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Foundations of Canadian Law I. BASIC THEORIES OF LAW A. Positivism and natural law 1.

Positivism: law is nothing more than the rules and principles that actually govern or regulate society. Insists on the separation of law and morality, focuses on describing laws without reference to justness or legitimacy. John Austins three basic theories: a) Law is a command issued by the uncommanded commander- the sovereign b) That such commands are backed by threats c) A sovereign is one whois habitually obeyed. 2. Natural law: laws are those that adhere to moral truths, universal and immutable in nature. Based on theory that law arises from nature or beliefs accepted by people, it must comport with values accepted by society. 3. Morality vs. Law: law addresses specific and detailed problems and objects, whereas morality is usually framed in general and openended concepts. Law is determinate and certain, morality is contingent and relative. legal disputes should be resolved by lawyers/judges - natural law do not consider positive laws as true law because citizen or judge owes no allegiance to them. Both are concerned with what law is, not what it ought to be. Natural law describes law as it is, and identifies law with reference to normative criteria B. Feminist perspective on law: Address how women are disadvantaged by legal rules/institutions in societies, fail to take into womens interests into account. Gained voting rights, reformed marriage laws, attacks on discrimination in employment practices and criminal laws. Reject liberalism as a political ideology. 1. Womens Suffrage Act gave women over 21 right to vote, as long as had same qualifications required for men. 2. Edwards v. AG Canada: Women challenge whether females can be senators. a) Issue: whether words qualified persons include a women, and when women are eligible to be summoned and become members of the Senate of Canada. b) Reasoning/analysis: Two points for parliament to consider in determining meaning of word: 1) the external evidence derived from extraneous circumstances such as previous legislation and decided cases; 2) the internal evidence derived from the Act itself. (1) At common law females were incapable of serving public office, so word persons could not have meant to include female. Customs develop into traditions, which are stronger than law. But must decided according to the times and circumstances, should not use Roman law or English law decisions as foundation to interpret BNA Act 1867. Should not apply it so rigidly. (2) If wanted persons to mean men only under s.24 it would have manifested the intent, like it did under ss. 41 and 84. Sec. 23 lays out all of the requirements needed to be Senator, and it does not state that you must be a make. c) Findings: 1) word person is ambiguous and may include both sexes, 2) there are sections in the Act which show in some cases the word person must include females, 3) in some cases male persons is expressly used when it is desired to confine the matter to makes, and 4) provisions of Interpretation Act, its concluded that persons includes both male and female sex. d) Held: Word persons does include women and women are eligible to be summoned to the Senate 3. Contemporary feminism: liberal feminists argue that its possible to have gender equality within a liberal concept frame work. Radical feminists are not so sure, as divisions between men and women are seen as fundamental and attributable ti the very notion of liberal society. 4. R.v. Morgentaler: 3 doctors charged with conspiracy to procure miscarriage contrary to s. 251(1) & 423(1)(d) a) Issue: does s. 251 of Criminal Code (criminalizes abortion unless properly authorized by physician) violate womens right to life, liberty, and security of the person, guaranteed under S. 7 of the Charter b) Facts: s. 251(4) requires woman to obtain certificate from therapeutic abortion committee, and abortion then carried out by physician other than member on committee in accredited hospital - must be at least 3 physicians on committee. Complaints of delays to comply and lack of access to procedures for women. c) Reasoning/analysis: liberty grants an individual autonomy in making decisions of fundamental personal importance. Freedom of individual to be his own person (choices, plan life), as long as you do not deprive others of theirs. (1) Right to terminate pregnancy falls under liberty: it has psychological, economic, social consequences. Right to reproduce is an integral part of modern womans struggle to assert her dignity and worth as a human being. (2) Sect 251 violates this right: takes a decision away from the woman in all stages of pregnancy, and gives it to committee and decision is based on unrelated criteria. (3) Direct interference with her physical person b/c legislature is deciding womans capacity to reproduce. Section violates her right to security of the person and right to liberty. (4) Also violates womens freedom of conscience and religion under s.2 Charter regardless whether such conscientiously held beliefs are grounded in religion or a secular morality. (5) Cannot be saved under s. 1 Charter, fails the Oakes test: not sufficiently tailored, and does not impair right as minimally as possible.

d) Held: the provision offends the Charter C. Critical legal studies: legal theory which is a radical alternative to established legal theories. Rejects that there is any kind of natural legal order or universal foundation for law through pure reason, discoverable by objective means. Sees the whole enterprise of jurisprudence as operating to confer a spurious legitimacy on law and legal systems. 1. CLS is a descendant of legal realism. Realism attacks 2 fundamental axioms of traditional, formalist, understanding of common law: that common law legal rules were neutral and objective, and that the rules were indeterminable with sufficient certainty. Realism maintained that all legal rules were indeterminable in the sense that any articulation of a rule was subject to multiple subject interpretations. (impossible to be objective). 2. Also believed in the importance of interdisciplinary approaches to law (given understanding of laws contingency on social, economic, and political conditions). (post-Marxist, associated with the left) 3. Directly attacks traditional legal theory, scholarship, and education. Argues that law institutionalizes and legitimates authority and power of particular social groups of classes. Rule of law is not rational of societal norms, but is indeterminable, full subject interpretation and large degree of incoherency. 4. 3 stages govern application of CLS ideas to legal thought. a) Hegemonic consciousness: western laws are maintained by system of beliefs that have their foundation in liberal marketdriven economy. They reflect transitory, arbitrary, interests of a dominant class. b) Reification: beliefs are presented as essential, necessary, and objective. Laws that prop up this belief system necessarily follow suit, becoming equally incontrovertible. c) Denial: laws and legal thinking assist in denial of real truths (coping with contradictions that would be too painful for us to hold in our consciousness). Denial occurs between promise (equality) and the reality (discrimination or racism that ca be found so readily). 5. Law reproduces the oppressive characteristic of contemporary Western societies. Law is not independent or instrumental - it is another form of politics. 6. CLS questions that the individual is an autonomous agent. CLS holds that individuals are tied to and part of communities, socioeconomic class, gender, race, to the extent that they are not autonomous actors. Instead, their circumstances determine and limit the choices presented to then. 7. R. v. R.D.S a) Facts/Procedural history: judges comments that police are known to mislead the court, and overreact to non-white groups, and that would indicate a questionable state of mind. Crown appealed stating that comments raised reasonable apprehension of bias. Determination was base on factors not in evidence. b) Issue: whether a reasonable apprehension of bias arises from comments made by the trial judge in providing her reasons for acquitting the accused. c) Reasoning: impartiality requires judges to be free to entertain and act upon different points of view with an open mind. (all come from different experiences, race, cultures, have sympathies and compassion, must judge keeping multicultural society in mind) (1) Social context: Whether they can use social context in making judgments, and whether reasonable apprehension of bias arises from the statements will depend on the facts of the case. (2) Using social context in assessing credibility: judges can use common sense and wisdom from personal experience in judging trustworthiness of witness on basis of testimony/demeanor/etc, but must avoid judging credibility based on generalizations that were not in evidence. Generalizations (all police officers should not be believed with dealing with colored accused people) must be linked to particular witness, otherwise, judge is open to allegations of bias that credibility of person was based on stereotype generalizations. (a) Generalization may be true, but may seem like its basis for assessing credibility instead of making genuine evaluation of evidence. (b) Some comments may be appropriate, but must be examined through eyes of reasonable and informed person. d) Rule: all judges owe fundamental duty to render impartial decisions and to appear impartial. Must make sure that nothing leaves a reasonable informed person with the impression that issue was predetermined or that question was decided on the basis of stereotypical assumptions or generalizations. e) Held: restore Judge Sparks dismissing charges against R.D.S. There is no reasonable apprehension of bias. f) Concur: comes to the same conclusion and holding, but its application to reasonable person test is different. (1) Reasoning: reasonable person expects judges to undertake open mind, carefully considered, and dispassionately deliberate investigation. (2) Application: Judge sparks did not relate officers overreaction to race of RDS, but if she had, she would not have necessarily erred. As member of community, it was open to her to take into account well known presence of racism and to evaluate evidence. (3) Held: there is no reasonable apprehension of bias.

g) Dissent: (1) Should consider two points: 1) whether judge, in her reasons, properly instructed herself on the evidence or was an error of law committed by her, 2) whether her comments could cause a reasonable observer apprehend bias. (2) No evidence was presented at trial that went to issue whether there was evidence before the court to support finding that this cops actions were motivated by racism. (3) Trial judges must base finding based on evidence for them. Appellant should have introduced evidence of racism, but did not. Judge inferred this based on general view of police or society. (4) Life experience of a judge cannot substitute evidence. Our system does not permit judge to become independent investigator to seek out the facts. Our jurisprudence prohibits typing credibility to something as irrelevant as gender, occupation, or perceived group predisposition. (5) Held: Comments of trial judge stereotype that cops are liars when dealing with colored people. Agrees with reasonable apprehension of bias test, but comes to a different result = there should be a new trial D. Law and economics: seeks to explain law in operation, and about its efficiency. Theory has applied economic analysis to contract, crime, tort, family law, property, legislation, & abortion cases. Traditional approach applies economics methodology to legal rules to asses whether the rules will result in outcomes that are efficient. (Efficiency defined as - an ideal where the welfare of each relevant party can no longer be maximized except at the expense of other parties, referred to as, Paretoptimality) Law and Econ is criticized as ignoring questions about distributive justice. 1. Public law and Economic theory a) Economic theory of regulation (public choice theory) applied to understand public policy, govt intervention as corrective market failure. Theory seeks to understand why some govt programs run counter to the public good, or at least do not maximize the public good. Basic proposition - diffuse and fragmented groups are less effective than more focused and concentrated groups in achieving success in the political arena and in influencing legislators and regulators. b) Economic theory of public law begins at the same place as the economic theory of private law: policy makers are assumed to act in order to maximize political support - motivated by self interest. 2. Bank of America Canada. Mutual Trust Co. a) Facts: Takeout Mortgage given by Mutual to purchaser of houses being made by Developer. Bank gave money to Developer. Developer assigned its rights against Mutual to Bank.The funds advanced by Mutual under TOC would have discharged loan made by Bank to Developer. Mutual backed out of the deal with real estate market collapsed. Bank lost $10 million: difference between what was owed, and what it recovered. b) Procedural history: Trial judge award interest on this amount at compound rate that reflected interest rate charged in the agreement. Ontario court of appeal allowed Mutuals appeal, relying on S. 128 of Courts of Justice Act, in substituting simple interest rate for the compound rate. Difference between both amounts was $5 million. c) Reasoning/analysis: (1) The Time-Value of Money (a) Value of money decreases over time. Three factors account for depreciation: i) Opportunity cost: use of the dollar which are foregoing while waiting for it. Value of dollar is reduced b/c the opportunity to use it is absent. ii) Risk: reflects uncertainty inherent in delaying possession. Possession of dollar today is certain but expectation of the same dollar in the future involves uncertainty. iii) Inflation: reflects fluctuation in price levels. With inflation, dollar will not buy as much gods or services tomorrow as it does today. (b) Simple interest: this and compound both measure time-value of initial sum of money, the principal. Makes an artificial distinction between money owed as principal and money owed as interest. Treats a dollar as a dollar, is therefore, a more precise measure of the value of possessing money for a period of time. (c) Compound interest: main difference with simple is that compound reflects the time value component to interest payments while simple interest does not. Interest owed today but paid in the future will have decreased in value in the interim just as the dollar. Compound interest compensates lender for the decrease in value of all money which is due but as yet unpaid b/c interest is treated as unpaid principal. Compound is the norm in banking and financial systems. (2) Contract damages - restitution damages: invoked when D, as a result of his breach, profited in excess of his expected profit, had the contract been performed, but the Ps loss is less than the Ds gain. P can be fully paid his damages with a surplus left in Ds hands. This occurs when there is an efficient breach of contract. D may be required to pay profits to the P as restitution damages. E. Canadian Legal Inheritances - Law from history, custom, and tradition

1. Law and Aboriginal peoples: Indians, Inuit, Metis. They believe that societies only possess laws if they are declared by some recognized power that is capable of enforcing such a proclamation. Their tradition is related to customary law. Their laws and customs were too unfamiliar or too primitive to justify compelling European settlers to obtain them. a) Doctrine of reception - by which colonial laws are received into new territory - does not incorporate indigenous peoples wisdom and learning. b) Sect 91(24) of Constitution Act gives federal Parliament over Indians and lands reserved for Indians. c) Sec 35 of Constitution Act - Aboriginal rights were entrenched in it. Protects existing Aboriginal and treaty rights of aboriginal peoples of Canada. 2. Mitchell v. MNR a) European settlement did not terminate interests of aboriginal peoples arising from their historical occupation and use of the land. Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty and were absorbed into the common law unless 1) they were incompatible with the Crowns assertion of sovereignty, 2) they were surrendered voluntarily via the treaty process, 3) the govt extinguished them. b) Common law status of Aboriginals made them vulnerable to unilateral extinguishment, thus, were dependent on the good will of the Sovereign. Constitution Act 1982 amended and s. 35(1) elevated existing common law aboriginal rights to constitutional status. But govt retained jdx to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and compelling public objectives. 3. Delamuukw v. British Columbia: recent developments in area of aboriginal rights, in context of title to land. a) Issue: nature and scope of constitutional protection afforded by s. 35(1) to common law aboriginal title b) Facts: chiefs claimed aboriginal title by virtue of aboriginal groups historic association with the lands - over separate portions of 58,000 square km in BC. Province of BC counterclaimed for declaration that appellants have no rights or interest in the territory, or alternatively, that appellants cause of action should be for compensation from govt of Canada. c) Reasoning/analysis (a) The content of Aboriginal title: 1) title encompasses the right to exclusive use and occupation of the land, and it is not restricted to aboriginal practices, customs, traditions. 2) those protected uses must not be irreconcilable with the nature of the groups attachment to that land. - However, aboriginal title does not amount form an alienable fee simple. (b) 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 - because this would depart from fee simple. Land seeks to afford protection in present day too, not just past, thus, continuity of relationship that gave rise to the title in the first place is important, must be continued. i) Occupancy (element in determining whether group has title to lands): determined by reference to activities that have taken place on the land and the uses to which the land has been put by the particular group. If lands occupied, then special bond exists between group and land. If special bond, cannot use it in a way to destroy lands value. ii) Example: if establish occupation by hunting grounds, cannot destroy lands value by strip-mining it. If bond through cultural use, then cannot destroy it by turning it into a parking lot. iii) Because of this, lands also cannot be alienated b/c this would bring an end to the entitlement of aboriginal people to occupy the land and would terminate relationship with it. iv) Surrender: if aboriginal people wish to use their lands in a way that aboriginal title does not permit, they must surrender lands and convert them into non-title lands to do so. Can also surrender to crown for valuable consideration. (c) Aboriginal title under s.35(1) of the Constitution Act: protects aboriginal title at common law (the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed). It did not create rights, but accorded constitutional status to those rights which were existing in 1982. (d) Test for aboriginal title: 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 continuity between present and pre-sovereignty occupation, AND 3) at sovereignty, that occupation must have been exclusive. F. Hill v. Church 1. Facts: Manning, a lawyer working for the Church, and representatives of the Church of Scientology held a press conference on the courthouse steps in Toronto. Manning, wearing his barrister's gown, read from and commented upon allegations in a notice of motion by Scientology, intending to commence criminal contempt proceedings against a Crown Attorney, Casey Hill. The motion alleged Hill had misled a judge and had breached orders sealing certain documents belonging to Scientology. At the contempt proceeding where the appellants were seeking a fine or imprisonment against the defendant, the allegations against Hill were found to be completely untrue

and without foundation. Both appellants were found jointly liable for general damages of C$300,000 and Scientology alone was liable for aggravated damages of C$500,000 and punitive damages of C$800,000. a) At the time the defamatory statement were made, Casey Hill was employed as counsel with the Crown Law Office, Criminal Division of the Ministry of the Attorney General for the Province of Ontario. He had given advice to the Ontario Provincial Province Police ("OPP") regarding a warrant obtained on March 1, 1983 which authorized a searched warrant on March 3 and 4, 1983, approximately 250,000 documents, comprising over 2 million pages of material, were seized. These documents were stored in some 900 boxes at an OPP building in Toronto. 2. Issue: 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. 3. Appellants arguments: The Church of Scientology contended that the common law of defamation in Canada failed to evolve with Canadian society. Too much emphasis in the common law had been placed on the need to protect the reputation of plaintiffs at the expense of freedom of expression. This, they argued, was an unwarranted restriction imposed in a manner that cannot be justified in a free and democratic society that could survive a limitations clause challenge. The appellants added that if the element of government action was insufficient to attract Charter scrutiny, the principles of the common law ought to be interpreted, even in a purely private law action, in a manner consistent with the Charter. This, they argued, could be achieved only by the adoption of the "actual malice" standard of liability found in the Supreme Court of the United States in the case of New York Times Co. v. Sullivan. 4. Reasoning/Analysis a) Charter applies to legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. . . . It will apply to the common law, however, only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom. b) The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment status. c) The common law must be interpreted in a manner which is consistent with Charter principles d) 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. The US "actual malice" rule should not be adopted in Canada in an action between private litigants. e) Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. The privilege is not absolute, however, and can be defeated if the dominant motive for publishing the statement is actual or express malice. (1) Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes any indirect motive or ulterior purpose that conflicts with the sense of duty or the mutual interest which the occasion created. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. (2) The common law immunity was not extended to a report on pleadings or other documents which had not been filed with the court or referred to in open court. M ought to have taken steps to confirm the allegations that were being made. This is particularly true since he should have been aware of the Scientology investigation pertaining to access to the sealed documents. In those circumstances he was duty bound to wait until the investigation was completed before launching such a serious attack on the respondent's professional integrity. (3) As a result of this failure, the permissible scope of his comments was limited and the qualified privilege which attached to his remarks was defeated. 5. Conclusion: The common law of defamation, as it is applied to the parties in this action, is consistent with the values enshrined in the Charter. There is accordingly no need to amend or alter it or, in particular, to adopt the "actual malice" rule. The defence of qualified privilege, however, is not available with respect to reports of pleadings in purely private litigation upon which no judicial action has yet been taken. The defence is available only with respect to reports of judicial proceedings. While there is a right to publish details of judicial proceedings before they are heard in open court, such publication does not enjoy the protection of qualified privilege if it is defamatory. 6. Held: uphold Ontario Court of Appeals decision and jury award of general, punitive, and aggravated damages. G. Article: International law and public/private law distinction 1. Public international law (law of the nations): system of law governing relations between states. States and international organizations are subject to this system. Main focus is the establishment of elementary minimal legal order on a broad scale. 2. Private international law: system coordinating different laws from different countries. Responds to question of applicability of foreign or domestic law within domestic courts. Focus is to render justice and fairness to individual litigants.

H.Article: The Charter of whiteness 1. R. v. Laws: citizenship requirement of black in s. 2 Juries Act violated s. 15(1) b/c disproportionate impact ob Africa Canadians. Held: Statistical advantage permitting non citizen blacks service does not constitute advantage for purposes of s. 15. Would not materially increase possibility that black juror will end up on jury (will only increase by 1%) Does not meet burden that he will be deprived of real benefit, cannot draw inference that probability materially enhances trial fairness for black accused. 2. R. v. Hall: CLA submissions found that some black accused who were imprisoned before trial would not have been if they were white. Some white accused who were freed before trial would not have been jailed if they were black. (more likely to be released, bail, treated better, employment status accounted for inequality too) Rejected. 3. R. v. Pan; R. v. Sawyer - white tried with black person on assault. After conviction juror contacted white guy and told she had been under undue pressure to come to verdict and that certain racial comments were made by other members. Accused argued common law jury secrecy rule needed to be altered under s. 7 Charter to ensure verdicts not tainted by racism. Rejected. 4. R. v. Gayle: accused argued trial judge erred in not expanding scope of question in R.v.Parks challenge for more effective means for detecting unconscious racial bias. (standard - judge without bias, prejudice, partiality). Defense wanted to ask 3 questions - some races more violent, marriage, too many blacks in TO). Rejected. Crown used challenges to remove 2 black jurors. Other 2 were color but not black. Argued violation of 11(f) and 15(1), and 15(1) of the black jurors violated too. a) R. v. Church holding applied - accused has no standing to vindicate rights of jurors. Did not decide whether rights breached b/c insufficient evidentiary record. 5. R. v. Spence: South Asian victim, black accused. ACLA argued race of victim should be part of Parks challenge for cause question to ensure juror does not acquit b/c bias towards race of victim. 6. Peart v. Peel Regional Police Services Board: ACLA argued for reverse racial profiling civil cases (burden of proof on cops) Rejected. 7. Charkauoui v. Canada (citizenship and immigration): argued that Court should factor racial profiling problem when interpreting constitutionality of provisions enacted in the national security context. Security certificate under Act violates s. 15(1) b/c it is being applied in discriminatory manner by targeting Arab and Muslim men. Supreme Court strike the security regime, but did not address racial profiling or equality arguments. 8. R. v. Lines: Crown brought motion sec. 15(1) to prevent defense from exercising peremptory challenges to remove Black jurors discriminatory. (white cop charged for shooing black male running away) motion to restrict use of challenge Dismissed. Both use their own conscience in using challenges. 9. Hostile adjudication by judges, or implied through manner he controls proceedings. Judicial conservatism, should increase diversity on the bench. 10. Appellate a) R. v. Law: did not raise issue of race on appeal. Cop suspicious of restaurant, got feeling they were not submitting taxes. Keeping information in relation to file named Asian crimes. Inquired with Revenue and said, nothing irregular about operations. Safe from restaurant stolen, cops find it, this cop gets permission from Crown to photo copy papers, contacted Revenue, searched, discovered not remitting GST. Held - Officer did unreasonable search contrary to s. 8. Court upheld decision to exclude evidence under 24(2), but no racial profiling argument made. b) R. v. Harris: cop stopped car, with black male in driving seat, without seat belt, asked for ID - cop says its for CPIC check, determine whether person on probation or bail, or under surveillance. Racial profiling could have been raised on appeal. Officer stops disproportionately high number of racialized drivers. c) If issue of detainment under s. 9 or 10, appellate court can consider race or age as factor even if not relied on. If breach under 24(2), appellate court can consider whether conduct had disproportionate impact on racialized communities and measures by police to address this problem; can be done in absence of racial profiling. d) R. v. Belnavis: two black women in car, pulled over for speeding and cop searched items in garbage back, containing clothes. Racial profiling not argued. Crowed said search was unreasonable under s.8 b/c no probable cause. Court did not exclude evidence of stolen clothing found under 24(2). Passenger had no standing to challenge search in car and absence connection to bag, no standing to challenge that search either e) R. v. Ladouceur: issue whether random vehicle stops constitute reasonable limit under s. 1 Charter. Dissent stated that random stop can allow cop to pull over any vehicle at any time, any place, for any reason, all officers have different reasoning: younger driver, older cars (race) f) R. v. Golden: Court adopted race standards, for Charter standard in strip searches incident to arrest s. 8 - ACLA argued must have probable cause and warrant to have a constitutional strip search under s.8. Negative stereotyping of blacks. Blacks and Aboriginals are overrepresented in criminal justice system, and are likely to represent disproportionate number of those who are arrested by police and subject to personal searches, strip searches. Need governing frame work to prevent unnecessary and unjustified strip searches.

g) Judges refuse to act and lack of race consciousness by lawyers - barely any race based challenges for cause and recognition of existence of racial profiling h) R.v. Parks and R. v. Williams are significant Charter race cases. Established that aboriginals and all racialized accused are entitled to challenge prospective jurors for racial bias as of right under 638(1)(b) of Criminal code. Parks limits questioning - can only ask if juror will be impartial - yes/no answer. i) Sections 8, 9, 24(2) are narrow, little affect on racial profiling. 8 can only be used where person has standing (reasonable expectation of privacy). 24 is gun and drug offenses, also have racial profiling affects. II. SOURCES OF LAW A. Early relations with Aboriginal peoples (article) and look above under part I, section E B. French civil law and bijuralism (article) C. Convention D. Statute -- look below at notes #8. E. Treaty F. Reception of English common law 1. Canadas originals come from European law. Laws applied based on whether colonies were settled, conquered, or ceded by indigenous peoples (pre-existing indigenous laws stayed in force subject to modification or replacement by the Crown or Parliament where necessary to operate govt. English common law had little or no authority. Case below highlights rules of reception. 2. Cooper v. Stuart: English law is introduced to colony depends on circumstances. If by conquest or cession (there is an established system of law). If colony had territory unoccupied w/o settlement inhabitants or settled law - Crown may by ordinance, and Imperial Parliament, or its own legislature may by statute declare what parts of common law and statute law of England shall have effect within its limits. If this is not done, law of England must become from the outset the law of the Colony. England law prevails until modified, abrogated. 3. Rules of reception dictated entire body of english law (statutory and common) was imported into settled colony. Local exceptions and variances were allowed where the received laws would be unsuitable to circumstances of colony. In the case of statute law, date of reception determined which English stat law applied: all statutes passed prior to date were automatically received, after date did not apply unless express or by clear implication, they were intended to apply. Once decision made by Privy Council, binding on all jdx. Common law: law from the time of imperial, applied to all colonies equally 4. Nature of the common law & civil law a) Common law is judge made lay through common law courts, not written laws, but collection of court decisions. Two fundamental ideas: 1) judges do not make the law merely declare it, 2) all relevant past decisions are considered as evidence of the law, and judges infer from there precedents what is the true la in a given instance. b) Civil law: arises out of Roman law of Justinaians Corpus Juris Civilis. Not based on cases but established laws, written as broad legal principles. Includes doctrinal writings and interpretation written by learned scholars. (1) Difference in both: their methodological approaches. In civil law, legislation is primary source of law, judgments rely on provision of codes and statutes, reasoning based on general principles of rule or code. In common law, even where statutory provisions are present, has analogical reasoning from statutory provisions. (2) Quebec had customary law of Paris enacted, until defeat of French then British passed Quebec Act and provisions were reintroduced. Canada has British common law as basis of private law in all provinces, except Quebec. Canadian federal law has common law and applies to all provinces. (3) Private law in Quebec is French civil law tradition, but has common law in it b/c influence. Their legislative, judicial, executive, administrative all English, private law is civilian. Its National Assembly follows English system. Judges are practicing lawyers like in common law Superior Courts responsible for admin of all laws, prov, fed. In Civil only allowed one answer to legal question. Quebec does it like common law, with dissenting opinions. 5. The Operation of Common law and precedent a) Stare decisis: reliance on past cases, related to doctrine of precedent. Precedents made up from principles of previous cases. Principles may arise from interpretation of statute or constitution provision or common law judge reasoning. Stare decisis is formal term to describe how common law relies on precedent. b) Rank of court important b/c: 1) higher ranking court is not bound to follow decision of lower court. 2) Some courts do not apply rule of stare decisis with respect to their own prior decisions. c) Rules pg. 55 (1) All Canadian courts (except Supreme) must follow Supreme Court decisions and pre 1949 Privy that has not been overruled. (2) Prov courts of appeal not bound to follow decision of appellate court of another province. (3) Prov courts of appeal will be bound by their own decision (relaxed in Ontario)

(4) Prov courts lower than highest appellate court are bound to appellate court decision (5) Prov courts at any level not bound by appellate courts of other provinces, or Fed Ct of App (6) Decision of court of coordinate jdx is not binding, but highly persuasive. d) Purpose of stare decisis aids in stability and coherence of law, making it more predictable, provides fairness in decision making, promotes efficiency and eliminates sources of error (judicial bias), fulfills symbolic role by recognizing the relationship btn courts and legislature. Has independent value e) Binding - Ratio decidendi: (reason of deciding) is a general rule given that explains result in instant case, and is a binding rule for purposes of precedent. Everything else is obiter dicta (things said by the way) f) Narrow or wide - Look at cases from two points: 1) that of the narrowest rule that a subsequent unkind court will concede has been laid down, and 2) the widest rule that a later friendly court could use to support a more novel position. g) Canada Trust Co. v. Ontario Human Rights Commission: a (1) Issue: whether terms of scholarship trust established in 1923 are contrary to public policy? If so, whether the cy pres doctrine can be applied to preserve the trust. (2) Facts: scholarships that have eligibility requirements based on race, ancestry, place of origin, citizenship. sex, age, marital status, family status, creed. Commission submitted that McKeown J should have deferred to Commission to exercise jdx under Human rights code with respect to that complaint against trustee that leonard trust contravenes code. (3) Reasoning: 1) have admin of a trust that superior courts have had jdx over for centuries. 2) not concerned with typical proceeding under Human Rights Code. Trustee has no authorization of the trust deed, legislation, or court order, to enter settlement, and would be contrary to terms of the trust. Even if board appointed, cannot provide adequate remedy under Code, because here we want to alter trust or declare it avoid, its not available under code. (a) Concerned with question of law, no facts in dispute, trustee can come to court directly for advice. 6. Common law and equity a) Equity - historical definition: body of law developed by the Court of Chancery prior to that courts dismantling. Separate from CL. Original function was to provide a corrective to the perceived harshness of CL. Conscience-based system, cases decided based on rules of equity and good conscience, no formal methodology or strict doctrine of precedent. Common law fails to achieve adequate justice in particular cases, but this doesnt. b) Covers: property, contracts (remedies), procedure, guardianship, commercial matters - pg. 59 c) Developed along side after acts ended separate Chancery Court. d) Equity - modern definition: body of rules, principles, maxims, and doctrines originated in Court of Chancery but that continues to evolve since its abolition. Now part of our law. Referred to as equitable b/c of historical accident, not because its different than CL. Reflects conscience and moral-based decision making. e) Re DeLaurier: Appellants (roman catholics) applied for custody of their infant child, who for about 10 years from early infancy was in care of respondents (protestants). Application dismissed, dismissed again by Ct of appeal. (mother had no contact with child until a few weeks ago, months ago at most) (1) Ontario Infants Act: whatever authority father may otherwise by law possess as to religious faith in which child is to be educated. But equity provisions of Judicature Act prevail now. (2) Rule: in question to custody and education of infants, rules of equity will apply. Will ignore if satisfied that welfare of child required that parental right should be suspended or superseded. f) Guerin v. Canada: Crown had fiduciary obligation to particular individuals or groups (1) Issue: whether appellants (Chief and Councillors of Musqueam Indian Band) suing and behalf of themselves and members, are entitled to damages from federal Crown for leasing to a golf club of land on Musqueam Indian Reserve. Alleged Crown was in breach of trust. (Indian Act said land shall be held by her Majesty for use of Indian Bands (2) Rule: where statute, agreement gives one party obligation to act for benefit of another, and obligation carries discretion, the party empowered becomes a fiduciary. Equity will supervise the relationship by holding him to fiduciarys strict standard of conduct. (3) Reasoning: Nature of Indian title and statutory scheme is general alienability, and Crown has an obligation to deal with land for benefit of Indians on their behalf when its surrendered. Not a trust, but a fiduciary duty. If breached, Crown liable to Indian in the same way if trust were in effect. They have legal right to occupy and possess land, which Crown has title to. (a) Requirement of surrender before Indian land can be alienated. Surrender protects Indian rights from being exploited in transactions. All transactions in Crowns name. Crown has discretion to decide where Indians best interests are, gives rise to obligation that is fiduciary duty. (b) Crown will be liable if it were subject to an equitable obligation enforceable in a court of law. No public law duty b/c Indians have independent interest in land, not created by leg or exec branch. Private law duty in nature. (c) Nature of relationship gives rise to fiduciary duty.

g) KLB v. British Columbia: appellants abused in two foster homes, in second home K was sexually assaulted by one of the young men. (1) Procedural History: Trial found govt failed to exercise reasonable care in arranging suitable placement for children and monitoring and supervising placement. Children suffered lasting damage as a result of their stays. Rejected defense and acts were barred by BC Limitations Act. Crowns appeal allowed. Found that all claims statute barred except for Ks sexual assault claim and over turned ruling that govt breached its fiduciary duty to children. But upheld trials conclusion that govt vicariously liable for breach of non-delegable duty of care in placement and supervision of the children. (2) Issue: whether and on what grounds the govt can be held liable for tortious conduct of foster parents toward children whom govt has placed under its care. (3) Rule: govt and foster children relationship is fiduciary in nature. Like parents owe fiduciary duty, so do guardians, and govt os legal guardian of children in foster care. (4) Analysis: fiduciary relationships arise in express trusts, relationships that have discretionary power and trust, and aboriginal interests. Cannot be one to promote best interests, cannot be implied from statute, clear intent that kids should be nurtured in private home, thus, govts capacity to supervise is eliminated. No fiduciary duty to exercise due diligence on a day to day basis. (a) Duty content is to avoid certain harmful actions that constitute betrayal of trust, of loyalty, and of disinterest. (compare to relationships with care givers and parents) Did not fail to assess childrens needs, discipline with foster parents, frequent visits to home. Essence of misconduct was negligence, not disloyalty of breach of trust. (5) Held: uphold appeal courts conclusion that govt did not breach its fiduciary duty to appellants. 7. International law - Law Commission of Canada, cross borders: law in a globalized world a) Domestic law: exists as legislation enacted by legislature or made as regulations by executives. (outside Que) also comes in common law form, applied in private law area of torts, contracts, and property. Constitutional law comes in written and unwritten form. Written is entrenched legislation, incapable of amendment without special procedures, and given preminence over conflicting statutory law. Unwritten is product of judicial decision making. b) International law: two significant sources are customary international law and treaties (1) Treaties: which are law making contracts between states. When the treaty binds two states known as bilateral treaty. When it binds greater number, known as multilateral treaty. Alternative names to treaty: convention, covenant, protocol, agreement, charter, statute. Some are promises of how they will act on international plane, others require change in internal policies to meet obligations. (2) Customary international law: binds all states except those who rejected binding norm. Formed by 1) general and universal state practice, 2) undertaken as a legal obligation (opinio juris). When you have both the practice becomes legally binding. (Eg: Universal Declaration of Human Rights). c) International law as part of Canadian law: executive branch negotiates treaties on behalf of Can. Once signed and ratified, Can bound and must comply or risk being found in contravention. Cannot have domestic law run counter to it. (1) Receiving treaties into domestic law and questions of legitimacy (a) Dualism and the separate solitudes of domestic and international law: Canada is a dualist jdx. Treaty may require Canada as a matter of international law to change its domestic law. But in dualist tradition, treaty has no direct effect in domestic law until domestic legislation is passed to transform or implement it int Canadian law. (b) Dualism as a rational reaction to democratic legitimacy questions in international law making : dualism responds to concerns about democratic legitimacy of the treaty-making process by factoring elected legislatures back into the equation. If treaties had immediate effect, executive could do as it pleases and sign treaties that govern provincial areas of law. To avoid this, treaties must be transformed into domestic law. If treaty deals with prov law, prov legislatures must legislate treaty into domestic law. (c) The dualism dilemma: arises if a law is not consistent with treaty, after fed gov concludes international treaty. May chose to disregard international obligation, or implement international requirements into domestic law and fed govt can delay ratification until this is done. (2) Customary international law reception and legitimacy (a) The incorporation of customary international law: Here Canada is a monist, not dualist, because once rule becomes customary international law, it is automatically part of Canadian common law unless explicitly ousted by contrary legislation. (this will displace or overturn international law) (b) Issues raised by the incorporation of customary international law: 1) when legislatures does legislate in a manner that displaces customary international law, Can may be subsequently in violation of ints international obligations. 2) if customary int law is part of common law, its existence as domestic law is a matter determined by courts exclusively (no clear input by political branches of govt into the rules that make Can binding) 3) content of int

cust law is uncertain (disputed) when courts asked to apply it as domestic law, they rely on expert testimony from int lawyers and academics, raising questions of legitimacy. 8. Statutory law: enacted to displace common law. Can also develop policy in new directions, not by replacing or modifying common law, but by enacting statutes in undeveloped areas. a) Statutes and the common law: a complex mix: statutory rule will supersede a judge made rule. Problems arise when statute does not expressly over turn common law or when common law ventures into new territories. Example, statutes defined marriage between man and woman but constitutional cases started questioning equal benefits for same sex couples marriage. b)Halpern v. Canada (Attorney General) (1) Issues: (a) What is common law definition of marriage, does it prohibit same sex marriage (b) IS a constitutional amendment required to change the CL definition, or can it reformulated through Parliament or courts? (c) Whether exclusion of same sex couples from this common law definition of marriage breaches ss 2(a) (MCCT) or 15(1) (MCCT and Couples) Charter in manner that is not consistent in a free and democratic society under s. 1 (d) If yes, can it be saved by s. 1 Charter (e) If CL definition is unconstitutional, what is the appropriate remedy and should it be suspended for any period of time? (2) Analysis (a) Common law rule regarding marriage: written in 1.1 Modernization of Benefits and Obligations, that definition of marriage is between man and woman to exclusion of all others. (b) Constitutional amendment: can be possible because i) Whether same sex couples can marry is a matter of capacity. No issue that parliament has authority to make laws regarding capacity to make laws 91(26) Constitution. ii) To freeze definition to what it was in 1876 is contrary to countrys jurisprudence of progressive constitutional interpretation. The BNA planted in Canada a living tree capable of growth and expansion within its natural limits. iii) Canada has changed a lot since confederation, doctrine of progressive interpretation is one its means that Con Act 1867 has been able to adapt to changes in Canada. iv) Marriage definition has constitutional flexibility necessary to meet changing realities in Canadian society without need for constitutional amendment. (3) Holding: common law definition invalid infringed rights under 15(1) and not saved by s.1 (include 2 persons in definition, take immediate effect). (appeal to supreme court was quashed) c) Aftermath:federal govt accepted rule reached, later drafted a bill that would redefine marriage. Parliament decided to refer 4 questions regarding its validity to Court. Court upheld the bill and allowed same sex marriages in all provinces, while ensuring religious freedom by allowing officials to refuse marriage if doing so would be contrary to their religious beliefs. G. St-Hilaire v. Canada (Attorney General): 1. Facts: the respondent killed her husband during a violent domestic quarrel. Charged with second degree murder, she pleaded guilty to a reduced charge of manslaughter. The husband was a public servant who had worked for the Canadian Coast Guard for 25 years and had been contributing to the Superannuation Account under section 4 of the Act and the Public Service death benefit account opened under section 56. The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. 2. Procedural history: The respondent then applied to the Federal Court, Trial Division for a declaratory judgment that would recognize her right to the benefits provided by the Act. Allowing the application, Blais J. ruled that the applicable law was the law of successions defined in the Civil Code of Qubec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. 3. Issue: whether the civil law of Quebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Quebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under subsection 620(1) of the Civil Code of Qubec. 4. Rule: a person convicted of making an attempt on the life of the deceased" is unworthy of inheriting by operation of law (public policy rule). 5. Argument: The appellants (the Attorney General of Canada and the Treasury Board of Canada) submit that the subject-matter of the litigation falls exclusively within public law, and more particularly administrative law, that the common law is the source of federal public law and applies to the federal government even on Quebec territory, that at common law there is a rule of public policy or public order that no one may profit from his or her own crime, and that this rule applies to the crime of manslaughter, that Quebec private law cannot exclude this rule having regard to federal public law,


6. Reasoning/analysis: a) Part I What law to apply (1) The first: the Public Service Superannuation Act is not a statute that is exclusively administrative in nature (a) Rule was not designed for government employees and it applies to them in the same way that it applies to some employees in the private sector (2) The second: The common law rule that a person may not profit from his or her crime is not a rule of public law but a rule of private law (a) Has some characteristics peculiar to an enactment of private law. The purpose of the Act is not to determine the duties exercised by government employees or their mode of appointment, promotion, dismissal or even remuneration. It does not cover the liability engendered by the exercise of these duties. It has no impact on the relationships between the federal government and the public. (3) Civil and property rights rule: 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. (4) 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. (5) 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. (6) I do not think Parliament intended that in a given province the surviving spouse's eligibility and the eligibility of an heir of the deceased public employee should be determined under two systems of law (7) Since, at the end of the day, it is the civil rights of the surviving spouse and the heirs that are in dispute, I am inclined to interpret Parliament's silence as an acquiescence in the application of the principle of legal asymmetry that characterizes Canadian federal law. b) Part I Quebec civil law (1) The Civil Code of Qubec recognizes the principle that no one should profit from his or her crime. It does so directly in articles 620 to 623 and article 2443 and indirectly in articles 1836 and 1837. 7. Held: the appeal for respondent's application for a declaratory judgment that would recognize her right to the benefits provided by the Public Service Superannuation Act, and ordering the Treasury Board to pay her, should be allowed. H.Baker v. Canada (Minister of Citizenship and Immigration): 1. Issues: a) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? (1) Given that the Immigration Act does not expressly incorporate the language of Canadas international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act? b) Were the principles of procedural fairness violated in this case? (1) Were the participatory rights accorded consistent with the duty of procedural fairness? (2) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness? (3) Was there a reasonable apprehension of bias in the making of this decision? c) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Bakers children? 2. Rules & reasoning: the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case a) Factors to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself (list is not exhaustive, can use other factors too). b) The duty of fairness owed in these circumstances is more than minimal, 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. Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness. The opportunity to produce full and complete written documentation was sufficient. c) When the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision. (1) This requirement was fulfilled by the provision of the junior immigration officers notes, which are to be taken to be the reasons for decision.


d) Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decisionmaker. (1) They require a recognition of diversity, an understanding of others, and an openness to difference. Statements in the immigration officers notes gave the impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that the appellant was a single mother with several children and had been diagnosed with a psychiatric illness. Here, a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made by an immigration officer. The notes therefore give rise to a reasonable apprehension of bias. e) Considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation. (1) The appropriate standard of review is, therefore, reasonableness: The first factor to be examined is the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause. The second factor is the expertise of the decision-maker. The third factor is the purpose of the provision in particular, and of the Act as a whole. Fourth factor considers the nature of the problem in question, especially whether it relates to the determination of law or facts. (2) If discretion was unreasonable: look at Serious question of general importance: look at notes, In my opinion, the approach taken to the childrens interests shows that this decision was unreasonable The officer was completely dismissive of the interests of Ms. Bakers children. (3) Parliaments intention that the decision be made in a humanitarian and compassionate manner. A reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children since childrens rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of these values may be found in the purposes of the Act, in international instruments, and in the Ministers guidelines for making humanitarian and compassionate decisions. f) International treaties and conventions are not part of Canadian law unless they have been implemented by statute. 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. (1) The principle that an international convention ratified by the executive is of no force or effect within the Canadian legal system until incorporated into domestic law does not survive intact the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation . g) Because the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of the appellants children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to the appellants country of origin might cause her. 3. Conclusion: because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H & C discretion was unreasonable, I would allow this appeal. 4. Held: appeal is allowed. I. De Guzman v. Canada (Minister of Citizenship and Immigration): The appellant, now a Canadian citizen, became a permanent resident in Canada after being sponsored by her mother as a unmarried daughter under the former immigration law. She misrepresented herself that she was single and had no dependants, other than her daughter who was accompanying her. In fact, the appellant had two sons whom she left in the Philippines with their father. The sons birth certificates indicate that the appellant was married to their father. When the appellant tried to sponsor her sons, her application was refused under paragraph 117(9)( d) of the Immigration and Refugee Protection Regulations on the ground that they were not members of the family class because they had not been examined for immigration purposes when the appellant applied to come to Canada. 1. Procedural history: The Federal Court concluded that paragraph 117(9)(d) of the Regulations was valid and that the Board was correct in law to dismiss her appeal. 2. Issues: whether paragraph 117(9)(d) is authorized by section 14 of the Immigration and Refugee Protection Act(IRPA); whether it is invalid under section 7 of the Charter; and whether it is invalid because it renders the IRPA non-compliant with international human rights instruments to which Canada is signatory? 3. Argues: 117(9)(d) is invalid on three grounds. First, it is not authorized by the relevant enabling section of the Immigration and Refugee Protection Act (keeping families together, complies by human rights) Second, by preventing the reunification in Canada of parent and child, the regulation violates the parents rights under section 7 of the Charter. Third, its inconsistent with international human rights instruments to which Canada is signatory, and which protect the right of families to live together and the best interests of children. 4. Reasoning/analysis: IRPA 117(9)(d) That paragraph limits sponsorship rights in certain circumstances in order to deter visa applicants from withholding or misrepresenting material facts about their dependants. The importance to the administration of the


statutory scheme of full disclosure is illustrated by the fact that a foreign national is inadmissible to Canada if an accompanying or, sometimes, non-accompanying family member is inadmissible. a) Parliament has authorized less onerous sanction for misrepre-sentation, namely, ineligibility to sponsor unexamined dependants as members of the family class. b) There is nothing express or implied in either section 14 or the scheme of the IRPA to reduce the apparent breadth of the regulation-making discretion that would render paragraph 117(9)(d) beyond the powers delegated by Parliament to the Governor in Council. c) Charter: 6(1) of the Charter provides that Canadian citizens have the right to enter and remain in Canada whereas others do not. The appellant acquired Canadian citizenship by means of a material misrepresentation and came to Canada without her sons. She is not a refugee nor a person in need of protection and provided no evidence of any special hardship or psychological stress that she is suffering as a result of the separation. She has visited her sons in the Philippines and could reunite with them on a permanent basis. Paragraph 117(9)(d) was thus not the cause of the appellants 12-year separation from her two children since she left them voluntarily. Therefore, the appellant has not been deprived of her section 7 Charter rights to liberty and security of the person.There is thus no sufficient nexus between the state action impugned (paragraph 117(9)( d)) and the separation of Ms. de Guzman from her sons. d) International law: 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. 1) Words 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. (1) Secondly, 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. (2) 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. (3) 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. (4) Guzman used: International Covenant on Civil and Political Rights, and theConvention on the Rights of the Child - both Canada has signed onto. I am inclined to think that Parliament intended them to be used as persuasive and contextual factors in the interpretation and application of the IRPA. (5) Test: Determining the effect of paragraph 117(9)(d) requires 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. (a) Family - Case is not of deportation. The separation of Ms. de Guzman from her children has been in large part attributable to her leaving her sons in the Philippines with their father when she came to Canada and failing to disclose their existence. Cases used are distinguishable. (b) Childs interests - best interest of the child is a primary consideration rather than the primary consideration. Accordingly, the legal principle of the best interests of the child may be subordinated to other concerns in appropriate contexts. i) Second, and more specifically, not every statutory provision must be able to pass the best interests of the child test, if another provision requires their careful consideration. In my opinion, section 25 [of the IRPA] is such a provision, because it obliges the Minister to consider the best interests of a child when deciding whether, in his opinion, humanitarian and compassionate circumstances justify exempting an applicant from the normal selection criteria and granting permanent residence status. (6) Conclusion: Because the international human rights instruments on which the appellant relies 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 with other provisions in the IRPA,


particularly section 25, paragraph 117(9)(d) does not make the IRPA non-compliant with an international human rights instrument to which Canada is signatory. 5. Held: appeal dismissed. III. FUNDAMENTAL PRINCIPLES OF THE CANADIAN LEGAL SYSTEM A. The Constitution: Constitution 1976 achieved federalism. 1982 Comprises Charter. Two principal sources of unwritten constitutional norms are constitutional conventions and unwritten principles of the constitution. (Arguing whether or not convention exists, whether all provinces must agree to amend based on whether convention exists) 1. The Patriation Reference: Convention - 8 provinces argued unilateral proposal to amend Con breached convention of Con a) Reasoning: main purpose of constitutional conventions is to ensure that legal frame work of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period. Based on custom and precedent of govt, they are usually written rules. (1) Court agrees with Sasks counsel: that convention does exist and requires measure of provincial agreement, resolution before court has not received substantial measure of provincial consent. (2) Substantial measure of provincial consent required to decide. To take unilateral action would offend federal principle. Purpose of convention rule is to protect federal character of Can Con and prevent anomaly that House and senate could obtain by simple resolutions what they could not validly accomplish by statute b)Rules: (1) Conventions come into existence on basis of 3 factors (a) Practice or agreement developed by political actors (b) A recognition by political actors that they are bound to follow the convention and (c) The existence of a normative reason (purpose) for the convention (substantial govt agreement) (2) Although part of Constitution, conventions are not law, and cannot be enforced by the courts. They acquire and retain binding force by agreement and ultimately in the realm of politics. However, courts may recognize a convention. c) Held: agreement of provinces of Can constitutionally required for passing proposed resolution. 2. Reference Re Secession of Quebec: Unwritten principles a) Reasoning: the constitution embraces unwritten and written rules, includes constitutional conventions and workings of Parliament. Necessary part of con b/c problems or situations may arise which are not expressly dealt with by text of Con. Principles and rules emerge from understanding of con text, historical context, and previous judicial interpretations of con meaning. There are 4 fundamental organizing (unwritten) principles: (1) Dederalism, democracy, constitutionalism and rule of law, protection of minority rights. None trump one another, and cannot be defined in isolation. Unstated assumptions upon text is based. Impossible to conceive constitutional structure w/o them. (2) They are compelling reasons to insist on primacy of our written constitution. Binding upon courts and govts. (3) (they cannot override the text, but their role is limited to supplementing or filling in the gaps in the text) B. Rule of law: all exercises of legitimate public power must have source in law, and every state official or agency is subject to constraint of the law 1. Functions: 1) Constitution establishes who can make ordinary law of the land, and spells out limits on the content of ordinary law (Constitution Act 1867, Charter) Con acts as a rule of recognition that identifies what is legitimate and binding law. 2) Con establishes governing relationships between institutions or branches of the state that perform the functions needed to make law effective in society. 2. Secession Reference: distinguishes between - constitutionalism principle requires that all govt action comply with the Constitution. Rule of law principle requires that all govt action must comply with the law, including the Constitution. (rule of law is broader and prerequisite) 3. Principle Rule of law speaks to supremacy of both constitutional law and ordinary law over the actions of state officials. Idea in statutory authority: executive govt actions only have power to act in society to degree granted by ordinary law, (statutes). This has 2 implications: a) Govt actors may always be questioned about statutory source of actions and must have an answer b) Exercise of govt authority is always subject to review by the judiciary with respect to whether it is consistent with its statutory grant 4. Following cases review substantive content of the rule of law -5. Roncarelli v. Duplessis: director of provincial liquor commission, acting under express direction of Premier, revoked license of Montreal restauranteur who posted bail for several hundred Jehovahs witnesses. Director stated he acted under commissions unqualified statutory authority power to cancel permit at his discretion.


a) Reasoning: Must look at statute, scope or authority. Even if at discretion, must be based on legitimate, impartiality, integrity. The way it was cancelled were incompatible with statute. Premier wanted to bring halt activities, punish for helping, setting example. No such thing as absolute discretion. b) Rejected idea that any statute could delegate such power to govt official or that premier could manipulate his own power to pursue personal vendettas. Statutory powers must be limited to the express or implied purposes for which they were granted, principle enforceable by the judiciary. (principles are substantive content that directs and limits state actions. Rule of law includes idea that ordinary law must meet certain qualitative standards). c) Fraud and corruption of commission not mentioned but implied in statute. Discretion amounts to good faith in discharging public duty. Denying forever is outside of scope. d) Respondent through commission breached implied public statutory duty toward appellant, gross abuse of legal power expressly intended to punish him for an act unrelated to the statute, punishment intended to destruct his economic life as a restaurant keeper within the province. e) Good faith applies to respondent and general manager in carrying out statutes intent for its purpose. 6. British Columbia v. Imperial Tobacco Canada Ltd: Act created civil suit for govt against tobacco mfr in respect to health care costs incurred for illnesses resulting from tortious conduct of mrf. Aggregate claims for expenses incurred for whole populations affected (no limitation act) . Govt commenced action. Mtf challenged constitutionality and argued that 1) statute beyond prov powers due to extraterritorial aspects, legislation breached unwritten constitutional principles of 2) judicial independence and 3) the rule of law-- several features of statute (retrospective effect in creating COA between single P and small group of D and presumptions favoring P), violated substantive norms of the rule of law principle. a) Rules: Rule of law has 3 principles : 1) recognizes that law is supreme over officials of govt as well as private individuals, thereby preclusive of the influence of arbitrary power. 2) creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. 3) relationship between state and individual be regulated by law. Unwritten constitutional principles including rule of law are capable of limiting govt actions. b)Reasoning: (1) Many of the requirements of rule of law proposed by appellants are broader versions contained in the Charter; they would make written rights redundant. (2) They overlook fact that democracy and constitutionalism strongly favor upholding the legislation. Arguments fail to recognize that in constitutional democracy, protection from legislation that seems unfair is not in the underlying principles of Constitution, but in text and ballot box. Rule of law does not supplant Con nor avoid legislations not in their favor, it is for giving effect to Constitutions text and apply but its terms legislation that conforms to that text. (3) Prospectivity in the law: Legislations that have retroactive and retrospective effect are valid if intent is clear in the statute. (4) Generality in the law: legislation does not have to be in general character and can put advantages to crown. Precedents allowed retroactive laws in favor of Crown, that did not allow members of group affected pursue successful claims. (veterans interest). (5) There is no constitutional right to have civil trial governed by rules of civil procedure and evidence.Will have a fair trial once sued. The fact that Ds might regard law unjust or procedural rules, does not render their trial unfair. c) Held: act is not unconstitutional. 7. British Columbia (Attorney General) v. Christie: Social Service tax of 7% to fund legal aid, but put in general revenue, difficult to ascertain how much towards legal aid or towards increasing justice. Only only profession in BC to have this tax. Mr. Christie maid 30K worked for poor and low income people. Govt sent demand notice and seized funds from his account in 1997. Stopped practicing law until 2000. P claimed that provincial tax on lawyers services violated rule of law that incorporates right of access to legal counsel in all judicial proceedings. a) Analysis: to succeed, must show that Constitution mandates form or quality of access (general right of access to justice). General right is broad and would cover all cases that come before tribunals, related legal advice, services. b) Issue: whether general access to legal services in relation to court and tribunal proceedings dealings with rights and obligations is a fundamental aspect of the rule of law c) Rules: rule of law has 3 principles: 1) law is supreme over officials of govt, private individuals, thereby preclusive of the influence of arbitrary power, 2) rule requires creation and maintenance of actual order of positive laws which preserves and embodies the more general principle of normative order, 3) relationship btn state and individual be regulated by law. d) Reasoning: general access to legal services not recognized in rule of law. Not in Charter, only specific right for arrest and detention in sect 10(b). Sect 7 implies procedural fairness where life, liberty, and security of person affected. But no general right. e) Held: rejected argument. Constitution, jurisprudence, and historical understanding of rule of law show no general right to counsel, only in specific settings.


C.Constitutional supremacy 1. Constitutional supremacy: the Con is the supreme law of the society, and any ordinary law that is inconsistent with constitution is of no force or effect a) Reference re Secession of Quebec: s. 52(1) Con Act 1982, Canadian system of govt operates under principle of constitutional supremacy in the sense that judiciary had always been prepared to rule laws invalid pursuant to division of powers. Constitutional arrangements completing transformations over time based largely on principle of parliamentary sovereignty. This relates closely to Charter - written constitutional rights that enhanced limits on substantive laws that could be enacted by canadas sovereign legislatures. (1) Rules: (a) Rule of law is supreme over acts of govt and private persons (one law for all), 2) rule of law requires creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order, 3) exercise of all public power must find its ultimate source in a legal rule (relationship btn state and individual governed by law) (comply with all laws, including the Constitution) (b) Constitutional principle: requires all govt action comply with the constitution. (2) Reasoning: govt has transformed from system of parliamentary supremacy to constitutional supremacy. Understanding scope and importance of principles aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule - 3 overlapping reasons: (a) Con may provide added safeguard for fundamental human rights and individual freedoms which may be susceptible to govt interference. (maj will be tempted to ignore rights to accomplish collective goals). (b) Con 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. (c) Con may provide for a division of political power that allocates political power amongst different levels of govt. Purpose would be defeated if one govt can usurp powers of the other. (3) Constitutional rules amenable but only through process of negotiation. By having enhanced majority, to achieve constitutional change, ensures minority interests must be addressed before changes that affect them are enacted. (4) Constitutionalism and rule of law are essential to democracy. b) Hierarchy of Law: the state that Constitution is supreme law implies a hierarchy, or a distinction between constitutional and non constitutional law, or ordinary law. Ordinary law contains statutes and common law. Doctrine of parliamentary supremacy stands for the proposition that a rule of the common law can be overriden or amended by express statement of the legislature in the form of a statute. c) Adjudication: effect of constitutional supremacy requires mechanism for adjudicating inconsistencies between constitution and ordinary law. Constitutions cannot be so details as to make them self enforcing, and that everyone agrees on what it says. Must be interpreted to be applied to complex society. Legislature cannot maintain the authoritative voice on the constitutions interpretation. System requires legislature to be checked by judiciary - to interpret and apply Con. Principle of judicial independence preserving interpreters of Con from political interference. S. 52 of Con Act 1982 provides adjudicate authority for courts and judges who also decide all legal disputes in society, to adjudicate this. (1) Independent courts have the final adjudicative words, even if administrative tribunals apply the Charter. d) Counter-Majoritarianism: constitutional supremacy represents checks on majoritarian democracy, it places limits on majority preference. System of constitutional supremacy, power to interpret and enforce Constitution against majority preferences must be present. e) Amendment by Super-Majority: constitutional supremacy implies that constitution cannot be amended in the same way that ordinary legislation is enacted. Process for amending must involve super majority which brings more or other elements of society than comprise a legislative majority. Part V of Con Act 1982 turns on federalism, requires majorities of fed and prov legislatures to agree. D. Separation of powers: public power is exercised through 3 institutional branches at the fed and prov levels - legislature, executive, judiciary, and each branch carries out its functions in a distinct manner. Division of govt functions btn 3 branches. Each defined through relationship to the law: making the law (legislature), implementing the law (executive), and interpreting and applying the law (judiciary). No strict separation, overlapping of legislature and executive. 1. Distinction provides 2 purposes: a) Functional purpose of identifying institutional homes of each of the 3 major forms of public power: Con Act 1867 divides public power between the three. Legislative is oriented towards the future and oriented to public interest. Judiciary is about past events, oriented to individual disputes, oriented to application of principles to facts to produce right outcome. Executive features both, hard to define. b) Normative purpose of providing general boundaries for the operation of each institution


2. Doucet-Boudreau v. Nova Scotia (Minister of Education): power of judiciary to order remedies for breaches of Charter under 24(1). Prov govt ordered by superior court judge to complete construction of new schools for minority french, report periodically. Argued that improperly placed court in role of administrator and usurped functions of executive govt. Majority upheld judges order, but asserted the need to maintain boundary between judicial and executive functions in remedial area. In this context, must be sensitive to their roles and not usurp other branches roles. 3. Canada (Prime Minister) v. Khadr: Court declined to make order under Charter 24(1) that fed govt make formal request to US govt for repatriation of Omar Khadr from Guantanamo Bay to remedy breach of his s.7 rights caused by participation of Can govt officials in his illegal interrogation, viewing such an order as intrusion on executives prerogative power to conduct diplomacy w/ foreign countries. a) Rule: prerogative power is the residue of discretionary or arbitrary authority, which at any given time is legally left in hands of Crown. b) Reasoning: in exercising common law powers of royal prerogative, executive is not exempt from constitutional scrutiny. Executive, not courts decide how to exercise powers. Judicial review must be sensitive to fact that executive branch is responsible for decisions under this power and is better placed to make decisions. (1) Govt must have flexibility but its for courts to determine the legal and constitutional limits w/n decisions are to be taken, whether they infringe Charter. (2) Conduct of foreign affairs lies with executive, bt courts are charged with adjudicating claims of charter violations in executives exercise of its powers c) Holding: Canada infringed Khadrs s. 7 rights and appropriate remedy is to leave it to the govt to decide how to best respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter. E. Legislative Power: division between federal legislature and provincials, is feature of federalism. 1. Parliamentary sovereignty (supremacy): subject to the Constitution, legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it deems fit. a) Canadas federal and prov leg are sole sovereign holders of state authority, subject to authority being divided between them set out in 22 91 and 92 Con Act 1867. b) When Con Act 1982 adopted the Charter that was an express declaration of constitutional supremacy. Placed limits on substantive laws that could be passed by both levels, required recognition of the written Constitution as being supreme source of law making authority in Canada. c) Important in explaining relationship between legislative and executive branches. Exec action must comply with provisions of the constitution b/c it can be authorized only by statutes that themselves are consistent with the Constitution. d) Babcock v. Canada: gov to Canada sought to rely on statutory authority on non disclosure of Cabinet documents, despite the documents having already been disclosed in course of litigation. Applicants invoked unwritten principles, such as, rule of law, to support argument that disclosure should be required despite clear statutory statement to the contrary. Court found parliamentary sovereignty decided the issue. (1) Facts: Treasury Board set pay of DOJ lawyers in Toronto higher than Vancouver. Lawyers brought action for breach of contracts of employment and fiduciary duty towards them. As action proceeded, parties exchanged relevant documents as required by BC Supreme Court rules. Nearly 2 years later govt changed its position on disclosure of documents, relying Canada Evidence Act. Plaintiffs filed application to compel production. (2) Issue: When if ever, cabinet confidences must be disclosed in litigation between govt and private citizens? is the Act constitutional? (3) Rules: unwritten principles must be balanced against the principle of parliamentary sovereignty. (unwritten principles: rule of law, independence of judiciary, separation of powers) (4) Reasoning: previous precedent- rule of law cannot be taken to invalidate statute which allows Crown to identify certain docs as as beyond disclosure. Rule of law does not preclude special law with special result dealing with special class of docs, for which there are reasons based on constitutional principles such as responsible govt, have been treated differently from private docs in a commercial suit. (5) Conclusion: s. 39 does not offend the rule of law or doctrines of separation of powers and independence of judiciary. It is well within power of legislature to enact laws, as long as it does not interfere with the relationship btn courts and other branches of govt. 2. Federalism: legislative sovereignty in Canada is divided between national legislature (parliament) and provincial legislatures, according to a division of law making powers or jurisdictions set out in the Constitution. a) Reference re Secession of Quebec: court recognized federalism as unwritten principle of Constitution, describing it as a means for recognizing regional cultural diversity at the founding of Canada (with respect to Quebec as french speaking society)


(1) Reasoning: our political and constitutional practice has adhered to an underlying principle of federalism and has interpreted the written provisions of the Con in this light. Principle of federalism has exercised role of considerable importance in interpretation of written provisions of our constitution. (2) Principle recognizes diversity of the components parts of Confederation, autonomy of provincial govt to develop their societies within their respective spheres of jdx. Also facilitates democratic participation by distributing power to the govt. (3) Principle facilitates pursuit of collective goals by cultural and linguistic minorities which form majority of province. Quebec - majority french speaking. b) Division: ss. 91 and 92 Con Act 1867 sets out division of powers, subject matters that are in exclusive control of legislative bodies. Federal: criminal law, trade and commerce, banking. Provincial: hospitals, municipalities, property and civil rights. Provinces have more jdx over regulation of economic matters of Canada, unless relating to international and interprovincial trade. S. 93 gives education to provinces and s. 95 gives immigration to federal. (1) S. 91 gives federal POGG (peace, order and good govt). Charter put limits on both bodies. In the beginning of Confederation, constitutional law primarily concerned with boundaries between bodies. Discussion about relationship of POGG power and the enumerated heads of power in s. 92, especially property and civil rights. Judicial Committee of Privy Council expanded provincial and limited POGG as source of federal jdx to situations of national crisis or emergency (war). After 1949 Supreme Court modified and expanded scope of federal authority and overlapping powers between both levels of govt. c) Federalism and Human Rights: federalism means that regulatory authority over different aspects of canadian society is divided btn federal and prov govts. All provinces have enacted their own human rights laws. Most private activity falls within property and civil rights of prov. But certain aspects of economy fall under federal jdx - banking, navigation and shipping, military. Employment in these sectors are subject to federal jdx, thus, provinces cannot enact laws dealing with discrimination in these areas. Canadian Human rights Act is enacted for federal F. Executive power: Executive includes all ministeries of govt and employees, armed forces, Crown corporations. May include statutorily created bodies that carry out largely govt functions. Civil society: membership in registered societies or corporations. Institutions on the margins: universities, hospitals, post secondary schools, professional regulatory bodies. 1. Executive branch is subordinate to legislative branch. Relationship has two features: a) Subject to minor sources of power from royal prerogative and Constitution, executive derives any power it has solely from laws or statutes passed by the legislature. Must locate authority to act from statutory source b) By constitutional convention, executive is responsible to legislature. That is the essential meaning of responsible govt. Convention requires prime minister and his ministry to command the support (confidence) of majority of elected legislators. G. Judicial independence: Judicial branch of state must have a sufficient degree of institutional independence from legislative and executive branches of the state in order to perform its constitutional law functions. 1. Appointment: Sec 96 provides fed executive shall appoint justices of the countrys superior, county, district courts. Provinces establish courts under 92(14). Superior Courts of Canada referred to as section 96 courts, each prov also has system of non section 96 courts. 2. Authority: s. 101 gives parliament authority to create courts for better administration of laws of Canada (for laws passed by parliament itself). Federal Courts Act establishes trial level, court of appeal, jdx is statutory, not inherent. Also authorizes to create general court of appeal for Canada, so enacted Supreme Court Act - ordinary federal statute is the sole source of existence for the Court, it does not have constitutional status. 3. Core jurisdiction of superior courts, which encompass two crucial public law powers: a) The jurisdiction to rule on the constitutional validity of all ordinary laws in Canada (con law) b) The jurisdiction to supervise the activities of executive govt and other statutorily delegated actors to ensure that they act within their statutory authority (admin law) 4. The Judiciarys Constitutional Law Jurisdiction: principle of constitutional supremacy presupposes role for adjudicative institution to rule on whether ordinary legislation has violated the limits on legislative power set out in the Constitution. (Adoption of Charter, has lead to questioning remedies in s. 24 that Courts can give) 5. The Judiciarys Administrative Law Jurisdiction: superior courts assumed role of ensuring that executive govt acts within its delegated statutory authority. Do this by allowing all persons adversely affected to file petitions to superior courts to seek judicial review of whether the executive official has acted within bounds of his statutory power. This is a common law development, not dependent on being granted by legislatures, and has been underlined by Supreme Court has having constitutional status. a) S. 101 fed govt has power to create courts and thereby confer admin law powers on a new court. Since then, admin law jdx has been divided btn fed and prov superior courts, on basis of whether delegate in question is empowered under fed or prov statute. 6. The Principle of Judicial Independence: constitutional doctrine that is closely tied to separation of powers. Ensures judges, as arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference. Also preserves separation of


powers btn branches: legislature and exec cannot exert political pressure on judiciary, and conversely judiciary should refrain from speaking out publicly on issues of general public policy that have potential to come before the courts, that are subject to political debate and which do not relate to proper administration of justice. H. Reference re Secession of Quebec: importance of 4 unwritten principles: federalism, democracy, constitutionalism and rule of law, protection of minority rights. 1. Historical context, significance of confederation: a) 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. b) It was the first step in the transition from colonies separately dependent on the Imperial Parliament for their governance to a unified and independent political state in which different peoples could resolve their disagreements and work together toward common goals and a common interest. c) Statute of Westminster, there after Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. d) 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. e) Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament f) It should be noted, parenthetically, that the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation. despite the refusal of the government of Quebec to join in its adoption g) As to the latter, to the extent that the scope of legislative powers was thereafter to be constrained by the Charter, the constraint operated as much against federal legislative powers as against provincial legislative powers. Moreover, it is to be remembered that s. 33, the "notwithstanding clause", gives Parliament and the provincial legislatures authority to legislate on matters within their jurisdiction in derogation of the fundamental freedoms (s. 2), legal rights (ss. 7 to 14) and equality rights (s. 15) provisions of the Charter. h) 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. 2. Analysis of constitutional principles: a) Nature of the principles: Federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. 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. (1) The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole.The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. (2) In Provincial Judges Reference affirmed that preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text". (3) Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations b) Federalism: political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. The principle of federalism runs through the political and legal systems of Canada. 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. (1) Establishes a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head. (2) The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. (Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance) c) Democracy: the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels". Not written in


constitution, because could look redundant. Goal is effective representation. Democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities. (1) Democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter. 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 and candidates. (2) 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. s. 4 is not subject to the notwithstanding power contained in s. 33. (3) Democracy and federalism: democracy expresses the sovereign will of the people. he 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. 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. (4) Yet democracy in any real sense of the word cannot exist without the rule of law. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. (5) A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values. (6) democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live. (7) The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. 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. d) Constitutionalism and the Rule of Law: (1) The rule of law: "a fundamental postulate of our constitutional structure". Vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action. (a) Elements: 1) rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. 2) the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". 3) the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. (2) Constitutionalism: 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. (3) The rule of law principle requires that all government action must comply with the law, including the Constitution. (4) Constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons: (a) A constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Constitutional entrenchment ensures that those rights will be given due regard and protection. (b) 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. (c) constitution may provide for a division of political power that allocates political power amongst different levels of government. (5) 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.


(6) Constitutionalism facilitates indeed, makes possible a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined. e) Protection of Minorities: 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 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. I. Singh v. Canada: 1. Parliamentary sovereignty: 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. Both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution a) Justicabilitiy: residual area reserved for the principle of Parliamentary sovereignty in Canadian constitutional law, it is Parliament and the legislatures, not the courts, that have ultimate constitutional authority to draw the boundaries. If, then, the courts interpret a particular provision as having the effect of ousting judicial remedies for entitlements contained in that statute, they are, in principle, giving effect to Parliament's view of the justiciability of those rights. (1) The rights are non-justiciable not because of the independent evaluation by the court of the appropriateness of its intervention, but because Parliament is taken to have expressed its intention that they be non-justiciable. Once it is admitted that Parliament and the provincial legislatures have the power to legislate, it necessarily follows that they can make the privilege absolute. In my view, saying that Parliament and, the legislatures cannot make the privilege absolute amounts to a denial of parliamentary supremacy, and to denying Parliament and the legislatures their sovereign power to legislate in their respective fields of jurisdiction. (2) 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. 2. Separation of Powers: There are many 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. a) 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. b) Just as there are fundamental policy reasons of a quasi-constitutional nature as to why legislators should have full control of their procedures and judges should not have to reveal the processes by which they reach a given decision, so the Executive (with the guidance of an Act of Parliament) should be able to identify those documents generated in its internal decision-making process which should not, for the integrity of the system of Cabinet secrecy, be disclosed. c) If our system of government must conform to some concept of separation of powers, it should embrace this form of mutual respect among the various "branches" so as to reflect and enhance their respective roles. 3. The rule of law: a) 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"; (3) And 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". b) Differently situated persons and public bodies require different treatment and it is part of the art and science of law making, both by legislatures and courts, to fashion a content of laws appropriate to the different persons and bodies they regulate c) 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. I therefore conclude that the rule of law is not a basis for ignoring the provisions of section 39 of the Canada Evidence Act.


4. Independence of the Judiciary: 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. a) It is quite conceivable that it would be invoked in a manner which might be contrary to the government's interests: where the Clerk of the Privy Council is obliged to keep confidential the Cabinet documents of a previous administration and to certify them in order to preclude their production in a case where the government of the day might gain advantage from their disclosure. None of this can be seen as putting improper pressure on a judge as to the outcome of a given case before him: he or she is simply barred by Act of Parliament from making certain determinations. b) Such a section is really another form of privative clause with which the judicial system has long been familiar. It is accepted that legislated privative clauses can preclude courts from reviewing findings of fact by a tribunal where such fact finding is done within its jurisdiction. c) As a constitutional matter, it is not appropriate for the court to intervene by virtue of the simple fact that Parliament has directed that they must not. d) Courts are simply barred by section 39 from reviewing the documents and thus the ambit of Cabinet secrecy. This is a permissible privative clause unless we have, since the Auditor General's case, arrived at the constitutional doctrine based on the "fundamental, unwritten principles of the Canadian Constitution", or on its "organizing principles", that a judicial decision may always be substituted for a governmental decision in the name of judicial independence. e) limitations on the assignment of certain functions to non-courts such as the Clerk of the Privy Council, and thus withdrawing them from the courts, are to be found in section 96 of the Constitution Act, 1867 and paragraph 11(d) of the Charter. The issuance of such certificates cannot in my view be characterized as a traditional and necessary function of a superior court of a kind contemplated in 1867 and thus within section 96.41 Nor can it be seen to be integral to the conduct of a trial within the contemplation of paragraph 11(d) f) Been held that the Court may entertain a proceeding for judicial review of the issuance of a certificate although it may not review the factual correctness of the certificate if it is otherwise in proper form. 43 In performing such a judicial review, a court would be in a position analogous to any court reviewing a decision of a Board whose orders are protected by a privative clause. g) Any concern for the impact of a subsection 39(1) certificate on a judicial body is applicable only to the role of the Federal Court when faced with such a certificate. For reasons stated above the Commission is not a judicial body although it may arguably perform some quasi-judicial functions. It is essentially an agency of the Executive 44 and draws such powers as it has solely from an Act of the same Parliament that enacted theCanada Evidence Act. J. Reference Re Remuneration of Judges in Prov Court of PEI 1. Issue: whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges. 2. PEI facts: province, as part of its budget deficit reduction plan, enacted the Public Sector Pay Reduction Act and reduced the salaries of Provincial Court judges and others paid from the public purse in the province. Following the pay reduction, numerous accused challenged the constitutionality of their proceedings in the Provincial Court, alleging that as a result of the salary reductions, the court had lost its status as an independent and impartial tribunal under s. 11(d) of the Charter. all three elements of the judicial independence of the Provincial Court: financial security, security of tenure, and administrative independence. 3. Alberta facts: three accused in separate and unrelated criminal proceedings in Provincial Court challenged the constitutionality of their trials. They each brought a motion before the Court of Queens Bench, arguing that, as a result of the salary reduction of the Provincial Court judges pursuant to the Payment to Provincial Judges Amendment Regulation and s. 17(1) of the Provincial Court Judges Act, the Provincial Court was not an independent and impartial tribunal for the purposes of s. 11(d). The accused also challenged the constitutionality of the Attorney Generals power to designate the courts sitting days and judges place of residence. The accused requested various remedies, including prohibition and declaratory orders. 4. Manitoba facts: The Public Sector Reduced Work Week and Compensation Management Act (Bill 22), as part of a plan to reduce the provinces deficit, led to the reduction of the salary of Provincial Court judges and of a large number of public sector employees. The Provincial Court judges through their Association launched a constitutional challenge to the salary cut, alleging that it infringed their judicial independence as protected by s. 11(d) of the Charter, salary reduction was unconstitutional because it effectively suspended the operation of the Judicial Compensation Committee (JCC), a body created by The Provincial Court Act whose task it is to issue reports on judges salaries to the legislature. Furthermore, they alleged that the government had interfered with judicial independence by ordering the withdrawal of court staff and personnel on unpaid days of leave, which in effect shut down the Provincial Court on those days. Finally, they claimed that the government had exerted improper pressure on the Association in the course of salary discussions to desist from launching this constitutional challenge, which also allegedly infringed their judicial independence.


5. Rules: Sections 96 to 100 of the Constitution Act, 1867, which only protect the independence of judges of the superior, district and county courts, and s. 11(d) of the Charter, which protects the independence of a wide range of courts and tribunals, including provincial courts, but only when they exercise jurisdiction in relation to offences, are not an exhaustive and definitive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. Judicial independence has now grown into a principle that extends to all courts, not just the superior courts of this country. a) The independence protected by s. 11(d) is the independence of the judiciary from the other branches of government, and bodies which can exercise pressure on the judiciary through power conferred on them by the state. The three core characteristics of judicial independence are 1) security of tenure, 2) financial security, and 3) administrative independence. Judicial independence has also two dimensions: 1) the individual independence of a judge and 2) the institutional or collective independence of the court of which that judge is a member. b) Financial security has both an individual and an institutional dimension. Finance has three components: (1) 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. To avoid the possibility of, or the appearance of, political interference through economic manipulation, a body, such as a commission, must be interposed between the judiciary and the other branches of government. (2) 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. (3) Any reductions to judicial remuneration 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. In order to guard against the possibility that government inaction could be used as a means of economic manipulation, by allowing judges real salaries to fall because of inflation, and in order to protect against the possibility that judicial salaries will fall below the adequate minimum guaranteed by judicial independence, the body must convene if a fixed period of time has elapsed since its last report, in order to consider the adequacy of judges salaries in light of the cost of living and other relevant factors. 6. Majority Reasoning PEI: The salary reduction imposed by s. 3(3) of the Provincial Court Act, as amended by s. 10 of the Public Sector Pay Reduction Act, was unconstitutional since it was made by the legislature without recourse to an independent, objective and effective process 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. a) 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. b) Sections 12(2) and 13 of the Provincial Court Act, which confer a discretion on the Lieutenant Governor in Council to grant leaves of absence due to illness and sabbatical leaves, do not affect the individual financial security of a judge. Discretionary benefits do not undermine judicial independence. c) The question concerning the lack of security of tenure created by s. 10 of the Provincial Court Act has been rendered moot by the adoption in 1995 of a new s. 10 which meets the requirements of s. 11(d) of the Charter. d) Administrative: 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. The courts offices are separate and apart from the other offices in the building. As well, the 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 Attorney Generals decision both to decline to fund and to oppose an application to fund legal counsel for the Chief Judge and judges of the Provincial Court as interveners in a court case did not violate the administrative independence of the court. The designation of a place of residence of a particular Provincial Court judge, pursuant to s. 4 of the Provincial Court Act, does not undermine the administrative independence of the judiciary 7. Majority Reasoning Alberta: The salary reduction imposed by the Payment to Provincial Judges Amendment Regulation for judges of the Provincial Court is unconstitutional because there is no independent, effective and objective commission


in Alberta which recommends changes to judges salaries. However, if in the future, after Alberta establishes a salary commission, that commission were to issue a report with recommendations which the provincial legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds. a) 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. b) 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. c) The Payment to Provincial Judges Amendment Regulation is therefore of no force or effect 8. Majority Reasoning Manitoba: a) Charter violation: 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. Moreover, at least for the 1994-95 financial year, s. 9(1)(b) effectively precluded the future involvement of the JCC. Although Manitoba may have faced serious economic difficulties in the time period preceding the enactment of Bill 22, the evidence does not establish that it faced sufficiently dire and exceptional circumstances to warrant the suspension of the involvement of the JCC. Since Manitoba has offered no justification for the circumvention of the JCC before imposing the salary reduction on Provincial Court judges, the effective suspension of the operation of the JCC is not justified under s. 1 of the Charter. The phrase as a judge of The Provincial Court or should be severed from s. 9(1) of Bill 22 and the salary reduction imposed on the Provincial Court judges declared to be of no force or effect. Mandamus should be issued directing the Manitoba government to perform its statutory duty, pursuant to s. 11.1(6) of The Provincial Court Act, to implement the report of the standing committee of the provincial legislature, which had been approved by the legislature. If the government persists in its decision to reduce the salaries of Provincial Court judges, it must remand the matter to the JCC. Only after the JCC has issued a report, and the statutory requirements laid down in s. 11.1 of The Provincial Court Act have been complied with, is it constitutionally permissible for the legislature to reduce the salaries of the Provincial Court judges. b) Judicial independence violated: 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 surrounding circumstances indicate that the Association was not a willing participant and was effectively coerced into these negotiations. No matter how one-sided, however, it was improper for government and the judiciary to engage in salary negotiations. c) Administrative independence: government infringed the administrative independence of the Provincial Court by closing it on a number of days. It was the executive, in ordering the withdrawal of court staff, pursuant to s. 4 of Bill 22, several days before the Chief Judge announced the closing of the Provincial Court, that shut down the court. Section 4 is therefore unconstitutional. Even if the trial judge had been right to conclude that the Chief Judge retained control over the decision to close the Provincial Court throughout, there would nevertheless have been a violation of s. 11(d), because the Chief Judge would have exceeded her constitutional authority when she made that decision. Control over the sittings of the court falls within the administrative independence of the judiciary. important decisions regarding administrative independence cannot be made by the Chief Judge alone. Manitoba has attempted to justify the closure of the Provincial Court solely on the basis of financial considerations, and for that reason, the closure of the court cannot be justified under s. 1. Although reading down s. 4 of Bill 22 to the extent strictly necessary would be the normal solution in a case like this, this is difficult in relation to violations of s. 11(d) because, unlike other Charter provisions, s. 11(d) requires that judicial independence be secured by objective conditions or guarantees. If the Court, however, were to strike down s. 4 in its entirety, the effect would be to prevent its application to all those employees of the Government of Manitoba who were required to take leave without pay. The best solution in the circumstances is to read s. 4(1) as exempting provincial court staff from it. This is the remedy that best upholds the Charter values involved and will occasion the lesser intrusion on the role of the legislature. IV. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM A. The nature and function of judicial review B. The basic approaches to statutory interpretation C. Relationship between branches of govt: judicial review, constraints on power of each branch 1. Executive branch: structure; powers (delegated legislation), introduction to nature and role of administrative tribunals 2. Legislative branch: structure and operation of parliament; legislative process; formation of statute versus regulations; ethics and accountability


3. Judicial branch: canadian court system; appointment of judges; judicial independence Ch. 4 Parliament and Legislative Process I.Structure and Operation of Parliament A. Constituent parts of the parliament of Canada Monarch and Governor General: queen is canada s official head of state, in practice, powers exercised by governor general. Monarch determined by UK rules of hereditary, laws of succession Act of Settlement 1701. Act bars catholics from assuming crown and precludes monarch from marrying roman catholic. Discriminatory. a. ODonohue v. The Queen: The Act of Settlement violates s.15(1) Charter. Only issues of standing and justicability will be dealt with. If there is standing and justicability, matter will proceed on merits, if not, will be struck down. i. Rule: determining of matter is justicable, is a normative enquiry into appropriateness as matter of constitutional judicial policy of courts deciding a given issue or deferring other decision making institutions of the polity. If those portions of act have constitutional status, then matter is not justicable. Charter cannot be used to amend another part of our constitution. ii. Reasoning: canada is constitutional monarchy, untied under crown of UK. Monarch is shared with UK and other commonwealth countries. Since queen has central role in canadian constitution, rules of governing succession to throne are essential to proper functioning of this branch of constitutional scheme. Result, rules are by necessity incorporated into constitution of canada. Rules must also be shared with Uk and other commonwealth countries. If courts were free to review, canada would break symmetry with Britain, change our constitutional structure. 1. Statute of Westminster is part of our Con, rules of succession would no longer be imposed by Britain, and if symmetry were to be maintained, all changes to rules of succession would have to be agreed to by all members of commonwealth. Canada can withdraw from allegiance, but cannot unilaterally change the rules - this would be contrary, break symmetry, and breach principle. 2. Rules must be the same as britain, necessary to functioning of our constitutional monarch, thus, rules not subject to charter scrutiny. Queen of England is Queen of Canada b/c she is Queen of England. To apply charter, would disrupt rules, defeat intent expression in constitution, and would make courts over step their role in democratic structure. iii. Held: application is not justicable, no serious issue to be tried. Application dismissed, b. Selecting governor general: prime minster recommends through letter to Queen, who takes her direction. 2. Senate: unelected members appointed by governor general, from advice from prime minister. Edwards v. AG of Canada: whether woman were allowed in senate - yes. BNA planted canada a living tree capable of growth and expansion w/n natural limits. Brown: Controversies, often party in power rewards its friends and supporters through appointment. a. Brown v. Alberta: Alberta Act has election for senators, identifies nominee names of those who can be senators for Alberta. Brown and Morton were senators in waiting, Chretian declined to appoint them. Brown sued Alberta courts seeking declaration that senatorial appointment provisions by GG in council, in 1867 Act contrary to democratic principles set out in Reference re Secession of Quebec. Should be appointed according to Alberta Act. Not alleging interference w/ any legal right (charter), nor doing challenging on any legal basis either (Con 1867). i. Argued: Secession reference: democratic principle is expression of will of provinces that should carry weight, wants order declaring that consistent with democratic principles, senators appointed from alberta must be appointed based on Senatorial Selection Act ii. Issue: whether originating notice can be viewed as raising a legal issue iii. Reasoning: this does not show legal issue or how court should find this raises a legal issue. For court to to be arbiter of democratic character of senatorial appointment, and make statement whether process is democratic, court must have jdx, needs legal issue to have jdx. Statements for Secession do not modify existing jurisprudence on what constitutes legal issue. Notice does not raise legal issue. iv. Held: court has no jdx to grant declaratory relief. Appeal dismissed. b. Samson v. Attorney General of Canada: reform party of canada sought interlocutory injunction to restrain gg from appointing senator from Alberta unless person has been elected pursuant to Senatorial Selection Act. i. Issue: whether applications have established that there is a serious issue to be tried. ii. Rule: GG has unfettered discretion to appoint qualified persons to the Senate. (no procedural or other restricting limitations) iii. Reasoning: Limitation can only be imposed to s.24 and 32 in accordance with part V Con act 1982. Court cannot impose procedural or other limitations on GG express power to appoint senate or fetter his discretion. Power is political in nature. Appointed upon advice of Governor in council. Nothing in Quebec case states that court may ignore express provisions of Con Act 1867. The fact that GG appointed upon advice of Governor in Council Mr. Waters does not constitute a convention that alters words of constitution 1867. It was a political decision made on the day of that time in nations history. iv. Held: claim is political, not legal. Failed to establish that case raise an issue to be tried. Application for interlocutory injunction dismissed. c. Controversial b/c fails to reflect representation by population. Sec 22 Con Act 1867 partitions Can into 4 divisions: Ontario, Quebec, Maritime provinces, Western provinces. There is unproportional representation based on % population in provinces. BC, Alb, Ont under


represented. Nova Scotia overrepresented. Need amendment: approval by fed & 7 provinces (collectively having at least 50% of canadian population) 3. House of Commons: elected under s. 37 Con Act 1867 a. Elections Canada, Canadas Electoral System: representation in house based on geographical divisions aka electoral districts, constituencies or ridings. Each riding elects one member to the House and number of ridings established through formula set out in Con. Riding boundaries set out by independent commissioners. New commissions set up following each decennial (10 yr) census to make any necessary revisions to existing boundaries following criteria defined in Electoral Boundaries Readjustment Act. Process of defining electoral boundaries is redistribution i. Electoral system referred to as single family plurality or first-past--the-post system. Candidate w/ most votes wins seat in House and represents that riding as MP, no need to get more than 50%. b. Reference re Prov. Electoral Boundaries (Sask.): not every vote worth the same. Vote worth more in less densely populated rural ridings vs. crowded urban electoral districts. Issue: whether the electoral boundaries created by Act violate the Charter. i. Issue: whether the variances (size of vote pop), and distribution (urban, rural, northern areas) reflected in constituencies violate Charter. ii. Rules: charter right should be determined in broad and purposive way, its a tree capable of growth and expansion w/n its natural limits Edwards v. AG for canada iii. Analysis format: define scope of right to vote under Charter, evaluate existing electoral boundaries in light of definition to determine if they violate s. 3 Charter. If violation found, then determine whether limitation on right is justified in free and democratic society. iv. Analysis-Reasoning: Purpose of right to vote in s. 3 is not equality of voting power per se, but the right to effective representation. We have a representative democracy, citizen entitled to be represented. 1.Conditions of effective voting: a. Relative parity of voting power. system that dilutes ones vote runs risk of providing inadequate representation to that person, may be reduce access to assistance and representative. Voter parity is impossible, impossible to draw boundary lines w/ same number of voters in each district, voters die, move. b. Relative parity if possible, may be undesirable b/c it has effect of detracting from primary goal of effective representation. Deviation from absolute voter parity must be justified by factors that pursuit more effective representation - weight to geographic, community history, interests, minority representation. 2. Right to vote must be interpreted in accordance with its purpose. Goal was to recognize right affirmed in this country, to effective representation in system which gives due weight to voter parity but admits other considerations where necessary (we do not have US system of one-person one-vote). 3. History of right to vote: purpose of guarantee of right to vote is not to effect perfect voter equality, but broader goal of guaranteeing effective representation. 4. System is rooted in effective representation, not absolute or near absolute voter parity. Problem w/ representing vast populated areas is that lower voter populations in these districts, to insist on voter parity might deprive citizens w/ distinct interests of effectove voice in legislative process as well as effective assistance from their reps. This one fact that may require deviation from one person one vote rule in interests of effective representation. 5. Should not dilute, but recognize cultural and group identity to enhance participation of individuals in electoral process. 6. Conclusion: precept which govern Charter supports conclusion that right to vote should be defined as guaranteeing the right to effective representation. Concept of absolute voter parity does not accord with right to vote in Canadian context and no flexibility to meet practical difficulties inherent in rep govt in country such as Can. Broader concept of effective rep best serves interest. 7. Distribution of seats: whether distribution of seats violates s. 3. Variances btn southern seats. Factors of voting power a. It is more difficult to represent rural ridings than urban - rural voters make greater demands b/c absence of alternative resources to be found in urban centers. Goal of effective rep justify lower voter populations in rural areas. b. Geographic boundaries, rivers, municipal boundaries form natural community dividing lines hence natural electoral boundaries c. Growth projects - boundaries govern for years, may be replaced much later when project population changes justify deviation from strict equality at time the boundaries were drawn. 8. Conclusion: discrepancies between urban and rural ridings is small, evidence justifies existing electoral boundaries. Discrepancies btn ridings justified based on factors: geography, community interests, population growth patterns. v. Held: electoral boundaries do not violate right to vote under s. 3 Charter. Appeal allowed. c. Elections Canada, Canadas Electoral System: each candidate may run in one district only. Party may endorse one candidate per riding. Political party has constitution and by laws, elect leader and endorse candidates for election to House. Must register name w/ chief electoral officer to put party name on ballot. Leader of winning becomes PM, usually elects his MP to had govt departments. Second largest party is official opposition. d. Figueroa v. Canada: under Canada elections act, registered party had to run candidates in at least 50 electoral districts. Rule struck down.


i. Issues: whether fed legislation that restricts access to certain benefits to political parties that have nominated candidates in at least 50 electoral districts violates s. 3 Charter. 1. Whether provisions of Act violates s. 3 Charter, by withholding from candidates nominated by parties that have failed to satisfy the 50 candidate threshold, the right to issue tax receipts for donations received outside election period, right to transfer unspent election funds to party, right to list party affiliation on ballet papers. If so, whether infringement justified under s. 1 Charter? ii. Analysis (Rules & Reasoning): 1.Does the 50 candidate threshold violate s. 3 Charter a. Purpose of Charter: must have adopt a broad and purposive approach that seeks to ensure duly enacted legislation is in harmony w/ purpose of charter. Purpose is not only right to vote but also right to play meaningful role in electoral process. Right to run for office gives opportunity to present ideas and opinions. Right to vote gives opportunity to express support for ideas and opinions. Purpose is to play meaningful role in political life of country. b.50 candidate threshold i. Role of political parties that nominate candidates in fewer than 50 electoral districts: ability of party to make valuable contribution to electoral process is not dependent on capacity to offer electorate a genuine govt option. Supporters of such parties do play meaningful role. ii. Impact of 50 candidate threshold: by withholding benefits from candidates of parties who have not met 50 candidate threshold undermines rights of citizens to meaningfully participate. c. Conclusion: 50 candidate threshold does infringe s. 3. Undermines both the capacity of individual citizens to influence policy by introducing ideas and opinions into public disclosure 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. 2. Is the infringement saved under s. 1: rule must demonstrate that its reasonable and justifiable under free and democratic society. Test: 1) govt must demonstrate objective of legislation is pressing and substantial to warrant violating a charter right, Objective must be neither trivial nor discordant with the principles integral to a free and democratic society. 2) govt demonstrate that infringement is proportionate, that legislation is rationally connected to objective, that it minimally impairs charter right and that salutary benefits of legislation outweigh the deleterious effects. a. Govt has failed to justify infringement (pg. 175) iii. Held: Act violates s. 3 charter. Appeal allowed. B. Constituent parts of the parliament of Canada 1. Summoning: sect 38 of Con Act 1867 empowers Governor General to summon together house with advice of PM, but power constrained by constitutional convention and Charter. Constitutional convention is codified in Writ of Election (in Canada elections act), it empowers monarch to set date of new parliament w/ advice of PM. a. House of Commons, Precis of Procedures: i. Formal opening of a parliament 2(a) - distinguishable for subsequent sessions by two preliminary proceedings: taking and subscribing of the Oath of Allegiance by member and the election of a Speaker. ii. Speech from the Throne 2(b) - GG reads this speech, stating causes for summoning parliament. This opens first session and subsequent sessions and marks the first occasion of parliament assembled in 3 parts: the sovereign (or rep), senate, house. iii. Address in Reply to the Speech from the Throne: Houses business includes routine motion by PM that throne speech be considered today or some other day. On that day, when House responds to speech (address in reply), begin w/ govt member of ministry moves that address be presented to theGG. House adjourns to the first of six days for resuming debate on motion and any amendments. Debate rules are 20 min speeches, then 10 min questions and comments after each speech. First of six days for formal debates starts with first speaker the Leader of Opposition who can propose amendment. PM speaks second and may offer subamendment. Failure of House to carry unamended address in reply likely constitutes vote of no confidence, causing govt to fall. 2. Prorogation: once summoned, parliament is divided into several sessions, separated by prorogation: the prerogative of the GG acting on the advice of PM. A prorogation may not endure indefinitely. Sitting or parliament required at least once every 12 months under Charter. a. House of Commons, Precis of Procedure i. Prorogation ends a session but does not dissolve parliament, but all office and members retain full rights and privileges. It abolishes all pending legislation and quashes further committee activity. No committee can sit after prorogation and and bill or previous session must be introduced again as new bill. Private member bills can be reinstated. Govt bills reinstated through motion at same stage they had reached in previous session. Committee work revived by motion or study undertaken under Standing Order. Outstanding orders or addresses of House are not abolished, but are brought down during following session w/o renewal order. ii. Parliament can be prorogued through speech by GG in senate, although this is merely a convention and not required by any standing order or statute. Also through proclamation published in Canadian Gazette. Can be adjourned for period of time and reconvened, and then again prorogated after proclamation w/ new session opening soon after.


iii. House in recess when prorogated and next session about to come w/n same Parliament. Adjournment is termination by House of its own sitting (motion, standing order, special order) for any period of time w/n session. Unlike dissolution and prorogtation, adjournment does not quash all proceedings. At next sitting, House transacts business previous appointed and all proceedings resume at the stage at which they were left before the adjournment. 3. Dissolution: parliament must dissolve and elections must happen every 5 years (unless war or insurrection) Can also have it PM choosing. Electoral cycle now of fixed dates every 4 years. PM might be forced by constitutional convention to seek dissolution from GG. Constitutional convention requires requires PM to resign to his govt or seek parliamentary dissolution after a no confidence vote by the House. Without a no confidence vote in House, seems unlikely GG has power to dissolve Parliament when opposed by PM. a. Special Committee on the Reform of the House of Commons, Report: Rules for ministers governed by convention, precedent, and common sense. Responsible to 1) Queen, appointed until die, resign, dismissed. 2) responsible to house - whether minister should resign and when it should be accepted or asked for. 3) responsible ministry collectively to the house. if confidence lost, end of ministry unless govt granted dissolution and sustained by electorate. i. Confidence from a historical perspective: govt that has lost vote in House on a matter of confidence faces the choice of resigning or asking for dissolution. Govt that has lost a vote on some other matter may remain in office and may choose to ask for a vote of confidence. Not true that Govt that loses a vote can simply have house dissolved. Rule: Gg accepts advice of PM (but can refuse immediate request for dissolution). 3 types of defeats: 1. Govt defeated on vote of confidence, expected to resign or seek dissolution. There are explicit worded votes of confident, and implicit: that involve confidence, like granting of supply. 2. Lost votes on items central to govt policy but not made matters of confidence prior to vote. Govt can either seek explicit vote of confidence from House or resign or request a dissolution. If govt resigns or asks for dissolution, this would make lost vote one of confidence retrospectively. 3. Lost votes on items not at heart of govt policy (most numerous during parliament) loss during committee or report stages fall here. II. Key Actors in Parliament A. Political parties: are partial product of two legal aspects of parliamentary democracy. 1) decision making in parliament depends on swaying a majority of votes in each chamber. 2) constitutional motivation for parties stems from the confidence convention: by constitutional convention, the individual commanding the confidence of the commons (majority) is appointed PM. Majority brings executive power w/ it. Individual members of parliament are not always able to vote their conscience, instead they may be obliged to toe with party line. B. The speaker: of two houses in Parliament, is MP, elected to be the speaker by other MPs. Manner of selection and powers are in standing orders, which are internal procedural rules established by Commons pursuant to its parliamentary privileges. 1. House of Commons, Precis of Procedure: speaker has the highest authority in the house, represents the commons in all of its powers, proceedings, and dignity. Duties are in 3 categories: 1) speaker acts as the spokesperson of the House in its relations with the Crown, 2) speaker presides over sittings of the House and enforces observance of all rules for preservation of order and conduct of business, 3) speaker has extensive responsibilities relating to the administration of the house a) Speaker as Spokesperson: leads the house to senate to inform GG that Commons elected a speaker according to law, claim the privileges on behalf of the House and to receive the speech from throne. May lead House to Senate whenever traditional ceremony of Royal Assent to legislation passed by House and Senate is to be used. Orally transmits to Members msgs received from sovereign, GG or senate when required. Communicates resolutions of thanks, sympathy, censure or reprimand in name of House to outside bodies, agents. Also responsible to issue warrant to Chief Electoral Officer for writ of election when vacancy. b) Presiding Officer: maintain order in debate and apply and interpret practices and traditions of the House. Relies on Standing Orders, precedents and various procedural authorities. Actions must appear impartial, so never participates in debates. Makes sure majority secures transaction of business, and protects minority right to beard. c) Maintaining order: such as, dress, disturbances. Has authority to recognize participants in debate, who can call order to any member. Questions and debate addressed asked through speaker. Can name a member. Done is disregards authority of Speaker, member refused to withdraw unparliamentary language, to desist irrelevant or repetitious debate, stop interrupting others, other disorderly conduct. Warns several times of risk before naming. Two options in naming: (1) Can order named member to withdraw from Chamber for balance of days sitting. or (2) Wait for House to take whatever disciplinary action it deems appropriate - usually motion to suspend the offending member. d) Legal status of Speaker: sec 44 of Con Act 1867 stipulates once House assembled after general election, must elect one member as Speaker. 46 preside over all meetings, 47 vacancy , 49 sanctions for tie voting. Parliament of Canada Act has admin duties e) Election of Speaker: election done by secret ballot at opening of Parliament. Those who do not want to be considered appear on list. Who receives majority wins. Less than 5% or least number votes are dropped from list of candidates.


Parliamentary Committees: subsets of parliament that have detailed work in parliament. 1. House of Commons, Precis of Procedure: most detailed work of proposed legislation and scrutiny over policy goes to committees w/ specific terms of reference or by special orders. a) Committees of the Whole (house): established by standing orders and examine appropriation bills b) Standing committees: appointed for life of parliament. examine policy development, program admin and budget govt departments. Powers: pg. 189 c) Legislative committees: created on ad hoc basis to examine bills and may report only the bill w/ or w/o amendments (bills sent too) Powers: pg 190 d) Special committees: aka task forces, ad hoc basis, to study specific matters. Established by motion specifiying purpose/power. Powers: pg 190 e) Joint committees: from both house and senate, appointed under standing order of each house or special resolutions of two houses. f) Subcommittees: standing committees can create this to delegate part of tasks, mandates, responsibilities w/ exception of power to report directly to House. Special committees may also do this but legislative committees can only create subcommittee on their agenda (called steering committee - pg 190) (1) General powers: all can retain services such as expert, professional, technical, or clerical staff as necessary. Powers to travel may be granted as ;order of reference from house, III. Parliamentary procedure: parliamentary privilege - any act or omission that obstructs or impedes either the House in the performance of its functions, or that obstructs or impedes any member or officer of such House in discharge of his duty or that has tendency to directly or indirectly produce such result may be treated as contempt even though there is no precedent of the offense (RCMP officer in contempt for false testimony) A. Sources of parliamentary law: Constitution, assorted statutes (parliament of canada act), standing orders, usages, customs, precedents 1. Constitutional and legislative basis: parliamentary privilege: parliamentary privilege are those rights necessary to ensure that legislatures can perform their functions, free from interference by the crown and the courts. Privilege means the legal exemption from some duty, burden, attendance or liability to which others are subject. a) Canada (house of commons) v. Vaid: speaker dismissed his chauffeur for reasons that amount to work place discrimination and harassment under Can Human Rights Act. Issue: whether it is open to HR Tribunal to investigate Vaids complaints. (1) Rule: if a matter falls w/n this necessary sphere of matters w/o which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. Proof of necessity (shweing that has been long exercised in) party who wants to rely on privilege has onus. Proof of necessity required to establish scope of category privilege. (a) To assert privilege, assembly or members must show sphere of activity is so closely and directly connected w/ fulfillment by assembly/members of their functions as a legislative body, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work w/ dignity and efficiency. (2) Reasoning: purpose of privilege is to recognize parliaments exclusive jdx to deal w/ complaints w/n its privilege scope or sphere of activity. Privilege respects separation of powers (no interference). (a) Not everything that is said or done w/n chamber during transaction of business forms part of proceedings in parliament. Some words or actions may be unrelated. (b) Necessity test: parliament employs 2377 employees, this is a lot larger than 1867. (c) This is too broad and has a sweeping immunity. No evidence that privilege can extend to all employees and be broad. (3) Held: Vaid allowed to have appeal disposed according to employment and human rights law that parliament has enacted w/ respect to employees w/n federal jdx. b) Standing orders: rules of procedure adopted by at least a simple majority vote of the members of the commons. Include code of commons, including in relation to commons law making. Where orders are silent, procedural questions shall be decided by the speaker or chair, whose decisions should be based on usages, forms, customs, and precedents of house. B. Parliamentary law making: this focuses on substance (scope of law making), and procedure (what process to follow). 1. The scope of parliaments law-making jurisdiction: as long as the law falls w/n constitutional bounds (rights, liberties, fed, prov) parliament may enact any law on any topic as an exercise of its parliamentary supremacy. a) The power to pass bad laws: laws that are careless, unwise, ill-motivated, so long as flaws do not constitute constitutional violations (1) Bacon v. Saskatchewan Crop Insurance Corp: reps are suing on behalf of farmers for Gross Rev Insur Prog (GRIP). Got passed GRIP 92 (before 91) to establish change in the contract and extinguish the right to sue for breach of contract. (a) Rule/Reasoning: the law is applicable to all, govt and private persons. However, law is subject to change and when changed, it applies to all. Parliament plays role in development. No restriction on parliament to make laws. Have C.


confidence in democratic elections to deal with arbitrary use of legislative powers. Publics protection from arbitrary laws in the ballot box. (b) Held: no basis to challenge validity of legislation which used to impose GRIP 2 contact and to extinguish the right to challenge its application through reliance upon the usual common remedies. (2) PSAC v. Canada: issue: justicability of unions complaint about statute ordering striking workers back to work. Argued that legislation was contrary to rule of law b/c arbitrary and was passed in bad faith. Court held no legal foundation for lawsuit - Reasoned: parliaments powers are limited by separation of powers in Con act 1867 and Charter, those laws that violate it are held invalid. No Cause of action for breach of rule of law. (3) Turner v. Canada: respondent engaged in lawsuit w/ another party during which Yukon Quartz Mining Act amended w/ retroactive effect, deprived him of his defense, lead to unfavorable decision. Deprived of fair hearing and procedures. Rule: procedural fairness is not required in a legislative process. (a) Reasoning: Bill and Charter relied on but do not bear on process of legislating. (b) Parliamentary sovereignty elements: 1) have exclusive right to determining their own internal proceedings (privilege) Both courts and parliament respect their privileges - courts exclude evidence that might infringe parliamentary privilege 2) if parliament mislead to enact law, it will do its own inquiry. (c) Held: allegations that parliament induced by tortious acts and omissions of ministers of crown to enact legislation is not justicable. (4) Wells v. Newfoundland: about civil servants who hold tenure appointments to good behavior. Issue: are office holders owed compensation in the even that their positions are eliminated by legislation? Facts: respondent part of public utilities board,substantial decrease in workload, lost jdx over two areas. A new public utilities act tabled, re-structured board from 6-3, abolished consumer rep and his position. (a) Held: Cannot escape financial consequences by eliminating positions. This explicitly extinguishes rights they have abrogated. (b) Rule: legislative may have power of passing law to deny compensation to individual w/ whom it has broken an agreement, clear and explicit statutory language required to extinguish existing rights previously conferred to party. i) *Legislative decision making not subject to duty of fairness. They are subject to constitutional requirements for valid law making, but w/n their constitutional boundaries, they can do as they please. Wisdom and value of decisions is reviewable only by electorate* ii) Reference re canada assistance plan: rules governing procedural fairness do not apply to body exercising purely legislative functions, (c) Reasoning: Govt of NFL had authority to restructure or eliminate board. His contractual rights under old act, its repeal did not strip his rights. Govt was free to pass bill that would deny his rights but it did not, so his contractual rights to severance pay remain in tact. i) Governed by rule of law, govt will honor obligations unless explicitly exercises power not to. Absence of clear express intent to abrogate rights and obligations - rights of highest importance to individual will remain in force. ii) Govt cannot rely on separation of powers to avoid its own actions. Self induced frustration (by passing new act) does not excuse non performance. iii) Practically, govt is controlled by executive and legislature. New bill was introduced by cabinet member, thus, same executive responsible for termination and appointment. Exec could have re appointed him and remedied breach. since new positions were created, equivalent to what Wells had. (d) Held: since Crown breached its contactual obligations by eliminating position and right to seek damages was not taken away by legislation, Wells is entitled to compensation. b) The power to follow unfair procedures: courts are reluctant to impose standards on legislative branch. Courts have no role in querying procedure parliament selects in passing laws, parliament could invoke parliamentary privilege. Internal procedure immunized includes manner in which it passes laws. They can pass unfair laws w/o notice to people implicated. * No due process or procedural fairness is due in the making process. (1) Reference re amendment of constitution of canada: courts come into the picture when legislation is enacted, not before it. Respondents loss resulted from legitimately enacted legislative and general decision, not administrative and specific one. Impact did not constitute a direct and intentional attack on his interests. Not a personal matter, but a legislative policy choice. (2) Authorson v. Canada: group of disabled veterans sued fed govt b/c did not pay interest on pension monies that it held and managed for years. Agreed that govt reached fiduciary duty. Parliament had passed legislation denying claim/coa for monies owed prior to 1990, effectively expropriating the claim w/o compensation. Group relied on Bill of rights in that


parliament should have engaged in fair process before adopting legislation and as matter of substantive law, prohibited expropriation w/o compensation. (a) Rule: the govt expropriation of property w/o compensation is discouraged by common law but it is allowed when parliament uses clear and ambiguous language to do so. (b) Reasoning: Bill of rights allow interpretation of laws. Court interference w/ legislative process is not an interpretation of an already enacted law. Due process protections cannot interfere w/ right of legislative branch to determine its own procedure. For Bill to confer sigh right would amend our constitution. (c) Held: Bill does not guarantee procedural rights to process of legislative enactment. They do confer notice and opportunity to make submissions but not in issue here. No due process rights against duly enacted legislation unambiguously expropriating property interests. c) Ethics in law making: parliamentarians are not sovereign, governed by ethical rules (voting one way b/c financial gain) (1) Margaret Young, Conflict-of-interest rules for federal legislation: (a)Background i) Real conflict of interest: situation in which a minister of crown has knowledge of private economic interests that is sufficient to influence the exercise of his public duties and responsibilities ii) Potential conflict of interest: minister finds himself in a situation in which the existence of some private economic interest could influence the exercise of his public duties of responsibilities, provided that he has not yet exercised such duty or responsibility. iii) Apparent conflict of interest: exists when there is a reasonable apprehension, which reasonably wellinformed persons could properly have, that a conflict of interest exists, even if, in fact, neither a potential nor a real conflict. iv) Principles underlying conflict of interest: impartiality and integrity. Decision maker cannot be perceived as being impartial and acting w/ integrity if he could derive a personal benefit from a decision. v) Inherent conflict: arises out of position of parliamentarian as an individual in society: home owner, parent, consumer. Parliamentarian affected like other citizens, there is low risk of adverse consequence. vi) Representative interest: conflict arises when members share personal interests (farming, fishing). Other interests also may affect dependence of legislator esp when he enters cabinet - family business problems, liabilities, financial interests. (b) Techniques of control: i) Disclosure: reveal assets, first confidentially to official, then publicly so personal interests become public knowledge and will be inhibited from acting for personal benefit. ii) Avoidance: divest themselves of interests/relations that might impair judgment (sale at arms length or by use of a trust administered by trustee independently of legislator). iii) Withdrawal: refrain from acting on matters in which they have personal financial interests (c)Types of interest: i) Investments: unlike to cause conflict: govt bonds, guaranteed investment certificates and open ended mutual finds. But conflict could still arise if eg, commissioner in ontario ruled that treasurer should not hold prov bonds because he is responsible for setting the interest rates. ii) Debts: liabilities - creditors of person in public office may give appearance of having influence over debtors iii) Corporate positions: some measures may affect him as officer/director/employee of company b/c has to act in best interests of company, yet as legislator has to act in best interests of public. iv) Outside employment: such as law practice, business, etc. Cabinet ministers prohibited from this. Would be put in position opposing the best interests of the public. v) Lobbying: issue is what extent can parliamentarians use positions to further personal interests or who are paid to act on behalf of others - appearing before boards/commissions/courts in personal capacity. Might receive indirect benefits as lawyers, employees of companies, etc. vi) Government contacts and activities: issue is should they engage in such or would it be too strong for appearance, can they invest in business that have govt contracts vii) Gifts and Honoraria: can they accept free vacations trips, gifts, from other businesses, friends, govts? Disclosure? viii) Inside Information: do we need controls to deter them from for personal advantage any information that comes to them in official capacity. ix) Spouse and Dependent Children: to what extent should above interests be controlled if held by those w/ close family ties to parliamentarian


(d) Statutory and parliamentary rules: Most conflict of interests rules are found in 1) criminal code, 2) parliament of canada act, 3) canada elections act; and in standing orders of the house of command and rules of senate. Bribery is a criminal offense, subject to 14 years imprisonment for anyone who accepts or attempts to obtain any valuable consideration for doing or omitting or do anything in his official capacity. Parliament act prohibits from receiving outside compensation for services rendered on any matter before house, senate, or committees. Also does not allow anyone who is MLA to be MP. (2) Conflict of Interest Code for Members of the House of Commons (look at pages 213-227 for all of the rules). (a) Furthering private interests pg. 214 (b) Non furthering private interests pg. 214 (c) Family members pg. 214 (d) Application i) Application to members pg. 215 ii) Assisting constituents pg. 215 iii) Jdx of the baord of internal economy pg. 215 iv) Activities outside parliament: they can engage in employment, practice profession, carry business, be director of officer in corp/association/trade union/nonprofit, and be a partner in partnership (e) Rules of Conduct i) Furthering private interests pg. 215 ii) Using influence pg. 215 (to influence a decision) iii) Insider information pg. 216 (to his personal private interests) iv) Information not to be communicated pg. 216 ( to another if know it will further interests) v) Attempts pg. 216 (no attempts allowed of above) vi) Disclosure of a private interest: house and committee pg. 216: vii) Subsequent disclosure pg. 216 (later date) viii) Disclosure recorded pg. 216 (by clerk, to commissioner, filed w/ public disclosure documents) ix) Disclosure of a private interest: other circumstances pg. 216: orally or in writing, given written notice to commissioner who will file it again w/ members public disclosure documents x) Debate and voting pg. 217: (no if a private interest in it) xi) Private interest pg. 217 (defined) xii) Prohibition: gift and other benefits pg. 217 xiii) Exception pg. 217 (if for courtesy, protocol, hospitality, member or his family can accept) xiv) Statement: gifts or other benefit pg. 217: if above $500 or over 12 month period from one source are over $500, must disclose to commissioner the gift, circumstances, source. xv) Exception: applied to below. pg. 217 xvi) Sponsored travel pg. 217-218: can accept travel that relates to position for him or his guests xvii) Government contracts pg. 218: not allowed b/c of benefit unless unlikely to affect obligations under this code xviii) Clarification pg. 218 xix) Public corporations pg. 218 xx) Trust pg. 218 xxi) Partnerships and private corporations pg. 219 xxii) Pre-existing contracts pg. 219 xxiii) Trust pg. 219 above partnerships and corporations do not apply when.. xxiv) Interest acquired by inheritance,govt contacts to above do not apply pg. 219x xxv) Disclosure statement pg. 220 2. Parliaments law making procedure: law making process is governed mostly by rules of procedure of each chamber of parliament. a) House of Commons, Precis of Procedures - The legislative process: public bill is concerned w/ matters of public policy. Private bill relates to matters of a particular interest or benefit to a person including corporations. (1) 11(a) Public Bills: (a) Two types: i) Government public bills: sponsored by minister. Financial bill or not. Considered every day, in order received. ii) Private members bills: sponsored by private member. Financial bill or not. Considered only during private members house, which is one her per day, in order received. (b) Stages bill becoming a law:




i) Once notice given, member given leave of the house to introduce bill ii) Bill read first time and printed iii) Bill read a second time iv) Bill referred to committee v) Bill considered in committee and reported back to House vi) House concurs in the bill at report stage vii) Bill is read third time and passed by the house viii) Bill goes through senate approximately same as in the house ix) Bill receives royal assent 11(b) Stages of a bill - the traditional legislative process: (a) Introduction: 48 hours notice, obtain leave. Private and minister give short speeches explaining purpose of bill (b) First reading: automatically adopted w/o debate. Read next sitting, bill placed on Order paper, given a bill number (c) Second reading: principle and object of bill are debated, either accepted/rejected. Three types of amendments proposed i) Six months hoist: bill not read now but later on this date ii) Reasoned amendment: specific reasons for opposing second reading iii) Amendment introduced to refer subject to committee before principle of bill approved. (the bill not now be read but that order be discharged, bill withdrawn and subject matter referred to standing committee. (d) Committee stage: appropriation bills authorizing withdrawal from revenue referred to committee, other bills referred to standing, special, or legislative committee. Considers clause by clause, before this receives testimony, hearings ministers sponsoring it. Makes amendments then reports bill back to house. (e) Report stage: discuss in the house again, consider further, may propose amendments, no debate here unless notice of amendment give and debate relevant to these amendments. Motion moved that bill be concurred in. (f) Third reading: when Order of Day called, basic principles of amendments that are relevant to bill discussed. Same amendments can be made as 2nd reading. Can referred back to committee to be further amended in area. (g) Passage by senate: procedure as same as in house. i) If passed w/o amendment, message send to inform House unless contains financial provisions, bill not returned to House. If there are amendments, those are communicated to house, 24 hrs notice of any motion respecting senate amendments to bill. If house agrees to amendments, motion made to be read second time and concurred in. If motion adopted, message sent informing senate and bill returned to senate for royal assent. ii) If House disagrees, adopts a motion stating reasons, sent to senate. If senate wishes amendments to stand nonetheless, sends a message back to house, which then accepts/rejects. If impossible to reach agreement House has possession of bill and may ask that conference be held although this practice is unused. (h) Royal assent and Proclamation: approval by Crown signed by royal assent, required. Can come into effect day of assent or specific day if noted in bill, certain provisions can come into effect at different times. i) Traditional method: pg. 230-231 ii) Written procedure for royal assent: use traditional ceremony twice in a year including for first appropriation bill on each session. Act that is given assent is assented to on the day on which both houses have been notified of written declaration by their respective speakers. 11(c) Stages of a bill - variations on the traditional legislative process: two new adoptions to process. (a) Committee prepares and brings in a bill: minister or private party - instructs committee to prepare and bring in a bill give 48 hours notice of notice she wants to move. Motion then placed on Order Paper under Government Orders. debated for max 90 minutes. (b) Committee study of a bill before second reading: this was adopted b/c scope of second reading is limited to the principle of the bill, less flexibility, so now can send it to committee for detailed examination before 2nd reading. If minister wants to send it to committee (standing, legislative, or special) will propose a motion. Can have 3 hours of debate on motion, motion not amendable. If motion adopted, bill referred to committee. i) Committee does clause by clause examination, but scope of amendments that can be made is wider. At end, will report to House w/ or w/o amendments. Bill cannot be taken up until 3 sitting days after bill reported to House. ii) Combined report and second reading stage: members can offer amendments. Motion that bill as amended be concurred in report stage and read 2nd time, or bill be concurred in report stage and read 2nd time, will be disposed w/o debate. iii) When bill concurred in and read second time, set down for 3rd reading.


(4) 11(d) Private bills: bill designed to exempt individual or group from application of the law. Subject to special rules, usually originate in senate. (a) Introduced via petition signed by interested parties and presented to house by member sponsoring it (cannot accept payment) After approval of petition, private bills tabled, read first time, printed, and ordered for second reading. Bill from senate w/ message deemed to be read first time and ordered for second reading. These are automatically placed on the order of precedence established for private members business. (b) Notice of private bills posted in lobbies of parliament buildings before consideration in committee. Procedures for hearing witnesses and proposing amendments same as public bills. (c) Differences: If amendment might harm parties concerned, must give adequate notice, promoters of bill and opposed to it present w/ counsel. And, procedure gives extra vote to chairman of committee considering private bill to break tie. (d) Committee reports to the House on bills referred to it, amendments may be made. Consideration of report by house is same as public bills/ (e) Further amendments adopted by senate are referred to committee. If accepted, amendments read in House 2nd time, and returned to Senate w/ message informing Chamber. If committee reports unfavorably House may continue to insist on its own amendments in its message to the other chamber. If an impasse occurs, conference btn two chambers may be requested. Ch. 5: The exercise of executive authority 1.The rise of the administrative state in Canada a. Law Reform Commission of Canada,Independent Administrative Agencies : PEI Potato Marketing v. Willis: held regulatory power w/n jdx of fed govt could validly be delegated to boards created and operated by a prov govt and vice versa, by implication this encouraged the creation of yet more independent admin agencies, in the interests of cooperative federalism. (1952) 2.The executive branch defined a. Crown: legal rights and legal obligations, has capacity to own property, enter contracts, sue, and be sued. Authority is vested in the monarchy.Cabinet for short time, privy counsillors for life.All cabinet are privy, but not all privy are coun b/c GG swears in distinguished canadians to privy council b. The Prime Minister and Cabinet: PM resides over cabinet, which determines legislative agenda of govt and its ministers are responsible for admin of individual departments of govt. Responsible govt has 2 key elements: 1) cabinet member are drawn from legislative branch (house) 2) ministry is accountable to legislative branch collectively and individually. Collective responsibility requires the ministry maintain confidence of parliament. Individual requires responsibility that each minister be answerable in parliament for activities of his department. Also responsible to departments. i. Idziak v. Canada (minister of justice): before suspect extradited hearing by judge to determine whether legal basis to support it and further determination by minister as whether person should be surrendered, also oversees prosecution in hearing. Argued ministers 2 step role raised bias. Deference given to Minister. Act requires him to prosecute in judicial phase and act as adjudicator in ministerial phase. Court held first phase is judicial and second is political, minster weighs representation of fugitive against canadas international treaty obligations.Person has full procedural protection in judicial phase, at ministerial phase, there is no longer a lis in existence. Fugitive has by then been judicially committed for extradition. Act just wants minister to execute judicially approved extradition by issuing warrant of surrender. c. The Public Service: employees of govt ministeries are part of executive. Are politically neutral. 3 principles structure relationship btn civil service and political officials w/n govt: 1) ministerial responsibility: requires presiding minister to be held politically accountable for all matters arising w/n dept. 2) political neutrality: requires civil servants to carry out their responsibilities loyally to the govt in power w/o regard for the civil servants own political views. 3) public service anonymity: (consequence of first 2 principles) provides that bureaucrats should be held accountable to their political overseers, but are not answerable to parliament. Loyalty of civil servants requires the to refrain from publicly criticizing govt policies. i. Fraser v. Canada: appellant employee of revenue canada, discharged after repeatedly criticizing govts policies regarding metrification. Argued that duty to refrain from criticism extends to areas related to civil servants public direct responsibilities. Court upheld Board decision. 1. Rule: generally, federal public servants should be loyal to their employer, govt of canada. Does not mean vote for governing party, you can oppose if engaged in illegal acts, or policies jeopardize the life health and safety of public servants, or if criticism has no impact on employees ability to perform or on public perception of that ability. Must not engage in highly visible attacks on govt policies . 2. Reasoning: public service has two dimensions: 1) one relating to employees tasks and how they perform, and 2) other relating to perception of a job held by the public. Appellant displayed lack of loyalty in govt, that was inconsistent w/ his duties as employee of govt. Tradition in public service emphasis impartiality, neutrality, fairness and integrity. Deemed to know that there are restraints, which are exercise caution in criticizing the govt.


ii. OSPEU v. Ontario: Concerned constitutional convention of public service neutrality, and affirmed its importance as a principle of executive governance. Ontario legislation restricting prov civil servants political activities, (federal politics) held as valid prov legislation, but law was not subject to Charter. iii. Osborne v. Canada: Concerned constitutional convention of public service neutrality, and affirmed its importance as a principle of executive governance. Question whether such restrictions consistent with Charter, resulted in federal restrictions being struck down as contrary to freedom of expression. Legislation was over-inclusive b/c did not make distinctions as to what kinds of work the employees may be involved in his level of responsibility w/n civil service. Restrictions on political activities now apply only to senior members of bureaucracy. d. Independent Administrative Agencies: certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency - govt creates tribunals for cases free from direct govt over sight. Or, creation of independent agencies to administer government entitlement disputes. They do not have to be independent as a constitution matter. Court has recognized where a body exercises power of a sort triggering provisions (s. 7 Charter or 2e Bill - fair hearing, fundamental justice), some measures of independence may be required of that organization. i. Ocean Port Hotel Ltd v. British Columba (General Manager, Liquor Control and Licensing Branch): Court drew distinction between admin tribunals and decisions 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. 1. Issue: the degree of independence required of members sitting on administrative tribunals empowered to impose penalties 2. Rules: absent constitutional constraints, degree of independence determined by its enabling statute. It is the legislature or parliament determines degree of independence required of tribunal members (not court). The statute must be construed as a whole to determine the degree of independence the legislature intended. a. If silent or ambiguous legislation, infer that tribunals process to comport w/ principles of natural justice. Thus, bound by requirement of independent and impartial decision maker and fundamental principles of natural justice. b. Degree of independence may be ousted by express statutory language or necessary implication. 3. Reasoning: generally, tribunals do not attract charter requirements, thus, intention of parliament absent constitutional restraints must be respected. Clear language that board members serve at pleasure of lieutenant governor in council, no need to impose high degree of independence to meet requirements of natural justice. a. Unwritten judicial independence does not extent to administrative tribunal, its only for prov and superior courts, courts of law. This was supported by separation of powers. Administrative tribunals are a divide between exec and judciary, they have adjudicative functions but are part of executive branch, under the mandate of the legislature. They are not courts and do not occupy same constitutional role as courts. Its a licensing body b. Also no rationale for constitutional guarantee of independence in preamble of Con Act 1867. ii. Bell Canada v. Canadian Telephone Employees Association: Held that all aspects of tribunals structure, as laid out in its enabling statute must be examined, and as attempt must be made to determine precisely what combination of functions the legislative intended that tribunal to serve, and what procedural protections are appropriate for a body that has these particular functions. 1. Reasoning: overlapping of investigative, prosecution, adjudicative functions in single agency is necessary for an admin agency to effectively perform its intended role. In considering aims of Act as a whole, in assessing whether requirement of impartiality has been met. a. If Act suggests this can be best accomplished by giving commission the power to make interpretative guidelines, then overlapping functions in the commission play important role. Does not result in lack of impartiality but rather helps to ensure that the tribunal applies the act in the manner that is most likely to fulfill the acts ultimate purpose. 2. Held: Tribunal has functions like court, more adjudicative, not into policy or investigations. Human rights Tribunal although not bound by highest standard of independence by unwritten constitutional principle of adjudicative independence, must act impartially and meet relatively high standard of independence both at common law and s. 2e Bill e. Crown Corporations: (HR Commission) not a separate legal entity, although has statutory authority to enact internal bylaws and to enter into contracts concerning matters related to commissions mandate. Not uncommon for admin bodies to be created that have legal personality separate from govt. The principle justification for creation of crown corps is that where there is a strong commercial aspect to the govt service, it may require that decisions be made free from political influences that may unduly interfere w/ commercial objectives. Some will have commercial objectives, others public objective. If no longer needed can be eliminated or privatized. i. Public and private objectives of crown corporations require govt to balance the operational benefits of independence and need for accountability. Financial Administration Act, imposes standardized governance and accountability requirements on listed crown corporations, including approval of annual corporate plans, capital budgets, and in some cases operating budgets. Sometimes govt has authority over directors to allow particular course of action = directive power - requires minister to consult board of directors to issue action and to table directive in both houses once issued. f. Enforcement bodies: police and prosecutors: prov police investigates prov and fed crim laws. RCMP power over fed statutes, fed territories and prov under contract.


i. R.v.Campbell: police did reverse sting operation by arranging sale of narcotics to accused then charged him w/ conspiracy to traffic. Stay of proceedings sought on basis that police engaged in breach of law. Crown argued any illegal conduct should be subject to crown immunity from statutory offenses. Court considered nature of relationship between police and crown. 1. Reasoning: rcmp investigating crime is not acting as govt functionary or agent of anybody. Are independent of the exectuvei govt. Their duties are of a public nature. Not exercising delegated authority, its original authority. If make wrong discretion in arresting, that is the officers view not someone elses. ii. Krieger v. Law Society (Alberta): 1. Reasoning: attorney general is advisor to crown. Minister of justice responsible for drafting legislation tabled by govt of the day. Role of manage, terminate prosecutions, which are at heart of AGs role, given rise to expectation that she will be in this respect fully independent from political pressures of the govt. AGs independence from judicial review comes from the fundamental principle of the rule of law under our constitution. From principle and policy courts do not interfere with prosecution discretion, b/c separation of powers (crim law domain of executive) and rule of law. a. Activities such as prosecutors tactics and conduct in court may be subject of review by professional regulatory law society, but activities that go directly to exercise of prosecution discretion should not be reviewable. 2. Held: Quasi-judicial function of AG cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. g. Municipalities and other elected subordinate bodies: municipalities and school boards can provide for direct election of governing body. M are not distinct level of govt, but are subject to regulatory qualifications of superior levels of govt place on then, including restructuring or elimination municipalities. Governed by elected bodies, exercise broad plenary powers, not like other independent admin bodies. East York (Borough) v. Ontario (AG): number of municipalities into a single one to make Toronto mega city, challenged on basis that radical re-alteration needed consent of local govts. Court rejected, local govts have subordinate status, they are created by provinces, may be altered by prov. i. Shell Canada Products Ltd v. Canada: Shell proceeded to quash resolutions passed by Vancouver Council that directed staff not to conduct business w/ shell as long as shell continued to do business with South Africa; on the basis that resolutions were beyond power of municipality to make. 1. Reasoning:.municipal authority could only be exercised in relation to activities that fell within municipal purposes. Should have purposes related to matters w/n boundaries of local area. 2. Held: extraterritorial purpose of the resolutions was improper 3. Dissent: municipalities are admin decision makers in light of democratic structure a. Courts should confer powers by reasonable implication: i. Courts should accord proper respect to democratic responsibilities of elected mun officials and rights of those who elect them (broad jdx to make local decisions to respect democracy). ii. Generous approach to municipal powers will aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation. iii. Generous approach is more in keeping with the true nature of modern municipality. b. They have responsibility to act in best interest of community, court should not interfere.Vancouver Charter provide for the good rule and govt of the city gives Van measures to enact this for benefit or welfare of City. Councils judgement should prevail. ii. Canada Ltee (Spraytech, Societe darrosage): court sought to draw line between kinds of popular concerns that could become subject of municipal legislation. Cannot have a broad and unlimited grant of powers, but must relate to problems that engage community as local entity, closely related to immediate interests of community w/n its territorial limits defined by legislature in a matter where local govts may usefully intervene. Subsidiarity: proposition that law making and implementation are best achieved at a level of govt that is not only effective but also closest to citizens affected and thus, most responsive to their needs, to local distinctiveness and to population diversity. 3.Sources of Executive Power a. Prerogative Powers: powers exercised by crown that do not arise from a statutory grant of power to the crown; powers restricted to executive acts. Legislature can abolish prerogative powers, through parliamentary supremacy. Powers currently are appointment, powers relating to foreign affairs, declarations of war, appointment of ambassadors and issuing of passports. i. Black v. Chretien: PM was exercising prerogative power when communicating with queen about foreign affairs (gave wrong advice which affected Black) 1. Reasoning: Nature of power: powers and privileges accorded by the common law. It can be limited by statute. Once statute occupies ground formerly occupied by prerogative, the prerogative goes into abeyance. Crown can no longer act under prerogative bust must act under subject to the conditions imposed by statute. a. Exercise can be done by PM and ministers of cabinet, not just GG. Govt of canada can exercise these powers.


b. Is Power exercised by PM reviewable in courts: statute or prerogative should not determine whether action complained is reviewable. Prerogative is within authority of parliament. If individual claims that exercise of prerogative power violates Charter rights, then court has duty to decide claim. i. Rule: whether power is reviewable, amendable, justicable by courts, depends on subject matter, if it affects rights or expectations of individual, then court is competent and qualified to judicially review the prerogative. ii. Refusal to grant honor is not like refusal of passport, no important individual interests are at stake. not affected, no canadian has a right to an honor, or legitimate expectation - that informs duty of procedural fairness and gives no substantive rights. Black asserts no charter claims iii. He was not denied any procedural rights, had none. Honor has moral and political considerations which are not w/n province of courts to assess 2. Held: discretion to confer/refuse honor is not reviewable by court. Prerogative giving advice to Queen is not justicable and thus not judicially reviewable by courts. Action is not justicable, whether or not advice was wrong, negligent, careless, its not reviewable by the courts. Appeal dismissed. b. Statutory powers: Delegation of authority by legislature by statute is where most exec powers come from. Statute creates admin boddy (Can HR Commission), gives powers, authority determined by statutory grant b/c has no inherent powers . There are no functional restrictions on delegated powers, it is common for legislature to delegate even extensive legislation and adjudicatory functions to admin body. Principle of parliamentary sovereignty recognizes ability to enact delegating exercise of authority to other body: cabinet, admin body - constrained by Charter s 32. Legislature cannot delegate powers that exceed its own. i. Re Gray: Sweeping delegation of authority to governor general in council under war measure Act. Argued delegation must not amount to a complete abdication of legislative authority. 1. Reasoning: parliament can w/n reasonable limits delegate its powers to exec govt. They must fall w/n ambit of legislative pronouncement by which its authority is measured. Nothing in BNA imposes limitation on parliaments authority. a. Regulation was passed for security and welfare of canada at emergency times/danger, and is thus intra vires of the statute under which it is made. (language is clear, contains unlimited powers) 2. Held: it was w/n legislative authority of parliament to delegate to governor in council power to enact impugned orders in council. ii. Related principle of prov and fed govt delegating powers: Neither fed parliament nor prov legislatures may delegate legislative powers to one another, this would upset constitutional division of powers under ss. 91 and 92 Con Act 1867. iii. A-G NS c. A-G Can (Nova Scotia Inter-delegation): prov powers regarding employment matters would be delegated to the fed parliament and certain taxation powers would be delegated from parliament to Nova Scotia legislature in order to facilitate an unemployment insurance scheme. 1. Reasoning: exercising delegated powers would not only be incompatible with constitutional function with which NS 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. 2. Held: appeal dismissed. iv.PEI Potato Marketing Board v. Willis: delegation from parliament to provincially created administrative body. Object of scheme was to market potatoes from PEI to prov marketing board which required fed parliament to delegate powers relating to the export and interprovincial trade in PEI potatoes to the marketing boards (prov admin body). This delegation was un-objectionable b/c inter delegation was relates to the democratic expectations of the legislature. v. Delegation of judicial functions to admin tribunals: (issue, does this interfere w/ jdx of superior courts ss. 96 and 100 Con Act 1867) in absence of general separation of powers doctrine, there is no overarching prohibition against administrative tribunals exercising judicial functions. Prohibition is against bodies that are not constituted according to 91 and 100 (appointed by GG, ranks of bar, etc). c. Limits on the Exercise of Delegated Authority: act done outside of statutory grant is invalid, ultra vires. Delegated authority can only exercise those powers that are granted to it. i. Bell v. Ontario: determining whether admin act is properly clothed w/ jdx may require consideration whether decision maker has complied w/ applicable statutory conditions or whether a certain set of required factual circumstances is present. Facts: whether HR commission could exercise authority in relation to discrimination complaint involving the renting of accommodation. Commissions powers over discrimination were in relation to a self contained dwelling unit. Held that commissions jdx was dependent on finding that allegation of discrimination was in relation to self contained dwelling unit and commission could not proceed where that preliminary condition was not established. ii. Seb-delegation rule: delegated authority must be exercised by the specific delegate to whom the authority is granted. (cant give it to some else, body delegated to must do it, if it involves trust or discretion. Matters that are only administrative may lawfully be subdelegated. (involves little or no discretion). Delegate may subdelegate if power is provided for in the statute. 4.The nature and function of delegated powers


a. Rule making: regulation making power often delegated to other bodies. Legal effect of delegated legislation is determined by the parent legislation. Referred to as subordinate legislation, considered inferior to statues, if direct conflict, stature prevails. If (municipal bylaw) imposes more onerous requirements, than the statute, that is not a conflict. Instead of amending statutes, legislatures delegate to enact rules to those who are charged w/ implementation of statutes, like minister or agency. Delegated rule making allows creation by those who have expertise. Result is more flexible, responsive, and more sensitive rule making system. i. Cabinet Directive on Streamlining regulation: federal regulatory process. Rule, federal regulations are to be republished in Canada Gazette, provide 30 day comment period, although cabinet may exempt proposals for that requirement. Actual creation of statutory instrument accomplished through exec order signed by governor in council/minister/authorized person, legally effective after clerk of privy council registers it and published in Canada gazette. ii. Disallowance procedure - allows house to issue revoking statutory instrument. Joint committee may make report to senate and house, containing only resolution that all or any portion of a regulation that stands permanently referred to committee be revoked. This is deemed adopted unless w/n 15 days minister files w/ speaker of house motion that resolution not be adopted. If motion issued, matter debated, parliament may adapt resolution that all or portion of regulation be revoked - no later than 30 days. b. Dispute resolution: admin dispute resolutions used b/c less formalities, open to public, greater flexibility for who decision makers will be, membership not restricted to lawyers, broad discretion in determining and apply public policy. Cloverdale Shopping Centre ltd. v, Etobicoke: ontario municipal board has hybrid functions: appeal assessments, applications, arbitrations for rewards of damage in cnnx to land. Considers health, safety, convenience or welfare of inhabitants, communications, and public service. c. Benefit or obligation determination: decision makers that decide whether person will be granted a particular public benefit: welfare, license, tax, penalty. Benefit determination be require decision makings to attach complex sets of conditions to approval. Scheme may provide an administrative avenue for further consideration, such as right of appeal to an administrative tribunal or other admin official. Desire for fairness in cases usually in conflict w/ need for administrative efficiency. d. Enforcement decisions: decisions and activities that are required to promote compliance w/ legal obligations, including criminal and quasi criminal enforcement. Statutes confer investigatory powers on other administrative officials for particular scheme and to confer special powers as right to conduct searches and interviews and to require the production of documents. When reasonable grounds for violations are found by body, empowers it to investigate to lay an information to initiate proceedings. Scheme may also provide penalty imposed directly by investigating agency or by administrative tribunal after hearing evidence. (HR Act allows HR Tribunal to inquire into complaints, impose remedial sanctions) e. Overlapping functions: one admin body may carry out variety of administrative functions. (HR commission- makes guideline rules, investigates complaints, decision making powers - like dismiss complaint). Some decisions are legislative or judicial, others defy classification in functional terms. Tribunals can be structured similar to courts, but may engage in policy creation. Conversely. legislative body may have to exercise its powers of decision in accordance w/ certain procedural requirements due to nature of the interests affected. Ch. 6: The Courts and the Judiciary 1.Structure of court system a.Constitutional frame work of the judiciary: i. Provincial superior courts: s. 92(14) of 1867 states that provincial governments create s. 96 courts but the federal govt appoints the judges to these superior courts and pays their salaries. (maintain federal control over patronage) ii. Other courts: Supreme court as general court of appeal for canada, federal court, federal court of appeal, and tax court of canada under s. 101 of 1867. All are created by federal states: Supreme court act, federal courts act, and tax court of canada act. iii. Provincial courts: provinces may appoint and pay salaries of judges in provincial courts, that are not superior. (when can these be created?) 1. Re Residential Tenancies Act: issue: whether province was encroaching on fed govts s. 96 power to appoint judges by creating its own quasi-judicial body to adjudicate in an area of jdx that belongs to the superior courts. Three-part test to determine if prov grant of power is valid: a. Whether powers exercised by impugned provincial tribunal conformed to those that were under the exclusive jdx of s. 96 courts at time of confederation? (powers shared w/ inferior courts fall outside this area) If it is under excl jdx then... b. Whether the power in question is to be exercised in a judicial manner (do the tribunals proceedings concern a dispute that is to be determined on solely legal, as opposed to policy grounds. c. Whether the ;institutional setting; itself is fundamentally judicial (whether the tribunal is ancillary to broader admin scheme, if tribunals authority is found to be ancillary, only then will it be unconstitutional) 2. Modified test by three cases: established province cannot enact legislation to encroach on their core jdx, nor may fed parliament. b. Overview of the current Canadian court system: Department of Justice of Canada, Canadas Court System i. Four levels of court: 1) Provincial courts, 2) Provincial Superior courts (serious crimes and take appeals from below level) + Federal court. 3) Provincial court of Appeal + Federal court of Appeal. 4) Supreme Court of Canada.


ii. Provincial/territorial Courts: hear cases involving federal or provincial laws. (except Nunavut, matters heard by Nunavut Court of Justice, which is superior court). Deal with most criminal offenses, family law (except divorce), young persons (12-17), traffic violations, regulatory offenses, claims involving money up to certain amount. There are some specific courts that deal with particular offenses or groups - Drug treatment court, Young courts for youngsters, domestic violence courts. iii. Provincial/territorial Superior Courts: various names - superior court of justice, supreme court, court of queens bench (except Nunavut which deals w/ both territorial and superior court matters). Have inherent jdx (can hear anything) except those limited to another level of court. Hear mostly serious criminal and civil cases, divorce, large amounts of money. Acts as first court of appeal for lower level. Some establish divisions (family). Judges appointed and paid by federal govt. (jury trials for serious criminal cases, rarely civil) iv. Courts of Appeal: hears appeals from both lower courts. Usually have panel of 3, but may vary in jdx. Hear constitutional questions that may be raised in appeals involving people, govts, agencies. v. The Federal Courts: Federal Court and Federal Ct of Appeal both created by act of parliament, thus, can only hear matters specified in federal statutes.Federal Court is trial level, its appeals are heard by Fed Ct Appeal. Jurisdiction over interprovincial and federalprovincial disputes, intellectual property, citizenship appeals, Competition Act cases, cases w/ crown corporations or departments of govt. Can also hear reviews from administrative actions of federal courts, commissions and tribunals. vi. Specialized Courts: Created by statute can only hear matters that fall w/n jurisdiction given to them by statute. 1. The Tax Court of Canada: gives people and companies opportunity to settle disagreements w/ fed govt on matters arising under fed tax and revenue legislation. Primarily hears disputes between fed govt and taxpayers after tax payer has gone through all options provided for b the income tax act. Independent from canada revenue and all other govt departments. 2. Military Courts: (or court martial) established under national defense act. Hears cases involving code of service discipline, apply to forces and civilians who accompany then. Court Martial Appeal Court hears appeals from military court, has powers of superior court. Judges are selected from Federal Courts and other superior courts through country. Usually a panel of 3. vii. The Supreme Court of Canada: final court of appeal for all courts, had jdx to hear disputes in all areas of law. Has Chief Justice and 8 other justices, all appointed by fed govt. Supreme court Act requires 3 from Quebec, 3 from Ontario, 2 from Western provinces,1 from Atlantic. Sits three times per year: winter, spring, fall. 1. Leave: Before it can hear a case, must be granted a leave to appeal before it can hear the case. Leave applications made in writing, reviewed by three members who grant/deny w/o providing reasons. Granted only if case involves question of public importance; raises important issue of law or mixed law and fact; or is significant enough to be considered by the Supreme Court. 2. Automatic right of appeal for criminal cases where judge on panel dissented how law should be applied. If court of appeal finds someone guilty who was acquitted in original trial, person has automatic right of appeal. 3. Role as advisor: to fed govt, to consider questions on any important matter of law or fact, especially interpretation of Constitution, or fed/prov/ legislation, or powers of parliament or legislatures. Provincial courts of appeal may also be asked to hear references from their govts. viii. New Approaches: 1. Nunavut Court of Justice: has powers of superior trial court and territorial court so same judge can hear all cases that arise in territory. Most communities are small and isolated from capital Iqaluit so court travels to them on circuit. Circuit court includes judge, a clerk, a court reporter, a prosecutor, at lease one defense attorney. Court workers and crown witness coordinators may also travel depending on case. Interpreters are hired when needed and may travel if necessary. Holds regular sessions in Iqaluit and court flies to most communities in Nunavut at intervals from six weeks to 2 years depending on number of cases/ 2. Unified Family Courts: permit all aspects of family law to be dealt w/ a single court w/ specialized judges and services. Consist of superior court judge, who hear matters of prov/fed jdx. Use non adversarial methods to resolve issues, has support services parent-education sessions, mediation, counselling. 3. Sentencing Circles: usually in prov court level, involving aboriginal offenders and victims. Used as method for input from community to help judge set appropriate and effective sentence. Operation: once admission of guilt, court invites members of community to join judge, prosecutor, defense, police, social workers, community elders, offender, victim, families and supporters, meet in a circle to discuss offense, factors contributed to it, sentencing options, ways of reintegrating offender int community. Everyone gets to speak. Usually involves a restorative community sentence w/ some restitution to victim, community service and/or treatment counseling. Sometimes members will ensure offender lives up to obligations, others will provide support to victim. May involve custody. Judge not bound to accept recommendations. 2.Judicial appointments a. A Range of Models: three alternative models: 1) confirmation hearings, 2) nominations committees, 3) direct elections. b. Provincial Judicial Appointment Process: appointed by executive branch, varies by province. Basic model: advisory committee composed of mixture of members from legal community and lay person. Accept applications, interview candidates, before submitting list of recommendations to provincial attorney general. (exception Nunavut, which judge is appointed by fed govt)


c. Federal judicial appointment process: appointed by governor in council after review of candidates by advisory committee. Supreme Court justices are simply appointed by governor in council. i. Non-supreme court of Canada appointments: office of commissioner for federal judicial affairs oversees federal judicial appointment process for s. 96 courts, federal courts, and tax court. 1. Office of the Commissioner for Federal Judicial Affairs: appoints on behalf of Minister of Justice. Treat all fairly, him or his delegate, Executive Director, Judicial Appointments. a. Interest and Eligibility:Qualified lawyers holding provincial judicial office must complete Personal History Form. Members of legal community and organizations, interested persons can nominate person they consider qualified for judicial office. Statutory qualifications are in Judges act, federal courts act, tax court of canada act. Require 10 years at the bar of a province or combo of 10 years at the bar and in subsequent exercise of powers/duties of judicial nature on full time basis in position held pursuant to law of canada or province. i. Appointments made only from members of the bar of that province. For 3 territories, anyone who is qualified to their province can be appointed. Once threshold met, Exec Dir, judicial appointment forward file to committee (lawyers) or for comment. b. Provincial/terr court judges: must notify commissioner if want to be in federal judicial appointment by competing personal history form of judges. Files submitted to committee for comments, then given to Minister of Justice, all confidential, not binding. c. Judicial advisory committees: has 8 members, representing the bench, bar, law enforcement associations, general public p. 305. Each nominator is asked by MOJ to submit list of names from whom appointment to relevant committee can be made. Minister then selects persons to serve on committee based on factors of jurisdiction. Serve 3 years d. Judicial advisory committees for Tax Court: has 5 members, one a judge, and other nominees of Minister of justice. Serve 3 years. Applications will also be sent to other relevant committees in other jurisdictions. e. Assessments and Confidentiality: personal competence and overall merit are primary qualifications. Look at diversity, legal experience, including outside of legal practice. Assess based on recommended or unable to recommend. Results kept confidential. Committees set their own dates, schedules based on applications. Minister may ask for more info on an applicant, or if info received his contrary to recommendation can ask for re-assessment. (provincial judges are not evaluated, but comments are provided) f. Duration of assessment: notified on date of assessment and are valid for 2 years. If want to be interested in appointment after expiration, will have to file a new personal history form. g. Appointments: Fed appointments made by GG on advice of cabinet. Recommendation to cabinet by Minister of Justice, and by PM for Chief Justice and Associate Chief Justices. Minister can consult members of judiciary, bar, public. For provincial court judges who apply for appointment, Minister can consult their current Chief Judge as well as Chief Justice of the court candidate is being considered for. 2. Criticisms of Non-Supreme Court Federal Appointment Process: if lawyer is recommended as opposed to highly recommended the standard does not encourage standard of excellence. Cabinet can easily pressure minister for appointment of a lawyer who was recommended. Many political contributions made to parties, who were later appointed as judges. ii. Supreme Court Appointments: Democratization is bad too, judges should be free to decide case w/ their own view. 1. Minister of Justice, Proposal to Reform the Supreme Court of Canada Appointment Process: should appoint best candidates, based on merit, use criteria developed, terms of expertise, and should represent diversity of Canadian society. Appointments w/n constitutional authority of Governor in council, thus, executive is responsible. a. Judicial independence: System should promote and protect reality and perception of judicial independence, its essential for the rule of law, ensure legal claims are adjudicated by fair, impartial and open minded judges, who are not beholden to any group interest or position. Preserve integrity, mindful of impacts that commentary can have on reputation of judges and loss of public confidence, deterring candidate from allowing names to be considered. b. Transparency: accomplished by enhancing public knowledge and understanding of the process. Goal of transparency is to ensure public confidence that appointments are made for legitimate reasons that are not linked to political favoritism. Transparency does not require candidates to be subject to direct, public questioning. c. Overview of proposal: 4 stage process: i. Minister conducts consultations as under current system (w/ chief justice of canada, provincial attorneys general, chief justices in region, local law societies, canadian bar association), make initial list of 5-8 names ii. Advisory committee made as vacancy arises, based on regional nature of appointments. Assess, merits, based on written mandate by minister and criteria, all confidential. Provide unranked list of 3 names w/ assessment of merit and full record of consultations conducted. iii. Minister would complete further consultations to provide advice to Prime Minister. PM makes his recommendation to cabinet, and in all, but exception circumstances, appointment made from the short list.


iv.Minister would appear before Justice committee after appointment to explain process, professional and personal qualities of appointee 2. Method used by Harper: minister of justice would commence consultations to establish qualified candidates, list reviewed by selection panel composed of 5 members of parliament: 3 conservatives, 1 ndp, 1 liberal. Panel submits unranked list of six candidates. PM selects two candidates of his choice from short list. 2 nominees would be required to appear before public hearing before an ad hoc parliamentary committee to respond to questions from MPs who are on committee. Govt would formally appoint the two nominees on the recommendation of PM. 3. Judicial independence: to render decisions based on requirements of law and justice, be free to act w/o improper interference from any other entity - exec or legislative branches of govt do not impinge on the essential authority and function of the court. a. Sources and Scope: section 96 to 100 provide for appointment, tenure, and remuneration of federally appointed judges. i. Sec 99 Tenure: removable by GG only for breach of good behavior, other wise until mandatory age retirement of 75. (physical and mental capacity to be a judge is breach of good behavior) ii. Sec 100: salaries, allowances, pensions of superior court judges fixed by parliament of canada. iii. Sec 11(d) Charter gives right to independent and impartial tribunal. Since most criminal cases tried by provincially appointed judges, charter requires them to be independent and impartial. Otherwise, accused person facing trial before court would be entitled to stay of proceedings - which is why s. 100 does not apply to provincial courts. (non s. 96 courts) iv. Institutional independence, 3 requirements: 1) security of tenure, 2) financial security, 3) administrative control or independence with respect to the management of court business v. Reference re Remuneration of Judges of the Provincial Courts of PEI et al. (Provincial Judges Reference): (4 appeals in one) 1. Issue: whether and how the guarantee of judicial independence in s. 11(d) of Charter restricts the manner by which the extent to which prov govt and legislatures can reduce the salaries of provincial court judges a. Broader: whether constitutional home of judicial independence lies in the express provisions of the Con Act 1867, 1982, or exterior to the sections of those documents. b. Appeals argued on basis of s. 11(d) guarantee of judicial independence and impartiality. 2. Goals of judicial independence: maintenance of public confidence in impartiality of judiciary, and maintenance of the rule of law. 3. Reasoning: judicial independence is at root an unwritten constitutional principle, for it is exterior to the sections of Con Acts. It is affirmed be preamble of Con Act 1867. s. 99 guarantees security of tenure for superior court judges, 100 financial security of superior, district, county, 96 core jdx of superior, district, county against legislative encroachment. a. Gaps: sec 96-100 only protect independence of judges in superior, district and county courts, and s. 99 only protects security of tenure of superior court judges. 96-100 do not apply to provincially appointed inferior courts (provincial courts). b. Problems with 11(d) and ss. 96-100 i. 1(d) Charter is also limited in scope - only applies extends constitutional protection to bodies which exercise jdx over offenses. So if hearing civil or family cases, not protected. ii. Some provisions do not appear to speak to this objective. 100 provides parliament fix and provide salaries of superior, district, county court judges - therefore a subtraction from provincial jdx over admin of justice under 92(14). 96 does no more than confer power to appoint judges of superior district and county courts. Basically, must go deep to unwritten understandings of 96-100 to interpret. c. Unwritten rules and norms are in constitution although not found in express terms of constitution. Preamble identifies organizing principles of Con Act 1867 and invites those principles into premises of constitutional argument that fill in the gaps in the express terms of constitutional text. d. Same approach applies to judicial independence. As constitution has evolved and understanding of rights grown, principle of judicial independence extends to all courts, not just superior courts of canada. Express provisions of constitution should be understood as elaborations of underlying unwritten, organizing principles found in preamble of Con. e. Even though 11(d) says independence of prov courts protected when exercising jdx over offenses, that can be evolved and extended, this is proof of existence of general principle of judicial independence which applies to all courts no matter what cases they hear. 4. Conclusion: Con act and Charter are not exhaustive written code for protection of judicial independence, for it is an unwritten norm, recognized and affirmed by preamble to Con Act 1867. vi. Ell v. Alberta: 1. Issue: related to application of principle of judicial independence to the office of justice of the peace. 2. Reasoning: rinciple must be interpreted in 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 principle of judicial independence extends beyond the limited scope of the provisions in s. 11(d), and 96-100 (not limited to


superior courts, or prov courts that heard criminal offenses; respectively). It is now accepted that all courts fall w/n the principle, not just superior courts. 3. Held: justices of peace were constitutionally required to be independent in the exercise of their duties. b. Assessing Independence: general test for presence of absence of independence consists of whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status. Canada v. Tobiass: test for appearance of judicial independence has been maintained: whether well-informed and reasonable observer would perceive that judicial independence has been compromised. (whether a reasonable observer would perceive that the court was able to conduct its business free from the interference of the govt and other judges. c. Dimensions and core characteristics: Three core characteristics: 1) security of tenure, 2) financial security, 3) administrative independence. Two dimensions of judicial independence: 1) the individual independence of a judge, 2) and the institution or collective independence of the court/tribunal of which that judge is a member of. Core characteristics come together to constitute judicial independence, define it. Dimensions indicate which entity, is protected by a particular core characteristic. A core characteristic may have both an individual and institutional/collective dimension. i. Security of tenure: has an individual and institutional dimension. Judge may not be dismissed by executive before retirement except for misconduct or disability. Can only be removed for reason related to his capacity to perform his judicial duties. Institutionally, before removal, there must be a judicial inquiry to establish cause exists, at which judge must be afforded an opportunity to be heard. 1. Judges Act by the Canadian Judicial Council: responsible for investigating complaints. If council concludes removal, makes a report to minister of justice, who may introduce motion before parliament to recommend removal of judge (done by governor in council). Removal of federal judges by council (judges from federal court and higher level of provincial court). Only parliament can remove, has assigned review process to council. Complaints about being impartial (race, gender bias), respectful and courteous (conduct). 2. Reports of the Canadian Judicial Council to Minister of Justice under sec 63(3) of Judges Act concerning conduct of Mr. Justice Jean Bienvenue of Superior Court of Quebec in R.v.T Theberge: a. Majority: his remarks in a meeting w/ the jury after the verdict, about women and his deepseated ideas about those remarks cast impartiality in execution of his judicial office. Found that judge shown lack of sensitivity to communities and individuals he offended by remarks, evidence shows he does not intend to change his behavior. He has undermined public confidence in him and strongly contributed to destroying public confidence in judicial system. Rule/analyis: if judge were to preside over a case, a reasonable and informed person, viewing matter realistically and practically and having though the matter throughwold have a reasonable apprehension that judge would not execute his office w/ objectivity, impartiality, and independence that the public is entitled to expect from a judge. Held: jude breached his duty of good behavior under s. 99 Con Act 1867 and has become incapacitated or disabled from the due execution of the office of judge. Recommended that he is removed. (Marshall test) b. Recommended removal for actions in private life: leading involvement for opposing a community development. Judge turning into the role of Crown during murder trial. (Most judges resign when these investigations are occurring). Sometimes majority of council will reject committees recommendation of removal and will recommend to minister, no removal. ii. Financial security: relates to pay judges receive for performing their job. Protects against govt that could utilize its authority to set judges salaries as a vehicle to influence course and outcome of adjudication. 1. Provincial Judges Reference (Reference re Remuneration of Judges of the Provincial Court of PEI et al): Facts: prov govts were implementing policies of financial restraint, may lower prov judges salaries. One province repealed its legislation requiring it to accept recommendations of advisory committee on judicial salaries. a. Issue: whether financial security has a collective or institutional dimension, if so, collective or institutional financial security looks like. b. Reasoning: i. Independence of judiciary: free from executive or legislative encroachment and political pressures, and be removed from financial or business entanglement likely to affect or seem to affect him in exercise of judicial functions. ii. Institutional or collective dimension of financial security - 3 components: 1. Commission: Changes or freezes in judicial remuneration require prior recourse to a special process which is independent, effective, and objective for determining judicial remuneration to avoid the possibility of or appearance of political interference through economic manipulation. Requires an independent body, to set or recommend levels of judicial remuneration (commissions). Govts are constitutionally bound to go through commission process, and are not binding to exec legislature. 2. No negotiations: Not permissible for judiciary (collectively, through representation, or individually) to engage in negotiations over remuneration with the executive or representatives of legislature.


3. Cannot be too low: Reductions in remuneration cannot take salaries below basic minimum level of remuneration which is required for office of a judge. Public confidence undermined if paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation. iii. Commissions must meet 3 criteria: 1. Independent: to prevent setting or freezing of judicial remuneration from being used as a means to exert political pressure through economic manipulation of the judiciary. Need security of tenure - by having them serve for fixed period of time, appoints (11(d) charter) not entirely controlled by one branch of govt, instead judiciary nominates and legislature/exec nominates. 2. Objective: recommendations based on objective criteria, not political expendiencies. Be fully informed, receive and consider submissions from all three branches, have factors in enabling legislations or regulations (increase in cost of living, salary remains adequate) 3. Effective: guaranteed by a. Constitutional obligation for govts not to change or freeze judicial remuneration until received the report; must consider the report. b. Commission must convene if a fixed period of time has elapsed since last report, to consider adequacy of salaries in light of cost of living and other facts, and issue recommendations in its report (to avoid reduction in salaries b/c of inflation and inaction used as economic manipulation). c. Reports must have meaningful effect on determination of judicial salaries: i) make report binding, ii) report laid before legislature and recommendations implemented unless voted to reject/amend, or iii) report laid but need not be adopted by legislature. c. Held: financial security has both individual and institutional/collective dimension. 11(d) requires institutional seive btn judiciary and other branches of govt. Commissions are a means to that end. 2. Provincial court judges assn. of New Brunswick v New Brunswick et al: Rule: unless the legislature provides the report is binding, the govt retains the power to depart from the commissioners recommendations as long as it justifies its decision w/ rational reasons (in its response) a. Reasons that are complete and deal w/ recommendations in a meaningful way meet standard of rationality. Must be compatible w/ common law and constitution. Deal with issues in good faith. b. Reasons must show it took recommendations into account. State to what extent they depart, grounds for rejection. Must preclude any suggestion of attempting to manipulate judiciary. Reasons must reflect public interest in having commission process. iii. Administrative independence: requires courts themselves to have control over the administrative decisions, that bear directly and immediately on exercise of judicial functions, such as, assignment of judges, sittings of court, and court lists, allocation of court rooms, direction of administrative staff engaged in carrying out these functions. Requirement met in statutes creating courts, which assign to judges these admin roles. 1. Canada v. Tobiass: Meeting concerned delay in hearing of certain cases in which DOJ was litigant. a. Issue: whether judicial independence was impaired by a private meeting between a senior dept of justice Offical and the Chief Justice of fed ct. b.Reasoning: i. generally, one party should not discuss a particular case w/ judge except w/ knowledge and preferably w/ the participation of counsel for the other parties of the case. - This was violated here. ii. generally, judge should not accede to the demands of one party w/o giving counsel for the other parties a chance to present their views. iii. ACJ was not free to conduct cases free from interference of fed DPJ and Chief Justice of his court: an informed person would conclude that hearing of all prelim motions and trial would be compressed into a relatively short time frame wold redound to the disadvantage of the individual respondents and was taken as to avoid reference to the Supreme Court. iv.Mr. Thompsons motives were proper, judgement was questionable. Not done in bad faith, but should not have spoken about cases to Chief justice privately without opposing counsel present. v. Reasonable observer would perceive Chief Justice and Associate Chief Justice were improperly and unduly influenced by senior officer of DOJ. However, no evidence that it was bad faith in any actor or that independence of judges was actually compromised. c. Conclusion: evidence supports appearance of judicial independence being transgressed or compromised. Ch. 7 - Interplay between the Courts and the Political Branches of Government 1. Overview of statutory interpretation a.Sources of interpretation


i. Interpretation acts: every jdx has these, that contain various rules applicable to statutes in general. ii. Interpretation rules (in acts and regulations): contain definitions, applicable provisions, purpose statements. 1. Definitions tell how words are to be understood. 2. Application sections indicate scope of legislation in terms of space (territory), time, persons affected, subject matter. 3. Preambles and purpose statements in begging of statute indicate reasons for new legislation - concerns addressed, values reflected in the legislation and the anticipated benefits. 4. Commencement and transitional provisions at end of statutes, indicate when the legislation will commence or come into force and how it will apply to situations in progress. iii. Common law: not binding like crim code, but act as guidelines.Check list of relevant considerations, relied on in developing arguments for counsel and judges for justify outcomes in interpretation disputes. 1. Textual meaning 2. Legislative intent 3. Compliance w/ established legal norms. Intention of parliament a. Express intention: expressed in enacted words b. Implied intention: implied from enacted words c. Presumed intention: intention that the courts will in the absence of an indication to contrary impute to parliament. (primary source is common law) d. Declared intention: intention that parliament itself has said may be or must be or must not be imputed to it b.Range of interpretation issues i. Types of problems & -- type of argument in response 1. Ambiguous, vague, or incomplete text -- disputed meaning a. Disputed meaning argument: provision has particular preferred meaning, must establish its the ordinary/technical, plausible meaning. 2. Evolving context -- static versus dynamic interpretation a. Static versus dynamic interpretation: text should be interpreted as it would have been when text was first enacted (static), or in light of current understanding of language & social conditions (dynamic) 3. Overinclusive text -- non-application a. Non application: interpreter identifies reason not to apply a provision to the facts even though given its ordinary meaning it would otherwise apply. Provision read down for many reasons - legislative purpose, avoid absurdity, comply w/ legislative intent. 4. Underinclusive text -- incorrigible gap in legislative scheme or supplement w/ common law rule or remedy a. Incorrigible gap: interpreter claims that legislation as drafted cannot apply to facts even though, given its purpose, it probably should apply; whether omission is deliberate or inadvertent, court has no jdx to fill a gap in a legislative scheme or enlarge scope of legislation. b. Supplementation argument: interpreter concedes that legislation as drafted does not apply, but claims that common law applies so as to supplement the underinclusive legislation. (successful when courts rely on inherent jdx to control its own process) 5. Contradictory or incoherent text -- corrigible mistake a. Corrigible mistake: interpreter claims provision has a drafting mistake, must be corrected before determining whether provision applies to the facts. Must establish what legislature clearly intended and what text would have said had it been properly drafted. 6. Overlapping provisions -- no conflict: overlap versus exhaustive code; conflict: paramountcy rule a.No conflict: i. Overlap: and two or more provisions apply to same facts, each is to be applied as written. Courts work w/ presumption of overlap. ii. Exhaustive code: interpreter claims that overlap between legislative provisions or btn legislation and 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, whether statutory or common law. b. Conflict - Paramountcy rule: 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. 2. An overview of the rules of statutory interpretation a. Rules about meaning i. Ordinary meaning rule: meaning intended by parliament, can be rebutted by evidence suggesting that some other meaning was intended.


ii. Technical meaning rule: presumed that legislatures use words in their popular, non technical sense. When legislature deals w/ specialized subject and uses language that people governed by the legislation would understand in a specialized way, that specialized understanding is preferred over ordinary usage. 1. Re Witts and AG for British Columbia: 1) evidence of technical meaning is offered by experts in the relevant field through testimony or affidavit evidence. 2) legal terms of art are considered technical terms. If word has popular meaning and legal meaning, the legal meaning is preferred (definition of sex of horse). 2. Person who claims legislative text has a technical meaning different from its popular non technical meaning has burden of establishing: 1) that technical meaning of the word or expression, and 2) that technical meaning was intended in this context. iii. Shared meaning rule: if there is a discrepancy btn verions of bilingual statute, the meaning that is shared by both is presumed to be intended meaning. If english interpreted 2 ways and french 1 way, shared meaning of french version prevails. If english is broader than french, shared meaning would be french. Presumption rebutted by evidence suggesting that some other meaning was intended. iv. Original meaning rule: meaning of words used in a legislative text is fixed at time of enactment, but its application to facts over time is not fixed. Static interpretation - text applied as it would have been when legislation enacted (language that is technical, concrete, and specific attracts static). Dynamic interpretation - text applied in light of circumstances and assumptions existing at time of application (language that is general or abstract attracts dynamic) 1. R.v.Dauoust: Ordinary meaning rule, associated words rule, no tautology rule - transfer of possession is act of the person who has control or possession of object and then tries to pass it on to another; interpretation compatible w/ ordinary meaning of word. Offense is not aimed at beneficiary. Parliament intended that provision apply only to the party originally having control of the property, rather than both parties. i. Court could not interpret series of terms as including that word when it does not share their common meaning. Buying or receiving property involving person who accepts or acquires the property do not constitute elements of the offense of laundering proceeds of crime. Meaning of term may be revealed by its association w/ other terms. ii. Provision is aimed at persons who receive or accept property despite knowing its illicit origin. It would be redundant to interpret transfer as including act of purchasing/possessing property w/ another provision of Crim Code prohibits that act. Presumed that section criminalizes different behaviors since parliament does not speak in vain. iii. Held: act of purchasing is not same as transfers the possession of. Respondents did not transfer possession of property. Appeal dismissed. 2. Notes on R.v.Dauoust: Court supports transfer w/ its ordinary meaning. To reject meaning, would have to establish grounds that some other meaning was intended. Ordinary meaning is meaning that spontaneously comes to mind when word or phrase is read in its immediate context. To determine, courts rely on linguistic intuitions. (dictionarties, black laws) v. Plausible meaning rule: if ordinary meaning of text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing. b.Presumptions relied on to analyze the meaning of a text: i. Assumptions about way legislation is drafted, which influence finished product: 1. Straightforward expression: legislature chooses clearest, simplest and most direct way of stating its meaning 2. Uniform expression: uses same words and techniques to express same meaning and different words and techniques to express different meanings. 3. No tautology/no redundancy: no suprefluous words, every word, every feature of the text is there for a reason and plays a meaningful role in the legislative scheme. a. R.v.Dauoust: Ordinary meaning rule, associated words rule, no tautology rule 4. Internal coherence: all the provisions of a legislative text fit together logically and work together coherently to achieve the purposes of the legislation. ii. Maxims of interpretation 1. Implied exclusion: if something is not mentioned in circumstances where one would expect it to be mentioned, it is impliedly excluded. a. Re Witts and AG for British Columbia: Petitioner unsuccessfully appealed to implied exclusion rule. If legislature wanted to depart from ordinary meaning of word it did so by expressly setting out definition of term, it did for age, since sex not defined, it should be given its ordinary meaning. But, when regulations govern a specialized activity carried out by persons who understand terms in a particular way in the context of their specialized activity, the terms (technical terms) are often understood to have their specialized meaning. 2. Associated words: meaning of a word is affected by the other words with which it is linked in a sentence. a. R.v.Dauoust: Ordinary meaning rule, associated words rule, no tautology rule


3. Limited class: when list of things that all belong to an identifiable (skiiing, sledding, ice skating) class is followed by a more general term (sports), the general term may be read down to include only other things w/n the identifiable class. (only include winter sports) 4. The legislative would have said x: a legitimate basis for rejecting a proposal interpretation is to point out that had the legislature intended the proposed interpretation, it would have framed the legislation in a different way, as it did elsewhere in the Act or regulation or elsewhere in the statute book. c. Purpose and scheme analysis: (rules) -i. Legislative purpose: interpreters must try to determine purpose of legislation, in so fas as text permits, adopt an interpretation that promotes or is at least consistent w/ those purposes. Interpretations that would tend to defeat legislative purpose are considered absurd. ii. Interpretation acts: an interpretation that promotes the purpose of legislation is to be preferred over strict construction. (if overly broad, the narrow interpretation). iii. Legislative scheme: provisions of act presumed to work as part of a coherent scheme designed to implement the legislatures goals. Helpful to look at titles, headings, and subheadings and at sequence of marginal or sectional notes to get an indication of the scheme. iv. R.v.Chartrand: look at legislative history of section, purpose and context, wording of statute, interpretation of word unlawfully by jurisprudence. (without justification, intending to deprive parent - held: crown does not have to prove an additional element of unlawfully beyond taking the child by who did have lawful authority over the child). d. Mistakes and gaps in the legislative scheme: i. Corrigible mistakes: leg presumed not to make mistakes, presumption is rebutted by persuasive evidence that text does not accurately reflect the rule the legislature intended to enact. ii. Incorrigible mistakes: courts almost always deny jdx to cure a gap in a leg scheme or to cure underinclusive provisions by making them apply to facts outside the ambit of the language of the text. Curing an underinclusive scheme/provision amounts to reading in which is considered a form of judicial legislation, as opposed to reading down which is not. iii. Supplementing legislation by reliance on common law (or the Civil Code): courts cannot cure underinclusive legis by expanding its scope beyond what text allows, courts can rely on sources of law to complement what the legis scheme provides. In doing so, must address question of relationship between statute and common law. e. Presumptions of legislative intent: are formal expressions of evolving common law norms. When legislation strictly construed, emphasis is on wording of text - general terms read down, conditions fully enforced, ambiguities resolved in favor of non-application. When legislation liberally construed, focus on achieving the benevolent purpose of legislation; general principles applies as fully as wording permits, exceptions and qualifications are strictly construed. If doubts or ambiguities arise, resolved in favor of person seeking the benefit. f. Avoiding absurdity: presumed legislature does not intend legislation to produce absurd consequences, interpretation that avoids this is preferred. The more clear the text, the greater the absurdity required to depart from its original meaning; the greater the absurdity from interpretation, the more justified in rejecting it. Forms of absurdity that legislature presumed to avoid: i. Irrational distinctions (treating things differently or different things the same way) ii. Irrational, contradictory or anomalous effects iii. defeating the purpose of the legislation iv.Undermining the efficient application of legislation; and v. Violating important norms of justice or fairness g. Relation to other legislation and other sources of law i. Constitutional law: presumed that legislatures intend to enact constitutionally valid law, and comply with limitations on their jdx; interpretation that renders law valid is preferred. If intend to infringe charter right, must meet s. 1 test. ii. Regulations: read in light of provisions enabling provision and legislation. Reg and enabling leg presumed to be integrated scheme. Interpretations in enabl leg presumed to apply to regulations. iii. Related legislation: statutes deal with same subject, read together and presumed to offer coherent and consistent treatment. Some statutes form a single integrated scheme, sometimes they create distinct but overlapping schemes. iv. The statute book: even if not on same subject, compare provisions in different enactments that deal with particular matter, to find out legislative intent. v. Common law: prov/fed incorporate common law concepts or terms, resort to common law to determine meanings. Legislation may codify common law rules or principles, give statutory form to pre-existing common law. vi. International law: presumed that fed and prov intend to comply w/ international law, both customary and conventional. h. Extrinsic aids: to resolve interpretation issues i. Legislative source: consists of agreements that legislation intended to implement, or of legislation on which legislation modeled in whole. ii. Legislative history: material formally brought to attention of legislature during legislative process, including ministerial statements, committee reports, recorded debates, and tabled background material.


iii. Legislative evolution: successful amendments and re-enactments a provision has undergone from its initial enactment to the time of application; note that subsequent evolution is not considered a legitimate aid. iv. Expert opinion: consists of precedent, administrative opinion, and scholarly legal publications, expert testimony. 3. Some illustrations - of statutory interpretation problems a. R.v.McIntosh: issue: whether as an initial aggressor raising self defense, rely on 34(2) or more onerous conditions of s. 35? Legislative action is required to clarify self defense regime. i. Rules: where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect, where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise. 1. Where two interpretations of a provision which affects liberty of person are available, one more favorable to accused, the court should adopt the favorable interpretation (statutory interpretation principle). 2. Where by the use of clear and unequivocol language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to comm sense the result may be. ii. Reasoning: although 34(2) leads to absurdity, court should not narrow the statutory defense. Parliament may enact laws illogically and is free to amend. iii. Held: Must be interpreted according to its plain terms, cannot read in. Thus, available where an accused is the initial aggressor, having provoked the assault against which he claims to have defended himself. iv. Disposition: Appeal dismissed, respondents conviction set aside, new trial ordered. v. Dissent: Clear from history that one who had not provoked was entitled to stand his ground (justifiable homicide), and that who provoked it must retreat before acting in self defense (excusable homicide) 1. Can redraft a provision if 1) a manifest absurdity, 2) traceable error, 3) an obvious correction. 2. No clear indication of legislature. Parliament did not intend it to apply to provoked assault. Trial judge did not err in limiting 34(2). Would allow the appeal and restore the conviction.(give effect to evolution of legislation, common law to its current formation) b. R.v.McIntosh: Issue: statutory interpretation (former employees claim for severance vacation pay when corp claims bankruptcy. whether under legislation at time of bankruptcy, employees are entitled to claim termination and severance pay where employment terminated b/c of employers bankruptcy? i. Reasoning: plain language of provisions state that termination pay and severance are payable only when employer terminated employment. Is bankruptcy termination by employer? Transition provision indicates that legislature intended that termination and severance pay obligations should arise when employer goes bankrupt. 1. Interpretation of act is incompatible with its effects and consequences. 2. Termination by employer includes bankruptcy. Legislatures intent evidenced. To not allow it would be contrary to purpose of termination and severance pay provisions and would undermine object to ESA (to protect interests and investments of employees). 3. Distinction btn bankruptcy and other loss of jobs is unfair. ii. Held: appeal allowed. c. Notes: i. Reading down: words of limitation or qualification are added to text b/c: (narrow scope of provision to reflect legislatures intent) 1. Court is giving effect to limits that are implicit in text or scheme of legislation; therefore, giving effect to legislatures intent. 2. Court is refusing to apply legislation to situations that are outside mischief the legislation was meant to address; therefore, refusing to exceed legislatures intent; or 3. Court is relying on a presumption of legislative intent. ii. Reading in: court expands scope of legislative provision or fills a gap in a legislative scheme, thus making legislation apply to facts that it would not otherwise encompass given the limits of the language used in provision or scheme. Do this by: 1. Ignore words of qualification or limitation in the Act; or 2. Add words of expansion to the Act a. Courts usually refuse to read in b/c amounts to amendment rather than interpretation. d. Medovarski v. Canada (minister of citizenship and immigration): issue - whether s. 196 transitional provision of immigration and refugee act, removes the right to appeal an order for removal to the immigration appeal division (IAD), in the case of persons deemed inadmissible for serious criminality. (former act allowed appeal, new act does not). i. Reasoning: looked at purpose of IRPA and its transition provisions; french and english text; legislative context of s. 196; and need to interpret provision to avoid redundant result. 1. Objectives of permanent residents show strong desire to treat criminals and security threats less leniently. Act is clear, ban admission if over 6 month sentence, ban appeal if over 2 years sentence. 2. French text of s. 196 granting a stay is more broad than English. 3. Rules for french and english interpretation


a. apply rules of statutory interpretation to determine whether or not there is an apparent discordance and if so, whether there is a common meaning btn French and English versions. Where one version is more broad than the other, the common meaning would favor the more restricted or limited meaning. IF both are ambiguous the result is the same. b. Determine if the common meaning is consistent with parliaments intent. ii. Conclusion: granted a stay only actively grants stays, and s. 196 removes appellants right to appeal the order for their removal of serious criminality. Applicable principles of statutory interpretation permit no other conclusion. Section establishes that parliament intended to deny right of appeal to persons in appellants circumstances (those imprisoned more than two years). 196 does not apply to them iii. Held: appeal dismissed e. Notes: french and english versions bilingual legislation must say the same thing. Discrepancies occur when: i. Version A is ambiguous while version B lends itself to only one of the possible meanings of version A; version B is the shared meaning. ii. Both versions are ambiguous, but both lend themselves to a single, particular meaning; this is the shared meaning iii. Both versions are clear, but say different things; there is no shared meaning. iv. One version is broader in scope than the other; either the narrow version is the shared meaning, or the two versions say different things so that there is no shared meaning v. R.v.Daoust: Held that when one version of bilingual legislation is broader in scope than the other, the narrower version represents the shared meaning and should prevail unless there is evidence that the legislature intended the broader meaning. Shared meaning is presumed and can be rebutted. Shared meaning must be tested against other indicators of legislative intent, both actual and presumed. f. Canada (Attorney General) v. Mossop: filed complaint against employer and union b/c application for bereavement leave denied (common law partners dad died, homosexual partner, not opposite sex like agreement provides for). i. Dissent (LHeureux-Dube J) 1. General rule: Human rights jurisprudence is quasi constitutional in nature, given large, purposive and liberal interpretation. 2. Purpose of act: is to ensure people have equal opportunity to make for themselves the life they are able and wish to have w/o being hindered by discriminatory practices. 3. Interpretation: Human rights legislation interpretation: family status potential to be very broad. a. Not appropriate to rely on narrow meaning of french and english texts. b. Rule: both are equally authoritative. Where there is discrepancy, meaning which furthers purpose of legislation must be prevail. c. Purpose of act is to prevent discrimination and provide equal opportunity, thus, broader of the two meanings should prevail. Family status should be restricted to narrow legal meaning, should have broad protection. 4. Purpose and intent: legislatures intent - amendment increased scope and protection by adding family status and marital status, indicating that both must be different things. Parliament could have defined but chose not to, trusted tribunal to interpret. Scope is not frozen in time, living tree, 5. Family status defined: may not have a sole meaning but is varied depending on context or purpose of which definition is desired. Increasingly broad range of relationships. Legislative definitions vary w/ legislative purpose and depend on context 6. Family status in context: use functionalist approach which involve examination of cluster of variables that may be commonly found in families. And determine if come w/n scope of family status. Remain focussed on Act and understand how people are living. 7. Collective agreement: treated some types of familial relationship differently, their situation-relationship was invisible to the Act. ii. Held: allow the appeal, tribunal was correct in concluding that collective agreement violated 10(b) of the Act through its discriminatory practice (depriving complainant of employment leave on basis of discrimination). iii. Concurrence (Sopinka and Iacobucci) 1. Issue: was there discrimination against Ms family status under CHRA as it stood at the time the events occurred. 2. Reasoning: parliaments intent was to not extend protection to anyone from discrimination based on sexual orientation. 3. Rules: when parliaments intent is clear courts and tribunals are not empowered to do anything but apply the law. a. If there is ambiguity as to meaning or scope, courts should using rules of interpretation, seek out i. purpose of legislation ii. and if more than one reasonable interpretation consistent w/ that purpose is available, iii. that which is more in conformity w/ the charter should prevail b. (absent charter challenge, charter cannot be used as interpretative tool to defeat purpose of legislation or to give the legislation an effect parliament clearly intended it not to have). 4. Conclusion: would dismiss the appeal


iv. Concurrence (La Forest J): in determining intent of parliament, must give words in the statute their usual and ordinary sense having regard to their context and to the purpose of the statute. 1. neither language relied on now the other grounds of discrimination support fact that family status has one of its legislative purposes to protect persons living in the position of the appellant. Neither does surrounding context show that it was a mischief of parliament. There is nothing that shows parliament intended to cover the situation of a same sex couple 2. Neither ordinary meaning, context, or purpose indicates a legislative intention to include same-sex couples w/n family status. v. LHeureux-Dube J - Dissent arguments: Ch. 8 Constraints on legislative and administrative action I.The role of constitutional judicial review in a democratic society A. The justification for constitutional judicial review - Marbury v. Madison: constitutional supremacy and role of judiciary in ensuring that written constitution prevails over ordinary legislation. Judicial duty: decide what conflicting rule governs the case (law or constitution). In Canada - constitutional supremacy originally grounded in s. 2 Colonial Laws Validity Act, which rendered void and oeprative any act that was repugnant to Act of imperial parliament that extended to colony. Prov/Fed law that was inconsistent w/ BNA act was void. (s. 7 Statute of westminster exempted BNA although made provinces free from imperial legislation). in 1982, s. 52(1) Con ACt 82 reads, constitution of canada is supreme law of canada and law that is inconsistent w/ provisions of constitution, is to the extent of inconsistency, of no force or effect. 1. Issues of justicability - Operation Dismantle v. The Queen: looks at principle of constitutional supremacy and limits on role of courts in weighing govt measures designed to protect national security against standards imposed by constitution. a) Facts: challenge under s. 7 Charter to decision of cabinet to permit cruise missile testing by US in canada. b) Issue: whether appellants statement of claim should be struck down c) Reasoning: claim is too uncertain, speculative and hypothetical. No duty imposed by s. 7 on govt to refrain from permitting testing. d) Held: statement of claim should be struck down and appeal dismissed. Impossible for courts to find based on evidence a connection btn duty of govt to act in accordance w/ Chater and violation of rights under s. 7 . Increased threat in nuclear war could not be sufficiently linked as factual matter to duty of govt under s. 7 e) Wilson J Concurring: (1) Non-justicability: non justicable b/c involve moral or political considerations which is not w/n courts to assess. Issue is appropriateness of use of judicial techniques for such purpose. focus on whether courts should or must deal w/ such matters. (not if they can). Consider whether as a constitutional matter it is appropriate or obligatory for courts to decide issue before us. (2) The political questions doctrine: non justicability of this is a function of separation of powers, in the sense of proper role of the courts vis-a-vis other branches of govt. Do not think it is open to relinquish its jdx either on basis that issue is inherently non justicable or that it raises a political question. If look to constitution to answer question whether it is appropriate for courts to second guess executive matters on defense, conclude it is not appropriate. If asked to decide whether act violates rights, then it is courts obligation under charter to do so. (3) Violation of s. 7: independent, substantive right to life, liberty, and security of person cannot be absolute.Cruise missile testing in canada would increase nuclear war, but is not constitute a of breach of s. 7. How do we distinguish dangers to which govts actions vis a vis other states might incidentally subject its citizens under s. 7 (altho not directed at member of community). (4) Conclusion: through s. 1 Charter courts can determine justicability of issues. Free and democratic society the essential features of separation of powers, responsible govt, rule oflaw. Obviates need for political questions doctrine and permits court to deal w/ what might be prudential considerations in principled way w/o renouncing its constitutional and mandated responsibility for judicial review. But, s. 1 not called into operation here b/c statement of claim, even if true, does not violate s. 7 2. issues of enforcement: courts have to rely on exec and legislative branches for enforcement of their decisions. How aggressive can courts be in usurping them in imposing solutions. a) Doucet-Boudreau v. Nova Scotia (minister of education): scope of judicial power to grant structural injunction as remedy under s. 24(1) Charter for breach by exec. (1) Facts: trial court ordered govt to use best efforts for building french school, under minority rights, period reports on progress. (2) Issue: whether trial judge may retain jdx to hear reports on progress of those efforts (as part of remedy under 24(1) Charter? (3) Reasoning: charter interpretation and remedies should be given generous and expansive interpretative approach.



(a) Purpose interpretation - in a way that provides full effective and meaningful remedy for Charter violations, this requires 2 things: (1) purpose of right being protected must be promoted, (2) purpose of remedies provision must be promoted: court must craft effective remedies. (b) Should be sensitive to role as judicial arbiters and not usurp roles, overstep bounds vis a vis other branches. (c) Power of courts to issue injunctions against exec is central to s. 24(1) Charter (d) Constitutional remedies involving some degree of ongoing supervision do not represent a radical break w/ the past practices of courts (e) Order was not inconsistent w/ judicial function. Hearing evidence, supervising cross examinations about construction of schools are not beyond normal capacities of courts. (4) Conclusion: superior court may craft any remedy that it considers appropriate and just in circumstances. Be mindful of roles as constitutional arbiters and limits of their institutional capacities. (5) Held: Majority found remedy came w/ superior courts authority under s. 24. (6) Minority/dissent:injunction usurped role of exec by placing judiciary in position of directing implementation of law and govt policy. (a) Constitutional remedies should be designed keeping in mind legal drafting, procedural fairness, nature of role of courts, and political regime, a key principle of separation of powers which also protects judicial independence. (b) Court retaining jdx over remedy is inappropriate at two levels: 1) attempting to extend beyond its proper role in breach of SOP, and 2) by acting after exhausting its jdx it will breach functus officio doctrine i) Separation of powers: after rendered judgment, should resist supervising orders. Generally should act that order will be executed w/ reasonable diligence and good faith. Once declared what law is, should not invade province of public admin, that upsets balance between branches. ii) Functus Officio: by crossing boundary between judicial acts and admin oversight, it acts illegitimately and w/o jdx. (c) Analysis/holding: judges remedy undermined proper role of judiciary and upset balance between branches, thus, was contrary to 24(1). b) Reference re language rights under s. 23 Manitoba Act, 1970 and s. 133 Con Act 1867: finding principled way to address consequences of a sweeping legislation disregard of constitutional rules. (1) Facts: 3 attacks on Official Languages Act, declared unconstitutional. (requirement to publish in both languages). (2) Reasoning: all laws passed were unilingual. Rule of law requires creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. 1) To hold that all laws after 1890 are invalid and of no force or effect would destroy rights, obligations but 2) this would violate rule of law. (a) To uphold rule of law, these las will have to have same effect had they been valid. Temporarily valid and effective until man fulfills its constitutional duty. State is in state of emergency b/c did not enact in both languages. Constitution and rule of law will not allow it to suffer w/o laws. Issues of legitimacy: a) Vriend v. Alberta: Albertas legislatures failure to include sexual orientation as a prohibited group of discrimination in Act violated appellants equality rights under s. 15 Charter, and not justified under s. 1 Remedy was to read in sexual orientation as a prohibited ground of discrimination for purposes of the Act. (1) Notes: Built-in deference: govts are free to modify the amended legislation by passing exceptions and defenses which they feel can be justified under s. 1 of the Charter. Moreover, legislators can always turn to s. 33 the override provision, which it my view is the ultimate parliamentary safeguard. Drawing on s. 1 court made justification test that may excuse violation of substantive charter right. Also right can be overridden by express declare of parliament. 33 preserves large number of supremacy. (2) Dialogue-model: between courts and legislatures. work of legislatures is reviewed by courts and the work of the court in its decisions can be reacted to by the legislature in passing of new legislation (or overarching laws under s. 33). Dialogue between them and accountability of each of the branches have effect of enhancing the democratic process, not denying it. b) Remarks of the Right Honorable Beverley BcLachlin, P.C. Respecting Democratic Roles: judicial role to resolve disputes, decide legal questions. Not to set agendas for social change, impose their personal views on society. To resolve disputes formulated by others, impartiality on the basis of the facts and the law. The claim that judges are overstepping proper constitutional boundaries of their rule, fails. Each branch has an important role in our democracy, and do it w/ integrity and respect for other branches. 4 claims that judiciary is overstepping boundaries: (1) Judges should never go against will of elected representatives: but constitution calls on judges to be arbiters.



(2) Judges are pursuing political agenda and are allowing their political views to determine outlook of cases before them: this is false. (3) Law is totally determinative black and white activity, judges should only apply law, not make it or rewrite it: mistaken perception of nature of legal decision making. (4) Judges are making decisions that should be made by elected representatives who alone possess legitimacy for law making and institutional competence: but courts referee disputes, and give deference to legislative and exec bodies by weighing demands on public. There are limits, if law is unconstitutional, courts must say so. (5) Conclusion: The claim that judges are overstepping proper constitutional boundaries of their rule, fails. c) Notes: are judges exceeding boundaries of role when making use of unwritten constitutional principles? d) Reference re remuneration of judges of the provincial court of PEI (dissent): power to enforce principle of judicial independence, derives from canadian constitutionalism. Constitution expressly contemplates power of judicial review and judicial independence. All established through constitutional interpretation, not through the preamble. The democratic will establishes the underlying legitimacy of this interpretation. Judicial Review of Administration A. Controlling procedures: The Duty to be Fair: refers to procedures adopted by the decision-maker. Nicholson v. HaldimandNorfolk outlines more flexible approach to procedural obligations of decision-makers, b/c historic only gave duty to decision makers carrying out judicial or quasi judicial functions where legal rights of person were affected, did not extend to legislative or admin decisions that determined policy affects on individuals. Content of duty is: the right of a person to know and answer the case against him. AND Requiring that a person not be the judge in his own cause. 1. Baker v. Canada (Minister of Citizenship & Immigration): Reasoning: a) Factors affecting content of duty of fairness: these are not exhaustive. Principle is that should have opportunity to present case fully and fairly, have decisions affecting rights made using fair and impartial process appropriate to context of decision. (1) Nature of the decision being made and the processed followed in making it : the more process required for function of tribunal, nature of decision making body, the more likely that protections closer to trial model. (2) Nature of the statutory scheme and terms of the statute pursuant to which body operates: greater procedural protections required if no appeal process w/n statute or when decision is determinative of issue and further requests cannot be submitted. (3) Importance of the decision to the individual(s) affected: the more important the decision is to the lives of people affected and the greater the impact on that person, the more stringent the procedural protections will be mandated. (4) The legitimate expectations of the person challenging the decision: if person has LE, this will affect content of duty. If LE that certain procedure will be followed, then procedure will be required by duty of fairness. If LE certain result reached in case, fairness will require more extensive procedural rights than would be otherwise accorded. LE does not give rise to substantive rights, outside procedural domain. (5) Take into account procedure made by agency, particularly when statute leaves to decision-maker ability to choose its own procedures or when agency has expertise in determining what procedures are appropriate in circumstances. b) Legitimate expectations: articles of convention and wording did not give rise to LE. No LE affecting content of duty of fairness, 4th factor above has no affect on analysis. Unnecessary to decide if international instrument will give rise to LE c) Participatory rights: whether an oral hearing and notice to her kids was inconsistent w/ participatory rights required by duty. Here, she had written application. Analysis of all factors: decisions has a lot of discretion, role is w/n statutory scheme, no appeal procedure, decision has exceptional importance to lives of those in interest, statute gives flexibility to minister to decide proper procedure and immigration officers, as matter of practice, do not conduct interviews in all cases. Circumstances require full and fair consideration of issues and have meaningful opportunity to present evidence and have case fairly considered. Meaningful opportunity does not require oral hearing in humanitarian and compassionate ground cases, written is enough. d) The provision of reasons: In certain cases, duty will require provision of a written explanation for a decision, when statutory right of appeal, or some form of reasons should be required. Flexibility for decision makers by accepting various types of written explanations for decision is sufficient. Having reasons ensure guarantee of better decision, those affected feel they were treated fairly. Here, notes by subordinate officer fulfilled this requirement. e) Reasonable apprehension of bias: procedural fairness requires that decisions be made free from reasonable apprehension of bias by an impartial decision maker. Applies to all immigration officers who play significant role in decision making, whether subordinate officers or those who make final decision. Subordinate plays important role and if such person w/ central role does not act impartially, the decision itself cannot be impartial. (1) Test: would an informed person, viewing matter realistically and practically, having though the matter through conclude? Here, reasonable and well informed community member would perceive bias and conclude that officer was impartial in deciding the case.


B. Substantive judicial review: Two standards of review that should be applied in admin decisions. Stricter standard is correctness. More deferential standard is reasonableness. 1. Dunsmuir v. New Brunswick: clerk whose at pleasure appointment was terminated by DOJ. Issue: judicial reviews of administrative tribunal decisions. Reasoning below: a) Two Standards of Review. (1) Correctness: courts will not show deference to decision makers reasoning process, it will instead undertake its own analysis of the question. If court does not agree w/ determination, court will substitute its own view and provide correct answer. Was the tribunals decision correct? (2) Reasonableness: courts will give due consideration to determinations of decision makers. b) Determining appropriate standard: same standard applies where legal and factual issues are intertwined & cannot be separated. (1) Approach: 1) courts first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded w/ regard to a particular category of question. 2) where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper SOR. (got to #2) (a) Correctness: applies to constitutional questions regarding division of powers, questions of jurisdiction or vires, jurisdictional lines between two or more competing specialized tribunals. (b) Reasonableness: questions of fact, discretion and policy, where legal questions cannot be separated from factual issues. Privative or preclusive clause. All give rise to reasonableness standard. Also if tribunal interpreting its own statute, has expertise in application of rules. (2) SOR Analysis (factors): 1) presence or absence of a privative clause, 2) 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. (pragmatic and functional approach) (a) Factors: will lead to conclusion that decision maker should be given deference and reasonableness test applied: i) A privative clause: statutory direction from parliament or legislature indicating the need for deference. ii) A discrete and special administrative regime in which decision maker has special expertise (ie: labor relations) iii) The nature of the question of law: 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 w/ a reasonableness standard where the two above factors so indicate. c) Application (1) Proper standard of review on statutory interpretation issue: has a full privative clause; nature of regime is labor arbitrators, should be given deference; legislative purpose is solving employment dispute; nature of legal question is not one that is of central importance to legal system and outside specialized expertise of adjudicator = reasonableness SOR should apply. (privative clause, nature of regime, nature of question of law, legislative purpose) (2) Was adjudicators interpretation unreasonable: ruling/decision did not reach standard of reasonableness. Did not provide reasons for termination of employment, this was inconsistent w/ contract. 2. Canada (Attorney General) v. Mowat: Found that appropriate standard or review was correctness. Parliament did not grant authority to award legal costs to a successful complainant. a) Issue: what is the SOR applicable to the decision of the tribunal and did fed ct apply correct standard to determine the issue? (was tribunals decision correct or sufficed that it be reasonable? b) Rules (1) Two step process for SOR Dunsmuir - (1) ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded w/ regard to a particular category of question (2) ... use factors (2) Determining SOR: requires an analysis of the factors making it possible to identify the proper SOR (privative clause, nature of regime, nature of question of law, legislative purpose) (3) Correctness SOR in 3 situations: (before step 2) (a) Where tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter (b) Where there is a question of general law that is both of central importance to the legal system as a whole and outside the adjudicators specialized area of expertise. (c) Where a determination of jurisdiction between two competing tribunals is required. c) Analysis: applicable SOR is usually reasonableness. Here, factors are not met. Its Correctness to be applied in this case. d) Held: parliament did not intend to grant, and did not grant, to the tribunal the power to award costs. Appeal allowed.


3. Canada (Canadian HR Commission) v. Canada (AG) a) Issue: The main question before us is whether the Tribunal made a reviewable error in deciding that this power to order compensation for any expenses incurred by the victim as a result of the discriminatory practice permits it to order payment of all or a portion of the victims legal costs. (1) threshold question of the appropriate standard of judicial review of the Tribunals decision and the main question of whether the Tribunal made a reviewable error in finding that it had the authority to award legal costs b) Rules: Dunsmuir (1) The two-step process in the standard of review analysis is 1) 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. 2) where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. (2) The factors that a reviewing court has to consider in order to determine whether an administrative decision maker is entitled to deference are: the existence of a privative clause; a discrete and special administrative regime in which the decision maker has special expertise; and the nature of the question of law. (Deference is generally appropriate where a tribunal is interpreting its own home statute or statutes that are closely connected to its function and with which the tribunal has particular familiarity. Deference may also be warranted where a tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context) (3) Standard of correctness will continue to apply to constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicators expertise, as well as to [q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals. Will also apply to true questions of jurisdiction or vires. c) Reasoning: The proper standard of review of the Tribunals decision to award legal costs to the successful complainant is reasonableness. An examination of the text, context and purpose of these provisions reveals that the Tribunals interpretation was not reasonable. (1) Human rights legislation expresses fundamental values and pursues fundamental goals. It must be interpreted liberally and purposively so that the rights enunciated are given their full recognition and effect. However, the intent of Parliament must be respected by reading the words of their provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act. (2) Tribunals decision to award legal costs to the successful complainant is reviewable on the standard of reasonableness. (3) Analysis - 1) text 2) Context 3) purpose. (4) The text, context and purpose of the legislation clearly show that there is no authority in the Tribunal to award legal costs and that there is no other reasonable interpretation of the relevant provisions. Faced with a difficult point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a dictionary meaning of expenses and articulated what it considered to be a beneficial policy outcome rather than engage in an interpretative process taking account of the text, context and purpose of the provisions in issue. d) Conclusion: The Tribunals decision should be reviewed on the reasonableness standard but that its interpretation of this aspect of its remedial authority was unreasonable. We would therefore dismiss the appeal e) Held: appeal dismissed. V. RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE A.Aboriginal rights and title B. Aboriginal self-government aspirations C. The modern treaty making process D.Section 91(24) Con Act 1867: exclusive powers of parliament to make laws regarding indians and lands reserved for indians E. Section 35 of Con Act 1982: recognizes existing aboriginal and treaty rights, definition of aboriginal peoples in canada, land claims agreements, aboriginal and treaty rights guaranteed equally to both sexes. F. The Crowns fiduciary relationship w/ Aboriginal Peoples: 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. 1. Guerin v. R. The fiduciary relationship is rooted in the concept of Aboriginal title,(5) 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.


2. R.v.Sparrow - scope of duty - sec 35: 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. 3. Delgamuukw v. B.C.: Court ruled that the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue. 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. 4. 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). 5. Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights. 6. 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. It further indicates that the scope of the obligations, and thus the nature of associated policy implications, will vary with the individual circumstances at issue. G. R v. Sparrow: Facts: Sparrow was charged under the Fisheries Act for fishing with a drift net that was longer than was permitted with his Indian fishing license. Sparrow admitted the facts, but claimed that he had an existing aboriginal right to fish and thus the Act is inconsistent with 35(1) of the Constitution Act, 1982 and invalid. He was unsuccessful in the lower courts which he appealed to the Supreme Court. 1. Issues: How are aboriginal rights recognized under 35(1)? What is the test for the extinguishment of aboriginal rights? 2. Reasoning: Dickson and La Forest, writing for a unanimous court, say that the word "existing" in 35(1) makes it clear that the section applies to rights that were in existence when the Constitution Act, 1982 came into effect and thus rights that were extinguished before 1982 are not protected under 35(1); existing does not refer to a right that was exercisable at any point in history. Further, the term "existing ... aboriginal rights" must be interpreted purposively to permit their evolution over time they are not frozen in time as they were at the passage of the Constitution Act, 1982. a) Sparrow was exercising an "inherent" Aboriginal right, that existed before the provincial legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982. To arrive at this they interpreted each of the words of section 35(1). "existing" was interpreted as referring to rights that were not "extinguished" prior to the introduction of the 1982 Constitution. They rejected the alternate "frozen" interpretation referring to rights that were being exercised in 1982. b) The Court puts a very high test on extinguishment of aboriginal rights - the government intention to extinguish a right must have been "clear and plain". Merely having regulations for an activity, as in the case at bar, does not indicate an intention to extinguish, nor any govt policy towards rights amounts to clear intent to extinguish. Additionally, it is important to specifically classify the aboriginal right in question in this case the right to fish for food and social and ceremonial purposes. c) The next question is what the words "recognized and affirmed" mean in 35(1). Continuing with the purposive approach, the Court holds that 35(1) is a benefit incurring provision and therefore is given a large and liberal interpretation. Interpretation of aboriginal rights must also be done in light of the sui generis "special relationship" between the federal government and aboriginal people and recognize the fiduciary relationship which is owed; the government must act as a trustee rather than adversarially towards aboriginals. Incorporate the government's fiduciary duty to the Aboriginal people which requires them to exercise resItraint when applying their powers in interference with aboriginal rights. d) Legislation affecting the exercise of aboriginal rights will be valid if it meets a test of justification which arises from the fiduciary relationship; there is nothing in "recognized and affirmed" which makes such rights absolute. The Court lays out the test thusly: e) Test for extinguishment of aboriginal right: (1) Is there an aboriginal right, i.e. is the activity claimed to be an aboriginal right an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right? (onus on claimant) (a) Identify the nature of the claim (b) Determine if it was part of a pre-European contact practice that was integral to the distinctive culture in question (central, not incidental, but need not be unique) (c) If so, was there sufficient continuity between the modern activity and the traditional practice? (2) If there is an aboriginal right, has it been extinguished? (onus on Crown) (a) Does the legal regulation demonstrate a "clear and plain" intention to extinguish the right?


(3) If the aboriginal right has not been extinguished, can the claimant show a prima facie infringement? (onus on claimant) (a) Is the limitation unreasonable? (b) Does it pose undue hardship? (c) Does the regulation deny rights holders the preferred means of exercising their right? (4) Can the government justify the infringement? (onus on Crown) (a) Is there a valid objective on the part of the Crown? (b) Is the government employing means which are consistent with their fiduciary duty to the aboriginal nation at issue? i) Was the infringement as minimal as possible ii) Were their claims given priority over other groups iii) Was the effected aboriginal group consulted iv) If there was expropriation, was there fair compensation? 3. Reasoning: In the case at bar, Dickson and La Forest find that the issues at stake were not properly dealt with; the case needs to go back to trial and seek further evidence applying the test set out by the Court . s. 35(1) is not subject to s. 1 of the Charter. In our opinion, this does not mean that any law or regulation affecting aboriginal rights will automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1). 4. Rules: Aboriginal rights are not frozen in time all aboriginal rights that were not extinguished before 1982 must be dealt with as they develop in the modern world. a) In order to extinguish an aboriginal right, the Crown must make it "clear and plain" that the intended to do so; simply regulating an aboriginal right does not amount to extinguishing it. b) The Crown owes a fiduciary duty to aboriginals in recognition of their "special relationship". c) Establishes the test for the analysis of aboriginal rights in light of 35(1). 5. Held: Appeal and cross-appeal dismissed; new trial ordered H.R. v. Sappier; R. v. Gray: he respondents, S and P who are Maliseet and G who is Mikmaq, were charged with unlawful possession of or cutting of Crown timber from Crown land. 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. Had no intention of selling the logs or any product made from them. Defense was that they possessed an aboriginal and treaty right to harvest timber for personal use. 1. Issues: whether a practice undertaken for survival purposes can meet the integral to a distinctive culture test. 2. Old rules: 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 (Van der Peet). A court should 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. a) Understand how that resource was harvested, extracted and utilized. b) 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 3. New rules: an aboriginal right can be based on evidence showing the importance of a resource to the pre-contact culture of an aboriginal people. 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. a) 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. b) The nature of the right cannot be frozen in its pre-contact form but rather must be determined in light of present-day circumstances. c) 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. d) Practices being undertaken for survival purposes does not mean that they cannot constitute aboriginal rights. e) Aboriginal "culture" in the Van der Peet test means the pre-contact way of life. f) Aboriginal rights are not present in resources only in practices, traditions or customs that might relate to resources. g) Aboriginal rights are limited to the territory where they were originally practiced. 4. Reasoning/analysis: the jurisprudence weighs in favour of protecting the traditional means of survival of an aboriginal community. Conclude that the practice of harvesting wood for domestic uses was integral to the pre-contact distinctive culture of both the Maliseet and Mikmaq peoples. a) as long as a practice is distinctive there is no reason that it should be incapable of forming an aboriginal right merely because it was undertaken in order to survive.


b) critical that the court identifies the specific aboriginal right that helps define the distinctiveness of the particular aboriginal community. In the case at bar, the right is solely to harvest wood for domestic, not commercial, purposes; a communal right. c) the fact that harvesting wood was done for survival purposes is sufficient to make it an integral part of the aboriginal culture. He stresses that aboriginal rights must be able to evolve over time 5. Held: The appeals should be dismissed. The respondents made out a defence of aboriginal right. I. R. v. Powley: P and son charged w/ unlawfully hunting moose w/o license. Claimed that metis had right to hunt for food. 1. Issue: whether members of the Mtis community in and around Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35 2. Reasoning: Mtis in s. 35 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, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears. a) 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. A pre-control test establishing when Europeans achieved political and legal control in an area and focusing on the period after a particular Mtis community arose and before it came under the control of European laws and customs is necessary to accommodate this history. b) Modify the pre-contact focus of the Van der Peet test when the claimants are Mtis to account for the important differences between Indian and Mtis claims 3.Rule/Test a) Modified Van der Peet Test for Metis people: (1) Characterization of the Right being claimed: the right to hunt for food in the environs of Sault Ste. Marie. The periodic scarcity of moose does not in itself undermine the respondents claim. 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: the existence of an identifiable Mtis community must be demonstrated with some degree of continuity and stability in order to support a site-specific aboriginal rights claim. Here, we find no basis for overturning the trial judges finding of a historic Mtis community at Sault Ste. Marie. This finding is supported by the record and must be upheld. (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. 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. (4) Verification of the Claimants Membership in the Relevant Contemporary Community: 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. In addition, the criteria for Mtis identity under s. 35 must reflect the purpose of this constitutional guarantee: to recognize and affirm the rights of the Mtis held by virtue of their direct relationship to this countrys original inhabitants and by virtue of the continuity between their customs and traditions and those of their Mtis predecessors. We would look to three broad factors as indicia of Mtis identity for the purpose of claiming Mtis rights under s. 35: (a) Self-indentification: as member of Metis community, should not be of recent vintage. (b) Ancestral connection: to a historic Metis 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 (c) Community acceptance: 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. Membership in a Mtis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Mtis community. 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. Or evidence of participation in community activities and testimony from other members about the claimants connection to the community and its culture. The fact that the Powleys ancestors lived on an Indian reserve for a period of time does not negate the Powleys Mtis identity (5) Identification of the Relevant Time Frame: 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


recognize and affirm the aboriginal rights of the Mtis, who appeared after the time of first contact.The record fully supports the finding that the period just prior to 1850 is the appropriate date for finding effective control in this geographic area, which the Crown agreed was the critical date in its pleadings below. (6) Determination of Whether the Practice is Integral to the Claimants Distinctive Culture: evidence supports the trial judges finding that hunting for food was integral 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: A certain margin of flexibility might be required to ensure that aboriginal practices can evolve and develop over time. Hunting for food was an important feature of the Sault Ste. Marie Mtis community, and the practice has been continuous to the present. The right claimed by the Powleys falls squarely within the bounds of the historical practice grounding the right. (8) Determination of Whether or Not the Right Was Extinguished: There is no evidence of extinguishment here, as determined by the trial judge. (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 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. (10) Determination of Whether the Infringement Is Justified: record here does not support this justification. On the available evidence and given the current licensing system, Ontarios blanket denial of any Mtis right to hunt for food cannot be justified. 4. Held: Members of the Mtis community in and around Sault Ste. Marie have an aboriginal right to hunt for food under s. 35(1). Appeal and cross appeal dismissed. J. Haida Nation v. British Columbia: BC issued a Tree Farm License 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 1. Issue: 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 2.Reasoning: a) Source of duty to consult and accommodate: The governments duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown. Honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith. b) Analysis (1) When the duty arises: 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 (2) Scope and content of duty - existence of duty: The content of the duty to consult and accommodate varies with the circumstances. At all stages, good faith on both sides is required. There is no duty to agree; rather, the commitment is to a meaningful process of consultation. (a) Strength of the case: 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. i) 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 (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). (b) Seriousness of the impact: whether the Crowns duty went beyond consultation to accommodation? look at both strength of case and seriousness of impact for this answer, if have both, will need accommodation. (3) Whether it applies to prov not just fed govt - did Crown fulfill its duty: The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that the Province took the lands subject to this duty


c) Whether duty extends to 3rd parties: 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 3. Rule: 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. 4. Conclude: conclude that the government has a legal duty to consult with the Haida people 5. Held: The Crowns appeal should be dismissed. Weyerhaeuser Co.s appeal should be allowed K. Taku River Tlingit First Nation v. British Columbia (Project Assessment Director): mining company has sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation (TRTFN) 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. 1. Issues: the limits of the Crowns duty to consult with and accommodate Aboriginal peoples when making decisions that may adversely affect as yet unproven Aboriginal rights and title claim 2. Rules: Where there is a duty to consult, as long as consultation is done meaningfully then the duty is discharged there is no ultimate duty to reach an agreement. a) Duty to consult and accommodate: The Crowns duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown. The duty to consult varies with the circumstances. It may require accommodation. b) When duty arises: It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. c) What Was the Scope and Extent of the Provinces Duty to Consult and Accommodate: The scope of the duty to consult is proportionate to a preliminary assessment of 1) the strength of the case supporting the existence of the right or title, and to the 2) seriousness of the potentially adverse effect upon the right or title claimed . 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. d) Did Crown fulfill duty to consult and accommodate 3.Analysis: a) Crowns obligation to consult the TRTFN was engaged in this case. The Province was aware of the TRTFNs title and rights claims and knew that the decision to reopen the mine had the potential to adversely affect the substance of the TRTFNs claims. b) The TRTFNs claim is relatively strong, supported by a prima facie case, as attested to by its inclusion in the Provinces treaty negotiation process. While the proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title, the potential for negative derivative impacts on the TRTFNs claims is high. On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation. c) 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. 4. Held: conclude that the consultation and accommodation engaged in by the Province prior to issuing the Project Approval Certificate for the Tulsequah Chief Mine were adequate to satisfy the honour of the Crown. The appeal is allowed L. Delgamuukw v. British Columbia: 1. Issues: 1) What is the nature of the protection given to aboriginal title under s. 35(1) of the Constitution Act, 1982? 2) Did the province have the authority to extinguish the title after confederation? 2. Reasoning: aboriginal title definitely does exist and further that provincial governments never had the jurisdiction to extinguish it because it falls under federal jurisdiction under s. 91(24) of the Constitution Act, 1867. a) That aboriginal title is special for a few reasons. It is inalienable it cannot be transferred to anyone other than the Crown. Its source is unique as it arises from occupancy before sovereignty. Finally, the aboriginals hold the title communally. The court states that aboriginal title is given full protection under s. 35(1). They also establish the test for determining if aboriginal title exists. (tests below) b) This relationship is special because both the ideas of the common law and the aboriginal traditions must be taken into consideration when making the decisions, as aboriginals are a unique case and must be given respect in terms of their traditions and laws. c) in aboriginal title claims they are talking about record from before the time they were written down. Therefore, in order to claim their title the courts have to accept the oral history from the members of the first nation. The Supreme Court holds that oral histories must be given weight.


3. Rules/Tests: Only the federal government can extinguish aboriginal title. Aboriginal title is inalienable to anyone but the Crown, it arises before sovereignty, and it is held communally. Lays out the test to establish aboriginal title. Lays out the test for infringement of aboriginal title. a) For aboriginal title, meet following criteria: (1) the land must have been occupied before sovereignty, (2) there must be a continuity between pre-sovereignty and modern times (but not an unbroken chain) (3) at the time of sovereignty, the occupancy must have been exclusive (but it could have been jointly exclusive by more than one party or tribe). b) This is not an absolutely protected title. It can be infringed upon if the infringement passes a two-part test: (1) the infringement must be in furtherance of a legislative objective that is compelling and substantial, (2) the infringement must be consistent with the special relationship between aboriginals and the Crow 4.Analysis: a) Do the pleadings preclude the Court from entertaining claims for aboriginal title and self-government? b) What is the ability of this Court to interfere with the factual findings made by the trial judge? c) 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? d) Has a claim to self-government been made out by the appellants? e) 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? 5. Held: The appeal should be allowed in part and the cross-appeal should be dismissed. M. Tsilhqotin Nation v. British Columbia: 1.Aboriginal title a) The nature of aboriginal title: it is sui generis (one of a kind): it is held communally, cannot be held by individuals. It is inalienable to third parties, but can be surrendered to the crown. (1) Underlying title remains w/ Crown. It contains an inherent limit on the uses Aboriginal peoples can make of their lands. Thus lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants attachment to those lands. (2) Aboriginal title is a species of Aboriginal right which differs from Aboriginal rights to engage in particular activities. It confers a sui generis interest in land, that is, a right to the land itself. That interest can compete on an equal footing with other proprietary interests: (3) Aboriginal title confers a right to exclusive use, occupation and possession to use the land for the general welfare and present-day needs of the Aboriginal community: (4) Aboriginal title also includes a proprietary-type right to choose what uses Aboriginal title holders can make of their title lands. Title is subject to an inherent limit which is defined by the nature of the attachment to the land which forms the basis of the particular groups aboriginal title b) Test for aboriginal title: (1) Pre-sovereignty occupation: must establish that 1) they occupied the lands in question at the time when the Crown asserted sovereignty over those lands. If present occupation is relied on as proof of occupation pre-sovereignty, 2) there must be continuity between present and pre-sovereignty occupation. And finally, 3) occupation must have been exclusive: (2) Exclusivity: Exclusive occupation may be demonstrated by the ability to exclude others, including the intention and capacity to retain exclusive control of the lands (3) Continuity: Continuity is not a mandatory element for proof of Aboriginal title. It becomes an aspect of the test where an Aboriginal claimant relies on present occupation to raise an inference of pre-sovereignty occupation of the claimed territory. Claimants must demonstrate that a substantial connection between the people and the land has been maintained. (a) Where an Aboriginal group provides direct evidence of pre-sovereignty use and occupation of land to the exclusion of others, such evidence establishes Aboriginal title. There is no additional requirement that the claimant group show continuous occupation from sovereignty to the present-day. N.R. v. Marshall; R. v. Bernard: 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. 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


1. Issues: 1) 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? 2) More precisely, do they have treaty rights or aboriginal title entitling them to do so? (what is the test?) 2. Treaty Reasoning: there must be evidence that a similar practice to logging for trade was done at the time the treaties were created. They find no evidence that this was the case, and therefore the treaty did not protect the right a) Logging was not a traditional Mikmaq activity. Rather, it was a European activity, in which the Mikmaq began to participate only decades after the treaties of 1760-61 commercial logging that formed the basis of the charges against the respondents was not the logical evolution of traditional Mikmaq trading activity protected by the treaties of 1760-61. b) The treaty gave the Mi'kmaq the right to continue their trading activities as they were established in 1760. because there was no logging trade in 1760, the practices of the accused were not modern development of a treaty right, and were not protected at all 3. Test for determining treaty trade right: if the aboriginal people participated in a trade that can be said to be the precursor to the modern practice at the time the treaty was signed. 4. Aboriginal rights Rules: The common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to that land, continues to enjoy title to it.The Crown can impinge on aboriginal title only if it can establish that this is justified in pursuance of a compelling and substantial legislative objective for the good of larger society. 5. Reasoning for Aboriginal title: the defendants did not possess a treaty or permit to the lands concerned, and had not occupied them to the extent necessary to establish aboriginal title. They also discuss that in some cases where aboriginal title is not found, permission to use the land for agricultural or traditional reasons may be permitted, but this is not the case here. 6. Test for land title In order to be deemed to "occupy" lands to a satisfactory extent of being able to claim aboriginal title to them, one must establish that they regularly use a defined piece of land for a certain purpose. a) The first is the requirement that both aboriginal and European common law perspectives must be considered. 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. b) The second relates to the variety of aboriginal rights that may be affirmed (1) Exclusion: The right to control the land and, if necessary, to exclude others from using it is basic to the notion of title at common law (a) 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 (2) Whether nomadic and semi-nomadic peoples can ever claim title to aboriginal land : hether a nomadic people enjoyed sufficient physical possession to give them title to the land, is a question of fact, depending on all the circumstances, in particular the nature of the land and the manner in which it is commonly used (3) Continuity: Modern-day claimants must establish a connection with the pre-sovereignty group upon whose practices they rely to assert title or claim to a more restricted aboriginal right To claim title, the groups connection with the land must be shown to have been of a central significance to their distinctive culture (oral history as proof is accepted) c) 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: Delgamuukw. 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: Delgamuukw. 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. 7. Held: The respondents treaty rights did not extend to commercial logging and trial judge correctly rejected the claim for aboriginal title in the relevant areas. Appeal allowed, convictions restored. Cross appeal in Marshall is dismissed.


John Borrows: Indigenous Legal Traditions I. Legal pluralism in Canada - Legal tradition: set of deeply rooted, historically conditioned attitudes about the nature of law, about role of law in society and polity, about proper organization and operation of a legal system, and about the way law is or should be made, applied, perfected, and taught. It is an aspect of general culture and can be distinguished from a national legal system if a states national system does not explicitly recognize the force of its legal traditions. It is a cultural phenomenon that provides categories into which the untidy business of life may be organized. - Legal pluralism: the simultaneous existence within a single legal order of different rules of law applying to identical situations. - Canada is a legal pluralistic state: civil, common and indigenous legal traditions organize dispute resolution in different ways. Aboriginals speak over 50 different languages. Debate over what constitutes law and whether indigenous practiced law prior to arrival of Europeans. Some say they were pre-legal. They had treaties, inter-marriages, re-settlements, war and extended periods of peace.vFirst treaties involved indigenous laws. Traditions governed confederacy of relations between nations. Over 500 treaties involving indigenous legal traditions. - Indigenous legal order: europeans submitted to this - traders, explorers adopted indigenous legal traditions and participated in their laws. - Doctrine of continuity: continuity of their customs, laws, traditions upon crowns sovereignty. (R.v.Mitchell Chief McLachlin wrote that interests did not terminate arising from historical occupation, unless 1) they were incompatible w/ crowns assertion of sovereignty, 2) they were surrendered voluntarily via treaty process, 3) the government extinguished them. A. Civil law legal traditions pg. 184 - powerful legal tradition b/c of its historic use and relationship so societal culture in which it is applicable. B. Common law legal traditions pg. 187 - Tradition operates through stare decisis - principle that decisions in previous cases are applied to current cases which are materially similar, and in their decisions, judges are expected to provide reasons justifying their selection of applicable cases and principles. Provides measure of uniformity in the law and attempts to avoid arbitrariness in decision making. - Hierarchy of courts: lower decisions appealed to higher courts, decisions of high or superior courts is binding on lower court or inferior tribunals. Hierarchy promotes uniformity and attempts to remove arbitrariness from legal system.


C. Indigenous legal traditions pg. 189 - Developed through spiritual, political, social customs and conventions to guide their relationships. Traditions are orally recorded. Rely upon elders or sanctioned wisdom keepers to identify and communicate law. Have ceremonies and rituals that enable them to participate in law. Resolve ambiguities through interpretation - powers of interpretation should not be with judges or legislators. Those with less formal power should also have role in deciding how customs and practices should apply. D. The relationship of Canadas legal traditions pg.196 II. Entrenching Multi-jurisdicalism in Canada - Canada can recognize and develop indigenous legal traditions: by having greater recognition of indigenous governments and dispute resolution bodies through courts, parliament, legislatures, executive, law societies and law schools. A. Indigenous governments pg. 198 - Develop indigenous constitutions or applications of their culturally appropriate legal traditions. They have right to self determination and could act freely to determine political, economic, social and cultural development by determining legal issues w/n their own communities in accordance w/ their own values. Should draw on their cultures best practices and procedures in the law making powers. - Cases and existing rights pg .201 Live in organized societies; have the default control to dispute resolutions. Indigenous peoples ability to implement and develop laws, internal to their communities and integral to cultures, could be considered w/n scope of federal policy - makes it clear that indig. governance rests on indig legal traditions. Fed govt should modify and implement recommendations of royal commission of aboriginal peoples (pg. 207) B. Indigenous courts and dispute resolution bodies - pg. 208 should recognize or create institutions to exercise dispute resolutions powers over matters internal to their communities. Laws must embrace a communitys deeper normative values to be a just and effective force in facilitating peace and order. C. Indigenous law recognition and harmonizations acts - pg. 215 Should pass legislation recognizing indigenous laws on their own terms and create mechanisms to harmonize these laws w/n canadas legal traditions. Harmonization process should deal with protocol and power imbalance that indigenous peoples will be concerned with in the identification and implementation of their legal traditions. Indig trad must embrace contemporary human rights concerns - reformulate traditions in a way that integrates traditional and contemporary normative values and if the govt secures protection and harmonization of these laws w/n the canadian state. D. Canadian and indigenous legal institutional development - pg .220 recognition, implementation and harmonization of indig legal trads would involve other canadian legal institutions, prov law societies would play a role, US has Indig law Society. Create greater role for indigenous legal education, indig law schools. III. Conclusion - pg. 220

de Mestral and Fox-Descent: Rethinking the Relationship between International law and Domestic law I. Introduction - Article argues that canada has not struck the appropriate balance between domestic and international law. Result is that canadian institutions have failed to articulate a persuasive content of the relationship between domestic and international law. Recommend that Canada should adopt a treaties act to support participation of legislators in the treaty-making process and formalize the modes through which treaties may be implemented and received into canadas domestic law. Argue that treaties should be viewed as implemented, and therefore capable of producing domestic effects. II. Background: Canada and the challenge of international law A. The impact of international law on domestic law making - Customary international law: source of domestic legal rules unless state takes explicit measures to ensure that a particular customary rule does not have the force of domestic law. Customary rule can be applied by courts in litigation between citizens. Can also limit exercise of public authority and may equally define the parameters within which a state may legitimately legislate (can define limits of a jdx of states over persons and territory). B. The democratic principles - Dualist approach pg. 581: conceives international and domestic law as operating in separate domains, can be seen as motivated by a desire to protect canadians from the unlicensed intrusion of international law. Allows to pick and choose bits of international law it wishes to receive into domestic law through legislative implementation. Dualism appeals to democratic ideal. - Monist approach: affirms that treaties always have direct domestic effect merely upon ratification. - Recommended: rules of customary law should be enforceable by courts unless legislature stated that rule is of no effect. Propose treaties should be recognized as part of a common normative order that treats international law and domestic law as a unity. III. The current relationship between domestic and international law - Canada is dualist. A. Customary international law in Canada


- Two theories for adopting international law into domestic law: pg. 583 - 1) adoption theory: international law is automatically part of domestic law except in cases where it conflicts with domestic statutory laws or the common law. (forms part of common law) 2) Transformation theory: international law can only become incorporated when it has been integrated into domestic law by way of legislative enactment. - Rule holding that customary international law is genuinely part of domestic law appears to be firmly entrenched into canada - as long as it does not conflict with existing canadian law. (cases showing this pg. 585) B. Treaty law and treaty making in Canada - implementation process pg 588: range of steps that state can take to ensure its compliance with treaty. 1. How does Canada enter into treaties - governed by Vienna convention. Look at federal and cabinet committee process pg. 591. Ratification pg. 593 2. Where did the Canadian approach come from and what is currently driving it a) Sources of the Dualist approach - Rule that federal division of legislative powers requires treaties to be implemented in accordance with the federal principle. pg. 595 b) Legislative interpretation and the principle of conformity c) Treaty approval IV. The way forward A. The U.K. Example pg. 602 B. Parliamentary Authorization, Review, Participation, and Oversight 1. The processes and structures of other states 2. Canada in historical perspective 3. Canadas new policy - treaty tabling policy is a political gesture w/o much legal importance. 4. On democratic legitimacy - take steps for closer alignment of domestic and international law making process w.n law making structure states. 5. On a Canada Treaties Act -enact this to regulate process of treaty making, implementation and ratification at the federal level. pg. 616. C. Rethinking Implementation 1. Canadian implementation practice - there are 13 modes of implementation pg. 617, others are on pg 622. 2. Implementation options and canadian constitutional principles - Approaches to international law (7) that would be compatible w/ unwritten constitutional principles pg. 626 3. Enhanced legal status for treaties under a Canada Treaties Act - pg. 630 4. On alternative approach: The common law status of treaties D. The role of judges and administrative decision makers pg. 639 E. The role of provinces pg. 643, pg.645