Opening of a Parliament (2a) o first session of parliament is distinguished from the other openings by: talking and subscribing the Oath of Allegiance by Members and the election of the Speaker Speech from the Throne (2b) Address in Reply to the Speech from the Throne Prorogation Once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation. A prorogation is the prerogative of the governor general, acting on the advice of the PM. Section 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least once every 12 months (i.e. Parliament cannot be entirely sidelined). House of Commons, Precis of Procedure (Ottawa: HC, 2003)-


Prorogation ends a session, but does not dissolve Parliament; the speaker is still in office for all purposes during a period of prorogation. PM, Ministers and Parliamentary Secretaries remain in office and all Members of HC retain full rights and privliges. Prorogation is like dissolution, since it abolishes all pending legislation and quashes further committee activity. Thus, no committee can sit after a prorogation and any bill of a previous session, in order to be proceeded with, must in principle, be introduced again as a new bill While pending legislation is abolished by prorogation, any outstanding orders or Addresses of the House for returns or papers are not; rather, they are brought down during the following session without renewal of the order. Between a prorogation and the next session of the same Parliament, the House is said to be in recess, although the word is often loosely used to refer to a long adjournment. This does not quash all pending proceeding though. Adjournment is technically the termination by the HC of its own sitting. Unlike dissolution and prorogation, adjournment does not quash all pending proceedings. At next sitting, House transacts business previously appointed and all proceedings resume. Dissolution: s5 of the CA 1867 and s4 of the Charter limit the duration of a Commons to 5 years (unless war or insurrection) and Parliament must be dissolved and elections must happen at least every 5 years. Usually Parliaments do not last 5 years as GG acts at a time of PMs choosing to dissolve. There are, however, instances where a PM might be forced by constitutional convention to seek dissolution from the GG at a time not of his or her choosing. Convention requires a PM to resign his or her government to seek parliamentary dissolution after a no confidence vote by the House. Without a no confidence vote from the House, it seems unlikely that the GG has the power to dissolve Parliament when opposed by the PM. Special Committee on the Reform of HC, Report (Ottawa: Canadian Govt Publishing Centre, Supply and Services Canada, June 1985) McGrath Committee The confidence of the HC in the governing party lies at the heart of responsible govt. Cabinet must be responsible for its actions to an elected legislature. Implies that there be a policy making body of ministers bound to provide unanimous advice to the Sovereign; that the public service be under the control of political leaders responsible to the legislature and that both the legislature and executive be responsible to the people. Ministerial responsibility, along with fusion of legislature and executive branches are distinguishing features of responsible govt. Ministerial responsibility consists of: 1. responsibility of a minister to the Queen or GG Govts are not elected but appointed, ministers dont serve for a term but until they die, resign or are dismissed 2. individual responsibility of a minister to the HC. When should a minister offer his resignation and when should it be asked for? Depends on relationship of minister with PM. Principle seems to be where there is personal culpability (private or public conduct unbecoming/unworthy of minister), then they should resign. 3. responsibility of ministry collectively to the HC. If confidence of HC is lost, end for the ministry unless the government granted a dissolution and is sustained by the electorate.


History: Used be the idea that every vote was one of confidence (because of rarity of defeats of Government measures in GB). More recently, ithere has been cross voting or dissenting members of a party. In Britain, clear that losing a vote is not automatically a matter of no confidence entailing the resignation of the govt or dissolution of HC. A Govt defeated on a vote of a matter of confidence is expected to resign or seek dissolution. Three types of votes can be termed confidence votes: 1. there are explicitly worded votes of confidence. These state expressly that the House has or has not confidence in the government. 2. 2 motions made votes of confidence by a declaration of the Govt. The Govt may declare that if defeated on a particular motion before the House, even one that is not an explicitly worded vote of confidence, it will resign or seek dissolution. 3. implicit votes of confidence (i.e. deemed to be a vote of confidence): a. votes on granting of supply of funds b. lost votes on items central to government policy but not made matters of confidence prior to the vote. c. Votes on items not at the heart of government policy. McGrath Committee has offered several observations. 1) A government should be careful before it declares or designates a vote as one of confidence. It should confine such declarations to measures central to its administration. 2) While a defeat on supply is a serious matter, elimination or reduction of an estimate can be accepted. If a government wishes, it can designate a succeeding vote as a test of confidence or move a direct vote of confidence. 3) Defeats on matters not essential to the governments program do not require it to arrange a vote of confidence, whether directly or on some procedural or collateral motion. 4) Temporary loss of control of the business of the House does not call for any response from the government whether by resignation or by asking for a vote of confidence. As a rule GG accepts the advice of the PM. In certain cases, the GG is justified in refusing an immediate request for dissolution. E.g. where a minority govt loses confidence but another PM in waiting is able to command confidence of HC. Key Actors in Parliament A. Political Parties: Are recognized entities in Canadian election law. They act to marshall collective resources in the hope of achieving electoral success. They are also the partial product of two legal aspects of parliamentary democracy. 1) decision making in Parliament depends on swaying a majority of votes in each chamber. For instance, the Commons make decisions through the device of motions, basically a question put to the House by the Speaker in response to a proposition made by a member. These rules encourage parliamentarians to organize as political parties: entities that command the loyalty of their members and, if those members are elected in sufficient numbers, allow control of a majority of the Commons. 2) the confidence convention: by constitutional convention, the individual commanding the confidence of the Commons (the majority) is appointed Prime Minister. Thus, the party control of a majority of the House brings with it executive power. In Common proceedings themselves, once the 12-MP threshold is reached, party members are then entitled to sit together, have their party affiliation noted with their name in the official records and on television broadcasts of proceedings, and are allowed a larger number of questions during question period. Note concept of party discipline bloc voting. Sometimes there will be a conscience vote but not often.


B. The Speaker: In the commons, the speaker is a MP elected to the speakers position by other MPs. The manner of his or her selection, and many of his or her powers, are set out in the standing orders of the HC. These standing orders are internal procedural rules established by the commons pursuant to its parliamentary privileges. House of Commons, Precis of Procedure (2003)The Speaker assumes the position of highest authority in the HC. Duties fall into three categories: 1. the speaker acts as the spokesperson of the House in its relations with the Crown, the Senate and authorities outside Parliament. 2. the speaker presides over the sittings of the House and enforces the observance of all rules for the preservation of order and the conduct of business. 3. the speaker has extensive responsibilities relating to the administration of the HC. The speaker is the presenter when Royal Assent legislation is being used. Communicates resolutions of thanks, sympathy, censure or reprimand in the name of the House to any outside body or agent. Whenever a vacancy occurs in the House, it is the Speakers responsibility to issue a warrant to the Chief Electoral Officer for a writ of election. The speaker leads the GG, Commons, to the Senate to claim privileges and to receive the speech from the Throne . Presiding Officer - principal duty to maintain order in debate and to maintain practices and traditions of HC. Must be appear to be impartial so doesnt participate in debate. Balances allowing majority to secure transaction of business in orderly manner and protect the right of the minority to be heard. Maintaining order - Speaker relies on the Standing Orders written rules of the HC precedents and various procedural authorities. for the HC set down only in the general terms the authority of the Speaker One rule states simply, that the speaker shall preserve order and decorum, and shall decide questions of order. The speakership is assured by tradition and convention, but also the constitution. S44 of CA 1867 says that the HC once assembled after a general election shall proceed with all predictable speed to elect one of its Members to the Speaker, s46 states that the speaker shall preside over all meetings of the House. S45 and 47 treat the matter of vacancy or prolonged absence of the speaker, and s49 sanctions the casting vote of the Chair in cases where there is a tie vote among members on a question before the House. In1985, the House adopted changes to the standing orders, providing for the election of the Speaker by secret ballot. The election of the Speaker at the opening of a parliament is presided over by the Member who has the longest period of unbroken service and who is not a member of the Cabinet, nor holds any office within the House. C. Parliamentary Committees- the HC delegates most of the detailed study of the proposed legislation and scrutiny of government policy and programs to its committees. There are various types such as: Committee of the Whole (House)- comprised of the entire membership of the HC. Established by the Standing Orders. Examines appropriation bills (which authorize the government to spend money) or the HC may refer other bills to this committee to expedite their passage.


Standing Committees - Appointed for the life of the parliament to deal with subjects of continuing concern to the House. There are18 and parallel the govt departments whose policy development, program administration and budgetary estimates they examine. Occassionally the House may deceide to send special enquiries to standing committee. Their powers are: set out in the standing orders -to examine matters referred to it by the House -to report to the House from time to time -to send for persons, papers and records; -to sit while the house is sitting or stands adjourned - to sit jointly with other standing committees - -to print necessary papers and evidence -to delegate to a subcommittee any of its powers except the power to report to the House - to study and report on all matters relating to the mandate, management and operation of govt depts assigned to them - to review all Order in Council appointments referred to them - to examine all permanently referred reports Legislative Committees - created on an ad hoc basis to examine bills in detail, and may only report the bill to the House. Their powers under the standing orders 113(5) and 120 are as follows -to examine and inquire into the bill referred to it by the House; -to report the bill with or without amendments; and except when the House otherwise orders: -to send for persons whom the committee deems to be competent to appear as witnesses on technical matters. -to send for papers and records -to sit when the house is sitting or strands adjourned; -to print necessary papers and evidence; and -to retain the services of expert and technical staff. Special Committees - aka task forces, are appointed on ad hoc basis by the House to study specific matters. A motion specifying its purpose and power establishes each special committee. Powers are set out in the Order of Reference and do not include those listed in the Standing Orders unless specified. Joint Committees- Composed of the HC and Senate. May be elected by the Standing Orders of each house (Standing Joint) or by special resolutions of the two houses (Special Joint). Subcommittees - - Standing Committees are free to delegate some part of their mandate or a particular task to a smaller group. They do this by creating sub-committees. Special committees may be given the power to create subcommittees if the House so decides, but legislative committees may only create sub-committees on their agenda, commonly called a steering committee. Parliamentary Procedure: Parliamentary law - the rules determining parliamentary procedureflows from an array of sources: the Constitution; assorted statutes such as the Parliament of Canada Act 1985: the Standing Orders; and assorted usages, customs, and precedents, as assessed by the Speaker. Starting point for understanding parliamentary law is the Constitution. Constitution British parliamentary traditions via the preamble to the CA 1867. It also speaks of parliamentary privileges which are those rights necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts: Provincial Judges Reference [1997]


Privilege often means the legal exemption from some duty, burden, attendance or liability to which others are subject New Brunswick Broadcasting Co v Nova Scotia [1993]. Canada (HC) v Vaid [2005]BINNIE J. The former Speaker of the House of Commons is accused of constructively dismissing his chauffeur for reasons that amount to workplace discrimination and harassment under the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The issue on this appeal is whether it is open to the Canadian Human Rights Tribunal to investigate Mr. Vaids complaint. The former Speaker denies any impropriety, but he joins the House of Commons in a preliminary objection that the hiring and firing of House employees are internal affairs which may not be questioned or reviewed by any tribunal or court outside the House itself. Privileges of Parliament, permit the Senate and the House to conduct their employee relations free from interference from the Canadian Human Rights Commission or any other body outside Parliament itself. HRC argues that the duties of the Speakers chauffeur are too remote from the legislative function of the House and that the respondent Vaids dismissal is not immunized from external review by virtue of parliamentary privilege. My conclusion is that the onus is in Parliament to establish a privilege that immunizes their conduct from the ordinary law governing the resolution of disputes with support staff such as Mr. Vaid, and that Parliament has failed to do so. I would hold that the language used by Parliament in the Canadian Human Rights Act is wide enough to cover its own employees and that the sweeping exemption now asserted by the appellants has not been shown to be intended by Parliament nor, on general principles, is it necessary or justifiable as parliamentary privilege. It is a wise principle that the courts and Parliament strive to respect each others role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speakers choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speakers choice violated the members guarantee of free speech under the Charter. These are truly matters internal to the House to be resolved by its own procedures. Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected. In Canada, the principle has its roots in the preamble to our Constitution Act, 1867 which calls for a Constitution similar in Principle to that of the United Kingdom. Each of the branches of the State is vouchsafed a measure of autonomy from the others. The respondent Vaid does not quarrel either with the existence or the importance of parliamentary privilege. His argument is that the Speakers attempt to treat his dismissal from his job as chauffeur as an expression of such lofty doctrine is to overreach, if not trivialize, its true role and function. In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons.


There are a number of propositions re parliamentary privilege that are now accepted both by the courts and by the parliamentary experts. 1. Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land. Privilege does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament. 2. Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions. 3. Parliamentary privilege does not create a gap in the general public law of Canada but is an important part of it, inherited from the Parliament at Westminster by virtue of the preamble to the Constitution Act, 1867 and in the case of the Canadian Parliament, through s. 18 of the same Act . 4. Parliamentary privilege includes the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces . . . in order for these legislators to do their legislative work. [Emphasis added.] The idea of necessity is thus linked to the autonomy required by legislative assemblies and their members to do their job. 5. The historical foundation of every privilege of Parliament is necessity. If a sphere of the legislative bodys activity could be left to be dealt with under the ordinary law of the land without interfering with the assemblys ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist. 6. When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in issue, the court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today. Parliamentary history, while highly relevant, is not conclusive 7. Necessity in this context is to be read broadly. The time-honoured test, derived from the law and custom of Parliament at Westminster, is what the dignity and efficiency of the House require. In my view, the references to dignity and efficiency are also linked to autonomy i.e. control of own procedure). Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done. 8. Proof of necessity may rest in part in shewing that it has been long exercised and acquiesced in The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence. 9. Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts. 10. Categories include freedom of speech, control by the Houses of Parliament over debates or proceedings in Parliament including day-to-day procedure in the House, for example the practice of the Ontario legislature to start the days sitting with the Lords Prayer (Ontario (Speaker of the Legislative Assembly), the power to exclude strangers from proceedings , disciplinary authority over members, disciplinary authority over non-members who interfere with the discharge of parliamentary


duties. Such general categories have historically been considered to be justified by the exigencies of parliamentary work. 11. The role of the courts is to ensure that a claim of privilege does not immunize from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege 12. Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature. I conclude that British authority does not establish that the House of Commons at Westminster is immunized by privilege in the conduct of all labour relations with all employees irrespective of whether those categories of employees have any connection (or nexus) with its legislative or deliberative functions, or its role in holding the government accountable. I have no doubt that privilege attaches to the Houses relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all. We are required to make a pragmatic assessment but we have been given no evidence on which a privilege of more modest scope could be delineated. The appellants having failed to establish the privilege in the broad and all-inclusive terms asserted, the respondents are entitled to have the appeal disposed of according to the ordinary employment and human rights law that Parliament has enacted with respect to employees within federal legislative jurisdiction. Standing orders: Court have held that Canadas legislatures have power to administer that part of the statute law relating to its internal procedure, as well as to determine the contents of such things as Standing Orders on Procedure, without court intervention. Standing orders are rules of procedure adopted by at least a simple majority vote of the members of the Commons. Standing orders constitute a fairly comprehensive code of Commons operations, including in relation to Commons law making. Standing Order 1 says that where orders are silent, procedural questions shall be decided by the Speaker based on usages, forms, customs and precedents of HC. Parliamentary law making Scope of law making jurisdiction (substantive law focus) Parliamentary supremacy means that Parliament is the source of all power and Parliament has the jurisdiction to make or unmake any law whatever. [NOTE: Some suggest that, unlike the Parliament at Westminster, the Parliament of Canada is NOT supreme; the division of powers found in ss 91 and 92, for example, identify certain subjects in respect of which Parliament cannot legislate; then, also consider the limitations put on it by the Charter]. Parliament is, therefore, even free to pass careless or bad laws, so long as it sticks within its Constitutional mandate (see Bacon v Saskatchewan Crop Insurance). Bacon v. Saskatchewan Crop Insurance Corp. (1999)


Gross Revenue Insurance Program implemented under the amendments to Agricultural Safety Net Act extinguished breach of contract claims cant make any claim for breach respondents group of farmers claimed that this was an arbitrary use of the rule law trial judge ruled that if it was an arbitrary law it would go against the constitution, but this itself was not an arbitrary law we dont second guess the wisdom of the legislature para 36 clear distinction between executive action (arbitrary use of power by executive see Roncarelli - and arbitrary legislative provisions (where the content is arbitrary and remedy is the ballot box) any room for maneuver in this decision? if can frame as an act of the executive and arbitrary use of powers as opposed to a legislative provision that is not subject to challenge in this case it is clear that the legislative provision that took away the property rights and rights to the crop insurance arbitrary use of rule of law o trial this legislation is not arbitrary o CA even if arbitrary the court cant find its ultra vires

This case has been followed by other courts. In PSAC v Canada (2000), at issue was the justiciability of a unions complaint about a statute ordering striking workers back to the job. The union argued that the legislation was contrary to the rule of law because it was arbitrary and was passed in bad faith. The court held that this argument disclosed no legal informationfor the lawsuit. Even when it is alleged that an ill-intentional ministry tricked Parliament into enacting legislation, the courts will not probe that statutes promulgation (see Turner v Canada). Turner v Canada [1992]Plaintiff was involved in a lawsuit; a retroactive statutory amendment deprived him of his defence and led to an unfavourable settlement P sues the government, the PM and three Ministers for damages, alleging that Parliament was misled P concedes that the legislation is valid and does not infringe the Constitution. Relies on allegation that process of enacting the statute was tainted. Negligence and outright connivance of the PM and 3 named ministers. Parliament tortiously misled to enact the retroactive amendment Held: Its well-established that procedural fairness is not required in legislative process; parliamentary supremacy includes Parl.s right to inquire into and regulate its own process This issue is ruled not justiciable - Ruled that it makes more sense for Parliament to check out this case than the courts since the case is about everything Parliament related. Even if Parliament is competent to pass bad (but constitutionally valid) law, it is not to be presumed that it means to do to so must be emphatic. Wells v Newfoundland [1999]By legislation, the government can void a contract and deny damages, but to do so requires clear language Here, the position was eliminated, but there is no explicit denial of damages; Thus, P is entitled to damages since it wasnt clearly expressed that his rights were abrogated


Wells was appointed to the Newfoundland Public Utilities Board on good behaviour or until the age of 75 Legislature changed the makeup of the Board by abolishing it and instituting a new structure Current commissioners were told that their positions may not be renewed Wells wasnt Wells sues for severance pay; Nfld. claims that it does not have to pay on the grounds of privilege Are civil servants entitled to compensation when their positions are terminated by statute and their contracts of employment are breached? At trial judge held that there was no grounds for review; on appeal the court held that the legislature had the right to end the position but it did not have the ability to take away the rights included with that position o If tenure in a statutory office that can be held during good behaviour is to mean anything it must include the right to be compensated for the loss of the emoluments of that office if the office holder is deprived of it o Legislature cannot abolish a position by changing legislation and then rely on the doctrine of frustration because the frustrating event was caused by its own acts In this case the Crown could not terminate Wells employment unless he did something which rendered him unfit to continue as a commissioner The entitlement to compensation hinges on the nature of the relationship if it was an employment relationship then his termination will constitute a breach compensable in damages. If the relationship was purely statutory then he is limited to administrative remedies. Government argues for the latter position court finds it more akin to contract Jobs with government are in substance contractual relationships Crown is bound to act according to the rule of law must respect natural justice in employment contracts Common law views mutually agreed employment relationships through the lens of contract Crown asserts that as an exercise of prerogative it was able to eliminate the position Legislature can deny compensation but only be invoking clear and express language to that effect. In this case it didnt so Wells entitled to compensation. Are civil servants entitled to compensation in the event that their positions are eliminated by legislation? There is no dispute that Parliament and the provincial legislatures have the authority and structure the public service as they see 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? I conclude they cannot. To say that government is not bound to honour its obligations unless it explicitly says otherwise is to say that government is bound only by its whim, not its word Authorson v Canada (AG) [2003]A disabled veteran of WW2 was the representative of a large class of disabled veterans of Canadas military forces. The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in the adjudication of individual rights and obligations, but no such rights are at issue in this appeal. While the due process guarantees may have some substantive content not apparent in this appeal, there is no due process right against duly enacted legislation unambiguously expropriating property interests.


Ethics in Law Making- the discussion to this point suggests that no prudential constraints exist on Parliament, other than those found in the Constitution. But a word of caution should be voiced about the latitude Parliament has to pass laws as it wills. Parliament may be sovereign, but individual parliamentarians are not. A parliamentarian induced by the prospect of financial gain to vote one way or another in performing his or herlaw-making functions is subject to sanction in a number of different ways. Ethics rules exist both in statutory law and in internal procedural rules governing each house of Parliament. Margaret Young, Conflict of Interest Rules for Federal Legislators (2003)Conflict of interest is one aspect of public-sector ethics, and Canadian legislatures and governments have developed legislation and codes of conduct that show a wide variety of approaches to the issue. Our society expects that individuals should be as free as possible to pursue their economic goals, but also expects that those in positions of public trust should not act in their public capacity on matters in which they have a personal economic interest. Even an appearance of a conflict affects the publics confidence in office holders generally. Some suggest that Parliament should adopt more comprehensive rules covering conflict of interest. Others are concerned that such a step would deter qualified or desirable people from running for public office. BACKGROUND AND ANALYSIS A situation in which a minister of the Crown has knowledge of a private economic interest that is sufficient to influence the exercise of his or her public duties and responsibilities. A potential conflict becomes a real conflict where the Minister does not dispose of relevant assets or withdraw from certain public duties or decisions. Apparent conflict of interest, which exists when there is a reasonable apprehension, which reasonably well informed persons could properly have, that a conflict of interest exists, even if, in fact, there is neither a potential nor a real conflict. The principles underlying conflict-of-interest rules are impartiality and integrity: a decision maker cannot be perceived as being impartial and acting with integrity if he or she could derive a personal benefit from a decision. Today, governments intervene in virtually all sectors of the economy. It is not unusual for legislation introduced in Parliament to affect the general economic interests of Members of Parliament in some way. Some conflicts are unavoidable. An inherent conflict arises out of the position of the Parliamentarian as an individual in society, i.e., as a homeowner, parent or consumer. Parliament continually deals with legislation affecting these interests and, as the Parliamentarian is affected like other citizens, there is a low risk of an adverse consequence. Also unavoidable is the representative interest conflict which arises when Members share personal interests, for example in farming, fishing and resource development, with the constituency electing them. Other interests, however, may in some cases substantially affect the independence of a legislator, particularly when he or she enters Cabinet. Family businesses pose problems, but so do a wide range of assets, liabilities and financial interests. Conflict-of-interest rules generally deal with these latter kinds of interests. To what extent, then, should a Parliamentarian be able to retain personal economic and other interests? The rules must not be so stringent as to discourage persons of ability and experience from entering public life, yet must be stringent enough to deter unethical practices and maintain the good


reputation of Parliament and its Members. The rules also must make some distinctions between Private Members and Senators, who individually may have little influence over the decision-making process, and Cabinet Ministers and their staff. A. Techniques of Control A number of methods are available to control conflicts of interest. Disclosure requires that legislators reveal their assets, typically first confidentially to a designated official, and then publicly so that a personal interest becomes public knowledge and Parliamentarians are inhibited from acting for their personal benefit. Public disclosure also informs the legislators constituents and colleagues of the situation so that they can consider its implications. Avoidance requires legislators to divest themselves of interests or relationships that might impair their judgment, either by a sale at arms length or by use of a trust administered by a trustee independently of the legislator; in the latter case, it must be ensured that the trust is beyond the Parliamentarians control. Withdrawal (also called recusal) requires Parliamentarians to refrain from acting on matters in which they have personal financial interests. Typically, conflict-of-interest regimes incorporate a combination of the above controls. B. Types of Interests The more common types of interests that can put a legislator into a conflict situation are outlined below. Investments: for example, the Commissioner in Ontario has ruled that the Treasurer should not hold provincial bonds because he is responsible for setting the interest rates. Which investments that present conflicts are suitable for placing in a trust? Should the value of any retained interests be disclosed? Should shareholdings of Parliamentarians be restricted to a percentage of total issued shares in a company? Any arbitrary percentage set might be insignificant where there were only a few shareholders, but could result in effective control of a company if shares were widely held. Debts: Liabilities, as well as assets, are potential sources of conflict, because the creditors of persons in public office may give the appearance of having influence over their debtors. Corporate Positions: A legislator may find that Parliament is considering measures that would affect him or her as an officer, director or employee of a company or affect the interests of the company. As a director, he or she is required to act in the best interests of the company, yet as a legislator he or she is required to act in the best interests of the public. Outside Employment: To what extent should Parliamentarians be able to carry on their law practices, businesses, or other types of employment? Cabinet Ministers are now prohibited from such activities. Should there be a restriction on the amount of money that can be earned from outside employment? Parliamentarians dealing with laws that may affect their business clients could be put in a position opposed to the best interests of the public. A legislator might attract more clients if the latter believed he or she would increase their influence with the federal government. Should Parliamentarians be able to profit in this way from their status? Lobbying: Dealing with government officials on behalf of constituents is a normal function of legislators. What about legislators who use their position to further personal interests or who are paid to act on behalf of others? Should they be able to make representations or appear before government boards or commissions or federal courts in their personal capacity, or would the appearance of influence be too strong? What is the position of legislators who receive indirect benefits as lawyers, employees, or financial advisors of persons or companies for whom they act? Is it sufficient for


legislators to reveal their interests to government officials with whom they correspond, or must they avoid any contact with such persons and bodies except in the course of their duties as representatives of their constituents? Government Contracts and Activities: Should legislators be able to participate with other Canadians in government programs, or would the appearance of influence be too strong and the possibility of conflict too high? To what extent should Parliamentarians be allowed to own or invest in businesses that have government contracts? Gifts and Honoraria: Should legislators be permitted to accept free vacation trips or other gifts from acquaintances, businesses or foreign governments? Should there be a restriction on the amount that can be accepted? Should disclosure be the only requirement? Honoraria can be disguised gifts. Inside Information: Are controls necessary to deter legislators from using for personal advantage any information that comes to them in their official capacity? Spouse and Dependent Children: To what extent should the above interests be controlled if they are held by those with close family ties to the Parliamentarian? The legislator is as likely to be influenced by family interests as by his or her own. C. Statutory and Parliamentary Rules Most conflict-of-interest rules for federal legislators are found in three Acts of Parliament (the Criminal Code, the Parliament of Canada Act and the Canada Elections Act) and in the Standing Orders of the House of Commons and Rules of the Senate. (The Conflict of Interest and PostEmployment Code for Public Office Holders will be discussed below.) Bribery, the most extreme form of conflict of interest, is a criminal offence. The Criminal Code provides for 14 years imprisonment for a Parliamentarian who accepts or attempts to obtain any form of valuable consideration for doing or omitting to do anything in his or her official capacity. In addition, Standing Order 23(1) of the House of Commons considers it a high crime and misdemeanour that tends to subvert the Constitution if a Member is offered any advantage for promoting any matter before Parliament. The Parliament of Canada Act prohibits a Parliamentarian from receiving outside compensation for services rendered on any matter before the House, the Senate or their committees. The Act excludes persons with remunerated employment in the federal government and certain officials at the provincial level from being eligible as Members of the House of Commons, although there are exceptions. The Parliament of Canada Act makes a Member of a provincial legislative assembly ineligible to be a Member of the House of Commons. The Canada Elections Act disqualifies the above office holders from candidacy for the House of Commons as well as Members of the Council of the Northwest Territories, the Council of the Yukon Territory or the Legislative Assembly of Nunavut, and certain office holders who are not entitled to vote. D. Conflict of Interest and Post-Employment Code for Public Office Holders This Code, on the order of the Prime Minister, applies to Cabinet Ministers, Parliamentary Secretaries and other senior public office holders. First introduced by the federal government in September 1985, it was slightly modified by Prime Minister Chrtien, and more extensively by Prime Minister Martin. It requires that, on appointment to the included offices, the office holders are to arrange their private affairs so as to prevent real, potential or apparent conflicts from arising. With limited exceptions, they are not to solicit or accept money or gifts; not to assist individuals in their dealings with government in such a way as to compromise their own professional status; not to take advantage of information obtained because of their positions as insiders; and, after they leave public office, not to act so as to take improper advantage of having held that office. Beginning in 1994, information relating to the spouses and dependent children of Ministers, Secretaries of State and Parliamentary Secretaries became relevant.


The Code suggests that public office holders, in order to reduce the risk of conflict of interest, should, depending on the asset or interest in question, use avoidance, confidential report, public declaration, divestment, or recusal. Divestment can include making an asset subject to a trust or management agreement. In relation to outside activities, the public office holder is not to engage in the practice of a profession, actively manage or operate a business or commercial venture, retain or accept directorships or offices in a financial or commercial corporation, hold office in a union or professional association, or serve as a paid consultant. The Code also deals with public office holders after they leave office, proscribing Ministers for two years and others for one year from certain activities in order to ensure impartiality while in office and to avoid preferential treatment upon leaving office. The Code is administered by the Office of the Ethics Counsellor; the Office is located within Industry Canada for administrative purposes, but takes general direction from the Clerk of the Privy Council. The Office is thus not independent from the Executive Branch of government. [NOTE CHECK IF BOOK HAS CHANGED ON THIS IN NEW EDITION PARTICULARY RE FEDERAL ACCOUNTABILITY ACT] [NOTE: PRINT OUT Conflict of Interest Code for Members of the House of Commons] Parliaments law making procedure Public Bills Two main types of public bills, government public bills (introduced and sponsored by a Minister) and private member public bills (sponsored by a private Member). Important types of financial bills initiated by the government include: Ways and Means bills-which increase or extend the scope of a tax; Appropriation bills-which are introduced in the House following the adoption of Main or Supplementary Estimates or Interim Supply and authorize the withdrawal of funds from the Consolidated Revenue Fund; and Borrowing Authority bills-which seek authority to borrow money when public revenues are not adequate to cover government expenditures. Private Member's bills are initiated by Members who are not in Cabinet. These bills may not include financial provisions unless the Member has sought and zzbeen granted a Royal Recommendation. This occurs very rarely. Most private Members' bills are initiated in the House of Commons, but some originate in the Senate. Debate on private Member's bills takes place during the daily hour set aside for "Private Members' Business". Stages of a Bill Law-making is regarded as one of the most significant tasks of Parliament. It is therefore not surprising that the legislative process takes up a major portion of Parliament's time. The parliamentary stages described here are the culmination of a much longer process that starts with the proposal, formulation and drafting of a bill. In the Parliament of Canada, as in all legislative assemblies based on the British model, there is a clearly defined method for enacting legislation. A bill must go through a number of specific stages in the House of Commons and the Senate before it becomes law: notice of motion for leave to introduce and placement on Order Paper; preparation of a bill by a committee (where applicable); introduction and first reading; reference to a committee before second reading (where applicable); second reading and reference to a committee;


consideration in committee; report stage; third reading (and passage); consideration and passage by the Senate; passage of Senate amendments by the Commons (where applicable); Royal Assent, and coming into force. All bills must go through the same stages of the legislative process, but they do not necessarily follow the same route. Three possible avenues now exist for the adoption of legislation: After appropriate notice, a Minister or a Member may introduce a bill, which will be given first reading immediately. The bill is then debated generally at the second reading stage and sent to a committee for clause-by-clause study. A Minister may move that a bill be referred to a committee for study before second reading. A Minister or a Member may propose a motion that a committee be instructed to prepare a bill. A bill will be presented by the committee and carried through the second reading stage without debate or amendment. Regardless of the avenue that the sponsor decides to take, the bill will then have to go through report stage, be read a third time and sent to the Senate for passage before receiving Royal Assent. At the start of a new session, a government public bill may be reinstated at the stage it had reached at the time of prorogation, if the House agrees. Private Members' bills are automatically reinstated at the same stage. The process is complex, but a bill can become law only once the same text has been approved by both Houses of Parliament and received Royal Assent.

Notice The introduction of any public bill requires 48 hours' written notice. A Member or a Minister who intends to introduce a bill in the House of Commons must first give notice to the Clerk of the House before 6:00 p.m. (2:00 p.m. on Friday). The title of the bill to be introduced is then placed on the Notice Paper for the next sitting of the House. The day after it appears on the Notice Paper, the title of the bill will appear in the Order Paper for introduction in the House. The title will remain on the Order Paper until the day when the Member or Minister decides to introduce the bill. Once notice is given for the introduction of a bill, no further notice is required for motions to consider the bill at the other stages (with the exception of motions to amend at the report stage and motions to deal with Senate amendments). There are separate requirements that apply to the notice for private bills. There are special rules dealing with the introduction of bills that involve the expenditure of public funds and bills based on ways and means motions. Introduction and First Reading of Bills The first real stage in the legislative process is the introduction and first reading of the bill in the House of Commons. Once the notice period has passed, the Member or Minister seeks leave to introduce his or her bill when the item "Introduction of Government Bills" or "Introduction of Private Members' Bills" is called during Routine Proceedings. A Member normally provides a brief summary of the bill he or she is introducing. A Minister rarely provides any explanation when requesting leave to introduce a bill, but is permitted to and often does so later, under "Statements by Ministers", during Routine Proceedings. Second Reading and Referral of a Bill to a Committee The second reading stage of the legislative process gives Members an opportunity to debate the general scope of the bill. Unless a bill has been referred to committee prior to second reading, debate at this stage must focus on the principle of the bill and, accordingly, the text of the bill may not be amended before being read a second time and referred to committee.


The motion for second reading may be amended. Three types of amendments are permitted: a three months' or six months' hoist, which seeks to postpone consideration of the bill for three or six months; a reasoned amendment, which requests that the House not give second reading to a bill for a specific reason; or a motion to refer the subject matter of the bill to a committee. Referral of a Bill to Committee Before Second Reading A Minister may move that a government bill be referred to a committee before second reading. This allows members of a committee to examine the principle of a bill before approval by the House of Commons and to propose amendments to alter its scope. This procedure can also apply to bills based on Ways and Means motions. After the committee reports the bill to the House, the next stage is essentially a combination of the report stage and second reading. Members may propose amendments, after giving written notice two sitting days before the bill is debated in the Chamber. Once agreed to at report stage and read a second time, the bill is slated for third reading. Committee Stage of Bills Most bills are referred to the standing committee whose mandate most closely corresponds to the bill's subject matter. However, the House may choose to refer a bill to a legislative committee, a distinct type of committee created solely to undertake the consideration of legislation. A legislative committee is appointed by the House on an ad hoc basis to deal with a particular bill and ceases to exist once it presents its report to the House. This type of committee may also be created to prepare and bring a bill. The role of the committee is to review the text of the bill and approve or modify it. It is at this stage that witnesses may be invited to appear before the committee to present their views and answer members' questions. Once the witnesses have been heard, the committee proceeds to study the bill clause-by-clause. It is at this point that members may propose amendments to the bill. Each clause is considered separately. Once all the parts of the bill have been considered and adopted, with or without amendment, the committee votes on the bill as a whole. Once the bill is adopted, the Chair asks the committee for leave to report the bill to the House. Committees must report to the House on all bills referred to them. If numerous amendments have been adopted, the committee may order that the bill be reprinted for the use of the Members at report stage. Report Stage of a Bill Following consideration in committee, there is an opportunity for further study of the bill in the House during what is known as report stage. Members, particularly those who were not members of the committee, may, at this stage, propose motions to amend the text of the bill. Written notice is required and debate focuses on the amendments and not on the bill as a whole. Generally, the same rules relating to the admissibility of amendments proposed at committee stage apply to those at report stage. However, in order to prevent report stage from merely becoming a repetition of committee stage, the Speaker is authorized to select and group amendments for debate. The Speaker also determines whether each motion should be voted on separately or as part of a group. This ruling is made at the beginning of the report stage debate. The Speaker will not normally select any amendment that was considered, or could have been considered in committee, or amendments that were ruled inadmissible in committee. When deliberations at report stage are concluded, a motion is put forward to approve the bill (with any amendments). The question is put immediately, without amendment or debate. The wording of the motion will vary depending on whether or not the original bill was amended, and on the stage at which the amendments were made. There is no debate at report stage unless amendments are proposed. If the bill as reported by committee is adopted at report stage with no amendments it may go immediately to third reading for


adoption. A bill that has been reported by a Committee of the Whole, with or without amendment, must be put to a vote immediately at report stage and may proceed to third reading the same day. Third Reading and Adoption of Bills Third reading is the final stage that a bill must pass in the House of Commons. It is at this point that Members must decide whether the bill should be adopted. Debate at this stage of the legislative process focuses on the final form of the bill. The amendments that are admissible at this stage are similar to those at second reading stage. Amendments for a threeor six-month hoist, as well as reasoned amendments are permitted. An amendment to recommit the bill to a committee with instructions to reconsider certain clauses is also acceptable. Third reading and passage of a bill are moved in the same motion. Once the motion for third reading has been adopted, the Clerk of the House certifies that the bill has passed. The bill is then sent to the Senate with a message requesting that it consider the bill. Senate Consideration The Senate follows a legislative process that is very similar to the one in the House of Commons. In cases where the Senate adopts a Commons bill without amendment, a message is sent to the House of Commons to inform it that the bill has been passed and Royal Assent is normally granted shortly thereafter. Since most government bills originate in the House of Commons, the Government sometimes requests that the Senate consider a bill as quickly as possible. The Rules of the Senate of Canada provide for a procedure known as pre-study whereby the subject matter of a bill that has been introduced in the House of Commons, but has not yet been sent to the Senate, is sent to a Senate standing committee. In this way, the Senate can consider the bill and form its opinion even before it receives the bill from the House of Commons. When the bill is received, the Senate is then in a position to adopt or amend it within a very short time. The Senate often makes amendments to bills, some of which involve corrections to drafting errors or improvements to administrative aspects. The House normally accepts such amendments. If the House does not agree with the Senate amendments, it adopts a motion stating the reasons for its disagreement, which it communicates in a message to the Senate. If the Senate wishes the amendments to stand nonetheless, it sends a message back to the House, which then accepts or rejects the proposed changes. If an agreement cannot be reached by exchanging messages, the House that has possession of the bill may ask that a conference be held, although this practice has fallen into disuse. Royal Assent and Coming into force of Bill The ceremony of Royal Assent is one of the oldest of all parliamentary proceedings and brings all three elements of Parliament together (the Crown, the Senate and the House of Commons). Royal Assent is the stage that a bill must complete before officially becoming an Act of Parliament. A bill will not be given Royal Assent unless it has gone through all of the stages of the legislative process and been passed by both Houses in identical form. Royal Assent may be granted in one of two ways-through a written procedure and through the traditional ceremony, where Members of the House of Commons join with their Senate colleagues in the Senate Chamber. The written procedure involves the Clerk of the Parliaments (the Clerk of the Senate), or his or her Deputy, meeting with the Governor General, or his or her Deputy, to present the bills with a letter indicating that they have been passed by both Houses and requesting that the bills be assented to. An Act that has been given Royal Assent in written form is considered assented to on the day on which the two Houses of Parliament have been notified of the declaration. The Royal Assent Act preserves the traditional ceremony by requiring that it be used at least twice in each calendar year, including for the first bill in each session that authorizes government spending. The traditional procedure for Royal Assent involves a formal ceremony that takes place in the Senate Chamber. When the House is sitting it suspends its proceedings in order that its Members may proceed to the Senate Chamber, where the Governor General or his or her Deputy grants Royal Assent.


Once a bill has been granted Royal Assent, it becomes law and comes into force either on that date or at a date provided for within the Act or specified by an order of the Governor in Council. Private Bills Private bills differ from public bills by their intent, content and method of passage. A private bill relates directly to the affairs of an individual or group of individuals, including a corporation, named in the bill and is founded on a petition from an individual or group of individuals. Today, private legislation accounts for only a small percentage of House business. Private bills can originate in either the House of Commons or the Senate, although most originate in the Senate where the fees and charges imposed on the promoter are smaller. Private bills are subject to special rules in both Houses of Parliament. While private bills must pass through the basic stages common to all legislation, they must also meet certain parliamentary requirements that distinguish them procedurally from all other types of bills. A petition must be filed with the Clerk of Petitions who certifies that it conforms to the Standing Orders of the House of Commons and the practices of the House as to form and content. Notice of the bill must be published in the Canada Gazette. Once the petition for a private bill has been received, an official of the House, acting as the Examiner of Petitions for Private Bills, examines it to ensure that the requirements have been met regarding notice and the number of times it has been published in the Canada Gazette. If the petition is found to be in any way deficient it is sent to the Standing Committee on Procedure and House Affairs for further examination before being put before the House. Following first reading, it is ordered for second reading and is considered during Private Members' Business hour proceeding through the regular legislative stages. Four fundamental principles underlie and define private bill procedure as set out in the Standing Orders and the procedural authorities: A private bill should only be passed at the explicit request of the persons who are to benefit from the legislation. Pertinent information regarding a private bill should be made available to all interested persons. All persons or bodies affected by a private bill should be heard (during committee hearings) and the need for the bill demonstrated. The financial burden of considering a bill for the benefit of private interests should not be borne solely by the public treasury.


Craik Chapter 5 The Exercise of Executive Authority Notwithstanding the absence of a rigid separation of powers doctrine in Canada, it is still useful to speak about a distinct executive branch of government. The executive branch refers to those institutions in government that are responsible for implementing and enforcing laws, whether those laws are formulated by the legislature or, in the case of the common law, by the judiciary. Executive is not a not a single institution, consists of an assortment of instituions GG, Privy Council, Cabinet together with entities that operate at arms length from formal govt apparatus but nevertheless perform govt functions e.g. boards, tribunals, professional regulatory bodies, crown corporations. A clear set of legal principles governing the boundaries of executive powers and manner by which executive powers are to be exercised has been developed (namely administrative law). At the heart of administrative law is a requirement that government officials exercise their powers in furtherance of public, not private, interests. A similar expectation underlies the exercise of legislative powers, but in the case of legislators, public preferences are made know, and the creation of public policy is legitimized through democratic processes. Administrative actors, however, are generally not elected. In cases where administrative officials exercise narrow powers that are carefully defined through legislation, the democratic legitimacy of administrative decisions is derived from the close relationship between admin officials and the legislature. In circs where administrative officials exercise boarder discretion, much greater concerns as to whether that discretion is exerised in a way that is fair to those affectes and with sufficient regard to public interest. To a large degree, the legal rules that have developed in admin law have arisen so as to constrain the exercise of administrative discretion in ways that respect the intentions of the legislative branch and promote outcomes that take into account the public interest The rise of the administrative state in Canada The executive branch of government is not in itself a recent development. CA 1867 recognizes the formal institutions of the federal executive in ss9 through 16 and the provincial executive in ss58 through 68. In the early stage of devt of federal and provincial govt structures, role of govt conceived in narrow terms and executive was smaller in size and less extensive in scope. Over past century, role of govt has expanded and this drove the need for more decentralised, expert-driven bureaucracy. This means there is a weaker link between the decisionmakers and elected officials. LAW REFORM COMMISSION OF CANADA, INDEPENDENT ADMINISTRATIVE AGENCIES (1980)The growth of this structure is best described as an aspect of the evolution of government rather than as a planned constitutional development. Government in a general sense includes two functions- law making and administration. Since this 1980 report, the trend of growing size and pervasiveness of government activity has continued. In 2004, total public sector employment was in excess of 2.9 million, out of a total employment of just over 16 million, and total government expenditures reached almost of $500 billion compared with a gross domestic product of approx 1.3 trillion. In the 1990s there was some movement toward the privatization of government services. This trend saw the government divest ownership in Crown corporations such as AirCanada and Petro Canada. THE EXECUTIVE BRANCH DEFINED: A. THE CROWN:


S9 of the CA 1867 says, The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen. The Crown as a symbol of the Monarchy, is a reference to the executive itself. The Crown is the bearer of both legal rights and legal obligations. The crown can own property, enter into contracts and sue/be sued. Governments of the provinces and the federal government are each themselves distinct legal entities, notwithstanding the identification of each with the same Monarch. GG is the Queens rep in Canada and lieutenant general is Queens rep in each province. Constitutional Convention means they are bound to follow advice of PM/Cabinet. Cabinet is the collective decision-making committee comprising the PM and his ministers. But the CA 1867 does not mention the Cabinet refers to Queens Privy Council which is not technically the same thing as the federal Cabinet. Privy councillors are sworn for life Cabinet ministers serve for much less. All Cabinet ministers are privy councillors but not all Privy councillors are sitting Cabinet ministers members. By constitutional convention, privy councillors who are also in Cabinet are entitled to exercise powers of Privy Council. B. THE PM & CABINET: Together they comprise the ministry, a category called the government. Ministry and Cabinet are used interchangeably. Who sits at the Cabinet table is a political matter for the PM to decide. The PM presides over the cabinet but is first among equals in the ministry. PM has power to remove ministers. By constitutional convention the Prime Minister also possesses authority to exercise so-called personal prerogatives selects people that the GG technically appoints e.g. Senators, Chief Justices. Cabinet is, in the words of Peter Hogg, in most matters the supreme executive authority. It is the Cabinet that determines the legislative agenda of the government in Parliament and it is the Cabinet and its ministers that are responsible for the administration of the individual departments of the Government. The separation of the executive branch from the legislative branch is not, however, absolute. Two key elements of Responsible Government: 1. Cabinet members are drawn from the legislative branch, almost always the HC for the Federal cabinet. Ministers may hold office pending election to the Commons or while a senator, but all ministers are expected to also be members of the legislature. 2. Under the system of responsible government, the ministry is accountable to the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain the confidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in parliament for the activities of his or her department. In addition to Cabinet responsibilities, Cabinet ministers have administrative responsibility for depts under their charge, which may often include specific powers to make decisions that affect individuals. Sometimes, multiple roles of ministerial officials can give rise to a conflict of interest. Idziak v Canada [1992] where minister of justice could (i) decide to approve an extradition request and appoint an agent to prosecute at extradition hearing and, if the extradition judge decided to issue a warrant, (ii)for the minister to decide whether to surrender that person over. SCC rejected a claim of bias on the basis that: The extradition process has two distinct phases. The first, the judicial phase, encompasses the court proceedings which determine whether a factual and legal basis for extradition exists. If that process results in the issuance of a warrant of committal, then the second phase is activated. There, the Minister of Justice exercises his or her discretion in determining whether to issue a warrant of

surrender. The first decision-making phase is certainly judicial in its nature and warrants the application of the full panoply of procedural safeguards. By contrast, the second decision-making process is political in its nature. The Minister must weigh the representations of the fugitive against Canada's international treaty obligations. This is certainly not a case of a single official's acting as both judge and prosecutor in the same case. At the judicial phase the fugitive possesses the full panoply of procedural protection available in a court of law. At the ministerial phase, there is no longer a lis in existence. The fugitive has by then been judicially committed for extradition. The Act simply grants to the Minister a discretion as to whether to execute the judicially approved extradition by issuing a warrant of surrender. C. THE PUBLIC SERVICE: The employees of the various ministries of the Government, often referred to as civil servants, are also part of the executive branch. The civil servants are politically neutral and as such continue their employment with the government regardless of the political fortunes of the government of the day. Kenneth Kernaghan; a political scientist, identifies three principles that structure the relationship between the civil service and political officials within the government: Ministerial responsibility - requires that the presiding minister be held politically accountable for all matters arising within the department. Political neutrality - requires that civil servants carry out their responsibilities loyally to the government in power without regard for the civil servants own political views. Public servants are restricted in their ability to engage in partisan political activities and cannot express publicly their personal views on policy issues. Public service anonymity as a consequence of the above 2 principles, it follows that the bureaucrats should be held accountable to their political overseers, but are not answerable to Parliament. Public service neutrality traditionally understood as a constitutional convention but Sossin has argued that there is a dense web of legal norms that also suggest there is protection of a whistleblowing exception to the duty of loyalty, protection against improper political interference in administrative decisionmaking, objective guarantees of the separation of powers merit principle for hiring and promotion (protects against patronage) and security of tenure. The loyalty owed by civil servants is not boundless, but requires that civil servants refrain from public criticism of government policies: Fraser v Canada [1985]The appellant, who was an employee of Revenue Canada, was discharged after repeatedly criticizing the governments policies regarding metrification. Dickson CJ - the federal public service in Canada is part of the executive branch of government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third. As a general rule, federal public servants should be loyal to their employer, the Government of Canada (not the political party in power at any one time). There is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service. If restrictions on the political activities of public servants were withdrawn two results would probably follow. The public might cease to believe in the impartiality of the permanent Civil


Service; and Ministers might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates; indeed they might be led to scrutinise the utterances or writings of such subordinates, and to select for positions of confidence only those whose sentiments were known to be in political sympathy with their own. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government. In two Supreme Court of Canada decisions, OPESEU v Ontario (AG) [1987] and Osborne v Canada [1991] both cases acknowledged the existence of a constitutional convention of public service neutrality and affirmed its importance as a principle of executive governance. OPESEU Ontario legislation restricting provincial civil servants political activities was upheld as valid and not subject to Charter scrutiny Osbornelegislation was struck down as contrary to the right to free expression under Charter concern for court was the way in which it applied to all civil servants regardless of the work they did. Now only senior members of bureaucracy are restricted from political activity. D. INDEPENDENT ADMINISTRATIVE AGENCIES: As a matter of express constitutional recognition and constitutional convention, the formal executive bodies are limited to the governor general and lieutenant governors, the federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers. However, executive functions are also carried out by a variety of bodies that have a measure of independence from the government, for a number of reasons.e.g. the legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency so creates a specialised tribunal to adjudicate individual cases free from direct govt oversight such as Immigration and Refugee Board. Also, particular kind of expertise might be needed - Independent admin bodies appear in a broad range of forms depending on their function - An administrative body is the product of the legislative instrument that creates it - As a constitutional matter, adjudicative admin bodies do not have to be independent, although there may be circumstances which require their independence. Independence may facilitate specialization because of the restricted mandate of an administrative agency, as opposed to a government department. The provisions establishing the Canadian Human Rights Commission are typical of the statutory provisions used to create an independent administrative body. The Canadian Human Rights Commission is a creation of the federal government, with the commissioners themselves being appointed by the governor in council. The independence of the commissioners is established through the provision of security of tenure to the commissioners who may only be removed upon the address of both Houses Section 27, confers powers including the ability to undertake reviews of regulatory instruments for the purpose of ensuring their adherence to the anti-discriminatory purposes of the Act and to enact


binding guidelines regarding the application of the Act. Also has authority to investigate human rights complaints against the government making independence from the govt critical Canadian Human Rights Tribunal also created to investigate human rights complaints. Independent from the Commission. Commission has broad powers to investigate discriminitory practices and seek resolution of complaints. Tribunal acts in a quasi-judicial capacity. Commission may appear before tribunal and must represent the public interest. The Supreme Court has recognized that where a body exercises power of a sort triggering s7 of the Charter (depriviation of life liberty or security of the person in the absence of fundamental justice) or s2(e)of Canadian Bill of Rights (no law may deprive a person f the right to a fair hearing in accordance with principles of fundamental justice), some measure of independence may be required of the organization. In Bell Canada v Communications [2003]- the court held that by virtue of the Canadian Bill of Rights, the Canadian Human Rights Tribunal must behave at least some independence guarantees. But in Ocean Port Hotel v British Columbia [2001], the Supreme Court drew a sharp distinction between administrative tribunals and decision makers, as emanations of the executive that must take their policy direction from the legislature, and the courts, which are protected by the constitutional principle of judicial independence. Ocean Port Hotel v British Columbia [2001] Hotel has challenged the institutional independence of the British Columbia liquor board on the basis that its appeal board members lacked security of tenure. The Liquor Control and Licensing Act allowed for tenure at pleasure. The practice was to appoint members on a fixed-term part time basis. All members but the chair were paid on a per diem basis. The Court of Appeal held that the Board was not institutionally independent. Held: Like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. Ultimately, it is Parliament or the legislature that determines the nature of a tribunals relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislators intention in assessing the degree of independence required of the tribunal in question. This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. It protected, and continues to protect, the impartiality of judges both in fact and perception by insulating them from external influence, most notably the influence of the executive: Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular


tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. I can find no basis upon which to extend the constitutional guarantee of judicial independence that animated the Provincial Court Judges Reference to the Liquor Appeal Board. The Board is not a court, nor does it approach the constitutional role of the courts. It is first and foremost a licensing body. The suspension complained of was an incident of the Boards licensing function. Licences are granted on condition of compliance with the Act, and can be suspended for non-compliance. The exercise of power here at issue falls squarely within the executive power of the provincial government. E. CROWN CORPORATIONS: The Canadian Human Rights Commission is not created as a separate legal entity, although it does have statutory authority to enact internal bylaws and to enter into contracts. However, it is not uncommon for administrative bodies to be created that have a legal personality separate from the government. The principle justification for the creation of Crown corporations is that where there is a strong commercial aspect to the government service, it may require that decisions be made free from political influences that may unduly interfere with commercial objectives. Additionally, the commercial nature of some activities may be ill-suited to government departmental structures If crown corporations were solely concerned with commercial objectives, there would belittle incentive to resort to the creation of a Crown Corporation, as opposed to a wholly private sector approach. It follows that crown corporations will have public objectives. The private and public objectives of Crown corporations require the government to balance the operational benefits of independence and the need for accountability. Financial Administration Act imposes standardised governance and accountability requirements on Crown courts. Also allows govt to intervene in management by directing the board of directors. F. MUNICIPALITIES: In many cases it is desirable that service delivery account for local circumstances and local values. This is an important justification for the system of local government that exists in Canada. Municipalities, where are created under provincial legislation, deliver a wide range of public services, such as the provision of road, sewer, and water services. Municipalities also have a significant policymaking function in matters that affect local residents; generally this power is enacted through bylaws. They are considered a distinct level of government in Canada. But this may be misleading, on one hand, municipalities operate independently from provincial governments that created them. Moreover, because municipal councils are elected, their democratic legitimacy is independent from that of the provincial legislature. But not a distinct level of govt as not a constitutionally recognised level of government. Like other administrative bodies, they are subject to regulatory qualification placed on them by superior levels of government. East York (Borough) v. Ontario (AG) (1997) Facts: This was an appeal from a decision dismissing an application by the Borough of East York and others to strike down the City of Toronto Act on the grounds that it violated the Charter and was ultra vires the Ontario provinces authority under the Constitution Act, 1867. The City of Toronto Act created the new City of Toronto.


Decision and Reasoning: S. 92 of the Constitution Act, 1867 allocated power over municipal institutions to provincial governments (including right to amalgamate municipal bodies and establish their geographic boundaries. There was no constitutional convention or norm prohibiting provinces from changing municipal institutions without their consent. The Courts could only intervene if the provincial government committed a legal, as opposed to political, impropriety. Shell Canada Products Ltd. v. Vancouver (1994) SCC Facts: Appellant, a subsidiary of Shell Canada Ltd. involved in retail and wholesale marketing of petroleum products in Vancouver, was periodically invited to tender bids for municipal contracts to supply petroleum products until the city council passed resolutions that the city would not do business with Shell until Royal Dutch/Shell completely withdraws from South Africa. In fact, the city itself purchased petroleum products from another company which, through one of its subsidiaries, also did business with South Africa. In an action by appellant, the British Columbia Supreme Court quashed the resolutions as being ultra vires the municipality. The Court of appeal reversed the judgment. Per McLaughlin J (dissent) Recent commentary suggests an emerging consensus that 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. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives. First, it adheres to the fundamental axiom that courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them. This is important to the continued healthy functioning of democracy at the municipal level. If municipalities are to be able to respond to the needs and wishes of their citizens, they must be given broad jurisdiction to make local decisions reflecting local values. Second, a generous approach to municipal powers will aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation. Excessive judicial interference in municipal decision-making can have the unintended and unfortunate result of large amounts of public funds being expended by municipal councils in the attempt to defend the validity of their exercise of statutory powers. The object of judicial review of municipal powers should be to accord municipalities the autonomy to undertake their activities without judicial interference unless clearly warranted. Thirdly, a generous approach to municipal powers is arguably more in keeping with the true nature of modern municipalities. Municipal councils should be free to define for themselves, as much as possible, the scope of their statutory authority. The voters of a community give their elected council members the final judgment in this controversy. Whether the councillors are right or wrong in their judgment depends on the vantage point of the person making this assessment, but in any event, this is the decision they were elected to make. There may, in fact, be no right or wrong in the matter. Persons displeased with a council's decision have "a remedy at the polls". My colleague adopts a narrow view of the welfare of the inhabitants of the City. He asserts that the City's Resolutions effect a purpose "without any identifiable benefit to its inhabitants" (p. 280) and speaks of "matters external to the interests of the citizens" (p. 279). He appears to define "municipal purposes" essentially in terms of provision of basic services to the inhabitants of the City.


I would cast the proper functions of a municipality in a larger mould. The term "welfare of the citizens", it seems to me, is capable of embracing not only their immediate needs, but also the psychological welfare of the citizens as members of a community who have an interest in expressing their identity as a community. Our language recognizes this: we speak of civic spirit, of city pride. This suggests that City Council may properly take measures related to fostering and maintaining this sense of community identity and pride. Among such measures may be found community expression of disapproval or approval of different types of conduct, wherever it is found. The right of free expression, one of the most fundamental values of our society, may be exercised individually or collectively. Are the citizens of a city to be prevented from expressing through their elected representatives their disapproval of conduct which they feel to be improper? Are they to be forced to do business with a firm whose conduct they see as objectionable, simply because the conduct occurs outside the territorial boundaries of the city? Can the desire of the citizens' elected representatives to express their views on such matters and to withdraw support for the conduct to which they object by refusing to do business with its perpetrators be said to be totally unrelated to the welfare and interests of the citizens of the city? To all these questions I would answer no. Per Majority: The suggestion that the only remedy is at the polls is of no value to the minority who would be left with no remedy and Council could continue to enlarge its statutory powers as long as it was able to retain its majority support. The public policy in favour of restricting a municipality to its statutory powers exists as much for the minority as for the majority. ***** Majority was concened with open-ended nature of authorising provision relied on by Vancouver. 114957 Canada Lte (Spraytech, Socit darrosage) v. Hudson (Town), [2001] It appears to be sound legislative and administrative policy, under such provisions, to grant local governments a residual authority to deal with the unforeseen or changing circumstances, and to address emerging or changing issues concerning the welfare of the local community living within their territory. Nevertheless, such a provision cannot be construed as an open and unlimited grant of provincial powers. It is not enough that a particular issue has become a pressing concern in the opinion of a local community. This concern must relate to problems that engage the community as a local entity, not a member of the broader polity. It must be closely related to the immediate interests of the community within the territorial limits defined by the legislature in a matter where local governments may usefully intervene. In Shell Canada Products Ltd. v. Vancouver(City), [1994] 1 S.C.R. 231, the Court emphasized the local ambit of such power. It does not allow local governments and communities to exercise powers in questions that lie outside the traditional area of municipal interests, even if municipal powers should be interpreted broadly and generously. Concept of subsidiarity introduced by SCC into governance-related disputes. This is This is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity. This assumes that local govts are more democratically responsive. Is this true given the low voter turnout rates in municipal elections. extra-territorial purpose of the resolution was improper. McLaughin dissenting.G. G. ENFORCEMENT BODIES: POLICE AND PROSECUTORS: The executive branch of the government is required to enforce govt policy and also enforce policies that have force of law. Enforcement duties fall primarily on (i) the police, to maintain order and to investigate illegal conduct, and (ii) to prosecutors.


In common law, police and prosecutors have been distinguished from other civil servants in that their enforcement duties they are not subject to political oversight in the sense that they must exercise their powers without discretion from political officials or in furtherance of partisan political activities. But they cannot operate without accountability for their actions. The two cases below consider accountability and independence in the context of enforcement. R. v. Campbell (1999) SCC Facts: Appeal from conviction by Campbell and Shirose. The appellants were caught in a reverse sting operation in which the RCMP sold a large quantity of hashish to a drug trafficking organization. Crown argued that any illegal conduct by RCMP should be subject to Crown immunity. Held: The Crowns attempt to identify the RCMP with the Crown for immunity purposes misconceives the relationship between the police and the executive government when the police are engaged in law enforcement. 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. Under the authority of that Act, it is true, RCMP officers perform a myriad of functions apart from the investigation of crimes. It is therefore possible that in one or other of its roles (e.g. purely ceremonial duties, the protection of Canadian dignitaries and foreign diplomats and activities associated with crime prevention) the RCMP could be acting in an agency relationship with the Crown. In this appeal, however, we are concerned only with the status of an RCMP officer in the course of a criminal investigation, and in that regard the police are independent of the control of the executive government. [A constables] authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master. While for certain purposes the Commissioner of the RCMP reports to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner 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. As Lord Denning put it in relation to the Commissioner of Police in R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), at p. 769: I have no hesitation, however, in holding that, like every constable in the land, he [the Commissioner of Police] should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the Police Act 1964 the Secretary of State can call on him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. [Emphasis added.] Krieger v. Law Society of Alberta (2002) SCC Facts: Krieger was assigned as Crown prosecutor in a murder trial against Ward. He received preliminary blood test results implicating a person other than Ward, but advised Wards counsel that


the test results would not be available before the preliminary inquiry. K sought to prevent Law Society from reviewing the matter on the basis that to do so would interfere with exercise of prosecutorial discretion. Decision and Reasoning: The Society had the jurisdiction to regulate the conduct of all Alberta lawyers, including Crown prosecutors. The Society had the jurisdiction to review the conduct of a prosecutor to determine whether he or she acted dishonestly or in bad faith by failing to disclose information in a timely manner. This was so notwithstanding that the prosecutors employer, the Attorney General, had reviewed Kriegers conduct from the perspective of an employer. This case also discusses the nature and development of the AGs office in Canada: The power of Attorney General to manage prosecutions of individuals for criminal acts has changed little since these early times and between Canada and England. The original power of the Attorney General was and is of initiating, managing and terminating both private and public prosecutions. In Canada, the office of the Attorney General is one with constitutional dimensions recognized in the Constitution Act, 1867. Although the specific duties conventionally exercised by the Attorney General are not enumerated, s. 135 of that Act provides for the extension of the authority and duties of that office as existing prior to Confederation. Attorneys General in this country are, of course, charged with duties beyond the management of prosecutions. They serve as Law Officers to their respective legislatures, and are responsible for providing legal advice to the various government departments. In Canada, the Attorney General is also the Minister of Justice and is generally responsible for drafting the legislation tabled by the government of the day. The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney Generals role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government. In the U.K., this concern has resulted in the long tradition that the Attorney General not sit as a member of Cabinet. Unlike the U.K., Cabinet membership prevails in this country. However, the concern remains the same, and is amplified by the fact that the Attorney General is not only a member of Cabinet but also Minister of Justice, and in that role holds a position with partisan political aspects. Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the U.K. It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. This side of the Attorney Generals independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. In Prosecutorial Discretion: A Reply to David Vanek (1987-88), 30 Crim. L.Q. 378, at pp. 378-80, J. A. Ramsay expands on the rationale underlying judicial deference to prosecutorial discretion: ... It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartial tribunal. If the court is to review the prosecutors exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal. [Emphasis in original.]


SOURCES OF EXECUTIVE POWER: Executive power flows from royal prerogative and statutory delegation. A. PREROGATIVE POWERS: They are powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown. Residual in the sense that historically the power of the Crown pre-existed that of the legislature and as a result prerogative powers are those that have remained with the Crown. In exercising prerogative powers, the crown is restricted to executive acts. Consequently, the Crown cannot exercise legislative powers pursuant to its prerogative, nor can it exercise judicial powers. Where the legislature enacts a statute in relation to a matter previously exercised through prerogative powers, the statute has the effect of superseding the prerogative power. At the present time the powers exercised by way of prerogative include many of the Crowns powers of appointment, and powers relating to foreign affairs, such as declarations of war, the appointment of ambassadors, and the issuing of passports. There has been some legal debate over who in the executive can exercise prerogative powers and whether these powers can be subjected to judicial oversight. These questions are considered in the following excerpt from Black v Chrtien , a case involving a decision by the Prime Minister to recommend against the conferral of a foreign honour on a Canadian citizen. Black v Chrtien (2001)Facts: Appeal by Conrad Black from the dismissal of his action against the Prime Minister of Canada and the Attorney General for abuse of power, misfeasance in public office and negligence. Black was nominated for appointment by the Queen as a peer. Black was a Canadian citizen who was ordinarily residing in England. He later obtained dual citizenship. The Prime Minister intervened to oppose the peerage. Black sought a declaration that the Prime Minister had no right to advise the Queen not to confer the honour on him and that his intervention constituted an abuse of power. Black also alleged that the government negligently misrepresented to him that he would be entitled to receive a peerage if he became a dual citizen and refrained from using the title in Canada. Decision and Reasoning: Appeal dismissed. The Prime Minister was exercising his honours prerogative when he advised the Queen about the conferral of an honour on Black. The exercise of this prerogative was not justiciable. Black did not have a legitimate expectation of receiving an honour. The Crown prerogative is the residue of discretionary authority, which at any given time is left in the hands of the Crown. It is a branch of the common law. By virtue of parliamentary supremacy, crown prerogative can be limited or displaced by statute. The prerogative re granting of honours has never been displaced by statute in Canada and so the Crown prerogative is not exercised only by the Governor General to the extent that the GG exercises the prerogative as the Queens representative, s/he does so on the advice of the PM or cabinet. PM and Ministers may also exercise the Crown prerogative. The crown prerogative is an instrument of government and source of executive power (e.g. it enables the PM to speak for Canada re foreign affairs). Court decisions define prerogatives existence and scope, and whether it has been superseded by statute but that is all once court established existence and scope, could not review how the power was exercised. Now, however, an exercise of prerogative would be subject to the Charter, which applies to Parliament/legislatures and governments (Black did not claim a Charter infringement) exercises of prerogative which are justiciable in that they affect individual rights are subject to judicial review.


The ability of the individual to seek relief should not turn on whether the action was pursuant to statutory power or prerogative. Denial of an honour has no adverse consequences to the person affected (no impact on liberty, property, economic interests). The doctrine of legitimate expectations gives rise only to a duty of procedural fairness, not rights. Even if it gave rise to substantive rights, no one has a right to, or legitimate expectation of, an honour. Honours are totally discretionary there is no legal component to warrant the Courts intervention. Since the honours prerogative is beyond judicial review, the manner in which it was exercised is also beyond review even if wrong, careless, negligent, motivated by improper motives. Note a prerogative to issue passports might be subject to review refusal to grant can have adverse consequences for an individual applicant.

B. STATUTORY POWERS The majority of executive powers originate from a delegation of authority by the legislature by statute. Few restraints on legislatures ability to delegate powers to administrative bodies (parliamentary sovereignty), but the powers delegated must conform to the Constitution, and another rule which says that no delegate can be authorized to exercise absolute discretion (Ronceralli v Duplesis) Legislatures can delegate power to executive, but cannot delegate powers the exceed their powers. This is in s32 of the Charter. Another reoccurring argument that is made in relation to delegation is that a delegation must not amount to a complete abdication of legislative authority. This argument was considered by the Supreme court of Canada in Re Gray (1918), a case that considered the sweeping delegation of authority to the GG in council under the War Measures Act 1914. Re Gray (1918) In effect, the War Measures Act transferred to the federal cabinet virtually the whole legislative authority of Parliament for the duration of the war. Decision and Reasoning: Even a delegation as sweeping as this one was valid. However, the power of delegation was not absolute and an abdication, abandonment or surrender of Parliaments powers would be invalid. Parliament cannot abdicate its functions, but in accordance with parliamentary supremacy can delegate its powers to the executive. The delegation must be subject to termination by Parliament at any time. Anglin CJ: It seems to me obvious that parliament intended, as the language used implies, to clothe the executive with the widest powers in time of danger. Taken literally, the language of the section contains unlimited powers. Parliament expressly enacted that, when need arises, the executive may for the common defence make such orders and regulations as they may deem necessary or advisable for the security, peace, order and welfare of Canada. The enlightened men who framed that section, and the members of parliament who adopted it, were providing for a very great emergency, and they must be understood to have employed words in their natural sense, and to have intended what they have said.


There is no doubt, in my opinion, that the regulation in question was passed to provide for the security and welfare of Canada and it is therefore intra vires of the statute under which it purports to be made. There are obvious objections of a political character to the practice of executive legislation in this country because of local conditions. But these objections should have been urged when the regulations were submitted to parliament for its approval, or better still when the "War Measures Act" was being discussed. Parliament was the delegating authority, and it was for that body to put any limitations on the power conferred upon the executive. I am not aware that the authority to pass these regulations was questioned by a vote in either house. Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country is the supreme law against which no other law can prevail. It is our clear duty to give effect to their patriotic intention. A complete abdication by Parliament of its legislative functions is something so inconceivable that the constitutionality of an attempt to do anything of the kind need not be considered. Short of such an abdication, any limited delegation would seem to be within the ambit of a legislative jurisdiction certainly as wide as that of which it has been said by incontrovertible authority that it is as plenary and as ample * * * as the Imperial Parliament in the plenitude of its powers possessed and could bestow. NOTE seems as if anything can be delegated provided it isnt permanent? ******* A related principle that constrains the ability of legislatures to delegate authority requires that neither the federal Parliament nor the Provincial legislatures may delegate legislative powers to the other. The basis of this rule is that an inter-delegation would upset the constitutional division of powers contained in ss91 and 92 of the CA 1867. In Nova Scotia Inter-delegation [1951]- the Supreme Court of Canada was required to consider the constitutionality of a scheme by which provincial powers regarding employment matters would be delegated to the federal parliament and certain taxation powers would be delegated from Parliament to the Nova Scotia legislature in order to facilitate an unemployment insurance scheme. G NS v AG Canada (Nova Scotia Inter-delegation) (1951) 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. 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 neither of these bodies and the Imperial Parliament. 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. Since neither Parliament or NS legilsature us a creature nor subordinate body of the other, the question is not only or cheifly whether one can delegate, but whether the other can accept. Delegation implies subordination. Subordination, as so considered, is constitutional subordination and not that implied in the relation of delegate. Sovereign states can and do confer and accept temporary transfers of jurisdiction under which they enact their own laws within the territory of others; but the exercise of delegation by one for another would be an incongruity; for the enactments of a state are of its own laws, not those of another state. Subordination implies duty: delegation is not made to be accepted or acted upon at the will of the delegate; it is ancillary to legislation which the appropriate legislature thinks desirable; and a duty to act either by enacting or by exercising a conferred discretion not, at the particular time, to act, rests upon the delegate. No such duty could be imposed upon or accepted by a co-ordinate legislature and the proposed bill does no more than to proffer authority to be exercised by the delegate solely of its own volition and, for its own purposes, as a discretionary privilege. Even in the case of virtually unlimited delegation as under the Poor Act of England, assuming that degree to be open to Canadian legislature, the delegate is directly amenable to his principal for his execution of the authority. ******* Shorly after the above case, SCC had another inter-delegation scheme but this time it was from Parliament to a provincially created administrative body authority to market potatoes from PEI to the provincial marketing board. SCC found this to be unobjectionable because it was to an admin body not another legislature PEI Potato Marketing Board v. Willis [1952] Difference is the democratic expectations of the legislature must be seen as acting free of allegiances to other bodies cf. administrative body where the body is expected to exercise power in accordance with requirements of the delegating body. But what about where legislature imparts judicial functions on an administrative body? See Re Residential Tenancies line of cases re test. THE NATURE & FUNCTION OF DELEGATED POWERS Delegated authority has been granted in virtually every area of public policy. The characterization of the exercise of delegated authority in terms of function has historic legal significance in that many of the rules respecting the exercise of delegated authority varied depending on thenature of the powers exercised. For ex. Common law courts developed a set of procedural requirements, aka the rules of natural justice that applied to decisions that were characterized as judicial or quasi-judicial, but not those decisions that were classified as legislative or administrative in nature. In last 25 years, this classification approach has given way to a general duty to be fair. A. RULE MAKING


The rise in the use of the executive bodies to create rules of general application parallels the more general rise of administrative bodies. The most common form of administrative rule making is regulation-making power delegated to the Cabinet through the governor in council but there is also delegation to other bodies than Cabinet e.g. municipal bylaws and agency-developed policies and guidelines. The legal effect of delegated legislation is determined by the parent legislation. In the case of regs and municipal by-laws, these instruments are as effective as legislation as they give rise to legally enforceable obligations. Delegated legislation still considered inferior to statutes in a direct conflict (cant comply with one and not breach the other) statute will always prevail. No conflict arises where the regulatory requirements of delegated legislation are more onerous than the statute. The benefits of resorting to delegated forms of legislation relate chiefly to the relative flexibility of regulations. Statutory process is more cumbersome and time consuming than process for enacting regulations. In many cases, impossible for for legislators to know in advance the circs that will require specialised rules. Delegation allows for rule creation for those with specialised knowledge. Canadian Human Rights Act is a good eg. HRC is given authority to issue binding guidelines. In the Bell Canada case the court noted the HRCs superior ability to make interpretive guideliunes in order to ensure that the Act is applied in ways that are supportive of the Acts goal of identifying and rectifying discrimination. Expansive use of delegated legislation has led to concerns over the amount of scrutiny by elected officials and the public that regulations receive. Multiple readings of a bill give interested groups and opposition party a chance to consider and comment. Regs are able to be implemented without prior notice or consultation. Problem is the regulations tend to be what impact citizens directly. Courts generally have nto been willing to extend admin law procedural obligations (re notice and right be heard) to Executives rule-making functions. Courts more willing to impose procedural obligations in rule-making processes where the legislative outcomes gave a particular impact on specific individuals. E.g landuse bylaws courts look past formal legislative nature of decision in imposing procedural obligations on municipal councils eg- Homex In practice, regulation making is usually a fairly open activity, by virtue of government policy and some statutory law. Statutory Instruments Act and Statutory Instruments Regulations set out basic legal requirements that must be followed in connection with enactment of subordinate legislation includes and examination of instrument to ensure its legality and publication in the Gazette. 2007 Cabinet Directive on Streamlining Regulation 2007 sets out requirements for the assessment of regulatory proposals and procedures for notice and consultation. General rule federal regs need to be prepublished in Gazette fro a 30 day comment period. Following objectives need to be achieved by this regulatory assessment process: protect and advance the public interest in health, safety and security, the quality of the environment, and the social and economic well-being of Canadians, as expressed by Parliament in legislation; promote a fair and competitive market economy that encourages entrepreneurship, investment, and innovation; make decisions based on evidence and the best available knowledge and science in Canada and worldwide, while recognizing that the application of precaution may be necessary when there is an absence of full scientific certainty and a risk of serious or irreversible harm; create accessible, understandable, and responsive regulation through inclusiveness, transparency, accountability, and public scrutiny;


advance the efficiency and effectiveness of regulation by ascertaining that the benefits of regulation justify the costs, by focussing human and financial resources where they can do the most good, and by demonstrating tangible results for Canadians; and require timeliness, policy coherence, and minimal duplication throughout the regulatory process by consulting, coordinating, and cooperating across the federal government, with other governments in Canada and abroad, and with businesses and Canadians. Creation of the statutory instrument is through an executive order signed by governor in council, minister or authorised person. Legally effective once registerd by the Clerk of Privy Council and published in Gazette. Since 1986, House of Commons can issue and order revoking a statutory instrument - disallowance procedure.

B. DISPUTE RESOLUTION: It is common for tribunals be created to hear and decide specific kinds of disputes. Similar 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. Some tribunals are created to hear appeals. It is flexible and a good alternative to litigation in court. Sometimes dispute resolution mechanisms are not in a highly legalised form. Also, not necessary to have a law background can be experts in the policy area of the tribunal. Also, can take into account non legal considerations such as policy that a court cannot (court bound by rules of law and equity). Cloverdale Shopping Centre Ltd. V. Etobicoke (OCA 1966) (277) Per Ontario Court of Appeal The funtion of the Board and the Minister is administrative in character. The decision to be made transcends the interests of the immediate parties. The Board is not deciding a lis (an issue between parties), rather, it must assess the issues in light of the public interest (re health, safety, convenience or welfare of inhabitants, requirements for land uses, communications and public services). The Board is required to act judicially meaning that the parties are entitled to a full and fair hearing of their submissions. But, even if objections to the project are valid and important, they may be overruled on policy grounds. The Board exercises a range of functions. Some are strictly judicial; some are policy decisions, some are a hybrid. C. BENEFIT OR OBLIGATION DETERMINATION: Most prevalent and diverse group of administrative decisionmakers are those who determine whether a person will be granted a particular public benefit, welfare or issuance of a licence or subject to tax or other obligation or a penalty. Benefit determinations will often have distributive consequences that require decisionmakers to confer a certain benefit, such as a broadcast license on some but not others raises fairness concerns. May require them to attach complex sets of conditions to an approval, as is the case with many landuse approvals. Obligation determinations are different they are usually initiated by the imposing agency, leaving the affected person to take affirmative steps to protect his or her interests, if he or she feels aggrieved.


The desire for fairness in individual cases is often in conflict with the need for administrative efficiency e.g. Immigration and Refugee Board made 25,000 refugee determinations in 2009/10 and left 63,000 claims pending. Lack of contact between decisionmaker and applicant and lowlevel staff making decisions? D. ENFORCEMENT DECISIONS: A final area of delegated authority is those decisions and actions that are required to promote compliance with legal obligations. The executive branch uses police and prosecutors to investigate and prosecute violations of law. Where this body finds reasonable grounds for violation of legal requirements, the statute may empower the investigator to lay information in order to initiate proceedings before a court or allow the penalty to be imposed by the investigating agency or administrative tribunal e.g. Human Rights Act Tribunal can make inquiries into complaints and impose remedial sanctions. E. OVERLAPPING FUNCTIONS Any one administrative body can carry out a variety of administrative functions. HRC is an example rule making (issues guidelines), investigatory powers re discrimination complaints. .LIMITS ON THE EXERCISE OF DELEGATED AUTHORITY: Once authority is delegated to an administrative actor the law imposes a rigourous set of limitations on the exercise of power by the recipient of delegated authority. The overarching principle that governs the exercise of delegated authority is that it must be exercised within the confines of the delegation itself. The delegates have no jurisdiction to act. Doing so would mean they are acting unlawful which is ultra vires. A. CONTROLLING JURISDICTION: ULTRA VIRES:The rule that a delegated authority can exercise only those powers that are granted to it is conceptually straightforward and tends toturn on questions of the interpretation of the authorizing legislation. For ex: Shell v Vancouver , there was no disagreement on the general rule that administrative bodies, in that case municipalities, must stay within the powers conferred on them by provincial status (Sopinka J) but McLaughlin J and the majority disagreed in respect of the proper interpretation of the statutory provision relied upon in support of the municipalitys decision. B. CONTROLLING PROCEDURES: THE DUTY TO BE FAIR: Administrative decision makers are generally required by the common law to act fairly toward those persons affected by their decisions. Aka procedural fairness. The essence of the content of the rules of natural justice was captured by the two maxims, audialteram partem-the right of a person to know and answer the case against him or her and nemo judex in sua causarequiring that a person not be the judge in his or her own cause (so he is not biased). For instance in Knight v Indian Head School Division [1990]K was employed by the appellant on a contractual basis but was dismissed when the A would not agree to a longer term for the renewal of the contract. He argued he was owed a duty of fairness prior to being dismissed. The existence of a general duty to act fairly will depend on the consideration of three factors 1. The nature of the decision to be made by the admin body 2. The relationship existing between that body and the individual 3. The effect of that decision on the individuals rights. In the Nicholson case, it was held, I would agree that notice of reasons for dismissal, and the respondents employment and affording him an opportunity to be heard would be sufficient to meet the requirement of fairness.


Baker v Canada [1999]A lady from Jamaica was in Canada illegally for 11 years but had kids and was ordered to be deported andthe immigration board failed to provide reasons for her deportation. The childrens welfare was a concern as well. [48]- I do notbelieve that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer. It would appear to a reasonable observer that his own frustration with the system interfered with his duty to consider impartially and I conclude that there is a reasonable apprehension of bias. C. CONTROLLING DISCRETION: BAD FAITH, IMPROPER PURPOSES, AND IRRELEVANT CONSIDERATIONS: Where administrative actions are attacked on the basis of bad faith, it is not necessary for the aggrieved person to show that the decisionmaker acted with mal fides. On the other hand, bad faith should be distinguished from unreasonableness. This distinction is important because in many administrative contexts, the discretion of the decision maker includes the right to make decisions that may be unreasonable. Bad faith goes beyond unreasonableness and amounts to a jurisdictional error since it is implied that the legislature would not have intended for a delegated authority to act for some improper and ulterior purpose. Equity Waste Management of Canada Corp v Halton Hills (1997)Here a municipal land-use bylaw was attacked by the affected landowners on the basis that the bylaw was passed for reasons of political expediency and not for land-use planning reasons, a purpose that was alleged to have amounted to bad faith. Laskin J held, I acknowledge that appeasing a group of residents out of self-interest may support a finding of bad faith. But such cases must be rare. A court should not be quick to find bad faith because members express strong views against a project. This evidence falls short of showing bad faith by the Council. The respondents bear the onus of proving bad faith, and I am satisfied that they have done so. Relevant considerations, in contrast, are those that may be properly considered by the decision maker, but a failure to do so is not fatal to the decision. But where they take into account irrelevant considerationsthat is, those that are extraneous to the exercise of discretion, thedecision maker makes an error; jurisdictional errors. In Baker v Canada , although there was procedural unfairness, there was also irrelevant considerations. The officer focused on her using up Canadian social welfare instead of what was relevant, the welfare of the children. Where the interests of children are minimized, in a manner inconsistent with Canadas humanitarian and compassionate tradition and the Members guidelines, the decision will be unreasonable


Craik Chapter 6 The Courts and the Judiciary STRUCTURE OF THE CANADIAN COURT SYSTEM: A. CONSTITUTIONAL FRAMEWORK OF THE JUCIDIARY The starting point is the CA 1867. In relation to the judiciary, it crafts a courts system that straddles the federal-provincial division of powers. To this end, s 92(14) gives exclusive power to the provincial legislatures with respect to: the administration of justice in the Province, including the constitution. Maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and civil matters. And yet s93 provides the GG shall appoint the judges of the courts, and the federal government is responsible for judges salaries, and pensions (s100). This means the provincial govts create the s96 courts (superior courts) but federal govt appoints the judges to these courts and pays their salary. Effort by 1867 Act drafters to maintain federal control over a key source of patronage. Under s101 of CA (allows for general court of appeal and courts for the better administration of laws of Canada to be created), the Federal govt created the Supreme Court as the general court of appeal for Canada. Also created the Federal Court, Federal Court of Appeal and Tax Court. Provinces appoint and pay the salaries of provincial court judges In what circs may provinces create provincial courts? SCC has repeatedly guarded against provinces creating non s96 courts by using s96 to limit provincial (and now federal) powers to strip jurisdiction from superior courts. Re Residential Tenancies Act - SCC noted that provinces cannot pass legislation creating a tribunal, appoint members and then confer on the tribunal the jurisdiction of superior courts would destroy intended effect of s96. SCC developed a 3 part test in order to determine whether creating such a tribunal would erode the s 96 power. This is because superior courts are a fundamental institution protected by our Constitution through the interpretation of s 96. The provinces, or federal Parliament, cannot enact legislation to encroach on their core jurisdiction. Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., - Section 96 seems to do no more than confer the power to appoint judges of the superior, district, and county courts. It is a staffing provision, and is once again a subtraction from the power of the provinces under s. 92(14). However, through a process of judicial interpretation, s. 96 has come to guarantee the core jurisdiction of the courts which come within the scope of that provision. In the past, this development has often been expressed as a logical inference from the express terms of s. 96. Assuming that the goal of s. 96 was the creation of a unitary judicial system, that goal would have been undermined if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728. However, as I recently confirmed, s. 96 restricts not only the legislative competence of provincial legislatures, but of Parliament as well: The rationale for the provision has also shifted, away from the protection of national unity, to the maintenance of the rule of law through the protection of the judicial role. Three part test of Re Residential Tenancies Act for determining whether an administrative body was encroaching upon the jurisdiction of the superior courts.


First step, Historical enquiry - it must be determined whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation. Second step, inquiry into whether the impugned power is a judicial power Third step, whether the power, in its institutional setting has changed its character sufficiently to negate the broad conformity with superior, district or county court jurisdiction. B. OVERVIEW OF THE CURRENT CANADIAN COURT SYSTEM Department of Justice of Canada, Canadian Court System (2005)There are basically four levels of court in Canada: 1. provincial courts, which handle the great majority of cases that come into the system. 2. provincial superior courts. These courts deal with more serious crimes, and also take appeals from provincial court judgments. On the same level, but responsible for different issues is the Federal court. 3. At the next level are the provincial courts of appeal and the Federal courts of appeal, 4. Supreme Court of Canada occupies the highest level. Provincial/Territorial courts: Note Nunavut doesnt have a territorial court instead matters are held before the Nunavut Court of Justice, a superior court. Provincial/ territorial courts deal with most criminal offences, family law matters (except divorce), young persons in conflict with the law (from 12 to 17 years old), traffic violations, provincial/ territorial regulatory offences, and claims involving money up to a certain amount (set by relevant jurisdiction). Private disputes may also be dealt with at this level in a small claims court. The preliminary inquirieshearings to determine whether there is enough evidence to justify a full trial in serious criminal casestake place before provincial courts. A number of courts are dedicated to specific types of offenders e.g. Drug Treatment Court, youth courts, domestic violence courts. Provincial Superior Courts/ s96 courts: each province has superior courts. They have inherent jurisdiction, which means they can hear cases in any area except those that are specifically limited to another level of court. The superior courts try the most serious criminal and civil cases, including divorce and cases involving large amounts of money. They act as a court of first appeal. Courts of Appeal: usually sits a panel of three. They hear constitutional questions that may be raised in appeals involving individuals, governments, or governmental agencies. Federal Courts: the Federal Court and Federal Court of Appeal are essentially the superior courts with civil jurisdiction. Created by Act of Parliament so can only deal with matters specified in federal statutes. Based in Ottawa. The Federal Court is a trial-level court; the Federal Court of Appeal hears appeals from it. They hear interprovincial and federal provincial disputes, intellectual property proceedings, citizenship appeals; Competition Act cases, and cases involving Crown Corporations or departments of the government of Canada. Only these courts have power to review decisions, orders and other administrative actions of federal boards, commissions or tribunals. Maritime law may be


brought before the Federal Court or Federal Court of Appeal or before a provincial superior court. In this respect, they both share jurisdiction with the superior courts. Specialised Federal Courts: e.g. Tax Court (usually hears disputes between tax payers and federal govt. Military Courts. Established under National Defence Act to hear cases involving Code of Service Discipline. The Supreme Court of Canada: is the final court of appeal from all other Canadian courts. They look at all areas of law. The court consists of a chief justice and eight other judges, all appointed by the federal government. The Supreme Court act requires that at least 3 judges be from Quebec. Traditionally, the other 3 judges come from Ontario, two from western Canada, and one from the Atlantic Provinces. They sit in Ottawa for three sessions a year, winter, spring, and fall. Before a case gets here it must use all other available courts and leave must be given to appeal before it will har the case. Leave applications are usually in writing and reviewed by three SCC judges. Leave not given routinely only where it involves a question of public importance. Sometimes it is automatic, eg criminal cases where a judge on court of appeal panel has dissented on how the law should be interpreted or where CofA has found someone guilty who has been acquitted at original trial. SCC also plays the role as advisor to the federal government fed govt may ask the SCC to consider questions on any important matter of law or fact esp re Constitution interpretation or other legislation. New Approaches Nanavut Court of Justice: Nunavut doesnt have a territorial court instead matters are held before the Nunavut Court of Justice, a superior court. This is because most of communities are small and isolated from capital court travels on circuit and then can hear all cases. Unified Family Courts: All aspects of family law dealt with in a single court. Superior court judges provincial and federal jurisdiction. Non-adversarial techniques used to resolve issues. Sentencing Circles: provincial/territorial court level aboriginal offenders and victims. Part of court process but not a court. Can be a means to get input and advice from community to help judge set an appropriate sentence. Circles happen after guilt established involves judge, elders, family of offender and victim. All have chance to speak restorative justice can be suggested as well as custody. Judge not bound by the circle. JUDICIAL APPOINTMENTS: The manner in which judges are chosen has been an issue of some controversy, especially at the federal level. A. A RANGE OF MODELS: There are three models of selection internationally. 1. Confirmation hearings 2. Nominating committees 3. Direct elections. US Department of Justice, State Court Organisation 1998 Federal judges are nominated by the President and serve during good behavior once confirmed by the U.S. Senate unless they resign or are impeached and convicted by the U.S. Congress. State court judges are likely to face an election as a part of their selection process and to serve fixed terms - usually between six and 14 years (15 years in the District of Columbia). Judicial selection


occurs for three purposes in the state courts: to fill an unexpired term upon the retirement, resignation, or death of an incumbent judge; to select for a full term (often referred to as the initial selection); and at the end of a term. Missouri Plan. statewide nominating committee for appellate judgeships and circuit-level commissions for general jurisdiction trial court judgeships. A judge, representatives of the state bar association, and nonlawyers appointed by the governor make up the commissions. The governor must appoint one of a commissions three nominees to fill a vacancy. The new appointee then faces a retention election in one years time, running against his or her own record, and then further retention elections at 12- year intervals. Note the elections for state court judges. Not a good thing require financing (this means lawyers who finance might expect favour in court judicial impartiality!) and also public sentiment might drive decisions rather than doing the right thing. Note also for federal appts, President nominates and the Senate must confirm. Missouri model depends on nomination/shortlisting committee. South Africa uses this. B. PROVINCIAL JUDICIAL APPOINTMENT: The executive branch, often following a short-listing process involving an advisory committee, selects Canadian judges. For provincial judges, the committee is mixed with laypersons and members of the legal community. The committee accepts applications and interviews candidates before submitting a list of recommendations to the provincial AG. Ontario: Composition of committee should reflect diversity of Ontario gender, geography, racial and cultural minorities. Application basis. Criteria for evaluating candidates: personal and professional qualities and experience and also : community awareness (public service, awareness/interest in social problems giving rise to cases, interest in ADR); demographics (looks to hire women, visible cultural minorities). Allegations of political patronage are very rare as AG selects from a very short list provided by committee. Other provinces: Nunavut appointed by federal govt. Quebec Bellemere was minister of justicve 6 yrs after he left office he alleged that fundraisers for Liberal Party had influenced the appointment of three judges while he was minister and Premier was complicit in forcing him to cooperate. Public inquiry held that he wasnt forced against his will to appoint. Report identified the flaws in the process absence of adequate standards, problems of confidentiality, procedures of selection committee. C. FEDERAL JUDICIAL APPOINTMENT (Superior Courts): s96 court, federal court and tax court judges are appointed by the Governor in Council following review of candidates by advisory committee. Supreme Court justices just appointed by Governor in Council. Commissioner for Federal Judicial Affairs Canada - Process for an Application for Appointment


Federal Judicial Appointment process in place since 1988- refer to Craik for an in depth look into the requirements. Ultimately, the governor in council must make the appointments as required by s96 or the statutes governing s101courts. The minister of justice makes the recommendation for appointment as a judge to the Cabinet. Historically, political patronage played a prominent role in judicial appts. The system purported to place merit and objectivity above repaying political favours. Pre-2006 criticisms. CRITICISMS: 1. Too much discretion in the hands of the governmentthe minister has the power to appoint from the recommended list as well as the highly recommended list but this is only based on a public announcement not legally binding although would be embarransing not follow. Also, recommended list is a lower threshold and doesnt encourage a standard of excellence 2. No transparency or accountabilitycandidates face no forma; scrutiny and no information is made public to support the choice of appointee. 3. Patronage appointmentsallegations have been made that appointments have been made that appointments are tainted by political considerations and that candidates who contributed to political parties are appointed. 2006 process got rid of recommended and highly recommended now recommended and not recommended But why didnt it keep the old system and give priority to highly recommended. Also 2006 appointed a law enforcement representative to committee and designation of judicial nominee as a chair who would only vote in the event of a tie. Meant that the three govt nominees together with the law enforcement nominee would outnumber the reps of the legal profession. UK system of nominating judges is promising: Key Statutory responsibilities are: to select candidates solely on merit; to select only people of good character; to have regard to the need to encourage diversity in the range of persons available for selection for appointments. Role is to select and recommend candidates, not to appoint them. For each vacancy, Commissioners select one candidate to recommend to the Lord Chancellor for appointment. The Lord Chancellor can accept or reject a recommendation, or ask for it to be reconsidered. If he does so he is required to provide his reasons in writing to the Commission. He can only exercise that power once for each candidate and cannot select an alternative candidate. SUPREME COURT APPOINTMENTS: The processes above do not apply to the Supreme Court appointments. Some argue that since this court is legislating they should be more accountable to the public through the appointment process. Professor Ted Morton has argued that the SCC must be democratized by requiring public scrutiny of potential appointees possibly including questioning of potential appointees by parliamentary committee. There is no reason to continue with a system in which a party that receives 40 percent of our votes appoints 100 percent of our judges. It is high time that Canada abandoned the legalistic, autocratic and outdated method of Prime Ministerial monopoly of judicial appointments and join the real world of 21st century democracy. Others argue democratization is misplaced re judiciary. Judges cannot be accountable to any constituency but must be free to decide each case in acc. with their view of law and their own conscience. Since most appts to SCC are from CofA, the appointees will have a track record. Easy to assess their performance.


US style confirmation hearings criticized as policital theatre little to do with professional qualifications or ability to serve as judges. Canadian bar is opposed for these reasons. Dont politicize the process or expose judges to criticism of judgements or cross examination of beliefs or preferences. On the other hand supporters of public hearings for nominees say that the horror stories are exaggerated and focus on those of Robert Bork and Clarence Thomas. Nominees have the right to refuse to answer questions and rules could also be adopted to limit scope of examination before a parliamentary committee per Jacob Ziegel.. JUDICIAL INDEPENDENCE: Notion that judges are at arms length from other branches of government. Consists essentially in the freedom to render decisions based solely on the requirements of the law and justice-British Columbia v Imperial Tobacco Canada [2005]. It requires that the judiciary be left free to act without improper interference from any other entityMackin v New Brunswick [2002]. A. SOURCES AND SCOPE Constitutional concept. S96 to 100 of CA 1867 provide for the appointment, tenure and remuneration of federally appointed judges. S96 interpreted as not only stating who has power of appointment but also establishing superior courts as a fundamental institution protected by constitution. S 99 of the CA 1867 specifies the tenure of office of superior judges they are only removable for breach of good behaviour until the mandatory retirement age of 75. (incapacity has been held to be breach of good behaviour. S 100 salaries, allowances and pension of superior court judges set by Parliament. Guarantees financial security of superior, district and county judges per Reference re Renumeration of Judges of the Provincial Court of PEI [1997]. Note that s100 of the CA 1867 only applies to superior court judges Does judicial independence only exist as a constitutional matter for superior courts and not provincial? No mainly because of s11(d) of Charter person charged with an offence has the right to a hearing before an independent and impartial tribunal. Meaning of this received a lot of consideration in 1980s and 1990s. SCC developed concept of institutional independence those requirements that must be in place in order for judiciary to be sufficiently independent from other branches of state (1) security of tenure, (2) financial security and (3) administrative control or independence with respect to management of court business In mid-1990s, political and legal crisis re issue of financial security of the provincial courts. Severe budget constraints meant several provincial govts imposed salary freezes or roll backs on civile service and included provincial courts. Criminal accused made claims that these unilateral moves by executive govts violated financial security of judges and denied them trials before independent tribunals. Reference case brought before SCC - Reference re Renumeration of Judges of the Provincial Court of PEI [1997]- the court majority recognized an unwritten principle of judicial independence in the Constitution. NOTE SEE SUMMARY OF CASE AT PART 3 Ell v Alberta [2003]- the issue related to the application of the principle of judicial independence to justice of the peace. . Justice Major wrote: [3] the principle of judicial independence must be interpreted in the light of the public interests it is meant to protect: a strong and independent judiciary


capable of upholding the rule of law and our constitutional order, and public confidence in the administration of justice The reforms in this case reflect a good faith and considered decision of Legislature that was intended to promote these interests. Held that the legislation does not undermine The perception of independence in the mind of a reasonable and informed person. in the exercise of their duties. In the result, the court held that the justices of the peace were constitutionally required to be independent in the exercise of their duties. B. ASSESSING INDEPENDENCE: Before turning to content of independence requirement, it should be asked how the independence is measured. For the Supreme Court, the general test for thep resence 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- Mackin v New Brunswick (Minister of Finance) [2002]. So it requires (i) actual independence and (ii) conditions sufficient to give rise to a reasonable perception of independence on part of a reasonable and well-informed person. Canada (Minister of Citizenship and Immigration) v Tobiass (1997) SCC considered whether judicial independence or appearance of it had been impaired by a provate meeting between DoJ official and chief justice of Federal Court in relation to the delay of hearing of certain cases in which DofJ was litigant. Held that the meeting did cause damage to appearance of judicial independence. Noted the Valence notion of personal aspect and personal aspect. Applied the same test as set out in Mackin and also set out in Beauregard C. DIMENSIONS AND CORE CHARACTERISTICS: What does judicial independence require? It requires security of tenure, financial security, and administrative independence. Note also the distinction between two dimensions of judicial independence, the individual independence of a judge and the institutional or collective independence of the court or tribunal of which that judge is a member. 1. Security of Tenure: Constitutionally protected security of tenure has both an individual and an institutional dimension. Individual means the executive may not dismiss them before the age of retirement except for misconduct or disability. Arbitrary removal is prohibited. Institutionally, before a judge may be removed for a cause, there must be a judicial inquiry to establish that such causes exists, at which the judge affected must be afforded an opportunity to be heard. Superior court judges can only be removed by jopint address of HC and Senate per s99 of CA 1867. Judges Act 1985 creates the Canadian Judicial Council body responsible for investigating conduct of federally appointed judges. If CJC concludes it is appropriate to remove, it reports to the Minister of Justice who may introduce a motion before Parliament. In practice, every judge facing convincing allegations of misconduct has resigned during the CJC proceedings. Report of the Canadian Judicial Council to the Minister of Justice Under sections 63(1) of the Judges Act Concerning the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Quebec in R v Theberge (1996): Majority of the CJC found that the judge has become incapacitated or disabled from the due execution of the office of judge and recommends that he be removed from the office of judge of Superior Court of Quebec. The Judges remarks about women and his deep-seated ideas behind those remarks legitimately cast doubt on his impartiality in the execution of his judicial office. Yet impartiality is the essence of the office of judge. This has led us to do a further analysis of whether he had become incapacitated or disabled from the due execution of the office of judge.


He showed lack of sensitivity to communities and individuals offended by his remarks/conduct and does not intend to change. He has undermined public confidence in him and strongly contributed to destroying public confidence in the judicial system. They didnt think that the test to assess judicial impartiality and independence would be satisfied in a case presided by the Judge. Combining the test used by the Committee of the Canadian Judicial Council in the Marshall case and that applied by the Supreme Court to assess judicial impartiality and independence, we believe that if Mr. Justice Bienvenue were to preside over a case, a reasonable and informed person, viewing the matter realistically and practically and having thought the matter through would have a reasonable apprehension that the judge would not execute his office with the objectivity, impartiality and independence that the public is entitled to expect of a judge. Found that he breached duty of good behaviour under s99 of CA 1867 and is incapacitated or disabled from the due execution of the office of judge for the following reasons: *Guilty of misconduct *failed in the due execution of that office *placed, by his conduct in a position incompatible with the due execution of that office. CJ McEachern said in concurring reasons that he of only found the latter (placed, by his conduct in a position incompatible with the due execution of that office) and not the other two. Minority said no oral evidence or submissions were heard. The minority disagreed as to some findings of fact. Noted that the majority focused on Judges remarks about women. Although his views on women might be repugnant to some, the question is on the effect of this predilection/predisposition/bias have on the ablilty of the judge to perform his judicial functions. Noted everyone has their own predilections and said the question is but is there any proof that this judge put his predilection to work to the detriment of litigants? NO To be removed from office for having a predilection/predisposition/bias flies in the face of the legitimacy of the unfettered and unhobbled judiciary. The majority made two critical interrelated errors. The first is this: The majority did not make the crucial distinction between having a predilection and putting it to work to the detriment of litigants. The second is this: The majority found that having a predilection and being unable or disinclined to shed it is the same as putting the predilection to work. Alternatively the majority applied a presumption that being unable or disinclined to shed the predilection is automatically followed not by a setting aside of the predilection but by putting the predilection to work to the detriment of litigants. We strongly disagree that a reasonable and informed person would assess the remarks concerning women in this harsh fashion and would in the end have the complete lack of confidence and the reasonable apprehension described by the majority of the Committee (and agreed with by the majority of the Council) to the point where he or she would vote to remove Mr. Justice Bienvenue from office. A reasonable and informed person by definition would make the assessment and view all of the issues objectively. A reasonable, informed and objective person would need to consider a series of relevant factors and would likely ask and answer questions such as these: 1. Is having a predilection enough to render a judge incapable, or must there be more? For example, must there be a putting to work of the predilection? 2. Where did Mr. Justice Bienvenue get these ideas? His ideas have been around for centuries.


3. But this is 1996, is it right for judges to have these kinds of outmoded views and beliefs? The answer is no, but the shift from what was orthodox and mainstream to what is now unorthodox and pass is an evolutionary one, not a precipitous one reminiscent of a revolution. 4. Is there some way other than removal from office that one could use to ensure that Mr. Justice Bienvenue does not continue to trade in his stereotypical belief (thereby running the risk of putting his predilection to work)? Social context education is a viable avenue and a very real practical approach. 5. Does the fact the words were spoken by Mr. Justice Bienvenue in court and not extra-judicially make a difference? Remarks made during judicial proceedings ought not to be judged as harshly as those made extra-judicially (judge can think aloud, speak his mind giving full reasons for reaching a decision, rebuke) 6. Does the removal of one judge for speaking unacceptable words solve what may be a minor (in terms of numbers) institutional problem? 7. Does removing Mr. Justice Bienvenue for having a predilection affecting men and women mean that other judges having other predilections, such as predilections favourable or unfavourable towards abortion, environmental despoiling, big business, the media, governmental bureaucracy, gambling, gun control and so on, ought also to be removed? Suggests that: 1. Inquiry Committee should to canvass the entire federally appointed judiciary to seek the judiciarys opinion on the relevant questions of the publics lack of confidence and reasonable apprehension and the resultant incapacity or disability of the judge to further perform his judicial functions. 2. re the Committees power, right, or obligation to recommend removal - There is some doubt whether it has this power, right, or obligation under the Act. Perhaps the Committee should be entitled to say: We think there is nothing here for Council to consider or we think there is something here for Council to consider, in much the same way that a judge sitting on a preliminary inquiry finds that there is sufficient evidence for a matter to proceed to trial or that there is no sufficient evidence. 3. re composition of the Inquiry Committee provided for in s. 63(3) of the Judges Act. This subsection vests in the Minister of Justice for Canada the power to appoint to the Inquiry Committee such members, if any, of the bar of a province, as may be designated by the Minister. It is unusual for a complainant to have the power to appoint a percentage in the present case 40% of the adjudicators or assessors who are required to examine and rule upon certain issues arising out of the complaint while the person complained against has no such similar power 2. Financial Security: Relates to the pay judges receive for performing their job. It 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. Their salaries are high compared to the working citizen but low compared to federally appointed judges and to the more successful practicing lawyers. Some provinces sought to reduce these judicial salaries. The Supreme Court addressed the problem in : Reference reRemuneration of Judges of the Provincial Court of PEI [1997]- and suggested creation of a commission NOTE SEE EARLIER SUMMARY OF CASE. In Provincial Judges Association of New Brunswick v New Brunswick [2005], the SCC revisited and somewhat amended the test it established in 1997 case. In that case, justices of the peace in Alberta, and municipal court judges in Quebec sought judicial review of their provincial governments decisions to reject certain compensation commission recommendations relating to their salaries and benefits. The court concluded that the rejection of commission recommendations met the rationality test in New Brunswick, Ontario, Alberta, but not in Quebec. Court said:


A commissions 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 commissions recommendations as long as it justifies its decisions with rational reasons. These rational reasons must be included in the governments response to the commissions recommendations. Reasons that are complete and that deal with the commissions recommendations in a meaningful way will meet the standard of rationality 3. Administrative Independence: This is the last component of judicial independence. 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 listsand related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. In the Tobiass case [1997]- administrative independence was at issue where the Supreme Court was asked to consider whether the judicial independence had been impaired by a private meeting between a senior department of justice official and the Chief justice of the Federal Court. This meeting concerned a delay in the hearing of certain cases in which the Justice Department was a litigant. Canada (Minister of Citizenship and Immigration) v Tobiass (1997) Chief justice went to the associate chief justice and told him to get a move on no bad faith, just trying to speed things up. Held: 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. 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. 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. 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. Did not uphold the trial judges decision to order a stay of proceedings but required the proceedings to be conducted by a different trial judge not tainted by the improper communications.


Craik Chapter 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. OVERVIEW OF STATUTORY INTERPRETATION: B. SOURCES OF INTERPRETATION LAW There are 3 main sources of interpretation law: interpretation acts, interpretation rules in individual statutes and regulations, and common law. 1. Interpretation Acts: Under the separation of powers doctrine, the role of the legislative is to make law, the role of the judiciary is to interpret it, test its validity and apply it to particular facts. However, it is open to sovereign legislature to issue instructions on how particular legislation, or legislation in general, is to be interpreted. Every Canadian jurisdiction (federal and provincial) has an Interpretation Act that contains the various rules applicable to statutes in general. 2. Interpretation Rules in Acts & Regulations: Individual Acts often contain definitions, application provisions, purpose statements etc. The definitions tell interpreters how particular words used in the legislation are to be understood.

3. Common Law Rules: Apart from the legislative directives, statutory interpretation is rooted in the common law, in a body of principles, presumptions, and conventions known as the rules of statutory interpretation. They are not binding but are guidelines. Rule of Equitable Construction (became the mischief rule): when interpreting, the judge should construct so as to suppress the mischief and advance the remedy [chosen by Parliament to cure the disease of the Commonwealth). 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. Establishment of Parliament as a separate and primary source of law in 18th century led to less room for equitable construction. Locke and belief in reason and fundamental rights founded upon reason became basis for doctrine of strict construction and a number of presumptions aimed at preserving life, livery and property of citizens from state interference. presumed intention - the intention that the courts will in the absence of an indication to the contrary impute to Parliament. 19th and 20th Centuries - Parliamentary sovereignty and the Rule of Law dominated judicial sovereignty and gave rise to: The Plain Meaning Rule, sticl to literal meaning of legislative text so far as that meaning is clear as the plain words are the best indication of a law-makers intent. i.e. apply the words as written and disregard any contrary legislative intent regardless of consequences. R v. McIntosh (1995) majority conceded that reading of legislation led to absurd results that no rational legislature could have intended but the meaning was plain.


Golden rule - 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. This rule is grounded in the supervisory and mediating roles of the courts. Most judges rely on both these rules as the need arises (even though they contradict). There is usually a point at which even the most committed literalist is prepared tosacrifice literal meaning to avoid the unthinkable. Now we have the Modern Principle: Driedgers particular contribution to statutory interpretation in Canada was to integrate the rules into a single formula which he called the modern principle: Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. First dimension is textual meaning. Although texts issue from an author, once published they take a life of their own people place their own meanings on it based on the expectations they bring. Second dimension is legislative intent. Law maker wants to communicate the law that it intended to enact because that law, as set out in the provisions of the statute, is the means chosen to achieve a desired set of goals. Third dimension is compliance with accepted legal norms. entire context in which the Act must be read. Integral part of legislative intent. Driedger wrote It may be convenient to regard intention of Parliament as composed of four elements, namely: 1. The expressed intention the intention expressed by the enacted words; 2. The implied intention the intention that may legitimately be implied from the enacted words. 3. The presumed intention the intention that the courts will in the absence of an indication to the contrary impute to Parliament (embraces the entire body of evolving legal norms which contribute to the legal context in which official interpretation occurs). 4. The declared intention the intention that Parliament itself has said may be or must be or must not be imputed to it. Modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme and objects of the Act and the intention of legislature. In an easy case, textual meaning, legislative intent and relevant legal norms all support a single interpretation. In a hard cases, these dimensions are vague or obscure or point in different directions. In hardest cases, textual meaning seems plain but legislative intent makes plain meaning unacceptable. If modern principle has a weakness, it is that it fails to acknowledge and address dilemma created by hard cases. It also encourages a presumption that stat interp consists of resolving doubt about meaning of particular words. C. RANGE OF INTERPRETATION ISSUES: There is more to statutory interpretation than disputes about the meaning of the text. Sometimes the meaning is clear, but there is a gap in the legislative scheme and the question is whether the court can


do anything about it. Sometimes there is overlap between a clear provision and the common law and the issue is whether both apply. Issues arising in Statutory Interpretation Type of problem Ambiguous, vague or incomplete text Evolving context Overinclusive text Underinclusive text Contradictory or incoherent text Overlapping provisions Type of argument in response Disputed meaning Static vs dynamic interpretation Non-application Incorrigible gap in legislative scheme or supplement with common law rule/remedy Corrigible mistake No conflict: Overlap vs exhaustive code Conflict: Paramountcy rule

The disputed meaning argument: the interpreter claims that, properly interpreted, the provision in question has a particular preferred meaning. They must establish this is the ordinary intended meaning or at least plausible meaning. Perrier Group of Canada v Canada [1996] was carbonated water sold under Perrier brand a beverage within meaning of Excise Tax Act? Perrier beverage was manaufactured drink and excluded naturally carbonated water. Minister of Revenue argued it was any liquid fit for human consumption. Court agreed with Minister. In a static versus dynamic interpretation argument, the interpreter claims that the text should be interpreted as it would have been when the text was first enacted (static) or in the light of current understanding of language and social conditions (dynamic). Harvard College v. Canada (Commissioner of Patents) [2004] Is oncomouse an invention under Patent Act (any new and useful art, process, machine, manufacture or composition of matter). Genetically altered mouse could be a composition of matter but SCC went for static interpretation Parliament did not contemplate patenting of higher life forms. Radical departure from traditional patent regime required legislative intervention. In a non-application argument, the interpreter identifies a reason not to apply a provision to the facts, event though, given ordinary meaning, it would otherwise apply. Read down a provision to promote legislative purpose, avoid absurdity or comply with presumptions of legislative intent. Re Vabalis married woman applied to change her name from Vabalis to Vabals. Act required a married person applying for a change of surname shall also apply for a change of the surnames of his or her spouse and all unmarried minor children. But applicant hadnt adopted husbands name. Court read in words of qualification to require the spouse to have the same surname as the applicant. The incorrigible gap argument: the interpreter claims that the legislation cannot apply to the facts even though, given its purpose, it should apply, whether this omission is deliberate or not the court has no jurisdiction to fill a gap in a legislative scheme or enlarge the scope of legislation. Beattie v. National Frontier Insurance Co. (2003) insured claimed no-fault accident benefits under Ontario statutory scheme regulations said claimant excluded if they new vehicle was uninsured, did not have valid licence or operating vehicle without owners consent. Also if engaged in act for which they are charged with criminal offence the insurer obliged to hold in trust until charge is finally disposed of guilty goes to insurer, not guilty paid to claimant. Found guilty but claimed post conviction benefits as nothing prevented him from claiming. O CofA reluctantly agreed clear that legislature wanted to deny benefits but there was a gap in the scheme. The section dealt with benefits payable before deposition of charge and nothing to prevent them claiming benefits after conviction.


In a supplementation argument, the interpreter concedes that legislation as drafted does not apply but claims the common law does. Beson v. Director of Child Welfare for Newfoundland (1982) act didnt provide for appeal in relevant circs but filled it by exercise of their own parens patriae (inherent) jurisdiction. Corrigible mistake argument, the interpreter claims that the provision in question contains a drafting mistake, which must be corrected. Often arises in bilingual legislation. Morishita v. Richmond Court referred to the correct by-law rather than the cross reference set out in the bylaws. In absence of conflict, if two or more provisions apply to the same facts, each is to be applied as written. Presumption of overlap Any law, common or statute, is presumed to apply in absence of evidence to contrary. In an exhaustive code argument: the interpreter concedes that the overlap between legislative provisions or between legislation and the common law does not create a conflict, but claims that a particular Act or provision was meant to apply exhaustively, to the exclusion of other law. Gendron v. Supply & Services Union of PSAC issue was whether a union member could bring an action agains union for breaching common law duty of fair representation. Held that duties owed by unions covered by Canada Labour Code which, in this issue, was exhaustive displaced recourse to common law. In a paramountcy argument: the interpreter claims that there is a conflict between two provisions or between a provision and the common law and that one takes precedence over the other on the basis of some principled reason. Insurance Corporation of BC v Heerspink, Heerspink challenged the stat right of ins co to terminate a K on 15 days notice without cause. BC Human Rights Code provided the persons could not be denied a service customarily available to public unless a reasonable cause exists for its denial. Lamar J: When the subject matter of a law is said to be the comprehensive statement of the human rights of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises. The types of arguments above are not mutually exclusive. The issues that arise in applying legislation to a given set of facts can often beframed in more than one way. AN OVERVIEW OF THE RULES OF STATUTORY INTERPRETATION: A. RULES ABOUT MEANING: The first thing an interpreter must do is read the text and form an impression of its meaning. These rules address this task: 1.ordinary meaning rule: the meaning that spontaneously comes to the mind of a competent reader upon reading a legislative text. 2. technical meaning rule: presumed that legislatures use words in their popular, non-technical sense. When legislation deals with a specialized subject and uses language that people governed would understand in a specialized way, the specialized way is preferred over the ordinary usage. Note person who claims that technical meaning applies has burden of showing the tecnnical meaning of the


word and also that the technical meaning was intended in the context. Also, Legal terms of art are considered technical terms popular vs legal meaning, then popular presumed. 3. shared meaning rule: if one version of a bilingual text lends itself to 2 interpretations while the other version can plausibly bear only one of those interpretations, the interpretation that is shared should be adopted. 4. original meaning rule: the meaning of the words used in a legislative text is fixed at the time of enactment, but its application to facts over time is not fixed. Static vs dynamic. Language that is technical, concrete and specific tends to attract static interpretation. General or abstract languge dynamic. 5. plausible meaning rule: if the ordinary meaning of a text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing. Eg of technical meaning rule is: Re Witts (1982): W bought a horse to use for breeding but it was a gelding (described in racing program as a colt). Tried to rescind purchase under the Horse Racing Rules and Regulations BC. Racing Rules a close examination of a horse purchased in a claiming race is prohibited. No objection can be made based on the sex or age of a horse. Court sex is not defined in the interpretation section, so counsel for claimant urged that the general rule be applied and therefore refer to dictionaries for common and ordinary meaning of term i.e. distinction between male and female. Colt or gelding refers not to the sex but to the absence of reproduction organs. Counsel for respondent says follow the principle of construction. Unwin if Act is directed at matters affecting everybody generally, words used have the meaning attached in the common and ordinary use of language. If Act passed with ref to a particular trade/business and words are used which everyone in the trade/business understands to have a particular meaning, then that particular meaning applies. Court found in favour of respondent sex in racing industry meant stallion/colt/gelding/ridgling /mare or filly Note: Technical meaning rule - person who claims that a legislative text has a technical meaning different to its popular meaning has the burden of establishing 1. the technical meaning and 2. that the technical meaning was intended in this context. Also, legal terms of art are considered technical terms if a word has a popular meaning and a legal meaning, the former is presumed. B. PRESUMPTIONS RELIED ON TO ANALYZE MEANING OF A TEXT Straightforward expression Legislature chooses the clearest, simplest and most direct way of stating its meaning. Uniform expression - legislature uses words and techniques to express the same meaning and different words and techniques to express different meanings.


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. 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: Implied exclusion (expressio unius est exclusion alterius): If something is not mentioned in circumstances where one would expect it to be mentioned, it is impliedly excluded. 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. 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. E.g. hockey skiing and other sports sports may be read down to include only sports played in winter. 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. R v Daoust [2004] e.g. of ordinary meaning rule, associated words rule and no tautology rule Facts - investigation of second-hand store owners suspected of selling stolen merchandise. The Quebec police set up an operation using an undercover officer. The officer went to Ds establishment on four different occasions to sell goods which he hinted were stolen. Each transaction ended with the merchandise being accepted for a sum of money. On the final occasion, D told the officer that this would be the last time they would do business together, to which B, the establishments manager, added We cant always be helping you to steal. B and D were charged under s. 462.31 of the Criminal Code with having transfer[red] the possession of property with the intent to conceal or convert that property, knowing or believing . . . that . . . that property was obtained . . . as a result of the commission . . . of an enterprise crime offence. At trial, they were found guilty of laundering proceeds of crime. The Court of Appeal set aside the convictions on the ground that the actus reus of the offence had not been made out. Held: The word transfer (transfert) must therefore be given its ordinary meaning, this despite the presence of the expression in any manner and by any means. The appellant argues that the inclusion of this expression demonstrates Parliaments intent that the terms in s. 462.31, including the word transfer, be given a large and liberal interpretation. I cannot accept this argument. The words in any manner and by any means do not add to the number of activities constituting a transfer of possession. . The activities criminalized by this provision all concern the same person, that is, the person who originally has the object in his or her possession and seeks to dispose of it. Appellant also argued that shows an unequivocal intent to encompass all positive acts committed in relation to criminally obtained property for the purpose of converting or concealing it. However, upon examining the list of prohibited acts in this provision, it would appear that all these acts are of the same nature or category and apply only to the person with control over the property. . This is an application of the noscitur a sociis rule. According to that rule, the meaning of a term may be revealed by its association with other terms where the latter may not be read in isolation: C. PURPOSE AND SCHEME ANALYSIS


All legislation is enacted for a purpose to achieve a particular outcome by imposing new obligations or prohibitions or creating new rights and privileges. Consider following rules: Legislative purpose- always try ro determine the purpose of statute and adopt an interpretation that promotes it Interpretation Acts fair large and liberal construction and interpretation as best ensures the attainment of its objects Legislative scheme provisions are presumed to work together as parts of a coherent scheme designed to implement legislatures goals. R v Chartrand [1994]Facts: The accused took a boy in car to take pictures of him. Dad found them and accused said it was to surprise parents. s281 Criminal Code - Every one who, not being the parent, guardian of person under 14..., unlawfully takes that person with intent to deprive a parent or guardian of that person is guilty of an indictable offence. Judge looks at history/purpose/context of provision and jurisprudence on unlawfully. Context looks at other offences in relation to kidnapping etc purpose s. 281 is to secure the right and ability of parents (guardians, etc.) to exercise control over their children (those children for whom they act as guardians, etc.) for the protection of those children, and at the same time to prevent the risk of harm to children by diminishing their vulnerability. Social context in which section adopted - Parliament found it appropriate to distinguish between parental and stranger abductions and to adopt different rules for each type of abduction. Big problem with child abduction by strangers. Legislation designed to curb this social ill. In the case of s. 281, given its legislative history, its purpose, the context in which it was enacted and, most particularly, the absence of the word "unlawfully" (illgalement) in the French text of s. 281, it is my view that the word "unlawfully" in the English text of s. 281 was carried over from the 1892 legislation under less "modern drafting styles" and the word is "surplusage, merely indicating the existence of general defences in crime". Retaining that word in the English text was a mere oversight and the French text reflects the true intent of Parliament when, in 1982, it redrafted s. 250 (now s. 281) to apply only to abduction by strangers. The fact that the word "unlawfully" does not appear in s. 250.1 (now s. 282) and 250.2 (now s. 283) provides further support for this conclusion. NOTE CORRIGIBLE MISTAKE! As a consequence, there was no necessity for the Crown to prove an additional unlawful act or some element of unlawfulness beyond the taking of a child by a person who did not have lawful authority over that child. The trial judge was in error in so interpreting s. 281 of the Code. D. MISTAKES & GAPS IN THE LEGISLATIVE SCHEME: 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.)


Incorrigible gaps: Curing an underinclusive scheme amounts to reading in which is generally undesirable, unlike reading down which is not. 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. E. PRESUMPTIONS OF LEGISLATIVE INTENT: Legislation that interferes with individual rights or freedoms is penal and attracts strict interpretation (general terms read down, conditions of application fully enforced, ambiguities resolved in favour of non-application). Legislation that cures mischief or confers benefits is considered remedial and attracts liberal construction (focus on achieving benevolent purpose of legislation). In addition to distinguishing between strict and liberal construction, the courts control legislative initiatives by imputing to the legislature an intention to abide by norms that the courts consider important. These are called the presumptions of legislative intent: Strict construction of penal legislation; Strict construction of legislation that interferes with individual rights; Strict construction of exceptions to the general law; Liberal construction of human rights codes; Liberal construction of remedial legislation; Liberal construction of social welfare legislation; Liberal construction of legislation relating to aboriginal peoples; Presumed compliance with constitutional law and values; Presumed compliance with the rule of law; Presumed compliance with international law; Presumed continuation of common law; Presumed non-interference with common law rights; Presumption against the extra-territorial application of legislation; Presumption against the retroactive application of legislation; Presumption against interference with vested rights; and Presumption against applying legislation to the Crown and its agents. F. AVOIDING ABSURDITY Presumed that legislature does not intend its legislation to produce absurd consequences i.e no Irrational distinctions (treating like things differently or different things the same) Irrational, contradictory, or anomalous effects Defeating purpose of legislation Undermining efficient application of legislation Violating important norms of justice or fairness. G. RELATION TO OTHER LEGISLATION AND OTHER SOURCES OF LAW? Constitutional law: It is presumed that legislatures intend to enact constitutionally valid law and in particular to comply with any limitations on their jurisdiction set out in Constitution Acts. But note that Canadian legislatures can justify a restriction on a Charter right or freedom. 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.


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. 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. 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. Legislation can codify common law or displace it (complete code). 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. H. EXTRINSIC AIDS 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. 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. Legislative evolution: Consists of the successive amendments and re-enactments a provision has undergone from its initial enactment to the time of application. Expert opinion: Consists of precedent, administrative opinion, and scholarly legal publications, as well as expert testimony. SOME ILLUSTRATIONS R v McIntosh [1995]The accused, a disc jockey, had given the deceased, who lived in the same neighbourhood, some sound equipment to repair. Over the next eight months the accused made several attempts to retrieve his equipment, but the deceased actively avoided him. The accused obtained a kitchen knife and approached the deceased. According to the accused, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the accused. The accused reacted by stabbing the deceased with the kitchen knife. Argued act of self-defence. 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and


(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. Lamer CJ: Is s34(2) available to accused? Yes. Applies the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise While s. 34(1) includes the statement "without having provoked the assault", s. 34(2) does not. Section 34(2) is clear, and I fail to see how anyone could conclude that it is, on its face, ambiguous in any way. Therefore, taking s. 34(2) in isolation, it is clearly available to an initial aggressor. The Crown has asked this Court to read into s. 34(2) the words "without having provoked the assault". Parliament, the Crown submits, could not have intended such an absurd result, and therefore the provision cannot mean what it says. Essentially, the Crown equates absurdity with ambiguity. Crown also argues mere oversight that words dont give effect to Parliaments intention. No from legislative history and comparison with equivalent NZ law fact that NZ position not adopted is the best and only evidence of legislative intention here. Notes, it is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis Notes the absurdity of giving effect to terms of s34(2) - It is, in my opinion, anomalous that an accused who commits the most serious act has the broadest defence. But Parliament has a right to legislate illogically. And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly. Although I appreciate the efforts of the Crown to underscore the problems with the Criminal Code's self-defence regime through a broad historical, academic and policy-based analysis, I suspect that very few citizens are equipped to engage in this kind of interpretive approach. Rare will be the citizen who will read ss. 34 and 35, and recognize the logical inconsistencies as between the two provisions. Rarer still will be the citizen who will read the provisions and conclude that they are inconsistent with the common law, or with Parliament's intention in 1892, or with margin notes. Given that citizens have to live with the Criminal Code, and with judicial interpretations of the provisions of the Code, I am of the view that s. 34(2) must be interpreted according to its plain terms. It is therefore available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself. McLaughlin J Dissent: At first blush the argument seems attractive that the absence of the phrase "without having provoked the assault" in s. 34(2) makes it applicable to all cases of self-defence, even those where the accused provoked the attack. Yet, a closer look at the language, history and policy of ss. 34 and 35 of the Criminal Codesuggests that this argument should not prevail. The Chief Justice starts from the premise that "the language of the statute is plain and admits of only one meaning". From this he concludes that "the task of interpretation does not arise". I cannot


agree. First, the language is not plain. The facial ambiguity of s. 34(2) is amply attested by the different interpretations which it has been given by different courts. But even if the words were plain, the task of interpretation cannot be avoided. The point of departure for interpretation is not the "plain meaning" of the words, but the intention of the legislature. The classic statement of the "plain meaning" rule, in the Sussex Peerage Case (1844), 11 C. & F. 85, 8 E.R. 1034 (H.L.), at p. 1057, makes this clear: "the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act". To quote Driedger, supra, at p. 3: "The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences." As Lamer C.J. put it in R. v. Z. (D.A.), [1992] 2 S.C.R. 1025, at p. 1042: "the express words used by Parliament must be interpreted not only in their ordinary sense but also in the context of the scheme and purpose of the legislation". The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator. If the words admit of only one meaning, they may indeed "best declare the intention of the lawgiver" as suggested in the Sussex Peerage Case at p. 1057, but even here it is the intention, and not the "plain meaning", which is conclusive. But if, as in the case of s. 34(2), the words permit of doubt as to the intention of Parliament, other matters must be looked to to determine that intention. I also depart from the Chief Justice on his application of the proposition that "where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation" (p. 702). This Court in Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115, made it clear that this rule of construction applies only where "real ambiguities are found, or doubts of substance arise" (per Dickson J. (as he then was)). If the intention of Parliament can be ascertained with reasonable precision, the rule has no place. As La Forest J. put it in R. v. Deruelle, [1992] 2 S.C.R. 663, at pp. 676-77: In the court below, the majority suggested that any ambiguity in a penal provision should be resolved in favour of the accused. . . . While it is true that s. 254(3) is not a model of clarity, in this instance the intent of Parliament is sufficiently clear that there is no need for the aid of that canon of statutory construction. In summary, then, I take the view that this Court cannot evade the task of interpreting s. 34(2). The Court's task is to determine the intention of Parliament. The words of the section, taken alone, do not provide a clear and conclusive indication of Parliament's intention. It is therefore necessary to look further to determine Parliament's intention to the history of the section and the practical problems and absurdities which may result from interpreting the section one way or the other. These considerations lead, in my respectful view, to the inescapable conclusion that Parliament intended s. 34(2) to apply only to unprovoked assaults. This in turn leads to the conclusion that the trial judge was correct in declining to leave s. 34(2) with the jury. Pg 418 ANALYSIS Lamer sees the interpretation problem as one of disputed meaning and McLaughlin sees it as a corrigible mistake are there other possiblities? E.g. overlapping provisions. If Lamer says the provisions are unbelievably confusing then how can he claim that they are plain? What rule of interpretation does he rely on? Plain meaning NOTE THAT HE IGNORES THE PRINCIPLES OF LEGISLATIVE SCHEME. In his interpretation, what meaning should be given to the word unlawfully? Im not sure Interesting that both judges rely on a Legislative history, legislative evolution (Lamer looks at NZ legislation and 1955 Criminal Code revisions and says it could have included a provocation requirement in but didnt McGlaugjlin looks at older legislation and common law) and legislative intention analysis to arrive at different conclusions.


NOTE also this commentary: In her [Mclaghlins ] view, the legislative evolution of ss. 34 and 35 offered persuasive evidence that the drafter who prepared the 1953-54 version of the Code accidentally changed the meaning of the provisions when all he sought to do was improve the style. She pointed out that the former wording of subs. 34(2) in the 1892 and 1906 versions of the Code subs.34(2) clearly alluded to the nonprovocation requirement: (1) Criminal Code, S.C. 1892 [Self-defence against unprovoked assault] 45. Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if ... [same as now]; and every one so assaulted is justified, though he causes death or grievous bodily harm, if ... [same as now] he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. (2) Criminal Code, R.S.C. 1906 [Self-defence against unprovoked assault] 53.(1) Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if ... [same as now] [Extent justified] (2) Every one so assaulted is justified, though he causes death or grievous bodily harm, if ... [same as now] However, in the 1953-54 Criminal Code, the words "everyone so assaulted" became "everyone who is unlawfully assaulted": (3) Criminal Code, R.S.C. 1953-54 [Self-defence against unprovoked assault.] 34.(1) Every one who is unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if ... [same as now] [Extent justified] (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm, is justified if ... [same as now] It was obvious to McLachlin J. that the drafter incorrectly replaced "so assaulted" with "unlawfully assaulted"; he should have written "unlawfully assaulted, without having provoked the assault".(23) Lamer C.J., looking at the same evidence, drew a different inference. He thought the 1892 and 1906 versions were both ambiguous, but this ambiguity was deliberately resolved in the 1953-54 version. He wrote: There is a clear ambiguity in this provision. Does the expression "every one so assaulted" refer to "[e]very one unlawfully assaulted", or to "[e]very one unlawfully assaulted, not having provoked such assault"? This question is academic, since Parliament appears to have resolved the ambiguity in its 1955 revision of the Criminal Code, S.C. 1953-54, c. 51.(24) Unlike McLachlin J., who blamed the drafter, Lamer C.J. attributed the change in the 1955 revision to Parliament. Since this was an intentional change, it was his duty to give effect to it even though it admittedly was anomalous and led to absurdity: Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical in light of s. 35, and may lead to some absurdity, I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly. (25) Once again, fidelity to the fixed intention of Parliament proves to be wonderfully malleable. It justifies McLachlin J. in effectively rewriting the provision and it equally justifies Lamer C.J. in refusing to make any change. Like the plain meaning rule, it constrains the rhetoric of the court but not its practice.



Re Rizzo and Rizzo Shoes Ltd. [1998] Bankrupt firms employees lost their jobs co went bankrupt. Claim for termination/severance pay under the Employment Standards Act (ESA). The Trustee disallowed the claims on the ground that the bankruptcy of an employer does not constitute dismissal from employment and accordingly creates no entitlement to severance, termination or vacation pay under the ESA. The Ministry successfully appealed to the Ontario Court (General Division) but the Ontario Court of Appeal overturned that courts ruling and restored the Trustees decision. The Ministry sought leave to appeal from the Court of Appeal judgment but discontinued its application. Following the discontinuance of the appeal, the Trustee paid a dividend to Rizzos creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested and were granted an order granting them leave to appeal. At issue here is whether the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA. Iacobucci J, This appeal raises one issue: does the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA? The Court of Appeal noted that the plain language of those provisions suggests that termination pay and severance pay are payable only when the employer terminates the employment. The Court of Appeal held that, where an employer is petitioned into bankruptcy by a creditor, the employment of its employees is not terminated by an employer, but rather by operation of law. At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete. Says Driedger best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Also relied on s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act shall be deemed to be remedial and directs that every Act shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. Notes importance of employment in society and objects of termination/severance pay and notice of termination. In his opinion, the consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. If the ESA termination and severance pay provisions do not apply in circumstances of bankruptcy, those employees fortunate enough to have been dismissed the day before a bankruptcy would be entitled to such payments, but those terminated on the day the bankruptcy becomes final would not be so entitled. In my view, the absurdity of this consequence is particularly evident in a unionized workplace where seniority is a factor in determining the order of lay-off. The more senior the


employee, the larger the investment he or she has made in the employer and the greater the entitlement to termination and severance pay. However, it is the more senior personnel who are likely to be employed up until the time of the bankruptcy and who would thereby lose their entitlements to these payments. If the Court of Appeals interpretation of the termination and severance pay provisions is correct, it would be acceptable to distinguish between employees merely on the basis of the timing of their dismissal. It seems to me that such a result would arbitrarily deprive some employees of a means to cope with the economic dislocation caused by unemployment. In this way the protections of the ESA would be limited rather than extended, thereby defeating the intended working of the legislation. In my opinion, this is an unreasonable result. Looked at legislative intention: Firstly, in my opinion, the use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise and one which has often been employed by this Court. Secondly, I believe that the transitional provision indicates that the Legislature intended that termination and severance pay obligations should arise upon an employers bankruptcy. Also, looked at statements of minister at the time he introduced proposed amendment to legislature. Looked at the scheme of the ESA and noted it was benefit conferring legislations so adopted a liberal, broad generous interpretation. As I see the matter, when the express words of ss. 40 and 40a of the ESA are examined in their entire context, there is ample support for the conclusion that the words terminated by the employer must be interpreted to include termination resulting from the bankruptcy of the employer. Using the broad and generous approach to interpretation appropriate for benefits-conferring legislation, I believe that these words can reasonably bear that construction (see R. v. Z. (D.A.), [1992] 2 S.C.R. 1025). I also note that the intention of the Legislature as evidenced in s. 2(3) of the ESAA, clearly favours this interpretation. Further, in my opinion, to deny employees the right to claim ESA termination and severance pay where their termination has resulted from their employer's bankruptcy, would be inconsistent with the purpose of the termination and severance pay provisions and would undermine the object of the ESA, namely, to protect the interests of as many employees as possible. Pg 426 ANALYSIS Iacobucci J did not rely on any specific language in the Act but instead relies on the legislative intent, etc not a plain meaning approach. Note in McIntosh, Lamer complained that Crown was asking the court to read in language that is not there. In this case, Iacobucci disregarded certain words (namely by the employer). Reading down and reading in concepts Reading down means accepting an interpretation of a provision that is narrower in scope than the ordinary meaning of the text would support. Words of limitation or qualification are effectively added to the text for one of the following reasons: 1. court is giving effect to limitation or qualification implicit in the text or scheme of the legislation i.e. giving effect to legislatures intent 2. court is refusing to apply the legislation to situations that are outside the mischief the legislation was meant to address (refusing to exceed legislatures intent) 3. court is relying on a presumption of legislative intent.


All of above narrow rather than enlarge scope of provision. Reading in expands the scope of a legislative provision or fills in a gap in the scheme of the legislation making the legislation apply to facts that it would not otherwise encompass given the limits of the language used. Another way to read in is to ignore words of limitation or qualification in the Act or to add words of expansion. Usually Courts refuse to read in, on grounds that it amounts to amendment rather than interpretation. Seems as if court relied on reading in here. Note that both Lamer in McIntosh and Iacobucci here purport to be consistent with Driedgers modern principle. This is the most popular author citation by SCC ever! What does this say about the principle? The modern principle of statutory interpretation has been utilised by the courts in Canada to full a rhetorical function, that is to explain and justify in objective terms the interpretative decision; this role is distinct and separate from its other more obvious function, namely to provide an outline of methods that guide judges in the construction of statutes. It is argued that, in contrast with Driedger who merely intended the latter, the Supreme Court of Canada has attributed and given high importance to the former role of the quote in order to promote the legitimacy of the judicial role in construing the legislative norms adopted by Parliament, the elected body of Government per BEAULAC and CT Medovarski v Canada (Minister for Citizenship and Immigration) (2005) Facts M and E, two permanent residents, were ordered deported for serious criminality. They each appealed to the Immigration Appeal Division of the Immigration and Refugee Board and their removal orders were automatically stayed. Both appeals were discontinued as a result of a transitional provision (s. 196) of the new Immigration and Refugee Protection Act (IRPA), which took away the right to appeal an order for removal unless a party had, under the former Act, been granted a stay. In each case, the trial judge set aside the decision to discontinue the appeal. The Federal Court of Appeal allowed the Minister of Citizenship and Immigrations appeal in both cases, holding that the purpose of the IRPAs transitional provision was to deny a right of appeal in the case of an automatic stay. 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. 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. Second, one must determine if the common meaning is consistent with Parliaments intent. Using this technique, the interpretation, which accords with Parliaments general object, is reinforced by the absurd effect of the broader interpretation of s. 196. If s. 196 was applicable to automatic stays, it would effectively become redundant and be reduced to an essentially meaningless statutory


provision. It would also create in the context of s. 49(1) a broad exemption for inadmissible persons in the country yet accord none to similar persons outside Canada Mclaughlin CJ also quotes Driedger.

Reflects that in recent years, the SCC has also said that when counsel is arguing statutory interpretation, it shouldconsider 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: 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. ****** 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) FACTS Mossop was a gay man who basically had a marriage-like relationship of many years with another man; the other mans father died, and Mossop asked for bereavement leave from his job, which was denied by the powers-that-be because the collective bargaining agreement specified bereavement leave was for immediate family/spouses only. He was given special leave instead, but declined it took the matter all the way to the SCC as a violation of human rights, saying that this collective bargaining agreement 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? Note that the judgment here is a dissenting judgment. LHeureux-Dube J (in dissent): It is well established that human rights legislation has a unique, quasiconstitutional 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.


The values embodied in the Charter must be given preference over an interpretation which would run contrary to them. 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. In short, though traditional interpretational tools ought not be ignored, they must be applied in the context of a broad and purposive approach. Looked at purpose of Canadian Human Rights Act - to ensure that people have an equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discriminatory practices. [Conducted a textual interpretation with 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.] Purpose and intent was argued that legislative debate supports interpretation that the amendment was to ensure that English and French defns of Family Status has the same meaning. Judge said legislative intention can be different to ascertain and it is dangerous to rely only on the legislative record to infer that intent. 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. 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 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 LHeureux-Dube J, who was in dissent): The Tribunal identified Mossops 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.]


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 Mossops 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.


Craik Chapter 8 - Constraints on Legislative and Administrative Action THE ROLE OF CONSTITUTIONAL JUDICIAL REVIEW IN A DEMOCRATIC SOCIETY A. JUSTIFICATION FOR CONSTITUTIONAL JUDICIAL REVIEW Chief Justice Marshalls famous judgment in Marbury v Madison (usa case) offers a principled account of constitutional supremacy and the role the judiciary plays in ensuring that the written Constitution prevails over ordinary legislation. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. The historical origins of constitutional supremacy are different in Canada than they are in the USA. With the CA 1982, the principle of constitutional supremacy was enshrined in s52(1) of the CA 1982, which reads, The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions is, to the extent of the inconsistency, of no force or effect. B. LIMITATIONS OF JUDICIAL REVIEW: 1. The issue of justiciability: Are all actions of the government justifiable? The Supreme Court explored this principle of constitutional supremacy in the below case. It also 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] FACTS: Canadian Charter of Rights and Freedoms challenge to the Canadian governments 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. Wilson J: The real issue is not the ability of the judicial tribunals to make a decision on the questions presented (i.e. the evidentiary difficulties in proving that allowing testing increases risk of nuclear war), but the appropriateness of the use of the judicial techniques to make moral and political determinations. 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.


The courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state. Equally, however, it is important to realize that judicial review is not the same thing as substitution of the court's opinion on the merits for the opinion of the person or body to whom a discretionary decision-making power has been committed. The first step is to determine who as a constitutional matter has the decision-making power; the second is to determine the scope (if any) of judicial review of the exercise of that power. The federal legislature has exclusive legislative jurisdiction in relation to defence under s. 91(7) of the Constitution Act, 1867 and that the federal executive has the powers conferred upon it in ss. 9-15 of that Act. Accordingly, 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. Because the effect of the appellants' 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, the question before us is not whether the government's defence policy is sound but whether or not it violates the appellants' rights under s. 7 of the Charter of Rights and Freedoms. 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 being asked to do is to decide 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 our obligation under the Charter 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. There must be a strong presumption that governmental action which concerns the relations of the state with other states, and which is therefore not directed at any member of the immediate political community, was never intended to be caught by s. 7 even although such action may have the incidental effect of increasing the risk of death or injury that individuals generally have to face. 2. The issue of enforcement: While Canadian judges accept the proposition that the Constitution is supreme and the corollary that it is their duty to interpret the Constitution and invalidate any legislation that is inconsistent with the Constitution, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions. Canadian courts are usually able to rely on the other branches of government for this support, but it is not inevitable that this will always be the case. In Doucet-Boudreau case split the Supreme Court of Canada over the scope of the judicial power to grant a form of structural injunction as a remedy under s24 (1) of the Charter for a breach of executive branch of a positive charter right. The trial judge had ordered the government to use its best efforts to build a French-language school or schools to comply with the duties under the minority languages rights under s23 of the charter. The judge had added to his order a requirement that the government provide him with periodic reports on its progress in this regard. A five-justice majority of the court concluded that this remedy came within the superior courts authority under s24. The minority argued that such an injunction usurped the role of the executive by placing the judiciary in the position of directing the implementation of law and government policy. Doucet-Boudreau v Nova Scotia (Minister of Education) (2003) 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.


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. 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. Reviewing courts, for their part, must show considerable deference to trial judges choice of remedy, and should refrain from using hindsight to perfect a remedy. A reviewing court should only interfere where the trial judge has committed an error of law or principle. LeBel and Deschamps JJ (dissenting): We dissent because we believe that constitutional remedies should be designed keeping in mind the canons of good legal drafting, the fundamental importance of procedural fairness, and a proper awareness of the nature of the role of courts in our democratic political regime, a key principle of which remains the separation of powers. Emphasised separation of powers doctrine. Once they have rendered judgment, courts should resist the temptation to directly oversee or supervise the administration of their orders. They should generally operate under a presumption that judgments of courts will be executed with reasonable diligence and good faith. Once they have declared what the law is, issued their orders and granted such relief as they think is warranted by circumstances and relevant legal rules, courts should take care not to unnecessarily invade the province of public administration. To do otherwise could upset the balance that has been struck between our three branches of government. When the trial judge attempted to oversee the implementation of his order, he not only assumed jurisdiction over a sphere traditionally outside the province of the judiciary, but also acted beyond the jurisdiction with which he was legitimately charged as a trial judge. In other words, he was functus officio and breached an important principle which reflects the nature and function of the judiciary in the Canadian constitutional order, as we shall see now. 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 courts 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. i.e. no legal authority as it has performed its function already)


If the reporting hearings were intended to hold the Provinces 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. *********** Enforcement of the Constitution by the courts can present both practical problems and questions of principle. The following illustrates the difficulty the Canadian courts have faced in finding a principled (and constitutionally sensible) way to address the consequences of a sweeping legislative disregard of constitutional rules. Reference re Language Rights Under Section 23 of Manitoba Act [1985]FACTS: Manitoba ignored the Constitutional requirement that legislation be in both official languages; they kept doing everything in English only (after they passed the Official Language Act 1890 which said the only language to be used in Manitoba Acts will be English) even though courts had repeatedly ruled that this was unconstitutional, and violates language rights. Court had to go outside the box to resolve this. The Court: ailure to comply with constitutional provisions dealing with the manner and form of the enactment of legislation will result in inconsistency and thus invalidity. 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-bilinguallegislation enacted in the last 150 years will be invalidated.) 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.] It is only in this way that legal chaos can be avoided and the rule of law preserved. 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.) 3. The Issue of Legitimacy: The type of governmental intransigence described in the Manitoba Reference case is very much the exception in Canadas constitutional history. The more immediate concern for judges in exercising their mandate to uphold the constitution is to identify principles that appropriately shape the exercise of this authority. This task has proved more challenging since the advent of the Charter. The Charter requires the courts to give constitutional effect to what has been described as vague but meaningful generalities ideas of freedom of thought, belief, opinion, and expression, liberty, security of the person. Concern is that when judges give concrete shape to these ideas and invalidate laws that do not conform to the judges interpretation of these requirements, the rule of law may become subtly transformed into the rule of unelected judges. Most criticisms of constitutional judicial review can be reduced to two core complaints. The first is that under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial legislatures. The argument is that the courts have expanded


their proper role of interpreting the constitutionand particularly the Charter and have therefore shrunk the zone of parliamentary supremacy. The second line of criticism is sparked by the substantive approach taken by the courts to particular rights, rights that may protect unpopular elements of society, such as people convicted of criminal offences, or prompt decisions, such as the protection for gays etc. In Vriend v Alberta, Justice Iacobucci uses the analogy of a dialogue to describe the relationship between the courts and legislatures under the Charter. The Supreme Court in this case concluded that that the legislatures failure to include sexual orientation as a prohibited ground of discrimination in Act violated the appellants right to equality as protected by s15 of the Charter and that this action was not justified under s1. The majority also concluded that the appropriate remedy for this violation was to read in sexual orientation as a prohibited ground of discrimination for the purposes of the Act. 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. When the CCRF was introduced, Canada went from a system of Parliamentary supremacy to constitutional supremacy. 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. Notes that it is alleged that judicial review is illegitimate because it is anti-democratic in that unelected officials (judges) are overruling elected representatives (legislators). The Charters 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 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. In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. Most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives. By doing this, the legislature responds to the courts; hence the dialogue among the branches. To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it


Comments: Built-in Deference: suggests that the constitution does preserve Parliamentary sovereignty since s33 of the Charter, is an overriding provision, which the ultimate parliamentary safeguard. It preserves parliamentary supremacy, though the political price exacted for explicitly overriding constitutionally protected rights has been sufficiently high that, to date at least, Canadian political leaders rarely have been willing to pay it. Section 1 also says the Charter rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society The Dialogue Model in this decision invokes a sort of dialogue between courts and legislatures. This dialogue was described by retired Supreme Court justice Bertha Wilson in an article entitled We didnt volunteer (April 1999): the central feature of the Charter is that all branches of governmentthe legislatures, the executive and the judiciaryhave an equal responsibility to carry out the Charters mandate, and we should concentrate on their reciprocal roles. Then we will see a sort of dialogue is going on First, legislature assesses whether it complies with the Charter. If court looks at it and decide to strike down, then they have to identify the bad parts so legislature can correct. The courts assessment of the constitutionality of legislation is not the last word, merely a step in the process. F.L Morton, Dialogue or Monologue?(April 1999) argues that putative dialogue is usually a monologue, with judges doing most of the talking and legislatures most of the listening. They suggest that the failure of a government to respond effectively to judicial activism is a matter of personal courage on part of the leaders. By contrast, I [Morton] believe that legislative paralysis is institutional in character. Non-response by legislature to judicial activism is normal. When the issue divides govt caucus, they abdicate responsibility to the courts. May be even more true in a parliamentary rather than presidential system. Remarks of the Right Honourable Beverley McLaughlin PC Respecting Democratic Roles (2004) Have that courts have gone beyond their proper role? The charge is made that activist judges have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic. She argues NO. The claim can be understood in four different ways. First, the claim may be understood as saying that judges should never go against the will of elected representatives. This is false under our Constitution. The Legislative and the Executive strive in good faith to discharge their role in a manner that is consistent with our Constitution. Every now and then, these efforts are called into question, and someone must arbitrate the dispute. Under our Constitution, that someone is the judicial branch. A Second, the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. An objective review of the thousands of judicial decisions reported each year reveals that judicial concern is focussed not on plans to change society, but on interpreting and applying the law in a way that reflects legislative purpose. Judges sometimes make decisions that have political implications. But it is wrong to conclude that judges are therefore assuming the political role. The law is the mechanism by which our society regulates itself. That is the business of politicians. But when the validity and interpretation of the laws is brought before the courts, that is the business of judges. The role of judges may take them into subject matter claimed by politicians. But it does not follow that the judges are acting as politicians; the judicial role remains distinct from the political. The third version begins from the opposite assumption. It assumes that law is a totally determinate black and white activity. From there, it proceeds to say that judges should apply the law, not make the


law, or rewrite the law. This version of the charge of judicial activism rests on a mistaken perception of the nature of legal decision-making. The law does not apply itself, and the answers to constitutional questions are not obvious or pre-ordained. If they were, we would not need judges. It follows that there is no clear demarcation between applying the law, interpreting the law, and making the law. The Charter is an abstract document, made up of general propositions which must be given concrete application. To give it meaning, and to make it relevant to the lives of Canadians, judges must make choices among competing readings of our constitutional text, choices which can have long term normative consequences. All of this is perfectly consistent with the traditional role of judges in our country. Fourth - judges are making decisions that should be made by elected representatives, who alone possess the necessary legitimacy for law-making and the institutional competence to weigh all the factors that must be considered in making difficult choices of public policy for Canadians. Where a legal issue is properly before a court, not deciding is not an option. When a citizen claims that the state has violated his or her constitutional rights, the Courts must referee the dispute. They do so with all necessary deference to legislative and executive expertise in weighing competing demands on the public purse, and competing perspectives on public policy. In deciding difficult social issues, the courts act with deference to the decisions of the legislative branch. Deference does not mean simply rubber stamping laws. If a law is unconstitutional, it is the duty of the courts to say so. ************* 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: Reference re Remuneration of Judges of PEI (1997) This case dealt with judicial independence being threatened. o La Forest J (dissenting): Unlike the other branches of the government, the judicial branch does not initiate matters and has no agenda of its own. Its sole duty is to hear and decide cases on the issues presented to it in accordance with the law and the Constitution. The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. Judicial review is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument. The courts role is to divine the intent or purpose of the text as it has been expressed by the people through the mechanism of the democratic process. This legitimacy is imperiled when courts attempt to limit the power of legislatures without recourse to express textual authority. From time to time, members of this Court have suggested that our Constitution comprehends implied rights that circumscribe legislative competence. Whether or not I endorse this view, it is clear that it may not be used to justify the notion that the preamble to the Constitution Act, 1867 contains implicit protection for judicial independence. 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. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION A. CONTROLLING PROCEDURES: THE DUTY TO BE FAIR Administrative decisionmakers are required to act fairly towards those persons affected by their decisions. Fair means fair procedures not a fair outcome. Historically, the requirement of procedural fairness applied only to decision-makers carrying out a judicial or quasi-judicial role (i.e. cases where decision-maker determining legal rights of a person BUT NOT where decision-makers determining matters of policy) Problem with this approach was that it didnt give protection to people affected by decisions found to be of a legislative or administrative nature even though the decision could have a significant impact on individuals. From a legal perspective, distinction between judicial/quasi-judicial decisions and legislative/administrative decisions was hard to maintain because judicial functions could be carried out by administrative actors whose principal function was legislative or administrative. Courts developed a more flexible approach duty to be fair. Audi alteram partem right of a person to know and answer the case against him. Nemo judex in sua causa requiring that the person not be the judge in his or own cause. Baker v Canada (Minister of Citizenship & Immigration) (1999) LHeureux-Dube J: The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances. It is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances i.e. the nature and extent of the duty of fairness: 1. Nature of the decision being made and the process followed in making it. The more the process provided for resembles judicial decision making (look to the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision), the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. 2. Nature of the statutory scheme. Greater procedural protections will be required when no appeal procedure is provided within the statute 3. Importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.


4. The legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. If a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. If a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the circumstances affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. 5. The choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. Application of the above principles: The articles of the International Convention on the Rights of the Child, and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H & C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. This Convention is not, the equivalent of a government representation about how H & C applications will be decided, nor does it suggest that any rights beyond the participatory rights discussed below will be accorded. Therefore, in this case there is no legitimate expectation affecting the content of the duty of fairness, and the fourth factor outlined above therefore does not affect the analysis. Judge notes: First, an H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of fairness. BUT, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court - Trial Division. Considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result. The fifth factor - statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. Some of the factors suggest stricter requirements under the duty of fairness and others suggest more relaxed requirements further from the judicial model. Balancing these factors - the duty of fairness owed in these circumstances is not simply minimal. Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. Argument that Oral Hearing Required: It cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved - meaningful participation can occur in different ways in different situations. The lack of an oral hearing or notice of such a hearing did not, in this case, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity,


which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. Argument that reasons must be provided: The traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions. But reasons foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review. But notes concern that a reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers, that it may lead to increased cost and delay, and that it might in some cases induce a lack of candour on the part of the administrative officers concerned. It is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. Argument that there was a Reasonable Apprehension of Bias Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. The respondent argued that the notes of Officer Lorenz cannot be considered to give rise to a reasonable apprehension of bias because it his supervisor who was the actual decision-maker (he only reviewed the recommendation prepared by his subordinate). The duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decisions of a general nature. They also require special sensitivity. They require a recognition of diversity, an understanding of others, and an openness to difference. In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenzs comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Most unfortunate is the fact that they seem to make a link between Ms. Bakers mental illness, her training as a domestic worker, the fact that she has several children, and the conclusion that she would therefore be a strain on our social welfare system for the rest of her life. B. SUBSTANTIVE JUDICIAL REVIEW Dunsmuir ushered in a new, simplified body of law governing common law judicial review of substance of administrative decisions. Two standards correctness and reasonableness.


Why have different standards of review? Inefficient to have a full review of the original decision with the same processes as for the initial decision. Appeal courts use different procedures from the trial courts (e.g. dont hear oral testimony). Appellate judges use a different standard of review in assessing findings of trial judges on questions of fact and mixed fact and law than they do in reviewing their decisions on questions of law. Trial judges viewed as being in a better position than appellate judges to make factual determinations and apply the law to the facts because they have first hand knowledge of the testimony before them judges on appeal rely on paper records of the proceedings. Consider the extent to which the structure of review of admin decision differs from appellate review in the courts. Pay attention to reasons offered for giving some admin decisionmakers greater deference with respect to decisions on questions of law than would be accorded to trial judges on appellate review. Note difference between Binnie/Dechamps and Bastarache/LeBel proposals to simplify the law governing standards of review. To what extent do these differences reflect different approaches to the relationship between courts and administrative decisionmakers? Dunsmuir v New Brunswick [2008]: Facts: D employed at pleasure by Department of Justice. Placed on probationary term and subsequently his employment was terminated but the Department did not allege that it had cause for terminating his appointment. D filed a grievance with respect to his discharge, and an adjudicator found that termination of his employment had been improper and ordered reinstatement. Cof Queens Bench judicial review of adjudicator and found in favour of Department. CofA dismissed Ds appeal. SCC also dismissed but gave 3 different reasons 1. Majority - Bastarache and LeBel JJ. (McLachlin C.J. and Fish and Abella JJ. concurring) (1) Judicial Review: - The process of judicial review involves two steps: (i) Ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question; (ii) Where this is not the case, must analyse the 4 main factors to see which of the standards of review apply (see below). (2) Two Standards of Review: - The two variants of reasonableness review should be collapsed into a single form of reasonableness review. The result is a system of judicial review comprising two standards correctness and reasonableness. (a) Reasonableness: Reasonableness is a deferential standard. Certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. Deference does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. Deference as respect requires of the courts not submission but a respectful attention to the reasons offered or which could be offered in support of a decision:


(b) Correctness: - The correctness standard, when applied, means that a reviewing court will not show deference to the decision makers reasoning process; it will rather undertake its own analysis of the question. If the court doest not agree with the decision maker, the court will substitute its own view and provide the correct answer. (2) Determining the Appropriate Standard of Review: (a) Reasonableness A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied: A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. But note, neither Parliament nor any legislature can completely remove the courts power to review the actions and decisions of administrative bodies. This power is constitutionally protected. A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). A tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. Where the question is one of fact, discretion or policy, deference will usually apply automatically. Same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated. The nature of the question of law. A question of law that is of central importance to the legal system . . . and outside the . . . specialized area of expertise of the administrative decision maker will always attract a correctness standard. On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. If these factors, considered together, point to a standard of reasonableness, the decision makers decision must be approached with deference in the sense of respect discussed earlier. (b) Correctness: Correctness review has been found to apply to: - constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise. Because of their


impact on the administration of justice as a whole, such questions require uniform and consistent answers Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis: Pragmatic and functional approach replaced with standard of review analysis. The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. Held - In this case, a reasonableness standard arises (full privative clause; labour decision = expertise etc). The decision itself, however, cannot be said to be reasonable on any interpretation of the Act, as the adjudicator failed to take into account the explicit contractual terms which allowed for dismissal without stating cause. 2. Binnie J (Concurring): Agrees on need to re-examine the approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable. But he thinks Bastarache and LeBel do not deal with the system as a whole. The present difficulty, it seems, does not lie in the component parts of judicial review, most of which are well entrenched in decades of case law, but in the current methodology for putting those component parts into action. The pragmatic and functional approach is more complicated than is required by the subject matter. The law of judicial review should be pruned of some of its unduly subtle, unproductive, or esoteric features. The theory of our recent case law has been that once the appropriate standard of review is selected, it is a fairly straightforward matter to apply it. In practice, the criteria for selection among reasonableness standards of review proved to be undefinable and their application unpredictable. While a measure of uncertainty is inherent in the subject matter and unavoidable in litigation (otherwise there wouldnt be any), we should at least (i) establish some presumptive rules and (ii) get the parties away from arguing about the tests and back to arguing about the substantive merits of their case. The presumption should be that the standard of review of any administrative outcome on grounds of substance is not correctness but reasonableness (contextually applied). If legislature designated the decision maker then court should be deferential to (or show judicial respect for) the outcome, absent a broad statutory right of appeal. Administrative decisions generally call for the exercise of discretion. Everybody recognizes in such cases that there is no single correct outcome. It should also be presumed, in accordance with the ordinary rules of litigation, that the decision under review is reasonable until the applicant shows otherwise. An applicant urging correctness standard should be required to demonstrate that the decision under review rests on an error in the determination of a legal issue not confided (or which constitutionally could not be confided) to the administrative decision maker to decide, whether in


relation to jurisdiction or the general law. Labour arbitrators, as in this case, command deference on legal matters within their enabling statute or on legal matters intimately connected thereto. Reasonableness rather than rationality has been the traditional standard and, properly interpreted, it works. That said, a single reasonableness standard will now necessarily incorporate both the degree of deference formerly reflected in the distinction between patent unreasonableness and reasonableness simpliciter, and an assessment of the range of options reasonably open to the decision maker in the circumstances, in light of the reasons given for the decision. Any reappraisal of our approach to judicial review should, I think, explicitly recognize these different dimensions to the reasonableness standard. Justice Binnies judgment pays close attention to the role of context in substantive review, particularly in defining the content of the new reasonableness standard. He alone notes that the pre-Dunsmuir existence of both a highly deferential and an intermediate standard of review attempted to recognize that administrative decision makers making certain decisions should be entitled to more deference than other administrative decision makers making different decisions: The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate. Contextualizing a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represents a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference. A single reasonableness standard would require judges to apply the standard more deferentially and sometimes less deferentially depending on the circumstances, an approach the Court had expressly rejected in the context of the framework with three standards of review. The degree of deference measured by the contextual factors, including the four factors from the pragmatic and functional approach, would determine the range of possible, acceptable outcomes which are defensible in respect of the facts and law. In Justice Binnies view, [r]easonableness is a big tent that will have to accommodate a lot of variables that inform and limit a courts review of the outcome of administrative decision making. The nature of the question in particular helps to define the range of reasonable outcomes within which the administrator is authorized to choose. This range will be broader for a decision premised on the exercise of a broad, policy-infused discretion than for one hinging on the interpretation of a relatively static legal standard. 3. Deschamps J (Charron and Rothstein concurring) (Dissent): - The 4 factors (nature of question, privative clause, expertise of decisionmaker, object of statute) which have become synonymous with substantive review need not all be considered in every case. Analysis can be made plainer if focus is placed on the issues that need to be adjudicated rather than the judicial review process itself. By focusing on nature of the question, it will become apparent that all four factors need not be considered in every case and that judicial review of administrative action is often not distinguishable from the appellate review of court decisions. - When an issue is limited to questions of fact, there is no need to enquire into any other factor in order to determine that deference is owed. In the context of appellate review of court decisions, this Court has recognized that these expressions as well as others all encapsulate the same principle of deference with respect to a trial judges findings of fact: Questions of law, by contrast, require more thorough scrutiny when deference is evaluated (a decision of law may attract deference where it concerns the interpretation of the enabling statue and provided there is no right of review). For questions of mixed fact and law, the same deference is owed to admin body as a court of appeal owes a lower court.


- Where there is a privative clause, Parliaments intent to leave the final decision to that body cannot be doubted and deference is usually owed to the body. But privative clauses cannot totally shield an administrative body from review (e.g. if it is asked to interpret laws of which it does not have expertise, then constitutional responsibility of superior courts as guardians of rule of law compels them to insure the laws falling outside and admin bodys core expertise are interpreted correctly) In summary, in the adjudicative context, the same deference is owed in respect of questions of fact and questions of mixed fact and law on administrative review as on an appeal from a court decision. A decision on a question of law will also attract deference, provided it concerns the interpretation of the enabling statute and provided there is no right of review. Justice Deschamps proposed a simplified standard of review analysis focused primarily on the nature of the question. Deference was owed to administrative bodies in their determinations of questions of fact or mixed fact and law, their interpretation and application of laws in respect of which they have expertise, and where their decisions are protected by a privative clause. Deference was not owed on the interpretation of laws falling outside their expertise, including laws of general application. In a clear break from prior doctrine, Justice Deschamps decided that deference was not owed on questions of law for which there was a statutory right of appeal. Since the adjudicator lacked specific expertise regarding the common law rules applicable to Dunsmuirs termination, she reviewed this decision on the preliminary issue on a correctness standard and quashed it because it did not even consider the employers common law right to dismiss Dunsmuir without cause. Comment: An overview of the case suggests that the role of the court in judicial review is this: If admin tribunals decision is within a range of reasonable outcomes among which admin decision maker can choose, then court should not interfere. If they make decisions outside statutory authority, or if legislation purports to confer jurisdiction is unconstitutional, or if deeply flawed reasoning process leads to unreasonable result, then thats where Courts engage in judicial review. Canada (Attorney General) v. Mowat 2009 Donna Mowat, is a former master corporal with the Canadian Forces (CF). In 1998, she filed a human rights complaint with the Commission alleging that the CF had discriminated against her on the ground of sex, contrary to the provisions of the Act. Specifically, she claimed that the CF failed to provide her with a harassment-free workplace, adversely differentiated against her in employment and refused to continue her employment. The harassment complaint included an allegation of sexual harassment. Issue: Does the Canadian Human Rights Tribunal (the Tribunal) have the authority to grant legal costs to a successful complainant under the provisions of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the Act)? Federal Court reviewed the Tribunals decision on a standard of review of reasonableness and concluded that the Tribunals determination that it had the authority to award costs was reasonable. Layden-Stevenson J.A. holds that the applicable standard is correctness and that Parliament did not grant the Tribunal the authority to award legal costs to a successful complainant. s. 53. 2(c) of the Act: (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: 1 ... (c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;


The nature of the question is narrow and discrete. Does compensation for any expenses incurred by the victim as a result of the discriminatory practice include payment of the victims legal costs in relation to the hearing before the Tribunal? The interpretation of the provision is critical because the Tribunals jurisdiction to award legal costs will ultimately turn on it. For the reasons that follow, I conclude that it is both a question of general law of central importance to the legal system as a whole and one that is outside the specialized expertise of the Tribunal. I do not believe that the nature of the question at hand engages the human rights subject-matter in which the Tribunal has expertise. The word costs is a legal term of art, a word or expression that has a technical meaning because of its conventional use by lawyers and judges. The characteristics of costs, developed over many years are: (1) They are an award to be made in favour of a successful or deserving litigant, payable by the loser. (2) Of necessity, the award must await the conclusion of the proceeding, as success or entitlement cannot be determined before that time. (3) They are payable by way of indemnity for allowable expenses and services incurred relevant to the case or proceeding. (4) They are not payable for the purpose of assuring participation in the proceedings. In Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2005 NSCA 70, 232 N.S.R. (2d) 16, 253 D.L.R. (4th) 506 (Halifax), MacDonald C.J. examined the provision in the Nova Scotia legislation empowering a board of inquiry to order any party who has contravened the Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of person or to make compensation therefore. In comprehensive and thoughtful reasons, the Chief Justice reviewed the history of costs and the relevant jurisprudence. He arrived at the following conclusions: a compensation award is separate and distinct from an award for costs. The former relates to the victims injury, the latter relates to the process; legal fees flowing from, but unrelated to prosecuting the claim can be compensable, but legal fees incidental to prosecuting the claim are not compensable; it is one thing to give the legislation a broad and liberal interpretation so as to ensure its objects are met. It is quite another to cloak the Board with jurisdiction that the legislature did not give to it; the Board had no power to award the complainant legal costs. Even if the appropriate standard of review were not correctness, an interpretation of paragraph 53(2) (c) of the Act that the Tribunal has authority to award costs would be unreasonable.


5. Relationship of Aboriginal Peoples to the Canadian state: Selected topics Aboriginal Rights and Title Aboriginal Self-Government Aspirations The Modern Treaty Making Process

Required Readings: Section 91(24) of The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3; 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. Indians, and Lands reserved for the Indians. - Section 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Definition of aboriginal peoples of Canada (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Mtis peoples of Canada. Land claims agreements (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. Aboriginal and treaty rights are guaranteed equally to both sexes (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. Commitment to participation in constitutional conference 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. - Mary C. Hurley, "The Crown's Fiduciary Relationship with Aboriginal Peoples", Library of Parliament, Revised 2002 Background Canadas Aboriginal peoples have always held a unique legal and constitutional position. - Royal Proclamation of 1763 (the Magna Carta of Indian Rights) reserved to the Crown the exclusive right to negotiate cessions (giving up) of Aboriginal title. - subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over Indians, and Lands Reserved for the Indians. - section 35 of the Constitution Act, 1982 recognizes and affirms existing aboriginal and treaty rights of Canadas Aboriginal peoples, defined as including the Indian, Inuit and Mtis peoples. R. v. Van der Peet (1996) per SSC: the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here 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. Judicial Interpretation A fiduciary relationship is one in which someone in a position of trust has rights and powers which he is bound to exercise for the benefit of another. SCC adapted these private law concepts to the context of Crown-Aboriginal relations. Guerin v. R. (1984): 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 SCCs first section 35 decision extended the fiduciary concept significantly. the general guiding principle for section 35 is that the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. 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; [t]he justificatory standard to be met may place a heavy burden on the Crown, while inquiries such as whether the infringement has been minimal, whether fair compensation has


been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test. Other section 35 Court rulings containing relevant, generally applicable principles include: - R. v. Adams (1996) SCC found that, [i]n light of the Crowns unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in the absence of some explicit guidance. - Delgamuukw v. B.C., the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue. In the context of Aboriginal title, the Court expanded in particular upon the Crowns obligation to consult affected Aboriginal group(s), finding that the consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. Delgamuukw also stated that under section 35, the Crown is under a moral, if not a legal, duty to enter into and conduct negotiations [with Aboriginal peoples] in good faith. Wewaykum Indian Band v. Canada (2002) a non-section 35 decision, SCC clarified (and limited?) certain aspects of the Crown-Aboriginal fiduciary relationship and the scope of obligations arising under it, noting the post-Guerin flood of fiduciary duty claims across a whole spectrum of possible complaints. Extra-Judicial Considerations The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) saw the fiduciary relationship as originating in treaties and other historical links, describing it in conceptual terms that differ from those expressed by the courts: Because of this relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as guarantor of their Aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of the constitution of Canada.(15) Although the provinces and territories are also bound by fiduciary obligation(s), Parliament has primary jurisdiction in relation to Aboriginal peoples under subsection 91(24) of the Constitution Act, 1867. The federal government has not issued a comprehensive official policy in this area. Its approach identifies two principal categories of fiduciary obligations for government managers to take into account, based on the Guerin and Sparrow decisions. Guerin-type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land). Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights. Federal guidelines also underscore the honour of the Crown as an additional key element to be maintained in relations with Aboriginal peoples.

Some Crown activities affecting Aboriginal peoples that fall within the fiduciary relationship would not necessarily give rise to legally enforceable fiduciary obligations.

Commentary Crowns fiduciary relationship with and ensuing obligations toward Aboriginal peoples have implications for the development and conduct of government policy in matters that engage Aboriginal


interests. The scope of the obligations, and thus the nature of associated policy implications, will vary with the individual circumstances at issue. The application of SCC decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, e.g., land claim and self-government negotiations. The standard(s) for government conduct that will uphold the honour of the Crown in various situations require clarification. Aboriginal groups and government are frequently at odds in litigation, negotiation, and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship. Aboriginal parties generally support a broader view of Crown obligations than the government appears prepared to endorse. - "Highlights from the Report of the Royal Commission on Aboriginal Peoples: People to People, Nation to Nation" (1996) at: Our central conclusion can be summarized simply: The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong. Successive governments have tried - sometimes intentionally, sometimes in ignorance - to absorb Aboriginal people into Canadian society, thus eliminating them as distinct peoples. Policies pursued over the decades have undermined - and almost erased - Aboriginal cultures and identities. This is assimilation. It is a denial of the principles of peace, harmony and justice for which this country stands - and it has failed. Aboriginal peoples remain proudly different. Canadians need to understand that Aboriginal peoples are nations. That is, they are political and cultural groups with values and lifeways distinct from those of other Canadians. They are collectivities with a long shared history, a right to govern themselves and, in general, a strong desire to do so in partnership with Canada. Stage 1: Separate worlds - Aboriginals inhabited the Americas. Had their own sophisticated societies. Stage 2: Nation-to-nation relations - Cautious co-operation was the theme of this period. Aboriginals in charge of own affairs - Co-operation was formalized in two important ways: (1) treaties; (2) the Royal Proclamation of 1763 (a) Treaties: - Treaties were a way for Europeans and Abs to recognizing each others sovereignty and mutual respect. Abs had used these amongst each other historically as well. - Abs later found out that the treaties were used different to what they expected - treaties were statements of peace, friendship, sharing or alliance, not submission or surrender, (b) Royal proclamation: - The proclamation summarized the rules that were to govern British dealings with Aboriginal people, especially in relation to the key question of land. - Aboriginal people were not to be molested or disturbed on their lands - Transactions involving Aboriginal land were to be negotiated properly between the Crown and assemblies of Indians. Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown.


- The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal political authority. - It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement. It finds a balance in an arrangement allowing Aboriginal and nonAboriginal people to divide and share sovereign rights to the lands that are now Canada. Stage 3: Respect gives way to domination - Ironically, the transformation from respectful coexistence to domination by non-Aboriginal laws and institutions began with the main instruments of the partnership: the treaties and the Royal Proclamation of 1763 - Then came Confederation in 1867, a new partnership b/w English and French, which was negotiated w/out Aboriginal nations - Then came the BNA Act, young Canadas new constitution, which made Indians and Lands reserved for the Indians subject for government regulation - Reserves were designed to protect Aboriginal people and preserve their ways, but operated instead to isolate and impoverish them. Stage 4: Renewal and renegotiation - Policies of domination and assimilation battered Aboriginal institutions, sometimes to the point of collapse. Poverty, ill health and social disorganization grew worse. Aboriginal people struggled for survival as individuals, their nationhood erased from the public mind and almost forgotten by themselves. - Resistance to assimilation grew weak, but it never died away. In the fourth stage of the relationship, it caught fire and began to grow into a political movement. - One stimulus was the federal governments White Paper on Indian policy, issued in 1969 - They studied their history and found evidence confirming that they have rights arising from the spirit and intent of their treaties and the Royal Proclamation of 1763. They took heart from decisions of Canadian courts, most since 1971, affirming their special relationship with the Crown and their unique interest in their traditional lands. They set about beginning to rebuild their communities and their nations with new-found purpose. - A dozen years of intense political struggle by Aboriginal people, including appeals to the Queen and the British Parliament, produced an historic breakthrough: Existing Aboriginal and treaty rights were recognized in the Constitution Act, 1982. The way forward - The policies of the past have failed to bring peace and harmony to the relationship between Aboriginal peoples and other Canadians. Equally, they have failed to bring contentment or prosperity to Aboriginal people - But governments have so far refused to recognize the continuity of Aboriginal nations and the need to permit their decolonization at last. By their actions, if not their words, governments continue to block Aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and work out their own solutions to social, economic and political problems. It is this refusal that effectively blocks the way forward. Propose four principles as the basis of a renewed relationship. 1. Recognition The principle of mutual recognition calls on non-Aboriginal Canadians to recognize that Aboriginal people are the original inhabitants and caretakers of this land and have distinctive rights and responsibilities flowing from that status. It calls on Aboriginal people to accept that non-Aboriginal people are also of this land now, by birth and by adoption, with strong ties of love and loyalty. It requires both sides to acknowledge and relate to one another as partners, respecting each other's laws and institutions and co-operating for mutual benefit.


2. Respect The principle of respect calls on all Canadians to create a climate of positive mutual regard between and among peoples. Respect provides a bulwark against attempts by one partner to dominate or rule over another. Respect for the unique rights and status of First Peoples, and for each Aboriginal person as an individual with a valuable culture and heritage, needs to become part of Canada's national character. 3. Sharing The principle of sharing calls for the giving and receiving of benefits in fair measure. It is the basis on which Canada was founded, for if Aboriginal peoples had been unwilling to share what they had and what they knew about the land, many of the newcomers would not have lived to prosper. The principle of sharing is central to the treaties and central to the possibility of real equality among the peoples of Canada in the future. 4. Responsibility Responsibility is the hallmark of a mature relationship. Partners in such a relationship must be accountable for the promises they have made, accountable for behaving honourably, and accountable for the impact of their actions on the well-being of the other. Because we do and always will share the land, the best interests of Aboriginal and non-Aboriginal people will be served if we act with the highest standards of responsibility, honesty and good faith toward one another. - Propose that treaties be the mechanism for turning principles into practice Restructuring the relationship - To restore the essence of the early relationship between Aboriginal and settler societies described in Chapter 1, the elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood. Self government - The right is inherent in Aboriginal people and their nationhood - We hold that Aboriginal governments are one of three orders of government in Canada- federal, provincial/territorial, and Aboriginal. - To have self-government, they need to establish larger communities, develop human resources (i.e build an Aboriginal public service). - Propose a new Royal Proclamation. The proclamation should be followed by the enactment of companion legislation by the Parliament of Canada legislation to create the new laws and institutions needed to implement the renewed relationship. Their combined purpose is to provide the authority and tools for Aboriginal people to structure their own political, social and economic future. 3 options for self government: - nation government (aboriginal people with a strong sense of shared identity and an exclusive territorial base will probably opt for the 'nation' model of self-government), - public government (in some regions, Aboriginal people are the majority e.g. northerly parts). Existing agreements (such as the Nunavut Agreement) signal that Aboriginal nations in that situation will probably opt for the 'public' model of self-government. In this model, all residents participate equally in the functions of government, regardless of their heritage. ), - community interest government (urban centres element of self-government - especially in relation to education, health care, economic development, and protection of their cultures.) - Financing self government is another issue (e.g. developing own source revenues such as a taxation system)


Redistributing lands and resources - Aboriginal land, in relation to the size of Canada, is small - Treaty agreements did not end the conflict. - Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and some have been successful. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues they have legal rights. - The law of Aboriginal title establishes three things: (1) Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their history of having lived in and used those lands since time immemorial. (2) Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that nations traditional lands. (3) The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests in those lands. - But the courts are a cumbersome, costly and sometimes insensitive way to solve the human issues that underlie land and resource claims. - The existing land claims settlement process is deeply flawed: It assumes that no Aboriginal rights apply on Crown land unless Aboriginal nations can prove otherwise. This position is at odds with the doctrine of continuing Aboriginal title and with the duty of the Crown to protect Aboriginal interests. The government of Canada controls the process. It acts as defender of the Crowns interests and also as judge and jury on claims. This is a clear conflict of interest, since it considers itself the loser when a claim is settled in favour of Aboriginal people - A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of a new treaty process - Failure to redistribute land and resources will doom Aboriginal people to a state of dependency on other Canadians a sure recipe for grievance on both sides Economic development - Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new governments a success - Several factors will make revitalization of Aboriginal economies a big challenge: dependence on government for funds; inequality; variability (in that aboriginal communities are located all over the country) - Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations - Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for most nations will come from access to a fair share of lands and resources. But that wont be enough. We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development - The employment problem is immense, and needs reform/support - Public investment in education and training is vital to improve employment prospects for Aboriginal people in the existing job market. - Alternatives to welfare are needed. There may never be enough jobs to go around in Aboriginal communities. Yet social assistance, as now delivered, is not a good way of providing cash income, for it traps recipients in a marginal existence Treaties: the mechanism for change - The Commission proposes a wide-ranging agenda for change to achieve two goals:


Rebuilding Aboriginal nations as the best and proper way for Aboriginal people to protect their heritage and identity, restore health and prosperity to their communities, and reorganize their relations with Canada. Restoration of relations of mutual respect and fair dealing between Aboriginal and nonAboriginal people. - As complex as the project appears, it can be done. The central mechanism of change is the treaty. - We propose that the treaty relationship be restored and used from now on as the basis of the partnership between Aboriginal and non-Aboriginal people in Canada - Implementation of treaty terms and promises was problematic from the start. As time passed and the balance of power between Aboriginal and non-Aboriginal people shifted, governments were able to ignore terms and promises that no longer suited them - On the second point, the Commission has concluded that the treaties should be implemented to reflect their spirit and intent not just their words, whether spoken or written - It is deeply self-serving of Canadian authorities to insist on a literal interpretation of such clauses. If the relationship between Aboriginal and non-Aboriginal people is ever to be set right, the underlying intentions of treaty promises not the letter of outdated terms must guide their present-day implementation - We believe that those without a treaty, accord, compact or other agreement clarifying their relationship with Canada have the right to seek one. For its part, Canada has a duty to conclude such treaties. - We propose a new treaty process to lead the way to reconciliation between Aboriginal and non-Aboriginal people over the next 20 years. An agreed treaty process can be the mechanism for implementing virtually all the recommendations in our report indeed, it may be the only legitimate way to do so. -To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them. - The main objectives of a new treaty-making process would be to establish the full jurisdiction of those nations as part of an Aboriginal order of government ; expand the land and resource base under their control The relationship restructured - We have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of tension and failed initiatives to one of co-operation and growing successes. The steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a workable plan. Let us review them briefly: (1) The federal government should begin the cycle of renewal with an act of national intention a new Royal Proclamation (We propose a new Royal Proclamation, stating Canadas commitment to principles of mutual recognition, respect, responsibility and sharing in the relationship between original peoples and those who came later) (2) Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them. (3) The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to establish the new relationship (4) Aboriginal nations should begin their rebuilding processes (5). All governments should prepare to enter into the new treaty process. (6) Governments should take interim steps, as proposed by this Commission, to redistribute lands and resources. (7) Aboriginal and non-Aboriginal governments should co-operate to stimulate economic development


Required Readings Re: Aboriginal Rights: R. v. Sparrow, [1990] 1 S.C.R. 1075 sets out test for s35(1) and also justification criteria Facts: Appellant was charged in 1984 under the Fisheries Act with fishing with a drift net longer than that permitted by the terms of his Band's Indian food fishing licence. He admitted that the facts alleged constitute the offence, but defended the charge on the basis that he was exercising an existing aboriginal right to fish. 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. First time that s.35 explored by SCC. Is net length restriction contained in a Band's fishing licence inconsistent with s. 35(1) of the Constitution Act, 1982? Meaning of existing 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 (i.e. cannot freeze it) The phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. Aboriginal Rights An aboriginal right is not extinguished merely by its being controlled in great detail by the regulations. The test of extinguishment to be adopted is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right. There is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish the Indian aboriginal right to fish. Permits were simply a manner of controlling the fisheries, not defining underlying rights. 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). Meaning of recognised and affirmed in s35(1) General guiding principle for s. 35(1) - the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. Nowegijick v. The Queen - . . . treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. R. v. Taylor and Williams the honour of the Crown is always involved and no appearance of `sharp dealing' should be sanctioned. Guerin v. The Queen - Court noted the responsibility of Government to protect the rights of Indians arising from the special trust relationship created by history, treaties and legislation The principles set out in the above cases should guide the interpretation of s. 35(1).


The words "recognition and affirmation" incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. But s35(1) rights are not absolute - 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. 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. Summary of s35 and Sparrow tests: 1. Is there an existing Aboriginal right? 2. Has the right been extinguished? 3. Has there been a prima facie infringement of the right? (a) Is the limitation unreasonable? (b) Does the regulation impose undue hardship? (c) Does the regulation deny to the holders of the right their preferred means of exercising that right? 4. Can the infringement be justified? (public interest isnt good enough, conservation and management of resources would be ) (a) Is there a valid legislative objective? This should be clear and specific, not vague like general public interest (but necessary for the proper management and conservation of a resource is ok) (b) 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. 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. Also note: AR to fish has priority after conservation - If, in a given year, conservation needs required a reduction in the number of fish to be caught such that the number equalled the number required for food by the Indians, then all the fish available after conservation would go to the Indians according to the constitutional nature of their fishing right. COURT ORDERED A RETRAIL AND THE ABOVE TEST APPLIED.


R. v. Van der Peet, [1996] 2 S.C.R. 507; - sets out test of what constitutes aboriginal rights and says commercial sale of fish not allowed VDP caught selling 10 Salmon caught pursuant an Indian food fishing licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence. She claimed the restrictions imposed by s. 27(5) infringed her aboriginal right to sell fish and accordingly were invalid because they violated s. 35(1) of the Constitution Act, 1982. How should the aboriginal rights recognized and affirmed by s.35(1) of the Constitution Act, 1982 be defined? In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and 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. Integral to the Distinctive Culture test developed 1. characterization of the claimed right - consider (a) the nature of the activity claimed to be carried out pursuant to an Aboriginal right; (b) the nature of the impugned governmental regulation, statute, or action, that allegedly infringes the right; and (c) the practice, custom, or tradition relied upon to establish the right. 2. determination of whether the activity is "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right" (prior to contact with Europeans). Courts must take into account the perspective of aboriginal peoples themselves but must do so in terms that are cognizable to the non-aboriginal legal system In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question Claimant must demonstrate that the practice, custom or tradition was one of the things which made the culture of the society distinctive -- that it was one of the things that truly made the society what it was. Ask whether, without this practice, custom or tradition, the culture in question would be fundamentally altered or other than what it is. It must be a defining feature of the aboriginal society, such that the culture would be fundamentally altered without it. It must be a feature of central significance to the peoples culture, one that truly made the society what it was 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 Because it is the fact that distinctive aboriginal societies lived on the land prior to the arrival of Europeans that underlies the aboriginal rights protected by s. 35(1), it is to that pre-contact period that the courts must look in identifying aboriginal rights. It is precisely those present practices, customs and traditions which can be identified as having continuity with the practices, customs and traditions that existed prior to contact that will be the basis for the identification and definition of aboriginal rights under s. 35(1). Notes Sparrow "the phrase existing aboriginal rights must be interpreted flexibly so as to permit their evolution over time". Can also cease and resume a practice, custom or tradition as well. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims


Claims to aboriginal rights must be adjudicated on a specific rather than general basis look to the particular aboriginal community For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it existsy. Where two customs exist, but one is merely incidental to the other, the custom which is integral to the aboriginal community in question will qualify as an aboriginal right, but the custom that is merely incidental will not. Incidental practices, customs and traditions cannot qualify as aboriginal rights through a process of piggybacking on integral practices, customs and traditions. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct it does not need to be unique. Certainly no aboriginal group in Canada could claim that its culture is "distinct" or unique in fishing for food; fishing for food is something done by many different cultures and societies around the world. What the Musqueam claimed in Sparrow, supra, was rather that it was fishing for food which, in part, made Musqueam culture what it is; fishing for food was characteristic of Musqueam culture and, therefore, a distinctive part of that culture The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence. 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. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples As was noted in the discussion of the purposes of s. 35(1), aboriginal rights and aboriginal title are related concepts; aboriginal title is a sub-category of aboriginal rights which deals solely with claims of rights to land. Courts must not focus so entirely on the relationship of aboriginal peoples with the land that they lose sight of the other factors relevant to the identification and definition of aboriginal rights.

HELD The trial judge made no clear and palpable error which would justify an appellate court's substituting its findings of fact. These findings included: (1) prior to contact exchanges of fish were only "incidental" to fishing for food purposes; (2) there was no regularized trading system amongst the appellant's people prior to contact; (3) the trade that developed with the Hudson's Bay Company, while of significance to the Sto:lo of the time, was qualitatively different from what was typical of Sto:lo culture prior tocontact; and, (4) the Sto:los exploitation of the fishery was not specialized and that suggested that the exchange of fish was not a central part of Sto:lo culture. The appellant failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo culture which existed prior to contact and was therefore protected by s. 35(1) of the Constitution Act, 1982. Per L'Heureux-Dub J. (dissenting): Prior to 1982, aboriginal rights were founded only on the common law and they could be extinguished by treaty, conquest and legislation as they were "dependent upon the good will of the Sovereign". Now, s. 35(1) of the Constitution Act, 1982 protects aboriginal interests arising out of the native historic occupation and use of ancestral lands through the recognition and affirmation of "existing aboriginal and treaty rights of the aboriginal peoples of Canada". Section 35(1) must be given a generous, large and liberal interpretation and ambiguities or doubts should be resolved in favour of the natives. Aboriginal rights must be construed in light of the special trust relationship and the responsibility of the Crown vis--vis aboriginal people. Most importantly, aboriginal rights protected under s. 35(1) must be interpreted in the context of the history and culture


of the specific aboriginal society and in a manner that gives the rights meaning to the natives. It is not appropriate that the perspective of the common law be given an equal weight with the perspective of the natives. While the Chief Justice recognizes the difference between "distinctive" and "distinct", he applies it only as regards the manifestations of the distinctive aboriginal culture, i.e., the individualized practices, traditions and customs of a particular group of aboriginal people. The "distinctive" aboriginal culture has, in my view, a generic and much broader application. Her approach describes aboriginal rights in a fairly high level of abstraction and is more generic. Its underlying premise is that the notion of "integral part of [aboriginals'] distinctive culture" constitutes a general statement regarding the purpose of s. 35(1). Section 35(1) should be viewed as protecting, not a catalogue of individualized practices, customs or traditions but the "distinctive culture" of which aboriginal activities are manifestations. The emphasis is on the significance of these activities to natives rather than on the activities themselves. These aboriginal activities should be distinguished from the practices or habits which were merely incidental to the lives of a particular group of aboriginal people and, as such, would not warrant protection under s. 35(1). The criterion of "distinctive aboriginal culture" should not be limited to those activities that only aboriginal people have undertaken or that non-aboriginal people have not. Rather, all practices, customs and traditions which are connected enough to the self-identity and self-preservation of organized aboriginal societies should be viewed as deserving the protection of s. 35(1). A generous, large and liberal construction should be given to these activities in order to give full effect to the constitutional recognition of the distinctiveness of aboriginal culture. What constitutes a practice, custom or tradition distinctive to native culture and society must be examined through the eyes of aboriginal people. Two basic approaches exist: the "frozen right" approach and the "dynamic right" approach. The latter should be preferred The fishery always provided a focus for life and livelihood for the Sto:lo and they have always traded salmon for the sustenance and support of themselves and their families. These activities formed part of the Sto:lo's distinctive aboriginal culture for a substantial continuous period of time -- for centuries before the arrival of Europeans -- and continued in modernized forms until the present day. The criteria regarding the characterization and the time requirement of aboriginal rights protected under s. 35(1) of the Constitution Act, 1982 were met. Per McLachlin J. (dissenting): A court considering the question of whether a particular practice is the exercise of a s. 35(1) constitutional aboriginal right must adopt an approach which: (1) recognizes the dual purposes of s. 35(1) (to preclude extinguishment and to provide a firm foundation for settlement of aboriginal claims); (2) is liberal and generous toward aboriginal interests; (3) considers the aboriginal claim in the context of the historic way of life of the people asserting it; and (4) above all, is true to the Crowns position as fiduciary for the first peoples. The legal perspectives of both the European and the aboriginal societies must be incorporated and the common law being applied must give full recognition to the pre-existing aboriginal tradition. The sale at issue should not be labelled as something other than commerce. One person selling something to another is commerce. The critical question is not whether the sale of the fish is commerce or non-commerce, but whether the sale can be defended as the exercise of a more basic aboriginal right to continue the aboriginal people's historic use of the resource. The evidence conclusively established that over many centuries the fishery was used not only for food and ceremonial purposes but also for a variety of other needs. The scale of fishing here fell well within the limit of the traditional fishery.



- R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686; - applied Van Der Peet in context of forestry upholds cutting of trees for personal and community use as an aboriginal right The respondents, S and P who are Maliseet and G who is Mikmaq, were charged under New Brunswicks Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents respective First Nations. Those taken by S and P were to be used for the construction of Ps house and the residue for community firewood. Those cut by G were to be used to fashion his furniture. The respondents had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. Court applied Van Der Peet test i.e. In order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. The first step is to identify the precise nature of the applicants claim of having exercised an aboriginal right (consider such factors as the nature of the action which the applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right). Noted a difficulty - the respondents led most of their evidence about the importance of wood in Maliseet and Mikmaq cultures and the many uses to which it was put. This is unusual because the jurisprudence of this Court establishes the central importance of the actual practice, customs or traditions in founding a claim for an aboriginal right. Aboriginal rights are not generally founded upon the importance of a particular resource. In my view, the pre-contact practice is central to the Van der Peet test for two reasons: First, in order to grasp the importance of a resource to a particular aboriginal people, the Court seeks to understand how that resource was harvested, extracted and utilized. These practices are the necessary aboriginal component in aboriginal rights. The goal for courts is, therefore, to determine how the claimed right relates to the pre-contact culture or way of life of an aboriginal society. It is critically important that the Court be able to identify a practice that helps to define the distinctive way of life of the community as an aboriginal community. The importance of leading evidence about the pre-contact practice upon which the claimed right is based should not be understated. In the absence of such evidence, courts will find it difficult to relate the claimed right to the pre-contact way of life of the specific aboriginal people, so as to trigger s. 35 protection. Second, it is also necessary to identify the pre-contact practice upon which the claim is founded in order to consider how it might have evolved to its present-day form. In the present cases, the relevant practice for the purposes of the Van der Peet test is harvesting wood. The respondents do not claim a right to harvest wood for any and all purposes such a right would not provide sufficient specificity to apply the reasoning I have just described. The respondents instead claim the right to harvest timber for personal uses; I find this characterization to be too general. As previously explained, it is critical that the Court identify a practice that helps to define the way of life or distinctiveness of the particular aboriginal community. The claimed right should then be delineated in accordance with that practice. The way of life of the Maliseet and of the Mikmaq during the pre-contact period is that of a migratory people who lived from fishing and hunting and who used the rivers and lakes of Eastern Canada for transportation. Thus, the practice should be characterized as the harvesting of wood for certain uses that are directly associated with that particular way of life. The record shows that wood was used to fulfill the communities domestic needs for such things as shelter, transportation, tools and fuel. I would therefore characterize the respondents claim as a right to harvest wood for domestic uses as a member of the aboriginal community.


The word domestic qualifies the uses to which the harvested timber can be put. The right so characterized has no commercial dimension. Courts must be flexible and be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available. The evidence in these cases established that wood was critically important to the pre-contact Maliseet and Mikmaq, and it can be inferred from the evidence that the practice of harvesting wood for domestic uses was significant, though undertaken primarily for survival purposes. The principal issue on appeal is whether a practice undertaken for survival purposes can meet the integral to a distinctive culture test. Noted that statement by Lamer CJ in Van der Peet has lead to considerable confusion: To recognize and affirm the prior occupation of Canada by distinctive aboriginal societies it is to what makes those societies distinctive that the court must look in identifying aboriginal rights. The court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive), nor can it look at those aspects of the aboriginal society that are only incidental or occasional to that society; the court must look instead to the defining and central attributes of the aboriginal society in question. Relying on this passage, trial judge concluded that harvesting timber to construct a shelter was akin to eating to survive. This statement by Lamer C.J. appears to have resulted in considerable confusion as to whether a practice undertaken strictly for survival purposes can found an aboriginal right claim. However, further in his decision, Lamer C.J. clarifies that the pre-contact practice, custom or tradition relied on need not be distinct; it need only be distinctive. In so doing, he confirms that fishing for food can, in certain contexts, meet the integral to a distinctive culture test: Court has recognized a right to fish for food in Adams and in R. v. Ct. Noted that in Adams, SCC recognised right to fish for food even if it was only for subsistence. I wish to clarify, however, that there is no such thing as an aboriginal right to sustenance. Rather, these cases stand for the proposition that the traditional means of sustenance, meaning the pre-contact practices relied upon for survival, can in some cases be considered integral to the distinctive culture of the particular aboriginal people. What is distinctive culture? Culture is an inquiry into the pre-contact way of life of a particular aboriginal community, including means of survival, socialization methods, legal systems, and, potentially, trading habits. The qualifier distinctive incorporates an element of aboriginal specificity but does not mean distinct. The notion of aboriginality must not be reduced to racialized stereotypes of aboriginal peoples. A court, therefore, must first inquire into the way of life of the pre-contact peoples and seek to understand how the particular pre-contact practice relied upon by the rights claimants relates to that way of life. A practice of harvesting wood for domestic uses undertaken in order to survive is directly related to the pre-contact way of life and meets the integral to a distinctive culture threshold. Continuity - The nature of the right cannot be frozen in its pre-contact form but rather must be determined in light of present-day circumstances. The right to harvest wood for the construction of temporary shelters must be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling. Noted that SCC has imposed a site-specific requirement on the aboriginal hunting and fishing rights it recognized in Adams, Ct, Mitchell, and Powley. Lamer C.J. explained in Adams, at para. 30, that if an aboriginal people demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture then, even if the right exists apart from title to that tract of


land, the aboriginal right to hunt is nonetheless defined as, and limited to, the right to hunt on the specific tract of land. A site-specific hunting or fishing right does not, simply because it is independent of aboriginal title to the land on which it took place, become an abstract fishing or hunting right exercisable anywhere; it continues to be a right to hunt or fish on the tract of land in question. The site-specific requirement was also met. The Crown conceded in the case of S and P and the evidence established in the case of G that the harvesting of trees occurred within Crown lands traditionally used for this activity by members of their respective First nation The Crown did not discharge its burden of proving that the aboriginal right had been extinguished by pre-Confederation statutes. The power to extinguish aboriginal rights in the colonial period rested with the Imperial Crown and it was unclear whether the colonial legislature had ever been granted the legal authority to do so. In any event, the legislation relied upon by the Crown as proof of extinguishment was primarily regulatory in nature. The regulation of Crown timber through a licensing scheme does not meet the high standard of demonstrating a clear intent to extinguish the aboriginal right to harvest wood for domestic uses. Binnie J - In aboriginal communities pre-contact, as in most societies, there existed a division of labour. This should be reflected in a more flexible concept of the exercise of aboriginal rights within modern aboriginal communities, especially considering that the aboriginal right itself is communal in nature. Barter (and, its modern equivalent, sale) within the reserve or other local aboriginal community would reflect a more efficient use of human resources than requiring all members of the reserve or other local aboriginal community to which the right pertains to do everything for themselves. They did not do so historically and they should not have to do so now. On the one hand, it seems to me a Mikmaq or Maliseet should be able to sell firewood to his or her aboriginal neighbour or barter it for, say, a side of venison or roofing a house. On the other hand, I agree that trade, barter or sale outside the reserve or other local aboriginal community would represent a commercial activity outside the scope of the aboriginal right established in this case. In other respects I agree with my colleague.


- R. v. Powley, 2003 SCC 43; - applied Sparrow and Van Der Peet in context of Metis recognizes hunting of moose as an AR This case raises the issue of whether members of the Mtis community in and around Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35 of the Constitution Act, 1982. We conclude that they do. The term Mtis in s. 35 of the Constitution Act, 1982 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears. The purpose of s. 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Mtis culture. Notes that the Van der Peet judgement expressly contemplates Mtis claims. Here judge notes the constitutionally significant feature of the Mtis is their special status as peoples that emerged between first contact and the effective imposition of European control. We accept Van der Peet as the template for this discussion. However, we modify the precontact focus of the Van der Peet test when the claimants are Mtis to account for the important differences between Indian and Mtis claims. Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Mtis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique postcontact emergence of Mtis communities, and the post-contact foundation of their aboriginal rights. 1. Characterisation of the Right The right being claimed can therefore be characterized as the right to hunt for food in the environs of Sault Ste. Marie. The relevant right is not to hunt moose but to hunt for food in the designated territory. 2. Identification of the Historic Rights-Bearing Community A distinctive Mtis community emerged in theUpper Great Lakes region in the mid-17th century, and peaked around 1850. By the time of Vidals visit to the Sault Ste. Marie area around 1846, the people of mixed ancestry living there had developed a distinctive sense of identity and Indians and Whites recognized them as being a separate people In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Mtis community that can support a claim to site-specific aboriginal rights. We find no basis for overturning the trial judges finding of a historic Mtis community at Sault Ste. Marie. 3. Identification of the Contemporary Rights-Bearing Community Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individuals ancestrally based membership in the present community. The Sault Ste. Marie Mtis community was to a large extent an invisible entity from the mid-19th century to the 1970s - we do not take this to mean that the community ceased to exist or disappeared entirely.


The Mtis continued to live in much the same manner as they had in the past fishing, hunting, trapping and harvesting other resources for their livelihood. The advent of European control over this area thus interfered with, but did not eliminate, the Sault Ste. Marie Mtis community and its traditional practices. We conclude that the evidence supports the trial judges finding that the communitys lack of visibility was explained and does not negate the existence of the contemporary community. There was never a lapse; the Mtis community went underground, so to speak, but it continued. Moreover, the continuity requirement puts the focus on the continuing practices of members of the community, rather than more generally on the community itself. 4. Verification of the Claimants Membership in the Relevant Contemporary Community Courts faced with Mtis claims will have to ascertain Mtis identity on a case-by-case basis. The inquiry must take into account both the value of community self-definition, and the need for the process of identification to be objectively verifiable. We have not been asked, and do not purport, to set down a comprehensive definition of who is Mtis for the purpose of asserting a claim under s. 35. Important components of a future definition set out below. The creation of appropriate membership tests before disputes arise is an urgent priority. We would look to three broad factors as indicia of Mtis identity for the purpose of claiming Mtis rights under s. 35: First, the claimant must self-identify as a member of a Mtis community. This self-identification should not be of recent vintage. Second, the claimant must present evidence of an ancestral connection to a historic Mtis community. We would not require a minimum blood quantum, but we would require some proof that the claimants ancestors belonged to the historic Mtis community by birth, adoption, or other means. Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed. The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Mtis communitys identity and distinguish it from other groups. Other indicia of community acceptance might include evidence of participation in community activities and testimony from other members about the claimants connection to the community and its culture. No matter how a contemporary community defines membership, only those members with a demonstrable ancestral connection to the historic community can claim a s. 35 right. Verifying membership is crucial, since individuals are only entitled to exercise Mtis aboriginal rights by virtue of their ancestral connection to and current membership in a Mtis community. 5. Identification of the Relevant Time Frame While the fact of prior occupation grounds aboriginal rights claims for the Inuit and the Indians, the recognition of Mtis rights in s. 35 is not reducible to the Mtis Indian ancestry. The test for Mtis practices should focus on identifying those practices, customs and traditions that are integral to the Mtis communitys distinctive existence and relationship to the land. This unique history can most appropriately be accommodated by a post-contact but pre-control test that identifies the time when Europeans effectively established political and legal control in a particular area. The


focus should be on the period after a particular Mtis community arose and before it came under the effective control of European laws and customs We reject the appellants argument that Mtis rights must find their origin in the pre-contact practices of the Mtis aboriginal ancestors. This theory in effect would deny to Mtis their full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1). (6) Determination of Whether the Practice is Integral to the Claimants Distinctive Culture The practice of subsistence hunting and fishing was a constant in the Mtis community, even though the availability of particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Mtis life and a defining feature of their special relationship to the land This evidence supports the trial judges finding that hunting for food wasintegral to the Mtis way of life at Sault Ste. Marie in the period just prior to 1850. (7) Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted Although s. 35 protects existing rights, it is more than a mere codification of the common law. Section 35 reflects a new promise: a constitutional commitment to protecting practices that were historically important features of particular aboriginal communities. A certain margin of flexibility might be required to ensure that aboriginal practices can evolve and develop over time, but it is not necessary to define or to rely on that margin in this case. Hunting for food was an important feature of the Sault Ste. Marie Mtis community, and the practice has been continuous to the present. (8) Determination of Whether or Not the Right Was Extinguished The doctrine of extinguishment applies equally to Mtis and to First Nations claims. There is no evidence of extinguishment here. The Crowns argument for extinguishment is based largely on the Robinson-Huron Treaty of 1850, from which the Mtis as a group were explicitly excluded. (9) If There Is a Right, Determination of Whether There Is an Infringement Ontario currently does not recognize any Mtis right to hunt for food, or any special access rights to natural resources for the Mtis whatsoever (appellants record, at p. 1029). This lack of recognition, and the consequent application of the challenged provisions to the Powleys, infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie Mtis community. (10) Determination of Whether the Infringement Is Justified The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with the trial judge that the record here does not support this justification. If the moose population in this part of Ontario were under threat, and there was no evidence that it is, the Mtis would still be entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria set out in R. v. Sparrow, [1990] 1 S.C.R. 1075. While preventative measures might be required for conservation purposes in the future, we have not been presented with evidence to support such measures here.


- Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; intro of duty to consult
For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title has not yet been legally recognized. The Province of British Columbia issued a Tree Farm License (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Co. The Haida challenged in court these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections. They asked that the replacements and transfer be set aside. The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida. The Court of Appeal reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6.

Issue before SCC: The government holds legal title to the land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land. But the Haida people also claim title to the land title which they are in the process of trying to prove and object to the harvesting of the forests on Block 6 as proposed in T.F.L. 39. In this situation, what duty if any does the government owe the Haida people? More concretely, is the government required to consult with them about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land and their Aboriginal rights? I conclude that the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida peoples concerns, although the possibility remains that it could become liable for assumed obligations. It follows that I would dismiss the Crowns appeal and allow the appeal of Weyerhaeuser. Injunctions It is argued that the Haidas proper remedy is to apply for an interlocutory injunction against the government and Weyerhaeuser, and that therefore it is unnecessary to consider a duty to consult or accommodate. While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy, which may fail to adequately take account of their interests prior to final determination thereof. If they can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies. The Source of a Duty to Consult and Accommodate The governments duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Here, Aboriginal rights and title have been asserted but have not been defined or proven. The Aboriginal interest in question is insufficiently specific for the honour of the Crown to mandate that


the Crown act in the Aboriginal groups best interest, as a fiduciary, in exercising discretionary control over the subject of the right or title. Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims. Section 35 represents a promise of rights recognition, and [i]t is always assumed that the Crown intends to fulfil its promises (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate. This duty to consult is recognized and discussed in the jurisprudence. E.g. In Sparrow, supra, at p. one of the factors in determining whether limits on the right were justified is whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. Delgamuukw, also. When the Duty to Consult and Accommodate Arises Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. 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. It must respect these potential, but yet unproven, interests. Crown may continue to manage the resource in question pending claims resolution. But, depending on the circumstances the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable. But, when precisely does a duty to consult arise? The foundation of the duty in the Crowns 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 This leaves the practical argument. It is said that before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outline their claims with clarity, focusing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.


D. The Scope and Content of the Duty to Consult and Accommodate The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that 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. At all stages, good faith on both sides is required. The common thread on the Crowns part must be the intention of substantially addressing [Aboriginal] concerns as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. The kind of duties that may arise in different situations. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases. Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. 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 peoples with respect to the interests at stake. Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justices Guide for Consultation with Mori (1997) provides insight (at pp. 21 and 31): Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed . . . . ... . . . genuine consultation means a process that involves . . .: gathering information to test policy proposals putting forward proposals that are not yet finalised seeking Mori opinion on those proposals informing Mori of all relevant information upon which those proposals are based not promoting but listening with an open mind to what Mori have to say being prepared to alter the original proposal providing feedback both during the consultation process and after the decision-process.

When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate.


Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests. This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal consent spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. E. Do Third Parties Owe a Duty to Consult and Accommodate? Third parties cannot be held liable for failing to discharge the Crowns 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. This does not mean, however, that third parties can never be liable to Aboriginal peoples - of they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crowns duty to consult and accommodate. F. The Provinces Duty Finally, the duty to consult and accommodate applies to the provincial government. At the time of the Union, the Provinces took their interest in land subject to any interest other than that of the Province in the same. Since the duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union, the Province took the lands subject to this duty. H. Application to the Facts The Crowns obligation to consult the Haida on the replacement of T.F.L. 39 was engaged in this case. The Haidas claims to title and Aboriginal right to harvest red cedar were supported by a goodprima facie case, and the Province knew that the potential Aboriginal rights and title applied to Block 6, and could be affected by the decision to replace T.F.L. 39. T.F.L. decisions reflect strategic planning for utilization of the resource and may have potentially serious impacts on Aboriginal rights and titles. If consultation is to be meaningful, it must take place at the stage of granting or renewing T.F.L.s. Furthermore, the strength of the case for both the Haidas title and their right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may also require significant accommodation to preserve the Haidas interest pending resolution of their claims. SUMMARY NOTE: test is: 1. Determine Existence of the Duty? (a) Honour of Crown (b)knowledge, real or constructive, of the potential existence of the Aboriginal right or title (c) conduct that might adversely affect 2. Determine Scope of the Duty referring to (i) Strength of the Case, (ii) Seriousness of the Potential Impact Obligations in consulting? Duty to accomodate? 3. Assess whether the Crown fulfilled its Duty.


4. If not, what remedy will be most appropriate? - Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 Since 1994, a mining company has sought permission from the British Columbia government to reopen an old mine. The Taku River Tlingit First Nation (TRTFN), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act, objected to the companys plan to build a road through a portion of the TRTFNs traditional territory. The Province granted the project approval certificate in 1998. The TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. The chambers judge concluded that the decision makers had not been sufficiently careful during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFNs concerns. She set aside the decision and directed a reconsideration. The majority of the Court of Appeal upheld the decision, finding that the Province had failed to meet its duty to consult with and accommodate the TRTFN. HELD: The honour of the Crown placed the Province under a duty to consult with the TRTFN in making the decision to reopen the Tulsequah Chief Mine. In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty. The TRTFN was part of the Project Committee, participating fully in the environmental review process. It was disappointed when, after three and a half years, the review was concluded at the direction of the Environmental Assessment Office. However, its views were put before the Ministers, and the final project approval contained measures designed to address both its immediate and long-term concerns. The Province was under a duty to consult. It did so, and proceeded to make accommodations. The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN. A. Did the Province Have a Duty to Consult and if Indicated Accommodate the TRTFN?

The principle of the honour of the Crown grounds the Crowns duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The Crowns 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). What the honour of the Crown requires varies with the circumstances. Although determining the required extent of consultation and accommodation before a final settlement is challenging, it is essential to the process mandated by s. 35(1). The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. B. What Was the Scope and Extent of the Provinces Duty to Consult and Accommodate the TRTFN? The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed (Haida, supra). It will vary with the circumstances, but always requires meaningful, good faith consultation and willingness on the part of the Crown to make changes based on information that emerges during the process.


There is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over at least some of the area that they claim. Acceptance of its title claim for negotiation establishes a prima facie case in support of its Aboriginal rights and title. The potentially adverse effect of the Ministers decision on the TRTFNs claims appears to be relatively serious. The chambers judge found that all of the experts who prepared reports for the review recognized the TRTFNs reliance on its system of land use to support its domestic economy and its social and cultural life (para. 70). The proposed access road was only 160 km long, a geographically small intrusion on the 32,000-km2 area claimed by the TRTFN. However, experts reported that the proposed road would pass through an area critical to the TRTFNs domestic economy). The TRTFN was also concerned that the road could act as a magnet for future development. The proposed road could therefore have an impact on the TRTFNs continued ability to exercise its Aboriginal rights and alter the landscape to which it laid claim. On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than the minimum receipt of notice, disclosure of information, and ensuing discussion. While it is impossible to provide a prospective checklist of the level of consultation required, it is apparent that the TRTFN was entitled to something significantly deeper than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation. C. Did the Crown Fulfill its Duty to Consult and Accommodate the TRTFN?

In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty to consult and accommodate. The TRTFN was part of the Project Committee, participating fully in the environmental review process. Its views were put before the decision makers, and the final project approval contained measures designed to address both its immediate and its long-term concerns. The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN. Finally, it is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if appropriate, accommodate the TRTFN.

Required Readings Re: Aboriginal Title: - Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Concerned a land claim by aborigines in BC. Initial claim was ownership and jurisdiction. Amended to aboriginal title and self government. Per Lamer CJ: Issues are: - What is the specific content of aboriginal title? - What is the test for the proof of title, which, whatever its content, is a right in land, and its relationship to the definition of the aboriginal rights recognized and affirmed by s. 35(1)? - Does aboriginal title, as a right in land, mandates a modified approach to the test of justification first laid down in Sparrow? - treatment of oral history by courts. - ability of the province to extinguish the aboriginal rights. Oral history


As a general rule, this Court has been extremely reluctant to interfere with the findings of fact made at trial, especially when those findings of fact are based on an assessment of the testimony and credibility of witnesses. Unless there is a palpable and overriding error, appellate courts should not substitute their own findings of fact for those of the trial judge. The factual findings made at trial could not stand because the trial judges treatment of the various kinds of oral histories did not satisfy the principles laid down in R. v. Van der Peet: In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of a practice, custom or tradition integral to a distinctive aboriginal culture,a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case. [Emphasis added.] Aboriginal rights are aimed at the reconciliation of the prior occupation of North America by distinctive aboriginal societies with the assertion of Crown sovereignty over Canadian territory. They attempt to achieve that reconciliation by their bridging of aboriginal and nonaboriginal cultures (at para. 42). Accordingly, a court must take into account the perspective of the aboriginal people claiming the right. . . . while at the same time taking into account the perspective of the common law such that [t]rue reconciliation will, equally, place weight on each (at paras. 49 and 50). The oral histories were used in an attempt to establish occupation and use of the disputed territory which is an essential requirement for aboriginal title. The trial judge refused to admit or gave no independent weight to these oral histories and then concluded that the appellants had not demonstrated the requisite degree of occupation for ownership. Had the oral histories been correctly assessed, the conclusions on these issues of fact might have been very different. What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is required for its proof Aboriginal title General features: Sui generis (of its own kind, unique) is the underlying principle (cant be explained purely by common law or purely by aboriginal rules of property). Dimensions are threefold: inalienability (can only be sold, surrendered to Crown), source (prior occupation before contact in accordance with their own pre-existing systems of law), communal (cant be held by individuals). Content of Aboriginal Title: 1. 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 Arguments: Canadian Jurisprudence: Guerin aboriginal title an is interest in land which encompasses a legal right to occupy and possess certain lands no qualification by reference to traditional/customary uses.


Paul aboriginal title is more than the right to enjoyment and occupancy no ref to aboriginal practices, customs and traditions Reserve Land - Guerin held that Indian interest in a reserve is the as that in traditional tribal lands. Indian Act says that reserve land is held for use and benefit of bands that occupy them not restricted to practices, customs and traditions. Indian Oil and Gas Act - statute presumes that the aboriginal interest in reserve land includes mineral rights. On the basis of Guerin, aboriginal title also encompass mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands. BUT aboriginal title does not amount to a form of inalienable fee simple.. 2. Inherent Limit: 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 Groups Claim to Aboriginal Title This inherent limit arises because the relationship of an aboriginal community with its land should not be prevented from continuing into the future. Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group. If lands are so occupied, there will exist a special bond between the group and the land in question such that the land will be part of the definition of the groups distinctive culture. Land held by virtue of aboriginal title may not be alienated because the land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value. (e.g. if occupation is established with reference to the use of the land as a hunting ground, then cannot strip mine it; if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not turn it into a parking lot). Finally, the importance of the continuity of the relationship between an aboriginal community and its land, and the non-economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration. On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so Aboriginal title at common law was recognized well before 1982 and is accordingly protected in its full form by s. 35(1). The constitutionalization of common law aboriginal rights, however, does not mean that those rights exhaust the content of s. 35(1). The existence of an aboriginal right at common law is sufficient, but not necessary, for the recognition and affirmation of that right by s. 35(1). Constitutionally recognized aboriginal rights fall along a spectrum with respect to their degree of connection with the land. At the one end are those aboriginal rights which are practices, customs and traditions integral to the distinctive aboriginal culture of the group claiming the right but where the use and occupation of the land where the activity is taking place is not sufficient to support a claim of title to the land. In the middle are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity. At the other end of the spectrum is aboriginal title itself which confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. Because aboriginal rights can vary with respect to their degree of connection with the land, some aboriginal groups may be unable to make out a claim to title, but will nevertheless possess aboriginal rights that are recognized and affirmed by s. 35(1), including site-specific rights to engage in particular activities. Proof of Aboriginal Title:


Van der Peet defined aboriginal rights based on activities. Aboriginal Title is a right to the land itself. That land may be used, subject to the inherent limitations of aboriginal title, for a variety of activities, none of which need be individually protected as aboriginal rights under s. 35(1). Those activities are parasitic on the underlying title. Test: (i) the land must have been occupied prior to sovereignty, 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. Cf. Van der Peet, which referred to pre contact activity. Proof of occupancy needs to take into account both in the common law and in the aboriginal perspective on land. At common law, the fact of physical occupation is proof of possession at law, which in turn will ground title to the land. Physical occupation may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources. In considering whether occupation sufficient to ground title is established, the groups size, manner of life, material resources, and technological abilities, and the character of the lands claimed must be taken into account. Given the occupancy requirement, it was not necessary to include as part of the test for aboriginal title whether a group demonstrated a connection with the piece of land as being of central significance to its distinctive culture. Ultimately, the question of physical occupation is one of fact to be determined at trial. (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and Since conclusive evidence of pre-sovereignty occupation may be difficult, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. An unbroken chain of continuity need not be established between present and prior occupation. 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. The only limitation on this principle might be that the land not be used in ways which are inconsistent with continued use by future generations of aboriginals. (iii) at sovereignty, that occupation must have been exclusive. At sovereignty, occupation must have been exclusive. This requirement flows from the definition of aboriginal title itself, which is defined in terms of the right to exclusive use and occupation of land. The test must take into account the context of the aboriginal society at the time of sovereignty - the intention and capacity to retain exclusive control. Thus, an act of trespass, if isolated, would not undermine a general finding of exclusivity, if aboriginal groups intended to and attempted to enforce their exclusive occupation. The presence of other aboriginal groups might actually reinforce a finding of exclusivity e.g. other tribes allowed access upon request, the very fact that permission was asked for and given would be further evidence of the groups exclusive control. The requirement of exclusive occupancy and the possibility of joint title (between two different tribes) can be reconciled by recognizing that joint title can arise from shared exclusivity. As well, shared, non-exclusive aboriginal rights short of aboriginal title but tied to the land and permitting a number of uses can be established if exclusivity cannot be proved. The common law should develop to recognize aboriginal rights as they were recognized by either de facto practice or by aboriginal systems of governance. Does aboriginal title, as a right in land, mandates a modified approach to the test of justification first laid down in Sparrow?


Test of justification: 1. the infringement of the aboriginal right must be in furtherance of a legislative objective that is compelling and substantial. Compelling and substantial objectives were those which were directed at either one of the purposes underlying the recognition and affirmation of aboriginal rights by s. 35(1), which are: . . . the recognition of the prior occupation of North America by aboriginal peoples or . . . the reconciliation of aboriginal prior occupation with the assertion of the sovereignty of the Crown. The latter italicized statement will be the one most often relied on. Note that Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation. Therefore conservation of fisheries was accepted as a compelling and substantial objective in Sparrow, as it furthers both of these purposes - it simultaneously recognizes that fishing is integral to many aboriginal cultures, and also seeks to reconcile aboriginal societies with the broader community by ensuring that there are fish enough for all. Legitimate government objectives also include the pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. By contrast, measures enacted for relatively unimportant reasons, such as sports fishing without a significant economic component (Adams, supra) would fail this aspect of the test of justification. 2. Is the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples. Requirements of fiduciary duty are a function of the legal and factual context e.g. in Sparrow fiduciary resp. re fishing was to give priority to aborigines. Three aspects of aboriginal title are relevant to the second part of the test. First, the right to exclusive use and occupation of land is relevant to the degree of scrutiny of the infringing measure or action For example, if the Crowns fiduciary duty requires that aboriginal title be given priority, the government must demonstrate (at para. 62) both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest of the holders of aboriginal title in the land. By analogy with Gladstone, this might entail, for example, that governments accommodate the participation of aboriginal peoples in the development of the resources of British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their lands (e.g., licensing fees) be somewhat reduced. This list is illustrative and not exhaustive. Second, aboriginal title encompasses the right to choose to what uses land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of aboriginal peoples. This suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands.


There is always a duty of consultation and, in most cases, the duty will be significantly deeper than mere consultation. In some cases full consent may be required. And third, lands held pursuant to aboriginal title have an inescapable economic component which suggests that compensation is relevant to the question of justification as well. Fair compensation will ordinarily be required when aboriginal title is infringed. Has a claim to self-government been made out by the appellants? The errors of fact made by the trial judge, and the resultant need for a new trial, make it impossible for this Court to determine whether the claim to self-government has been made out. Moreover, this is not the right case for the Court to lay down the legal principles to guide future litigation. Did the province have the power to extinguish aboriginal rights after 1871, either under its own jurisdiction or through the operation of s. 88 of the Indian Act? Section 91(24) of the Constitution Act, 1867 (the federal power to legislate in respect of Indians) carries with it the jurisdiction to legislate in relation to aboriginal title, and by implication, the jurisdiction to extinguish it. The ownership by the provincial Crown (under s. 109) of lands held pursuant to aboriginal title is separate from jurisdiction over those lands. Notwithstanding s. 91(24), provincial laws of general application apply proprio vigore (by its own force) to Indians and Indian lands. A provincial law of general application cannot extinguish aboriginal rights. First, a law of general application cannot, by definition, meet the standard of clear and plain intention needed to extinguish aboriginal rights without being ultra vires the province. Second, s. 91(24) protects a core of federal jurisdiction even from provincial laws of general application through the operation of the doctrine of interjurisdictional immunity. That core has been described as matters touching on Indianness or the core of Indianness. Provincial laws which would otherwise not apply to Indians proprio vigore are allowed to do so by s. 88 of the Indian Act which incorporates by reference provincial laws of general application. This provision, however, does not invigorate provincial laws which are invalid because they are in relation to Indians and Indian lands. La Forest and LHeureux-Dub JJ disagreed with Lamer CJ approach to aboriginal title: Aboriginal title is based on the continued occupation and use of the land as part of the aboriginal peoples traditional way of life. This sui generis interest is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts. It is personal in that it is generally inalienable except to the Crown and, in dealing with this interest, the Crown is subject to a fiduciary obligation to treat the aboriginal peoples fairly. There is reluctance to define more precisely the right of aboriginal peoples to live on their lands as their forefathers had lived. The approach to defining the aboriginal right of occupancy is highly contextual. A distinction must be made between (1) the recognition of a general right to occupy and possess ancestral lands and (2) the recognition of a discrete right to engage in an aboriginal activity in a particular area. The latter has been defined as the traditional use, by a tribe of Indians, that has continued from pre-contact times of a particular area for a particular purpose. By contrast, a general claim to occupy and possess vast tracts of territory is the right to use the land for a variety of activities related to the aboriginal societys habits and mode of life. In defining the nature of aboriginal title, reference need not be made to statutory provisions and regulations dealing specifically with reserve lands. Though the interest of an Indian band in a reserve


has been found to be derived from, and to be of the same nature as, the interest of an aboriginal society in its traditional tribal lands, it does not follow that specific statutory provisions governing reserve lands should automatically apply to traditional tribal lands. The key factors for recognizing aboriginal rights under s. 35(1) are met in the present case. First, the nature of an aboriginal claim must be identified precisely with regard to particular practices, customs and traditions. When dealing with a claim of aboriginal title, the court will focus on the occupation and use of the land as part of the aboriginal societys traditional way of life. [NOTE This is narrower than Lamers analysis] Second, an aboriginal society must specify the area that has been continuously used and occupied by identifying general boundaries. Exclusivity means that an aboriginal group must show that a claimed territory is indeed its ancestral territory and not the territory of an unconnected aboriginal society. It is possible that two or more aboriginal groups may have occupied the same territory and therefore a finding of joint occupancy would not be precluded. Third, the aboriginal right of possession is based on the continued occupation and use of traditional tribal lands since the assertion of Crown sovereignty. However, the date of sovereignty may not be the only relevant time to consider. Continuity may still exist where the present occupation of one area is connected to the pre-sovereignty occupation of another area. For example, there may have been aboriginal settlements in one area of the province but, after the assertion of sovereignty, the aboriginal peoples may have all moved to another area where they remained from the date of sovereignty until the present. This relocation may have been due to natural causes, such as the flooding of villages, or to clashes with European settlers. In these circumstances, I would not deny the existence of aboriginal title in that area merely because the relocation occurred post-sovereignty. In other words, continuity may still exist where the present occupation of one area is connected to the presovereignty occupation of another area. Also, aboriginal peoples claiming a right of possession may provide evidence of present occupation as proof of prior occupation. Further, it is not necessary to establish an unbroken chain of continuity. Fourth, if aboriginal peoples continue to occupy and use the land as part of their traditional way of life, the land is of central significance to them. Aboriginal occupancy refers not only to the presence of aboriginal peoples in villages or permanently settled areas but also to the use of adjacent lands and even remote territories used to pursue a traditional mode of life. Occupancy is part of aboriginal culture in a broad sense and is, therefore, absorbed in the notion of distinctiveness. The Royal Proclamation, 1763 supports this approach to occupancy. La Forest and LHeureux-Dub JJ also disagreed on the second branch of the justification test.: Rights that are recognized and affirmed are not absolute. Government regulation can therefore infringe upon aboriginal rights if it meets the test of justification under s. 35(1). The approach is highly contextual. The general economic development of the interior of British Columbia, through agriculture, mining, forestry and hydroelectric power, as well as the related building of infrastructure and settlement of foreign populations, are valid legislative objectives that, in principle, satisfy the first part of the justification analysis. Under the second part, these legislative objectives are subject to accommodation of the aboriginal peoples interests. This accommodation must always be in accordance with the honour and good faith of the Crown. One aspect of accommodation of aboriginal title entails notifying and consulting aboriginal peoples with respect to the development of the affected territory. Another aspect is fair compensation.


- Tsilhqotin Nation v. British Columbia, 2007 BCSC 1700, pages 149-186; Sets out a history of Aboriginal Title/Rights cases. - Why Treaties? [re: modern day treaties], BC Treaty Commission: BC Treaty Commission, Why treaties in the modern age - When the early Europeans first began to settle in the eastern part of North America, Britain recognized that those people who were living there had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty - In most of the treaties, aboriginal people gave up their title in exchange for land reserves and for the right to hunt and fish on the land theyd given up In BC, aboriginal peoples signed treaties in Vancouver Island (Douglas Treaties) but no others. Although no more treaties were made, under Douglas individual aboriginal people who wanted to take up farming could acquire Crown land on the same terms as the settlers. However, soon after Douglas retired the colonial government took away from aboriginal people the right to acquire Crown land, reduced the size of their reserves, denied that they had ever owned the land, and paid no compensation for the loss of traditional lands and resources. So when the time arrived for the colony of British Columbia to join Confederation in 1871, the new provinces policy was set: British Columbia did not recognize aboriginal title, so there was no need for treaties to extinguish it.

- Over the decades, aboriginal people protested demanding treaties to be signed. The demand intensified, culminating in the formation of the Allied Tribes of BC in 1916 to work for treaties. In response, Ottawa amended the Indian Act in 1927 to make it illegal to raise funds to pursue land claims (which was lifted only in 1951) - So treaties should have been made but they werent. Isnt it simply too late to revisit this? - Under s 35 of the Constitution Act 1982, aboriginal rights and treaty rights are recognized and affirmed The Evolution of Aboriginal Title - Calder decision recognizes aboriginal title (1973). The decision was a legal turning point. The recognition of aboriginal title in Calder as a legal right was sufficient to cause the federal government to establish a land claims process; but BC refused to participate. - Still, the question remained: had aboriginal title been extinguished before BC joined Confederation or not? In Sparrow, the Court took the same approach as in Calder, who said that unless legislation had evinced a clear and plain intention to extinguish aboriginal rights, it did not have that effect. This case dealt with particular aboriginal rights, not rights in land. - in Delgamuukw, the SCC confirmed that aboriginal title exists in BC - Morever, the Marshall and Bernard decision sets limits on aboriginal title.In the case, the Court unanimously dismissed the claim to both treaty and aboriginal rights. It found that although the treaty protected the Mikmaq rights to sell certain products, this right did not extend to commercial logging. The Court said that while rights are not frozen in time, the protected right must be a logical evolution of the activity carried on at the time of treaty-making. Treaties protect traditional activities expressed in a modern way and in a modern context; new and different activities are not protected. The Court

adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in question. Traditional practices must translate into a modern legal right, and it is the task of the court to consider any proper limitations on the modern exercise of those rights. The Court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title. What do these legal decisions mean? - The courts have confirmed that aboriginal title still exists in BC, but they have not indicated where it exists. To resolve this situation, the governments and First Nations have two options: either negotiate land, resource, governance and jurisdiction issues through a treaty process or go to court and have aboriginal rights/title decided on a case to case basis. - The below cases provide guidelines for the negotiation and definition of aboriginal title in BC - The Haida Nation and Tlingit First Nation cases - government has a duty to consult and possibly accommodate aboriginal interests even where title has not been proven. - In Mikisew, the SCC extended the Crowns obligation to consult and accommodate aboriginal interest (established in Haida and Taku) to include existing treaty rights (The Mikisew Cree argued the road impaired their traditional trapping and fishing rights granted in Treaty 8.) All of these landmark judgments together confirm that: (1) Aboriginal rights exist in law (2) Aboriginal rights are distinct from the rights of other Canadians (3) They include aboriginal title, which is a unique communally held property right (4) Aboriginal rights take priority over the rights of others, subject only to the needs of conservation (5) The scope of aboriginal title and rights depend on specific facts relating to the aboriginal group and its historical relationship with the land (6) The legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the peoples and governing societies that were resident in North America long before settlers arrived (7) Aboriginal rights and title cannot be extinguished by simple legislation because they are protected by the Constitution Act, 1982 (8) Government has a duty to consult and possible accommodate aboriginal interest even where title has not been proven (9) Government has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected Required Readings Re: Aboriginal Treaties: - R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43, 2005 SCC 43 [2005] This appeal deals with two cases. In Marshall, 35 Mikmaq Indians were charged with cutting timber on Crown lands in Nova Scotia without authorization. In Bernard, a Mikmaq Indian was charged with unlawful possession of spruce logs he was hauling from the cutting site to the local saw mill. The logs had been cut on Crown lands in New Brunswick. In both cases, the accused argued that as Mikmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title. The trial courts entered convictions which were upheld by the summary conviction courts. The courts of appeal set aside the convictions. A new trial was ordered in Marshall and an acquittal entered in Bernard. McLachlin CJ:


Can members of the Mikmaq people in Nova Scotia and New Brunswick engage in commercial logging on Crown lands without authorization, contrary to statutory regulation? More precisely, do they have treaty rights or aboriginal title entitling them to do so? The Background: Marshall 1 and Marshall 2 In 1760 and 1761, the British Crown concluded Peace and Friendship treaties with the Mikmaq peoples of the former colony of Nova Scotia, now the Provinces of Nova Scotia and New Brunswick. A critical aspect of the treaties was the trading clause. The Mikmaq Chiefs agreed: And I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majestys Governor . . . . The pact was mutual. In Marshall 1, a member of the Mikmaq nation was charged with fishing and selling eels out of season contrary to Federal regulations. . His defense was that the truckhouse clause of the treaties of 1760-61 gave him the right to catch and trade fish. The majority of this Court concluded that the truckhouse clause amounted to a promise on the part of the British that the Mikmaq would be allowed to engage in traditional trade activities so as to obtain a moderate livelihood from the land and sea. The Mikmaq had traded in fish at the time of the treaties. Marshalls activity could be characterized as fishing in order to obtain a moderate livelihood. It was thus the logical evolution of an aboriginal activity protected by the treaties. Marshall was acquitted. In response to a subsequent application for a rehearing, the Court issued reasons now known as Marshall 2 (R. v. Marshall, [1999] 3 S.C.R. 533). The Court commented on the nature of the right and the implication of Marshall 1 on the right of the Mikmaq to harvest and sell other resources. It stated that treaty rights pertaining to activities other than fishing, like logging, would fall to be decided on such evidence as might be led in future cases directed to that issue. Relying on their interpretation of Marshall 1, the respondents commenced logging activities on Crown lands in Nova Scotia and New Brunswick without authorization. They were arrested and charged. They raised the treaties and Marshall 1 and 2 in support of the defense that they were entitled to log for commercial purposes without permit. B. The Scope of the Treaty Right

The respondents argue that the truckhouse clause, as interpreted in Marshall 1 and 2, confers a general right to harvest and sell all natural resources which they used to support themselves in 1760. Provided they used a form of the resource either for their own needs or for trade at the time of the treaties, they now have the right to exploit it, unless the government can justify limitations on that exploitation in the broader public interest. The respondents argue that they used forest products for a variety of purposes at the time of the treaties, from housing and heat to sleds and snowshoes, and indeed occasionally traded products made of wood, all to sustain themselves. Logging represents the modern use of the same products, they assert. Therefore the treaties protect it. For the reasons that follow, I must reject the respondents interpretation of the scope of the right conferred by the truckhouse clause and endorse the view of the appellant. The purpose of the truckhouse clause, the wording of the clause, and holdings of this Court in Marshall 1 and 2, all lead inexorably to this conclusion.


I turn first to the purpose of the truckhouse clause as revealed by the historical record. The truckhouse clause was a trade clause. It was concerned with what could be traded. Thus, the truckhouse clause was concerned with traditionally traded products. The right to trade in traditional products carried with it an implicit right to harvest those resources. But this right to harvest is the adjunct of the basic right to trade in traditional products. The right conferred is not the right to harvest, in itself, but the right to trade. This is supported by the wording of the truckhouse clause. It speaks only of trade. Nothing comports a general right to harvest or gather all natural resources then used. This view of the truckhouse clause was confirmed by this Court in Marshall 1 and 2. In Marshall 1 the majority, per Binnie J., proceeded on the basis that at the time of the treaties the Mikmaq had sustained themselves, in part, by trading fish with the Europeans: . . . the Mikmaq people have sustained themselves in part by harvesting and trading fish (including eels) since Europeans first visited the coasts of what is now Nova Scotia in the 16th century. Thus, the ruling in Marshall 1 was based on the proposition that fishing for trade in 1760 was a traditional activity of the Mikmaq. From this, Binnie J. concluded that the treaty conferred a right to continue to obtain necessaries through the traditional Mikmaq activity of trading fish. He concluded that the surviving substance of the treaty is not the literal promise of a truckhouse, but a treaty right to continue to obtain necessaries through hunting and fishing by trading the products of those traditional activities (para. 56 (emphasis added)). Treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. The question is whether the modern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made. Logical evolution means the same sort of activity, carried on in the modern economy by modern means. This prevents aboriginal rights from being unfairly confined simply by changes in the economy and technology. But the activity must be essentially the same. While treaty rights are capable of evolution within limits, . . . their subject matter . . . cannot be wholly transformed (Marshall 2, at para. 19). In summary, what the treaty protects is not the right to harvest and dispose of particular commodities, but the right to practice a traditional 1760 trading activity in the modern way and modern context. The question is whether the logging here at issue is the logical evolution of a traditional Mikmaq trade activity, in the way modern eel fishing was found to be the logical evolution of a traditional trade activity of the Mikmaq in Marshall 1. Here, the trial judges applied the proper test and the evidence supports their conclusion that the commercial logging that formed the basis of the charges against the accused was not the logical evolution of a traditional Mikmaq trading activity in 1760-61. Per trial judge Trade in logging is not the modern equivalent or a logical evolution of Mikmaq use of forest resources in daily life in 1760 even if those resources sometimes were traded. Commercial logging does not bear the same relation to the traditional limited use of forest products as fishing for eels today bears to fishing for eels or any other species in 1760. . . . Whatever rights the defendants have to trade in forest products are far narrower than the activities which gave rise to these charges. Aboriginal title What standard of occupation is appropriate to determine aboriginal title?


Delgamuukw requires that in analyzing a claim for aboriginal title, the Court must consider both the aboriginal perspective and the common law perspective. Only in this way can the honour of the Crown be upheld. To determine aboriginal entitlement, one looks to aboriginal practices rather than imposing a European template: In considering whether occupation sufficient to ground title is established, one must take into account the groups size, manner of life, material resources, and technological abilities, and the character of the lands claimed (Delgamuukw, per Lamer C.J., at para. 149). The application of manner of life was elaborated by La Forest J. who stated that: . . . when dealing with a claim of aboriginal title, the court will focus on the occupation and use of the land as part of the aboriginal societys traditional way of life. In pragmatic terms, this means looking at the manner in which the society used the land to live, namely to establish villages, to work, to get to work, to hunt, to travel to hunting grounds, to fish, to get to fishing pools, to conduct religious rites, etc. Thus, to insist that the pre-sovereignty practices correspond in some broad sense to the modern right claimed, is not to ignore the aboriginal perspective. The aboriginal perspective grounds the analysis and imbues its every step. It must be considered in evaluating the practice at issue, and a generous approach must be taken in matching it to the appropriate modern right. Absolute congruity is not required, so long as the practices engage the core idea of the modern right. But as this Court stated in Marshall 2, a pre-sovereignty aboriginal practice cannot be transformed into a different modern right. In summary, the court must examine the pre-sovereignty aboriginal practice and translate that practice into a modern right. The process begins by examining the nature and extent of the pre-sovereignty aboriginal practice in question. It goes on to seek a corresponding common law right. In this way, the process determines the nature and extent of the modern right and reconciles the aboriginal and European perspectives.

The second underlying concept the range of aboriginal rights flows from the process of reconciliation just described. Taking the aboriginal perspective into account does not mean that a particular right, like title to the land, is established. The question is what modern right best corresponds to the pre-sovereignty aboriginal practice, examined from the aboriginal perspective. Specific requirements for title set out in Delgamuukw - to establish title, claimants must prove exclusive pre-sovereignty occupation of the land by their forebears. Occupation means physical occupation. This may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources Exclusive occupation flows from the definition of aboriginal title as the right to exclusive use and occupation of land. It is consistent with the concept of title to land at common law. Exclusive occupation means the intention and capacity to retain exclusive control, and is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent. Shared exclusivity may result in joint title. Non-exclusive occupation may establish aboriginal rights short of title. It follows from the requirement of exclusive occupation that exploiting the land, rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity was sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal hunting and fishing rights exercised in a particular area will translate to a hunting or fishing right. This is plain from this Courts decisions in Van der Peet, Nikal, Adams and Ct. In those


cases, aboriginal peoples asserted and proved ancestral utilization of particular sites for fishing and harvesting the products of the sea. Their forebears had come back to the same place to fish or harvest each year since time immemorial. However, the season over, they left, and the land could be traversed and used by anyone. These facts gave rise not to aboriginal title, but to aboriginal hunting and fishing rights. To say that title flows from occasional entry and use is inconsistent with these cases and the approach to aboriginal title which this Court has consistently maintained. In this case, the only claim is to title in the land. The issue therefore is whether the pre-sovereignty practices established on the evidence correspond to the right of title to land. These practices must be assessed from the aboriginal perspective. But, as discussed above, the right claimed also invokes the common law perspective. The question is whether the practices established by the evidence, viewed from the aboriginal perspective, correspond to the core of the common law right claimed. what is meant by exclusion, or what I have referred to as exclusive control; whether nomadic and semi-nomadic peoples can ever claim title to land, as opposed to more restricted rights; and the requirement of continuity? In summary, exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title. Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources. Less intensive uses may give rise to different rights. The requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law. These principles apply to nomadic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes. Continuity is required, in the sense of showing the groups descent from the pre-sovereignty group whose practices are relied on for the right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability. The ultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the aboriginal perspective as well as fidelity to the common law concepts involved. C. Application of the Legal Test

The accused did not establish that they hold aboriginal title to the lands they logged. 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 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 established by the evidence, viewed from the aboriginal perspective, correspond to the core of the common law right claimed. Here, the accused did not assert an aboriginal right to harvest forest resources but aboriginal title simpliciter. Aboriginal title to land is established by aboriginal practices that indicate possession similar to that associated with title at common law. The evidence must prove exclusive pre-sovereignty occupation of the land by their forebears. Occupation means physical occupation and exclusive occupation means an intention and capacity to retain exclusive control of the land. However, evidence of acts of exclusion is not required. All that is required is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that the group could have excluded others had it chosen to do so. Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing or the exploitation of resources. These principles apply to nomadic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes. Continuity is required, in the sense of showing the groups descent from the pre-sovereignty group whose practices are relied on for the right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability. The trial judges in


both cases applied the proper test in requiring proof of sufficiently regular and exclusive use of the cutting sites by Mikmaq people at the time of the assertion of sovereignty, and there is no ground to interfere with their conclusions that the evidence did not establish aboriginal title. The text, the jurisprudence and historic policy all support the conclusion that the Royal Proclamation of 1763 did not reserve aboriginal title to the Mikmaq in the former colony of Nova Scotia. On the evidence, there is also no basis for finding title to the cutting sites in Belchers Proclamation Per LeBel and Fish JJ.: The protected treaty right includes not only a right to trade but also a corresponding right of access to resources for the purpose of engaging in trading activities. The treaty right comprises both a right to trade and a right of access to resources: there is no right to trade in the abstract because a right to trade implies a corresponding right of access to resources for trade. There are limits, however, to the trading activities and access to resources that are protected by the treaty. Only those types of resources traditionally gathered in the Mikmaq economy for trade purposes would reasonably have been in the contemplation of the parties to the treaties of 1760-61. In order to be protected under those treaties, trade in forest products must be the modern equivalent or a logical evolution of Mikmaq use of forest products at the time the treaties were signed. On the facts of these cases, the evidence supports the conclusion that trade in forest products was not contemplated by the parties and that logging is not a logical evolution of the activities traditionally engaged in by Mikmaq at the time the treaties were entered into. [110-118] In the context of aboriginal title claims, aboriginal conceptions of territoriality, land use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy standard that incorporates both the aboriginal and common law approaches. However, the role of the aboriginal perspective cannot be simply to help in the interpretation of aboriginal practices in order to assess whether they conform to common law concepts of title. The patterns and nature of aboriginal occupation of land should inform the standard necessary to prove aboriginal title. The common law notion that physical occupation is proof of possession remains but is not the governing criterion: the nature of the occupation is shaped by the aboriginal perspective, which includes a history of nomadic or semi-nomadic modes of occupation. Since proof of aboriginal title relates to the manner in which the group used and occupied the land prior to the assertion of Crown sovereignty, the mere fact that an aboriginal group travelled within its territory and did not cultivate the land should not take away from its title claim. Therefore, anyone considering the degree of occupation sufficient to establish title must be mindful that aboriginal title is ultimately premised upon the notion that the specific land or territory at issue was of central significance to the aboriginal groups culture. Occupation should be proved by evidence not of regular and intensive use of the land but of the tradition and culture of the group that connect it with the land. Thus, intensity of use is related not only to common law notions of possession but also to the aboriginal perspective. The record in the courts below lacks the evidentiary foundation necessary to make legal findings on the issue of aboriginal title in respect of the cutting sites in Nova Scotia and New Brunswick and, as a result, the accused in these cases have failed to sufficiently establish their title claim. [127-141] The appropriateness of litigating aboriginal treaty, rights and title issues in the context of proceedings of a penal nature is doubtful. When issues of aboriginal title or other aboriginal rights claims arise in the context of summary conviction proceedings, it may be most beneficial to all concerned to seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts. Once the aboriginal rights claim to the area in question is settled, the Crown could decide whether or not to proceed with the criminal charges. [142-144] Note: Justice LeBel (with Fish J. concurring) criticized the majority, whose reasons were written by Chief Justice McLachlin, for adopting a too restrictive approach. On the majoritys test for Aboriginal title in particular, LeBel J.s criticisms were trenchant, faulting the majority


for focusing too narrowly on common law concepts of property and consequently adopting a test that implied the Courts acceptance of Athe position that [nomadic and semi-nomadic] aboriginal peoples had no rights in land prior to the assertion of Crown sovereignty because their views of property or land use do not fit within Euro-centric conceptions of property rights