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Derived from the BNA Act, which came from England. Document written by men, and steeped in tradition of male dominance. b. Example is case that tried to define person and whether or not that included women. Can be argued that Charter & predecessor documents shaping Canadian law are white-male dominated, and uphold political agendas of the rich. c. Noble Wolf (p.12) states It is within the province of the competent legislative bodies to discuss & determine what is best for the public good. This exemplifies notion that upper class white males are determining what is best for the public good. Falls under Critical Legal Theory. Positivism a. Def: Law is nothing more than rules & principles that actually govern/regulate society. Concerned with what is legally valid, not morally valid. b. Characteristics: insists on separation between law and morality; focuses on describing laws without reference to justness/legitimacy/fairness. c. Note: Strict statutory arguments, without consideration of public policy or greater good are based on Positivism. Re Noble and Wolf. Racially restrictive covenant on land. Public policy v. contract principles argument. Contract (statutory) argument won. Natural Law a. Def: Aspirational. Laws are not simply all rules that govern us, but only those that adhere to certain universal moral truths. b. Note: When you see public policy arguments, this falls under Natural law. Drummond Wren (p.8) Feminist Perspective a. Def: Feminism takes issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision of what justice might be. Belief that legal system is paternalistic & male centered. b. Early Feminisms: Attempted to replace laws that favored men w/ gender neutral. EG: Edwards v. AG Canada (p.17) should women be considered people which is statutory language to determine who can be a Senator. Exemplifies that the Charter & BNA Act not fair to women was ambiguous in terms as to who was a qualified person to serve in Senate. c. Contemporary Feminism: Abortion issue exemplifies contemporary feminism. i. R v. Morgantaler (p.21) Constitutionality of abortion. Charter of Rights v. Criminal Code. ii. Before this case, woman seeking abortion must apply to a board of Drs. Majority (all male justices) found the abortion restrictions do not comport with principles of justice in the procedural sense. Concurring opinion (female justice) focused on feminist topics such as rights in a wider social context, the female experience. iii. She focused her argument on the right of liberty found in Charter v. the Criminal Code infringing on this requirement by taking decision away from women. Critical Legal Theory 1





a. Basic Principle: Law, far from attempting to symbolize justice, institutionalizes and legitimates the authority & power of particular social groups or classes. b. Rejects that there is any kind of natural legal order discoverable by objective means. 3 ideas: i. Hegemonic consciousness: Western laws are maintained by a system of beliefs that have their foundation in a liberal, market driven economy, which reflect interests of a dominant class ii. Reification: The belief that Westerns laws are reified into a material thing: they are presented as essential, necessary & objective. iii. Denial: Laws/legal thinking are denial of real truths. (Eg: law of equality & reality of discrimination) c. R v. R.D.S. (p.26) discusses the possible bias of a judge (black) against a police officer in a criminal case against a young black male. Majority argument that judge should be able to refer to social context in making judgment. Dissent: argued the judge was bias against police officer, and new trial should be ordered. VI. Law & Economics a. Traditional Law & Economics: applies economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient. b. Public Choice Theory: Applies basic economic theory to try understand public policy. Tries to explain govt intervention as a corrective to market failure. Assumes that policy makers act to maximize political support. c. Major Theme: to show how common law has been displaced by policy formation (legislation) as primary means of social regulation. d. Duncan Estate v. Baddley (p.37): Determining if loss of future earning capacity (after death) is actual financial loss. Argument based on legislative meaning what did the legislature mean by actual financial loss. e. Bhaduria (p.42) - Public choice theory. The Code itself has laid out the procedures for vindication of that public policy, procedures which the P did not see fit to use. Legislative intent that you should first go exhaust Administrative remedies before court. f. Hill v. Church of Scientology g. Morris Manning, Church lawyer, commented upon allegations in a notice of motion by Scientology, intending to commence criminal contempt proceedings against a Crown Attorney, Casey Hill. 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 untrue. Hill launched a lawsuit for damages in libel against the appellants. h. In L'Heureux-Dub's concurring reasons her analysis of the Charter issue applying to common law is succinctly stated: (at 206): 1 The Charter does not directly apply to the common law unless it is the basis of some governmental action. 2 Even though the Charter does not directly apply to the common law absent government action, the common law must nonetheless be developed in accordance with Charter values. In other words, the basic rule is that absent government action, the Charter applies only indirectly to the common law.



Aboriginals cultural, political, economic and legal systems/rights not protected after colonization. But in 1982, with the patriation of the Constitution, aboriginal rights were constitutionally entrenched in s 35 of the Constitution Act, 1982. a. Mitchell v Canada and Delgamuukw v BC interpreted s 35 (see in Aboriginal section) Canadas Common Law & Civil Law Traditions a. British concepts of reception determined how Canadas common law and statutory law was received. English law in Canada dependent on whether or not colony was conquered or settled. i. Conquered: Pre-existing laws of indigenous sovereign remained in force, subject to modification/replacement by Crown/Parliament where necessary to operate govt. ii. Settled: Some form of law was required to govern new colonies. Mix of common law & statutory law from England. Nature of Common Law & Civil Law a. Common Law: English invention. It is judge-made law, developed through the common law courts (as opposed to the Court of Chancery). i. Two fundamental theories: (1) Judges do not make the law but merely declare it; (2) all the relevant past decisions are considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance. ii. Common law methodology, even where statutory sources of law are present, employs
analogical reasoning from statutory provisions to fill in gaps.



b. Civil Law - Quebec: Civil law is based on established laws, normally written as broad legal
principles. i. The difference between civil and common law lies more in their different methodological approaches. In civil law countries, legislation is seen as the primary source of law. ii. Judgments normally rely on the provisions of codes and statutes. Judicial reasoning is based extensively on the general principles of the rule or code.


Operation of Common Law & Precedent a. Stare Decisis: How common law relies on precedent. b. Advantages/benefits: i. Stability/coherence of the law, more predictable ii. Fairness in decision making;
iii. Promotes efficiency & eliminates judicial bias); iv. Symbolic role by recognizing relationship between courts & legislature; v. Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); vi. Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society ) (e.g. can talk about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive)

c. Disadvantages/problems: i. Rigidity - once a rule is laid down, it is binding + Perpetuation of errors; ii. Bulk/complexity (so much law, difficult to learn it all; lay people cant access it iii. Slowness in growth (the system depends on litigation for rules to emerge); iv. Easy to distinguish 3


Common Law & Equity a. Original function was to provide a corrective to perceived harshness of common law. Cases were decided according to rules of equity & good conscience no strict doctrine of precedent. b. Supplementary system that allows for the need of the special case. Principles are tied to consideration of conscience, morality & conduct of particular person than those of the law. c. Common Law & Equity now applied concurrently in all superior courts, with equity prevailing in cases of conflict. i. Property (trusts), contracts (remedies: specific performance, mistake) procedure, guardianship, fiduciary duties International Law a. Distinguish between treaties (contracts between states who take part in treaty) and customary
international law (entrenched norms binding on all states, except those who have repudiated them by practice)


b. Treaties: i. Canada has a dualist tradition an international treaty has no direct effect in domestic
law until domestic legislation passed to transform or implement the law into Canadian law by an act of Parliament (if a federal matter) or provincial Legislatures (if a provincial matter).

ii. Disadvantages: implementation issue no clear rules on when a treaty has been implemented into Canadian law. iii. Baker v. Canada (this section not in book) An indicator of the importance of considering the interests of the child is Canadas ratification of the Convention on the Rights of the Child, and the recognition of the importance of childrens rights and their best interests. 1. International treaties and conventions are not part of Canadian law unless implemented by statute. Here, respondent and Court of Appeal are correct in that Convention has not been implemented by Parliament, and therefore its provisions have no direct application within Canadian law. iv. Suresh v. Canada (not in book): Since a UN deportation prohibition was not replication in Canadian immigration law, it had not been implemented. However, the Treaty could still inform the content of the Charter. Principle that you can use unimplemented treaties to aid in interpretation of legislation, but the treaty would not actually be binding. c. Customary International Law i. Once rule becomes recognized as customary law, it is AUTOMATICALLY part of Canadian Common Law ii. However, can always be displaced or overturned by a Statute that is inconsistent with it. Can be ousted by contrary legislation. d. De Guzman v. Canada (not in book) : FACTS: Ms Gs application to have her sons
sponsored for admission to Canada was refused under the Immigration and Refugee Protection Regulations. Ms G argued, inter alia, that the relevant provision is invalid. One ground was that it is inconsistent with international human rights instruments to which Canada is a signatory, and which protect the right of families to live together and the best interests of children.

e. ISSUE: Is paragraph 117(9)(d) invalid because it renders the IRPA non-compliant with
international human rights instruments to which Canada is signatory

f. REASONING: To conclude that the terms of the IRPA, which have been debated and approved
by Parliament, are overridden by a conflicting international legal instrument does not respect the legislative process in this country. Only express indication of such a principle by Parliament would allow such an outcome

i. Further, Hesistant Embrace argues that courts have not always made it clear how
influential international law should be in the interpretation of domestic legislation. ii. Sometimes it is treated as merely persuasive, while at other times it is presumed to be determinative, unless the statutory text is irremediably inconsistent with international law.

g. HELD: I conclude that paragraph 3(3)(f) does not incorporate into Canadian law international
human rights instruments to which Canada is a signatory, but merely directs that the IRPA must be construed and applied in a manner that complies with them

h. St Hilaire v. Canada (Bijuralism): W killed H and sought to collect his annuity. Treasury Board
refused to pay on grounds that public policy rule made it illegal for someone to profit from their crime. W applied to Federal Court, where ruled that law of successions defined in Civil Code of Quebec allowed one to profit if there was no intention to commit the alleged crime (manslaughter fell outside).

i. Issue: Whether 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. If so, is W unworthy to inherit under 620(1) of the Civil Code of Quebec.

j. Held: To determine the meaning of the words surviving spouse and succession when the
federal statute is silent, its necessary to refer to the Civil Code of Quebec and not the common law. Since W was convicted of making an attempt on the life of the deceased, she was unworthy to inherit under 620.

k. DISSENT - In Quebec, the ordinary law of the province is made up of the Civil Code of
Quebec and the Code of Civil Procedure, although these are statutory documents. A judge who must interpret and apply a federal enactment that is silent in a dispute concerning civil rights in Quebec must use the civil law to supplement. The civil law applies in Quebec to any federal legislation that does not exclude it. A federal statute, albeit one characterized as public law, that refers to a private law concept without defining it, should be interpreted in Quebec in terms of civil law.

l. Further discussion on Intl Treaties & Bijuralism attached

FUNDAMENTAL PRINCIPLES OF CANADIAN LEGAL SYSTEM (Ch.3) I. Constitution Background a. Public law = relationship b/w state & civil society 5

b. In society governed by Rule of Law, state must act in accordance with the law. i. **Starting point in assessing the legitimacy of state action is the Constitution** c. Constitution established foundational law through which the rule of law can occur. i. First, it establishes as a matter of law who can make ordinary law of land & spells out any limits on the content of this ordinary law. ii. Secondly, Const. establishes relationships b/w the branches of state that perform the functions to operate law in society. 1. Legislature = make law 2. Judiciary = Interpret law 3. Executive = Implement law d. Principle of Constitutionalism: All Govt action must comply with the Const. Const. is the Supreme law of Canada, and any law inconsistent with the provisions of the Cost. Is of no force or effect. e. Halpern v. Canada (p. 81): Definition of marriage. Court argued that common law definition of marriage is subject to Charter scrutiny. Progressive constitutional interpretation argument a living Constitution. II. Rule of Law a. Rule of law is similar, but broader than the concept of constitutionalism. Rule of law is a prerequisite to constitutionalism. Principle requires that all govt action must comply with the law, including the Const. b. Roncarelli v Duplessis (p. 92): No legislation can, without express language, give unlimited arbitrary power to officials. i. Decision is to be made based upon a weighing of considerations pertinent to the object of the administration; not based upon the whims and prejudices of an official.Fully discretionary power of an administrative board to license is subject to the rule of law. There is no such thing as absolute discretion in discharging public duty. c. BC v Imperial Tobacco Canada (p. 98): BC govt act allowed govt to recover health care costs from Tobacco companies. Tobacco argued unconstitutional under rule of law. Ex post facto laws allowed under the constitution. d. Also, p. 102 states that protection from unjust legislation is not found in the constitution, but in the ballot box (parliamentary supremacy?) In the case, the court described the rule of law as embracing 3 principles: 1. The law is supreme over officials of the government as well as private individuals (i.e. the law applies to everyone equally) 2. 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 (i.e. must be positive law) 3. Requires that the relationship between the state and the individual be regulated by law a. HOLDING: Except for criminal law, retroactive laws are allowed. No prohibition on ex post facto laws, but laws must explicitly state they apply retroactively. 6


Unwritten Constitutional Principles (Ties into authority for Judicial Independence ch.6) a. Re Secession of Quebec (p. 95, see separate page): Unwritten Const. principles are important to understanding the legal constraints under which public power is exercised by the Canadian state: i. they help interpret the Constitution; AND ii. most strikingly, they have the force of law and serve to impose SUBSTANTIVE limits on the powers of government. iii. However, these principles are secondary to the written text and their role to date has been limited to filling gaps in the text. b. The 4 Principles & lifeblood of the Constitution: i. Federalism: quoting from Patriation (p. 107): A Federal govt where all provinces should be represented, entrusted with the exclusive administration of affairs in which they have a common interest, each province retaining its independence. ii. Democracy iii. Constitutionalism & Rule of Law: All govt action must comply with the Const & all govt action must comply with the law, including the Const. iv. Respect for Minorities


Constitutional Conventions a. Another species of unwritten Const. norms. b. The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values. c. Conventions are not based on judicial precedents, but on precedents established by the intuitions of govt themselves. d. Conventions represent accepted understandings of how organs of govt operate. e. They are NOT law, and cannot be enforced by courts. They retain their binding force by agreement (in realm of politics). However, Courts may recognize convention. f. Conventions come into existence on the basis of 3 factors: i. Practice/agreement by political actors ii. Recognition by political actors that they are bound to follow convention iii. Existence of a purpose for the convention. 1. Put another way in Patriation: First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; thirdly, is there a reason for the rule? g. The Patriation Reference (p. 106) Constitutional Conventions i. When a federal/provincial statute is found by the courts to be in excess of the legislative competence of the legislature which has enacted it, it is declared void and the courts refuse to give effect to it. In this sense it can be said that the law of the constitution is administered or enforced by the courts. ii. p. 108 Constitutional conventions are not enforced by the courts. Conventions are not judge made rules. They are based on precedents established by the institutions of government themselves. 7


Constitutional Supremacy a. With s 52(1) of the Constitution Act, 1982, the Canadian system of government now operates under a principle of constitutional supremacy b. The essence of constitutionalism in Canada is that all government action must comply with the Constitution c. With the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy d. Hierarchy of Law: To state that Const is the supreme law of Canada implies hierarchy of law. i. Parliamentary Supremacy stands for proposition that a rule of common law can be overridden or amended by express statement of legislature in form of a Statute. Const. trumps both of these. ii. Adjudication: To effect Const supremacy requires adjudication of inconsistencies b/w Const & ordinary law. 1. Const interpretation cant be performed by same body that enacts ordinary law subject to Const scrutiny (legislature). Our system requires that the legislature will be checked by the judiciary with the authority to interpret and apply the Constitution iii. Counter-Majoritarianism: In a system of constitutional supremacy, the power to interpret and enforce the Constitution against majority preferences must be present iv. Reference re Secession of Quebec


Separation of Powers Doctrine a. Separation of the 3 branches is defined by its relationship to the law: Making of law (legislature), Implementing/enforcing law (executive), Applying law/interpreting (judiciary) b. No strict separation between the 3 branches. The parliamentary tradition gives preeminence to the legislative branch, to which the executive is made subordinate. c. Parliamentary system also contemplates an overlapping of personnel b/w legislature & executive. The PM and members of his/her Cabinet, who comprise the executive council advising the head of state, are elected members of the legislature d. Legislative power and parliamentary supremacy: Separated between the federal (the Parliament) and provincial legislatures. i. The principle of parliamentary supremacy is that Canadas federal and provincial legislatures are understood to be the sole sovereign holders of state authority, subject to authority being divided between them along the lines set out in ss 91 and 92 of the Constitution Act, 1867. e. But with the Constitution Act, 1982, Canada adopted both a Charter of Rights and Freedoms and an express declaration of constitutional supremacy (which put new limits on the lawmaking ability of either level of legislature). Thus, the concept of parliamentary supremacy was modified (and constitutional supremacy trumps it)

f. Babcock v. Canada (p.121): (p.120): When, if ever, Cabinet confidences must be disclosed in litigation between the govt & private citizens? Holding is that they dont have to be. The legislature enacted laws that allow the Fed Govt to deem documents confidential. Unwritten constitutional principles must be balanced against the principle of parliamentary sovereignty. i. It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and other branches of govt. VII. Principle of Federalism a. Dividing legislative power between a federal government and regional governments, each being assigned respective spheres of jurisdiction b. Federalism is an unwritten principle of the Canadian Constitution (see Reference re Secession of Quebec); the SCC in that case described this principle as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society VIII. The Executive Power a. The executive derives any power it has solely from the laws or statutes passed by the legislature. That is, the executive must locate any authority it has to act in Canadian society from a statutory source b. The executive, by constitutional convention, is responsible to the legislature which is essentially the meaning of responsible government in the parliamentary tradition Judicial Power a. 2 core jurisdiction of Superior Courts: i. Jurisdiction to rule on the constitutional validity of all ordinary laws in Canada (Constitutional law jurisdiction) ii. Jurisdiction to supervise the activities of the executive govt & other statutorily delegated actors to ensure that they act w/in their statutory authority. (Administrative law jurisdiction) iii. In practice, this role is performed by allowing all persons adversely affected by govt action to petition the superior courts seeking judicial review of whether the executive official has acted within the bounds of his statutory power. This is a core jurisdiction of s. 96 courts and cannot be infringed upon by the legislature X. Cases (attached separately) a. Singh v. Canada (Separation of Powers, Rule of Law) b. Refence re Secession of Quebec (discusses 4 unwritten Const. principles)



a. Structure/operation of Parliament i. Parliament consists of the Queen, an Upper House styled Senate, and House of Commons: s 17, Constitution Act II. The Monarch and Governor General: a. Queen is essentially Canadas head of state. Governor general (who is appointed), in practice, exercises Queens powers b. In practice, the monarch appoints the governor general. But the monarch does so on the ADVICE of the PM (a constitutional convention) The Senate: a. Canada has an unelected (appointed by GG) upper chambers of the federal legislature; the Constitution expressly anticipates the appointment of senators by the governor general (s 24 of the Constitution Act 1867) b. In exercising that power, the governor general follows the advice of the PM, as required by constitutional convention. c. Brown v. Alberta (p. 159) - Brown sought declaration that the provisions of the 1867 Act dealing with the appointment of senators was contrary to democratic principles and should have to conform to the Alberta statute. i. HELD - Brown did not raise a legal issue. He wants the Court to hold that failure to appoint an elected official under Albertas law is undemocratic, not unconstitutional. Court must have jurisdiction before it can make such a statement, and does not have jurisdiction because no legal issues were raised. d. Samson v. AG Canada (p. 162) - Reform Party of Canada sought an interlocutory injunction to restrain the GG from appointing a senator from Alberta, unless that person had been elected pursuant to the Alberta law. i. HELD - Limitations to GGs discretionary power to appoint senators can only be restricted by a Constitutional amendment. IV. House of Commons: a. Members of the House of Commons are elected b. Each riding elects 1 member to the house (the current number of districts, and thus members of Parliament, is 308) c. Canadas electoral system is referred to as a single-member plurality or first-past-thepost system (dont need 50% of more of votes, simply need the most votes) d. After an election, the party with the most elected representatives usually becomes the governing party. e. The leader of this party becomes the PM, and chooses people to head the various government departments f. All the elected candidates have a seat in the House of Commons, where they vote on Bills g. Until recently, the Canada Elections Act required a registered party to run candidates in at least 50 electoral districts. This rule was struck down by the SCC in Figueroa v Canada (p. 165)



Bringing the constituent elements of Parliament together a. Summoning: the calling of Parliament. 10

b. Prorogation: once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation. A prorogation is the prerogative of the governor general, acting on the advice of the PM. i. It ends a session, but doesnt dissolve Parliament ii. It abolished all pending legislation and quashes further committee activity iii. Between prorogation & next session, Parliament is in Recess, and the House in its own sitting is in Adjournment. c. Section 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least once every 12 months (i.e. Parliament cannot be entirely sidelined) d. Dissolution: the dissolution of Parliament prompts a new electoral cycle, governed by the Canada Elections Act. The Constitution Act, 1867 (s 5), and the Charter (s 4(1)) limit the duration of a Commons to 5 years, except in times of war or insurrection. (Note that the PM must resign or seek parliamentary dissolution after a no confidence vote, as a matter of constitutional convention)


No Confidence Vote (Special Committee on Reform of the House of Commons) a. Govt that has lost a vote in the House on a matter of confidence has choice of resigning or asking for dissolution. b. Govt that has lost a vote on some other matter may remain in office & may choose to ask for a vote of confidence. c. 3 types of Confidence Votes: i. Explicitly worded votes of confidence. Expressly state the House has/has not confidence in the govt. ii. Motions made votes of confidence by a declaration of the govt. Govt may declare that if defeated on a particular motion, it will resign/seek dissolution. iii. Implicit Votes of Confidence: certain matters deemed to involve confidence, even though not declared. EG granting of supply. This category fallen into disuse.


Key actors in parliament a. Political parties i. Decision making in Parliament depends on swaying a majority of votes in each chamber. ii. Success of a motion determined by whether it attracts a majority of votes. iii. These rules encourage parliamentarians to organize into parties & vote en bloc. b. The Speaker (s. 44 of Const. Act 1867) i. MP elected to the position. Assumes the highest authority in the House. ii. Acts as a spokesperson of the House, presides over sittings of the House, & extensive responsibilities relating to administration of the House. c. Parliamentary committees i. Committees of the Whole (House) - Made up of the entire House. ii. Standing committees - 18 currently, to examine issues of continuing importance. Established for the life of Parliament, they parallel the government departments whose policy development they examine. 11

iii. Legislative committees - Created on an ad hoc basis to examine specific bills. iv. Special committees - Task forces appointed on an ad hoc basis to study specific matters. Established by a motion specifying its purpose and powers. v. Joint committees - Composed of members of both House and Senate, appointed under Standing Orders of each House (Standing Joint) or by special resolutions of the two Houses (Special Joint). vi. Subcommittees - Standing committees are free to delegate some part of their mandate to a smaller group, a subcommittee. VIII. Parliamentary procedure/law making a. Source of parliamentary law i. Parliamentary law, i.e. the rules determining parliamentary procedure, flows from an array of sources including statute, Constitution, etc b. Constitution and statute: i. The starting point to understanding parliamentary law is the Constitution. The Canadian Constitution incorporates British parliamentary traditions via the preamble to the Constitution Act, 1867. That Act speaks of Parliament possessing parliamentary privileges, and so does the Parliament of Canada Act ii. The important part in this section is parliamentary privilege. iii. Parliamentary privileges are those rights necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts. iv. Privilege in this context usually means legal exemption from some duty, burden etc to which others are subject. See Canada v Vaid. v. [NOTE: The idea of privilege reflects and enforces the separation of powers, specifically the separation between Parliament/legislatures and courts] vi. Canada (House of Commons) v. Vaid: Is privilege a source of immunity of parliamentarians from human rights law? Chauffeur dismissed in violation of Canadian Human Rights Act. HELD - Privilege attaches to the Houses relations with some of its employees, but not ALL employees. Not all relations with employees within federal legislative jurisdiction may be immunized from human rights challenges. c. Standing orders: i. Canadas legislatures can administer that part of a statute relating to its internal procedure, as well as to determine the contents of such things as Standing Orders on Procedure, without court intervention. ii. Standing orders are rules of procedure adopted by at least a simple majority vote of the members of the Commons. Standing orders constitute a fairly comprehensive code of Commons operations, including in relation to Commons law making d. Parliamentary law making - Scope of law making jurisdiction (substantive law focus) i. Parliamentary supremacy means that Parliament is the source of all power and Parliament has the jurisdiction to make or unmake any law whatever. Only constraints are found in the Constitution. 12

ii. Parliament is, therefore, even free to pass careless or bad laws, so long as it sticks within its Constitutional mandate. 1. Bacon v. Saskatchewan Crop Insurance Corp (p.193) Rule of law principle to
challenge allegedly bad law. The role of Parliament is supreme when acting within its constitutional limits, thus no need to decide whether passage was an arbitrary use of power. The publics protection from the arbitrary use of power by the elected legislators is the ballot box.

iii. Further, even if Parliament is tricked into passing a law by the executive, that alone is insufficient for a court to strike it down; such an issue is not justiciable 1. Turner v. Canada (p. 196) An action against the Queen based on allegations that
Parliament has been induced to enact legislation by the tortious acts and omissions of Ministers of the Crown is not justiciable. 2. Even if Parliament is competent to pass bad (but still constitutionally valid) laws, it is not presumed that it means to do so. Parliament may strip away contractual rights, but to do so it must be emphatic.

iv. Further, Canadians arent entitled to due process or procedural fairness in the lawmaking process (so long as the procedures in the Constitution have been met). Courts say that this aspect of law making should be looked after by Parliament/legislatures themselves. To do so would trench parliamentary privilege. This means that Parliament would be free to act unfairly, such as by passing a law without any notice to those implicated in it. 1. Wells v. Newfoundland (p. 198)- Are officeholders (senior civil servants who hold tenured positions) owed compensation if their positions are eliminated by legislation? 2. HELD - Yes. The Crown has a contractual obligation to respondents which it breaches by eliminating their positions. As long as Ps right to seek damages for that breach is not eliminated by legislation, he may seek compensation. v. Authorson v. Canada (p. 202) Govt expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear & unambiguous language to do so. There is no due process right against duly enacted legislation unambiguously expropriating property interests. e. Ethics in law making (focusing on conflicts of interest) i. Parliament may be sovereign, but individual parliamentarians are not ii. Parliamentarian induced by the prospect of financial gain to vote in one way or another in performing his law making functions is subject to sanction in a number of ways iii. Ethics rules exist both in statutory law and in the internal procedural rules governing each hose of Parliament f. Parliaments law-making procedure (bill to law) i. Governed by rules of procedure of each chamber of Parliament, e.g. Standing Orders of the House of Commons


ii. There are 2 types of bills: public (centered on public policy) and private (relates to matters of a particular interest/benefit to a person/persons). The legislative process for each is a bit different iii. Public bills: 1. Goes through 9 stages, the second reading being the most important stage (it is then that the principle and object of the bill are debated/accepted/rejected; three types of amendments may be proposed at this stage) a. Once the appropriate notice has been given, a Member is given leave of the House to introduce the bill. b. The bill is read a first time and printed. c. The bill is read a second time. d. The bill is referred to committee. e. The bill is considered in committee and reported back the House. f. The House concurs in the bill at the report stage. g. The bill is read a third time and passed by the House. h. The bill goes through stages in the Senate approximately the same as those in the House. i. The bill receives Royal Assent. 2. A bill becomes law when it receives Royal Assent. For Royal Assent to be given, the bill has to be passed in the same form by both Houses (i.e. the Senate and House of Commons). iv. Private bills: 1. A bill designed to exempt an individual or group of individuals from the application of the law is a private bill. Private bills are subject to special rules in both Houses of Parliament, however, most private bills originate in the Senate where the fees and charges imposed on the promoter are less 2. They are introduced by means of a petition signed by the interested parties and presented in the House by a Member who has agreed to sponsor it.

THE EXERCISE OF EXECUTIVE AUTHORITY (Ch.5) I. The Executive Branch a. The executive branch refers to institutions in government that are responsible for implementing and enforcing laws. 14

b. At the heart of administrative law is a requirement that government officials exercise their powers in furtherance of public interests. i. A similar expectation underlies the exercise of legislative powers, but in the case of legislators, public preferences are made know, and the creation of public policy is legitimized through democratic processes. ii. Administrative actors, however, are generally not elected c. In cases where administrative officials exercise narrow powers that are carefully defined through legislation, the democratic legitimacy of administrative decisions is derived from the close relationship between admin officials and the legislature. II. The executive branch defined a. The Crown: i. The entire authority of the executive branch is vested in the monarchy. Crown is the formal legal entity of the government, and is bearer of both legal rights and obligations Found in s 9 of the Constitution Act 1867 ii. Governor General is to exercise all powers and authorities lawfully belonging to the monarch in respect of Canada b. The Prime Minister and the Cabinet i. Ministers and the prime minister together comprise the ministry (which is used interchangeably with the word cabinet). The PM presides over Cabinet. ii. The Cabinet is in most matters the supreme executive authority: 1. Cabinet determines the legislative agenda of the govt in Parliament & Cabinet & ministers responsible for the administration of the individual departments of the govt. iii. The separation of the executive branch from the legislative branch is not absolute. The ministry is accountable to the legislative branch both collectively and individually. 1. Collective responsibility requires that the ministry maintain the confidence of the Parliament. 2. Individual ministerial responsibility requires that each minister be answerable in Parliament for the activities of his or her department iv. In addition to Cabinet responsibilities, Cabinet ministers have administrative responsibility for departments under their charge, which include specific powers to make decisions affecting the rights of individuals. c. The Public Service i. The employees of ministries of the government - civil servants, also part of executive ii. They are distinct from ministers, however, in that they are politically neutral iii. Civil servants must be loyal to the government they represent (Fraser v Canada) d. Independent Administrative Agencies i. As a matter of express constitutional recognition, the formal executive bodies are limited to the governor general and lieutenant governors, the federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers


ii. However, executive functions are also carried out by a variety of bodies that have a measure of independence from the government, for a number of reasons (e.g. the legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency; also, particular kind of expertise might be needed) iii. Independent admin bodies appear in a broad range of forms depending on their function iv. An administrative body is the product of the legislative instrument that creates it v. As a constitutional matter, adjudicative admin bodies do not have to be independent, although there may be circumstances which require their independence. vi. Ocean Port Hotel v. B.C. (p. 242) - Argued that the Liquor Control Board (admin agency) lacked sufficient independence to rule and impose the penalty that it did, and therefore the decision must be set aside. 1. HELD - No constitutional guarantee of judicial independence that made Provincial Court Judges Reference applicable to the Liquor Appeal Board. Board is not a court, nor does it approach the constitutional role of the courts. It is first and foremost a licensing body, and the suspension was an incident of the Boards licensing function. The exercise of power here falls squarely within the executive power of the provincial government. e. Crown corporations i. Admin body that has a legal personality separate from the government. ii. The purpose of creating Crown corporations is that they may be useful where there is a strong commercial aspect to the governmental service, which may require decisions to be made free from political influences that may unduly interfere with the commercial objectives. iii. The use of Crown Corps is a distinct form of regulation that arises from direct ownership. iv. EG: Bank of Canada, Canada Post, VIA Rail f. Municipalities i. Municipalities, which are created under provincial legislation, deliver a wide range of public services, such as road, sewer & water services ii. Significant policy-making functions in matters that affect local residents, generally exercised through the enactment of municipal by-laws iii. Operate independently from the provincial governments that created them, but are not a distinct level of government in that local govt is a constitutionally recognized level of government within Canada. iv. Ultimately, municipal powers are subject to regulatory qualifications imposed by superior levels of government, including the radical restructuring or elimination of municipalities. v. Shell v. Canada: Majority Opinion: Vancouver municipality could NOT refuse to do business with Shell b/c of apartheid. Municipal authority can only be exercised in relation to activities falling within municipal purposes, and the extra-territorial purpose of the resolution was improper. 16

g. Enforcement bodies: Police and Prosecutors i. The executive branch of government, in addition to being responsible for the implementation of government policy, is required to enforce those policies that have the force of law. The enforcement duties fall primarily on the police and to prosecutors ii. There is a tension b/w accountability and independence in the context of enforcement (i.e. free from political oversight, yet they have to be held accountable) iii. R v. Campbell (p.252): Whether a police officer investigating a crime is acting as a government functionary or an agent? Held: The PO is independent of the control of the executive govt. The PO is not exercising a delegated authority, but an original authority. III. Sources of executive power = All executive power flows from the royal prerogative & statutory delegation: a. Prerogative powers: i. Prerogative powers are those exercisable by the Crown that do not arise from a statutory grant of power to the Crown ii. These powers can be overridden by statute iii. Black v. Chretien (p. 258) - PM recommended against the conferral of a foreign honor on a Canadian citizen. HELD - Once PMs exercise of the honours prerogative is found to be beyond review of the courts, how the PM exercises the prerogative is also beyond review. Even if the advice was wrong or careless or negligent, or his motives were questionable, they cannot be challenged by judicial review. b. Statutory powers & Delegation: i. The majority of executive powers originate from a delegation of authority by the legislature by statute. The word delegate means little more than agent. ii. The legislature retains its powers intact, and can, whenever it pleases, destroy the agency it has created. iii. Delegation power of Legislatures is wide (parliamentary sovereignty), but the powers delegated must conform to the Constitution, and another rule which says that no delegate can be authorized to exercise absolute discretion (Ronceralli v Duplesis) iv. Re Gray (p. 265) Legislatures can delegate power to executive, but cannot abdicate their power. May a delegation of power by Parliament to the Governor General amount to a complete abdication of legislative authority? 1. HELD-No. Parliament cannot abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the Executive govt. Short of a complete abdication, any limited delegation is within the ambit of a legislative jurisdiction. v. Parliament cannot delegate to provincial legislatures, and vice versa (i.e. inter delegation) (the basis of this principle is that an inter-delegation would upset the constitutional division of powers contained in ss 91 and 92 of the Constitution Act, 17

1867), although there can be indirect inter-delegation (namely where the interdelegation was to an administrative body) (PEI Potato Marketing Board v Willis). vi. Nova Scotia Inter-delegation (p. 267): Neither the federal Parliament nor the provincial Legislatures may delegate legislative powers to the other. An interdelegation would upset the constitutional division of powers in ss.91&92 of the 1867 Act. 1. Inter-delegation to an administrative body is ok. The policy behind the distinction between invalid legislative inter-delegation and valid administrative inter-delegation relates to the democratic expectations of the legislature, which must be seen to be acting free of allegiances to other bodies. IV. Nature and function of delegated powers a. Rule making (i.e. delegated legislation) p.273 i. Most pervasive form of admin rule making is the regulation making power that is delegated to the Cabinet through the governor in council; but admin rule making isnt restricted to this form ii. The legal effect of delegated legislation is determined by the parent legislation iii. Regulations are not made by Parliament. They are made by persons/bodies to whom Parliament has delegated the authority to make them, such as Governor in Council, Minister, or admin agency. Acts that authorize the making of regulations are called enabling acts. iv. Benefits of delegated forms of legislation relate mainly to the relative flexibility of regulations. The statutory process is much more cumbersome and time consuming than the process for enacting regulations; AND regulations are suited where rules require readjustment (impossible for legislators to know in advance the range of circumstances that will require specialized rules); AND expertise AND it is impossible for legislators to know in advance the range of circumstances that will require specialized rules b. Dispute resolution i. It is common for administrative agencies to be created in order to hear and decide specific kinds of disputes ii. There are some advantages (public participation; time/expense; dont have to follow rigid laws all the time and can rely heavily on policy etc) c. Benefit or obligation determination i. The most prevalent group of administrative decision makers are those empowered to determine whether a person will be granted a particular public benefit (e..g a welfare entitlement) ii. Also, obligation determinations may raise different issues; these decisions usually initiated by the imposing agency, leaving an affected person to take affirmative steps to protect interest iii. The desire for fairness is often in conflict with the need for administrative efficiency in these situations d. Enforcement decisions i. E.g. by police/prosecutors and some administrative officials whose enabling statutes confers investigatory powers 18

ii. [NOTE: Each of these functions may overlap, as shown by the Canadian Human Rights Commission example] V. Limits on the exercise of delegated authority a. While the constraints on the ability of the legislative branch to delegate authority are minimal, once authority is delegated, the law imposes a rigorous set of limitations on the exercise of power by the recipient of the delegated authority. b. The overarching principle is that delegated authority must be exercised within the boundaries of the statutory grant of power. c. The determination of the legality of the exercise of administrative authority is the function of the courts. The supervisory role of the courts raises complex issues concerning the conditions under which the judicial branch should interfere with decisions taken by the executive branch (see chapter 8) d. Controlling Jurisdiction: Substantive Ultra Vires i. Can only exercise the powers granted by the enabling statute ii. Cannot sub-delegate duties (with some exceptions i.e. matters that are merely administrative may be subdelegated) e. Controlling procedures: The duty to be fair i. Duty to be fair refers to the procedures adopted by the decision maker ii. Admin decision makers are generally required by common law to act fairly toward those persons affected by their decisions. iii. Knight v Indian Head School (p.288): Exemplifies the principle of the duty to be fair in an administrative proceeding. 1. The existence of a general duty to be fair will depend on 3 factors: (1) the nature of the decision to be made by the admin body; (2) the relationship existing b/w that body & the individual; (3) the effect of that decision on the individuals rights. 2. The finality of the decision will also be a factor to consider. A decision of a prelim nature will not trigger the duty to act fairly, but a decision of a more final nature will. 3. There is a right to procedural fairness only if the decision is a significant one & has important impact on the individual. f. Controlling discretion: bad faith, improper purposes and irrelevant considerations i. There are benefits of admin decision makers having broad discretion. However, there are also concerns ii. If admin decision maker exercises discretion in (1) bad faith; or (2) takes into account irrelevant considerations or (3) ignores mandatory considerations, then their decision may be overturned iii. These are jurisdictional errors iv. The standard of review of these decisions is important: an important consideration in determining whether an administrative decision maker has improperly exercised his or her discretion will be the amount of deference a reviewing court gives an admin decision g. Baker v. Canada (Immigration) (p.291): Immigration application based on humanitarian grounds. Application was denied by officials. She wasnt given an official reason for 19

denial, but did receive copy of intake officer notes. Argued she was denied procedural fairness & bias. i. The fact that a decision is administrative & affects the rights, privileges or interests of an individual is sufficient to trigger the duty of fairness. ii. Greater procedural protections will be required when no appeal procedure is provided within the statute. iii. The importance of the decision to the individual will determine if there is a duty of fairness. The legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires. iv. Important weight must be given to the choice of procedures made by the agency itself and its institutional constraints. v. At the heart of the matter is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully & fairly. This was done so by the written application. vi. A Humanitarian decision militate in favor of a more relaxed requirement under the duty of fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for. vii. The statute accords considerable flexibility to the Minister to decide on the proper procedure. viii. The judge in this case disagrees with the holding in Shah that the duty of fairness owed in these circumstances is minimal. ix. The Fed Court has held that providing reasons for a denial are unnecessary. A reasons requirement may lead to an inappropriate burden being imposed on administrative decision makers, it may lead to increased cost & delay, and that it might induce a lack of candour on the part of admin officers concerned. Also, case history notes prepared by a subordinate officer are not to be considered the decision makers reasons. x. Bias standard: What would an informed person, viewing the matter realistically and having thought the matter through, conclude. xi. Issue #2: Whether of not the decision of the Minister should be reviewed? 1. The legislation & Regulations delegate considerable discretion to the Minister in deciding whether an exemption should be granted based upon humanitarian considerations. 2. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision makers. Considerable deference will be given to decision makers by courts in reviewing the exercise of that discretion. Courts should not lightly interfere with such decisions. 3. HELD: The failure to give serious weight & consideration to the interests of the children constitutes an unreasonable exercise of discretion. THE COURTS AND THE JUDICIARY (Ch.6) Judicial Independece I. Constitutional Framework a. Starting point in understanding the Canadian court system is the Constitution Act 1867 b. Fed govt created the Supreme Court of Canada the general court of appeal in Canada, the Federal Court/Federal Appeal Court, and the Tax Court, as authorized by the Constitution 20

c. Provinces create s 96 superior courts, but Fed govt appoints judged & pays the salaries of provincial superior court judges d. Provinces appoint and pay the salaries of provincial court judges e. Provinces cannot pass legislation creating a tribunal, appoint members and then confer on the tribunal the jurisdiction of superior courts that would be encroaching upon the Fed govt s 96 superior courts. i. Re Residential Tenancies Act developed a 3 part test (p. 311) in order to determine whether creating such a tribunal would erode the s 96 power. This is because superior courts are a fundamental institution protected by our Constitution through the interpretation of s 96. The provinces, or federal Parliament, cannot enact legislation to encroach on their core jurisdiction II. Overview of Court System a. Provincial Courts: i. Cases involving either Federal or Provincial laws. Deal with most criminal, family law (except divorce), juvenile, traffic, provincial regulatory offenses, claims of money up to a certain amt, also all Prelim maters. b. Provincial Superior Courts s. 96 i. Known as Supreme Court, Superior Court, Court of Queens bench. ii. Has inherent jurisdiction can hear any case except those specifically limited to another level of court. iii. Most serious criminal & civil, divorce, & cases involving large sums of $. iv. Court of first appeal for the Provincial Courts. c. Courts of Appeal Panel of 3: i. Appeals from Provincial Superior & Provincial courts. ii. Hear constitutional issues raised in appeals involving individuals, govt, & govt agencies. d. Federal Courts i. Essentially Superior Courts with civil jurisdiction. Can only deal with matters specified in federal laws. (Must have Fed Question) ii. Tri-level: Appeals form it are heard by Federal Court of Appeals e. Supreme Court of Canada (p. 315) i. Final court of appeal. Can hear case in all areas of law. Chief justice & 8 others. 3 from Quebec, 3 from Ontario, 2 Western, 1 Atlantic. ii. Before case comes up, must have used up all available appeals in lower courts. iii. Leave to appeal is granted only if case involved question of public importance, raises important issue of law or mixed law & fact.
Supreme Court of Canada

Court Martial Appeal Court

Provincial Courts of Appeal

Federal Court of Appeal

Military Courts

Provincial Superior Courts

Tax Court of Canada

Prov. Admin Tribunals

Federal Court

Provincial Courts (District Court)

Fed Admin Tribunals



Judicial Appointments a. Provincial Appointments: i. Basic model is built on an advisory committee made up of a mixture of members from the legal community and laypersons, which makes recommendations to the provincial attorney general b. Federal (non-Supreme Court) appointments i. s 96 courts, Federal court and tax court are appointed by the governor in council (i.e. the Cabinet) (and the process is overseen by the Office of the Commissioner for Federal Judicial Affairs). ii. Overview: Federal appointments are made by the governor general, acting on the advice of the federal Cabinet. A recommendation is made to Cabinet by the Minister of Justice; that recommendation is made from amongst the names which have been previously reported by the committees to the Minister. The recommendation for appointment as a judge is made to Cabinet by the minister of justice, who has been advised by the judicial advisory committee iii. Criticisms: Questions have remained about political influence on the selection process. Concern for patronage appointments (i.e. allegations have been made that appointments are tainted by political considerations and that candidates who have contributed to political parties are appointed) 1. Too much discretion in the hands of the gov e.g. minister has power to appoint from the recommend and highly recommend list c. Supreme Court of Canada i. Simply appointed by the governor in council. Vast majority of appointments are made form the appellate courts.


Judicial Independence - Generally a. Judicial independence ensures that judges, as arbiters of disputes, are at a complete liberty to decide individual cases on their merits without interference b. Judicial Independence: Preserves the separation of powers between the 3 branches of govt by depoliticizing the relationship b/w the judiciary and the other two branches: the legislature and executive cant, and cannot appear to, exert political pressure on the judiciary, and converselymembers of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to proper administration of justice Re Remuneration of Judges (This is an argument for why an opinion cannot be the property of the Crown, etc) c. One of the goals of JI is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal served by JI is the maintenance of the rule of law. (quoted from PEI)


Judicial Independence as Constitutional Principle a. Reference re Remuneration of Judges PEI (cont) (p.338): i. One of the goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence 22

contributes to the perception that justice will be done in individual cases. Another social goal served by judicial independence is the maintenance of the rule of law. ii. Notwithstanding the presence of s. 11(d) of the Charter (trial by independent & impartial tribunal) and ss. 96-100 (appointment, security of tenure, remuneration Superior courts only) of the Constitution Act 1867, judicial independence is at root an unwritten constitutional principle (applies to all courts). iii. The existence of many of the unwritten rules of the Constitution can be explained by reference to the preamble of the Const Act 1867. It is the means by which the underlying logic of the Act can be given the force of law. b. Dissenting Opinion (p. 493) i. The ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the Constitution. ii. Judicial review is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument. In each case, the courts role is to divine the intent of the text as it has been expressed by the people through the mechanism of the democratic process. iii. It is clear in my view that it may not be used to justify the notion that the preamble to the Const Act 1867 contains implicit protection for judicial independence. The better view is that if these guarantees exist, they are implicit in s. 17 of the Constitution Act 1867, which provides for the establishment of Parliament. Democratically constituted legislatures, and not the courts, are the ultimate guarantors of civil liberties, including the right to an independent judiciary. c. 3 core aspects denoting independence (found in PEI see separate page): i. Security of Tenure: arbitrary removal is prohibited. ii. Financial Security: salaries can be changed, but must be done by an independent commission, so as not to seem influenced by other branches of govt. iii. Administrative independence w/ respect to management of Court business VI. Assessing Judicial Independence a. General test: Whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status. b. There is a personal & institutional aspect to JI. The personal aspect is called impartiality. This comes into play in Canada v. Tobiass where a Crown lawyer spoke to a Judge about the case without opposing counsel present. Case talks about lack of appearance of JI even if the conversation did not in actuality affect the case.

STATUTORY INTERPRETATION (Ch. 7) I. Overview a. So long as Parliament or provinces observe the binding constitutional limits on their jurisdiction, they are supreme and the courts must simply interpret and carry out their dictates as expressed in their acts. b. However, if a legislature wanders beyond its limits, it must be subordinated by the courts to the Constitution. Courts can do 2 things: 23

i. Determine the exact nature and scope of the constitutional limits, by interpreting the written Constitution and sometimes discerning unwritten constitutional principles. ii. Decide whether a given statute has exceeded the constitutional limits determined through interpretation. 1. If it has, courts declare the offending legislation invalid and of no force and effect. II. Sources of Interpretation Law 3 Main Sources: a. Interpretation Acts - Every Canadian jurisdiction has an Interpretation Act containing various rules applicable to statutes in general on how the legislation is to be interpreted. b. Interpretation rules in individual statutes and regulations (p. 381) c. Common law (p. 382) - Rules of statutory interpretation contained in common law that operate as guidelines. Judicial Statutory Interpretation a. In practice, most Judges are pragmatists. When confronted with an interpretation problem, they form impressions of what the statute says, what the legislature intended, and what would be a good result having regards to relevant legal norms. b. If the legislative text seems clear or plain, then the greater weight is receives. c. Range of Interpretation Issues p. 386-390 Overview of Rules about Meaning (p.390) a. Ordinary Meaning - Words assumed to have their ordinary, everyday meaning meaning that spontaneously comes to mind. b. Technical Meaning Legislation dealing with specialized subject & language used that people governed by legislation would understand, specialized understanding wins over ordinary meaning. c. Shared Meaning If French version has 2 meanings, and English has only one meaning, must chose meaning that is shared by the two. d. Original Meaning - Technical, concrete language is typically static (what meaning would have been at time of writing). General or abstract language attracts a dynamic interpretation (meaning in light of circumstances existing at time of application). e. Plausible Meaning - If the ordinary meaning is rejected in favor of the presumed meaning, the meaning adopted must be one that the text is capable of bearing. V. PURPOSE AND SCHEME ANALYSIS (p. 398) a. Legislative Purpose: Interpreters must try to determine purpose of legislation, and adopt interpretation that promotes or is consistent with those purposes. The vaguer the language of legislative text, the more discretion conferred on the Court. b. Interpretation Acts: Interpretation that promotes purpose of legislation is to be preferred over strict construction. MISTAKES AND GAPS IN LEGISLATIVE SCHEME (p. 404) a. Corrigible Mistakes: Persuasive evidence that the text doesnt accurately reflect the rule the legislature intended to enact. Courts have jurisdiction to correct, unless amounts to gap in legislative scheme. b. Incorrigible Gaps: Courts almost always deny jurisdiction to cure a gap in legislative scheme. Curing a gap would be reading in, which is considered a form of judicial legislation, as opposed to reading down, which is not. 24




i. ***When a Court reads in, it expands the scope of a legislative provision or fills a gap in a legislative scheme, thus making the legislation apply to facts that it would not otherwise encompass. Ways of reading in is to ignore words of qualification/limitation or add words.*** c. Supplementing Legislation: Although court cant always cure under inclusive legislation, it can rely on supplemental sources of law to compliment what the legislative scheme provides. VII. PRESUMPTIONS OF LEGISLATIVE INTENT (p. 404) a. Legislation that interferes with individual rights/freedoms is considered penal, & attracts a strict construction (go with narrower interpretation). Legislation that cures mischief or confers benefits is considered remedial, and attracts a liberal construction (broader definition). b. Avoiding Absurdity (p. 405) i. The clearer the text, the greater the absurdity in application required to depart from original meaning. The greater the absurdity, the more justified interpreter is in rejecting it. c. Extrinsic Aids (p. 406) i. Resolving interpretation issues can be assisted by extrinsic aids: Legislative source, legislative history, expert opinions. d. Re Rizzo & Rizzo Shoes (p.419): Good example of ridiculous outcome, and reading in of legislative intent. e. R v. Doust (p. 435): SCC held that when one version of bilingual legislation is broader in scope than the other, the narrower version represents the shared meaning & should prevail unless there is evidence that the legislature intended the broader meaning. f. Canada v. Mossop (p.442) Dissent: It is an established principle of interpretation that French & English texts are deemed to be equally authoritative, and where there is a discrepancy b/w the two, it is the meaning which furthers the purpose of the legislation which must prevail in this case, the broader of the two meanings should prevail. CONSTRAINTS ON LEGISLATIVE & ADMINISTRATIVE ACTION (Ch. 8) I. Role of Constitutional Judicial Review a. Explores role that judiciary plays in constraining legislative & administrative/executive action b. Constitution, designed by the will of the people, made up of principles that are so fundamental and established, and so the legislative acts must be consistent with it c. And its the province of the judiciary to say what the law is (those who apply rules to cases must interpret that rule), and even the Constitution requires interpretation Limitations of Judicial Review a. Justiciability: Are all actions by political branches of govt justiciable amenable to resolution by courts? i. Operation Dismantle v. The Queen (p. 457): Appellants wanted a declaration that permission to use missiles was unconstitutional & injunctive relief. Court states that if they were entitled to proceed to trial, their statement of claim must disclose 25


facts, which, if taken as true, would show that the action of the govt could cause an infringement on their rights. Majority uses the US political questions doctrine. ii. Dissent: The courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state. The questions before us is not whether the govt defense policy is sound but whether or not it violates the appellants rights under s. 7 of the Charter. I do not think there can be any doubt that this is a question for the courts. b. Issue of Enforcement: although the Constitution is supreme and the judiciary is relied on to interpret and invalidate legislation that is inconsistent with it, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions. i. Doucet Boudreau v NS, the issue of court usurping executive function arose (where the court ordered the government of Nova Scotia to use its best efforts to build a French Language school to comply with its duties under the Charter (minority language rights). Periodic reports on its progress was also ordered. ii. HELD: Courts should avoid interfering with management of public administration. A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issues, will likely be acting inappropriately. The order for reporting sessions breached the constitutional principle of separation of powers. c. A related issue is how courts address the sometimes sweeping disregard by the legislature of constitutional rules. See Reference re Language Rights Under s 23 of Manitoba Act: Validity of s 23 was struck down 4 times, without legislative response. It was the Courts duty to ensure that the language rights in the constitution are protected. d. Issue of Legitimacy: A concern when judges interpret vague statements in the Constitution - when give concrete shape to vague ideas set out in the Charter for example, and then invalidate laws that do not conform to their interpretation of these requirements, the rule of law may subtly be transformed into the rule of unelected judges. Two main complaints about judicial review aspect: i. Under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament & provincial legislatures. Argument is that courts have expanded their proper role of interpreting the Constitution and have thereby unduly shrunk the zone of parliament supremacy. ii. On one side, concern is that sometimes judicial review is illegitimate, because it is anti-democratic, in that unelected officials (judges) are overruling elected representatives (legislators). Also, they read in concepts to laws which amounts to changing the law in itself. iii. The other side is that there is built in deference for parliamentary safeguards in the Constitution despite courts reading in: Governments are free to modify the amended legislation by passing exceptions & defenses which they feel can be justified under s. 1 of the Charter. Moreover, legislators can turn to s. 33 of the Charter the override provision, which is the ultimate parliamentary safeguard. III. Different sorts of Judicial review of Legislative action a. The value of what follows is to show various types of approaches courts use to address different types of constitutional challenges to legislation 26

b. Unwritten Constitutional principles i. Canadian courts have been willing to a limited extent to recognize underlying constitutional principles that can be given full legal effect (e.g. Reference re Secession of Quebec; Reference re Rumeration of Provincial Court Judges Judicial Independence as an Unwritten Const. Principle) c. The Constitution Act, 1867 i. In terms of their potential to generate litigation, the most important features of the Constitution Act 1867 are the provisions of ss 91 95 that distribute legislative power between the federal and provincial levels of government. ii. Division-of-powers litigation often involves arguments that a piece of legislation falls outside of the jurisdiction of the legislature that enacted it. Or sometimes whether a particular situation falls within the federal or provincial sphere of authority. d. The Canadian Charter of Rights and Freedoms i. The other type of constitutional litigation arises from the Charter. Two aspects: (1) Process of defining the substantive right protected by the relevant provision of the Charter; (2) Relationship between the substantive rights and the justification of limits on those rights under s 1 IV. Judicial Review of Administrative Actions a. The SCC uses a pragmatic & functional test in administrative actions to extract from an assortment of variables Parliaments intent as to how intense judicial scrutiny of administrative action ought to be. Q: How differential should the courts be to executive branch interpretations of the mandate accorded them by statutes? b. Dr. Q v. College of Physicians (p. 525): The judge reviewing the administrative decisions task is not to substitute his views of the evidence for those of the tribunal, but to review the decision with the appropriate degree of curial deference. i. In every case where a statute delegates power to an admin decision maker, the reviewing judge must begin by determining the standard of review on the pragmatic & functional approach. The central inquiry in determining the standard of review exercisable by a court is the legislative intent of the statute creating the tribunal whose decision is being reviewed.

RELATIONSHIP OF ABORIGINAL PEOPLELES TO THE CANADIAN STATE Articles Mary C Hurley, The Crowns fiduciary relationship w/ Aboriginal peoples: I. Aboriginal peoples have always had a unique legal and constitutional position. a. First, there was the Royal Proclamation of 1763, which reserved to the Crown the exclusive right to negotiate cessions of Aboriginal title b. Second, came subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over Indians, and Lands Reserved for the Indians. c. Finally, section 35 of the Constitution Act, 1982 recognizes and affirms existing aboriginal and treaty rights of Canadas Aboriginal peoples, defined as including the Indian, Inuit and Mtis peoples Judicial interpretation a. A fiduciary relationship is one in which someone in a position of trust has rights and powers which he is bound to exercise for the benefit of another. The Supreme Court of Canada has adapted these largely private law concepts to the context of Crown-Aboriginal relations 27


b. See Guerin v R, for example, which established that: - the fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement, outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown; c. This requirement, which places the Crown between the Aboriginal group and 3rd 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; d. The fiduciary obligation owed by the Crown is sui generis, or one of a kind e. The scope of the relationship was extended in R v Sparrow, which was the Courts first s 35 decision: i. The general guiding principle for section 35 is that the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. ii. "The honour of the Crown is at stake in dealings with aboriginal peoples.(7) 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; iii. [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.(8) f. See also R v Adams, Delgamuukw v BC etc which expanded on the duty. But then see Wewaykum Indian Band v Canada which set out some limitations of the fiduciary duty (e.g. that the fiduciary duty does not exist at large) III. Extra-judicial considerations a. The federal government identifies 2 principal categories of fiduciary obligations for government managers to take into account: i. ***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). ii. ***Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights

Highlights from the Report of the Royal Commission on Aboriginal Peoples I. II. Stage 1: Separate worlds a. Aboriginals inhabited the Americas Stage 2: Nation-to-nation relations a. Cautious co-operation was the theme of this period. Aboriginals in charge of own affairs b. Co-operation was formalized in two important ways: (1) treaties; (2) the Royal Proclamation of 1763 Treaties: a. Treaties were a way for Europeans and Abs to recognizing each others sovereignty and mutual respect. Abs later found out that the treaties were used different to what they expected Royal proclamation: 28



a. The Royal Proclamation of 1763 was a defining document in the relationship between Aboriginal and non-Aboriginal people in North America. b. The proclamation summarized the rules that were to govern British dealings with Aboriginal people - especially in relation to the key question of land. Aboriginal people were not to be "molested or disturbed" on their lands c. Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown. d. The proclamation portrays Indian nations as autonomous political entities. e. It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement. It finds a balance in an arrangement allowing Aboriginal and non-Aboriginal people to divide and share sovereign rights to the lands that are now Canada. V. Stage 3: Respect gives way to domination a. Ironically, the transformation from respectful coexistence to domination by nonAboriginal laws and institutions began with the main instruments of the partnership: the treaties and the Royal Proclamation of 1763 b. Then came Confederation in 1867, a new partnership b/w English and French, which was negotiated w/out Aboriginal nations c. Then came the BNA Act, young Canadas new constitution, which made Indians and Lands reserved for the Indians subject for government regulation Stage 4: Renewal and renegotiation a. Resistance to assimilation grew weak, but it never died away. In the fourth stage of the relationship, it caught fire and began to grow into a political movement. b. One stimulus was the federal government's White Paper on Indian policy, issued in 1969 c. They took heart from decisions of Canadian courts, most since 1971, affirming their special relationship with the Crown and their unique interest in their traditional lands. They set about beginning to rebuild their communities and their nations with new-found purpose. d. Struggle produced an historic breakthrough: "Existing Aboriginal and treaty rights" were recognized in the Constitution Act, 1982. The way forward a. We propose 4 PRINCIPLES as the basis for a renewed relationship: recognition, respect, sharing and responsibility. We propose that treaties be the mechanism for turning principles into practice b. To restore the essence of the early relationship between Aboriginal and settler societies, the elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood. c. Right to self government important. Self government a. The right is inherent in Aboriginal people and their nationhood b. We hold that Aboriginal governments are one of three orders of government in Canada federal, provincial/territorial, and Aboriginal. c. Proposal of 3 types of self government: nation government, public government, and community interest government d. Financing self government is another issue (e.g. developing own source revenues such as a taxation system) 29





Redistributing lands and resources a. Aboriginal land, in relation to the size of Canada, is small b. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues - they have legal rights. c. The law of Aboriginal title establishes three things: i. Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their history of having lived in and used those lands since time immemorial. ii. Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that nation's traditional lands. iii. The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests in those lands. iv. A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of a new treaty process


Economic development a. Several factors will make revitalization of Aboriginal economies a big challenge: dependence on government for funds; inequality; variability (in that aboriginal communities are located all over the country) b. Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations c. Public investment in education and training is vital to improve employment prospects for Aboriginal people in the existing job market. d. Alternatives to welfare are needed. Social assistance, is not a good way of providing cash income, for it traps recipients in a marginal existence Treaties: the mechanism for change 2 main goals: a. Rebuilding Aboriginal nations as the best and proper way for Aboriginal people to protect their heritage and identity, restore health and prosperity to their communities, and reorganize their relations with Canada. b. Restoration of relations of mutual respect and fair dealing between Aboriginal and nonAboriginal people. i. The central mechanism of change is the treaty. ii. We propose that the treaty relationship be restored and used from now on as the basis of the partnership between Aboriginal and non-Aboriginal people in Canada iii. Proposal that treaties should be implemented to reflect their spirit and intent not just their words, whether spoken or written iv. To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them. v. The main objectives of a new treaty-making process would be to establish the full jurisdiction of those nations as part of an Aboriginal order of government - expand the land and resource base under their control



The relationship restructured - ***Summary*** 30

a. The federal government should begin the cycle of renewal with an act of national intention - a new Royal Proclamation b. Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them. c. The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to establish the new relationship d. Aboriginal nations should begin their rebuilding processes e. All governments should prepare to enter into the new treaty process. f. Governments should take interim steps, as proposed by this Commission, to redistribute lands and resources. g. Aboriginal and non-Aboriginal governments should co-operate to stimulate economic development. ABORIGINAL RIGHTS - CASES I. R v. Sparrow a. Overview: The word existing in s 35 means that s 35 only protects unextinguished aboriginal rights and treaties; (2) The words recognized and affirmed in s 35 mean that aboriginal rights/treaties are constitutionally protected, but are not absolute rights, and may be infringed if the test of justified interference is met; (3) Sets out the test of justified interference) b. FACTS: The appellant, s. 61(1) of the Fisheries Act of the offence of fishing with a drift net longer than that permitted by the terms of the Band's Indian food fishing licence. Defended charge on basis he was exercising an existing aboriginal right to fish, and that the net length restriction inconsistent with s. 35(1) of the Constitution Act, 1982 and therefore invalid. c. ISSUE: Whether the respondent was exercising an aboriginal right within the meaning of s 35(1) d. REASONING: The word existing in s 35 i. The word "existing" makes it clear that the rights to which s. 35(1) applies are those that were in existence, or unextinguished, when the Constitution Act, 1982 came into effect. This means that extinguished rights are not revived by the Constitution Act, 1982. A right that has been validly extinguished before 1982 is not protected by s 35 e. The aboriginal right i. Respondent contends that restriction and detailed regulation of the fisheries has had the effect of extinguishing any aboriginal right to fish. But this argument confuses regulation with extinguishment. ii. Prior to 1982 when this provision was enacted, the only way extinguishment could have occurred is with a clear and plain intention by Parliament; there is nothing in the Fisheries Act that demonstrates this. f. Recognized and affirmed i. In our opinion, Guerin, together with R. v. Taylor and Williams, ground a general guiding principle for s. 35(1). That is, the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal people. ii. The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1). iii. In short, s 35(1) is a constitutional guarantee of aboriginal and treaty rights. However, the guarantee isnt absolute, and the s 35 rights are subject to 31

regulation by federal laws, provided that the laws meet a standard of justification. g. Section 35(1) and Justified Interferences i. 1st Question: whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1) 1. [Ask: is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right?]. The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. ii. If there is a prima facie infringement, the second question is whether the Crown can justify it. 1. What constitutes legitimate regulation of a constitutional aboriginal right [Is there a valid legislative objective? Is the regulation sought to be imposed required to complete that objective?]. If yes, go on to (2). 2. Consider the special trust relationship and responsibility of government vis a vis aboriginals [There must be a link between the question of justification and the allocation of priorities in the fishery] II. R v. Van der Peet (selling fish under Indian license) - D convicted of selling salmon caught under an Indian fishing license. a. ISSUE - Whether s. 27(5) of the BC Fishing Regulations was invalid by reason of the aboriginal rights within the meaning of s. 35 of the 1982 Act. b. HELD - Indian failed to show that the exchange of fish for money was an integral part of the distinctive Stolo culture which existed prior to contact and was therefore protected by s. 35(1) of the 1982 Act. c. ANALYSIS: i. To be an aboriginal right, an activity must be an element of a practice, custom or traditional integral to the distinctive culture of the aboriginal group claiming the right. There may be an exercise in modern form of a pre-contact practice. ii. To be integral, the practice must be of central significance to the aboriginal society in question - one of the things which made the culture of the society distinctive. iii. The practices which constitute aboriginal rights are those which have continuity with the practices that existed prior to contact with European society. However, conclusive evidence from pre-contact times need not be produced, and it does not require an unbroken chain between current practices and those existing prior to contact. A practice existing prior to contact can be resumed after an interruption. R v. Sappier Gray (Even though a practice may have been undertaken for survival purposes, it can still be considered integral to an Aboriginal communitys distinctive culture) a. FACTS: Charged w/ unlawful possession or cutting of Crown timber. In defence, they say they possess an aboriginal and treaty right to harvest timber for personal use. b. ISSUE: Whether a right to harvest timber existed pre-contact for the relevant aboriginal peoples 32


c. REASONING: The Aboriginal right claim i. 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: R. v. Van der Peet. ii. Respondents rely on the pre-contact practice of harvesting timber in order to establish their aboriginal right. iii. The goal for courts is, therefore, to determine how the claimed right relates to the pre-contact culture or way of life of an aboriginal society. Second, it is also necessary to identify the pre-contact practice upon which the claim is founded in order to consider how it might have evolved to its present-day form iv. STEP 1 (CHARACTERIZATION): In the present cases, the relevant practice for the purposes of the Van der Peet test is harvesting wood. The record shows that wood was used to fulfil the communities domestic needs for such things as shelter, transportation, tools and fuel. I would therefore characterize the respondents claim as a right to harvest wood for domestic uses as a member of the aboriginal community. v. STEP 2 (The INTEGRAL to a DISTINCTIVE CULTURE TEST): Evidence established that the wood was critically important to the Maliseet and MiKmaq people pre-contact. Further, even though the practice may have been undertaken for survival purposes, it can still be considered integral to an Aboriginal communitys distinctive culture (THIS IS THE PRINCIPAL ISSUE ON THIS APPEAL). vi. Continuity: the nature of the right must be determined in light of present-day circumstances; logical evolution means the same sort of activity, carried on in the modern economy by modern means. So, the right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling. Any other conclusion would freeze the right in its pre-contact form.


R v. Powley (Ok to hunt moose w/o license. Legilsation invalid. New pre-contact test dealing with post-contact & pre-control) a. FACTS: P charged with unlawfully hunting moose; P argues that, as Metis, they have an aboriginal right to hunt for food in the Sault Ste Marie area b. ISSUE: Whether members of the Mtis community enjoy a constitutionally protected right to hunt for food under s. 35 c. REASONING: i. Upheld the Van der Peet test, but modify certain elements of the pre-contact test to reflect the distinctive history of Mtis, and the resulting differences between Indian claims and Mtis claims. ii. The pre-contact test is inadequate to capture the range of Metis customs, since Metis cultures by definition post-date European contact iii. First, the court set out the indicia to determine whether a claimant meets the definition of Metis people: 1. Self-identification 2. Ancestral connection 3. Community acceptance 33

iv. 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. 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 PRE-CONTROL TEST) v. The Van der Peet test: vi. STEP 1 (Characterization of the right): The right to hunt for food in area. vii. STEP 2 (Integral test): The practice of hunting and fishing was a constant in the Mtis community.The evidence indicates that subsistence hunting was an important aspect of Mtis life during relevant time frame of 1850. viii. Continuity: Hunting for food was an important feature of the Mtis community, and the practice has been continuous to the present. ix. Infringement of right x. Ontario currently does not recognize any Mtis right to hunt for food. This lack of recognition infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the Mtis community. xi. Is the infringement justified? xii. The main justification advanced by the appellant is that of conservation. Here does not support this justification. V. Haida Nation v. BC(Minister of Frests) a. This case deals with the situation where aboriginal interests are in the process of being proved: (1) The duty to consult and accommodate is rooted in the honour of the Crown; (2)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; that is, knowledge of a credible, but unproven claim, triggers the duty; (3) 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) When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation; (5) Third parties do not owe such a duty; (6) The provincial and federal government are subject to the duty; (6) There is no duty for the governments to agree) b. FACTS: Govt holds legal title to the land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land (which is subject to a land title claim by the Haida people). c. ISSUE: Is the government required to consult with Haida people about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land? d. REASONING: e. Source of duty to consult and accommodate f. Duty grounded in honour of the Crown: in all its dealings with Aboriginal peoples, Crown must act honourably g. Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims. Underlying this duty is s 35 of the Constitution, which implies a duty to consult and, if appropriate, accommodate 34

h. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests i. When the duty to consult and accommodate arises j. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof k. The Crown isnt rendered impotent it may continue to manage the resource in question pending claims resolution; but depending on the circumstances, the honour of the Crown may require it to consult and reasonably accommodate Aboriginal interests l. But, when precisely does a duty to consult arise? The foundation of the duty in the Crowns honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it m. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. n. The scope and content of the duty to consult and accommodate o. In general terms, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed p. There is no duty to agree; rather, the commitment is to a meaningful process of consultation q. When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation (i.e. this may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim) r. Do third parties owe a duty to consult and accommodate? s. No. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. Provinces and federal government are subject to this duty VI. Taku River v. BC (Example of how the duty to consult is fulfilled, and reinforces the principle set out in Haida that meaningful consultation doesnt require agreement) a. FACTS: A mining company applied to the BC government for permission to reopen an old mine in an area that was subject of an unresolved land claim by the TRTFN people. This application triggered a statutory environmental assessment process, which ended with the approval of the application to reopen the mine. Through the environmental assessment process, the TRTFNs concerns with the road proposal became apparent. Its concerns crystallized around the potential effect on wildlife and traditional land use, as well as the lack of adequate baseline information by which to measure subsequent effects b. ISSUE: Duty to consult and of accommodation c. REASONING: d. In Haida Nation v. British Columbia (Minister of Forests), this Court has confirmed the existence of the Crowns duty to consult and, where indicated, to accommodate Aboriginal peoples prior to proof of rights or title claims. 35

e. The principle of the honour of the Crown grounds the Crowns duty to consult and, if indicated, accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. f. The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them i. When Redfern applied for project approval, in its efforts to reopen the Tulsequah Chief Mine, it was apparent that the decision could adversely affect the TRTFNs asserted rights and title. The contemplated decision thus had the potential to impact adversely the rights and title asserted by the TRTFN. ii. Honour of the Crown required it to consult and if indicated accommodate the TRTFN in making the decision whether to grant project approval to Redfern, and on what terms iii. The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed g. The Crown fulfilled its duty to consult and accommodate. The process of granting project approval to Redfern took three and a half years, and was conducted largely under the Environmental Assessment Act. Members of the TRTFN were invited to participate in the Project Committee to coordinate review. HELD: Crow fulfilled duty

ABORIGINAL TITLE CASES I. Delgamuukw v. BC a. The parties have a disagreement over the content of aboriginal title itself, and its reception into the Constitution by s. 35(1). b. Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights c. Unique dimensions of aboriginal title: Aboriginal title is a sui generis interest in land. One dimension is INALIANABILITY (lands cant be transferred sold or surrendered to anyone other than the Crown). Another dimension of aboriginal title is its SOURCE (its source, although thought to be in the Royal Proclamation, 1763, arises from the prior occupation of Canada by aboriginal peoples; what makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty). A further dimension of aboriginal title is the fact that it is held COMMUNALLY (aboriginal title cannot be held by individual aboriginal persons) d. Content e. The content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the groups attachment to that land f. As a result, uses of the lands that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title. For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that 36

successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). g. Aboriginal title under s 35(1) i. Aboriginal title at common law is protected in its full form by s. 35(1). h. Proof of aboriginal title i. Aboriginal title is different than aboriginal rights (which are defined in terms of activities). Aboriginal title is a right to the land itself. j. In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: i. The land must have been occupied prior to sovereignty. Proof of occupancy must be established by both common law (i.e. physical occupation/possession) and aboriginal perspective on land. ii. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation: Aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required, in addition, is a continuity between present and pre-sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty. Needless to say, there is no need to establish an unbroken chain of continuity iii. At sovereignty, that occupation must have been exclusive: Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title. As with the proof of occupation, proof of exclusivity must rely on both the perspective of the common law and the aboriginal perspective, placing equal weight on each k. Infringement of aboriginal title: the test of justification l. The general principles governing justification laid down in Sparrow operate with respect to infringements of aboriginal title (I.e. Ask, first, whether the infringement is in furtherance of a legislative objective that is compelling and substantial; and, second, an assessment must be made of whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples. m. In this context, with regard to the second stage, aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. Also, the economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well II. Tsilhqotin Nation v. BC a. Usufruct - A legal right to use, benefit from and derive profit from property belonging to another person, provided the property is not damaged or altered in any away. 37

b. According to this concept, Aboriginals have the right to live on the lands but are prevented from doing anything that would affect the underlying title held by the Crown. i. However, given the nature of Aboriginal title now defined by jurisprudence, title can no longer be characterized as a usufructuary right. c. Baker Lake Test of Title - Aboriginal claimants must prove: i. That they and their ancestors were members of an organized society ii. That the organized society occupied the specific territory over which they assert the aboriginal title. iii. That the occupation was to the exclusion of other organized societies. This includes by private landholders or trading posts (i.e., Hudsons Bay Company). iv. That the occupation was an established fact at the time sovereignty was asserted by England. d. Aboriginal title does not subsist everywhere that Aboriginal rights are carried out, nor does title exist everywhere in a groups exclusive traditional territory. e. Aboriginals may show that an activity on a specific tract of land gives rise to an Aboriginal right, but this will not be sufficient to satisfy the further hurdle to establish Aboriginal title. f. Today, we no longer speak of an overarching Aboriginal title. It is more accurate to speak of a Variety of Aboriginal rights, one of which is title to land. It is possible for an Aboriginal group to show that a particular practice taking place on particular lands was integral to their distinctive culture so as to establish site specific Aboriginal rights, but not establish Aboriginal title on those same lands g. Delgamuukw is a significant case in relation to aboriginal title h. To summarize, 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. It confers a right to exclusive use, occupation and possession to use the land for the general welfare and present day needs of the Aboriginal community. Aboriginal title also includes a proprietary type right to choose what uses aboriginal title holders can make of their lands, which is subject to an inherent limit which is defined by the nature of the attachment to the land. Such inherent limits prohibit uses that would destroy the ability of the land to sustain future generations of Aboriginal peoples. Aboriginal title also has an economic component, which will ordinarily give rise to fair compensation when Aboriginal title has been infringed. Aboriginal title is held communally. It is inaliable to third parties, but can be surrendered to the Crown. III. BC Treaty Commission, Why treaties in the modern age a. Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty b. In most of the treaties, aboriginal people gave up their title in exchange for land reserves and for the right to hunt and fish on the land theyd given up c. In BC, aboriginal peoples signed treaties, but they were later on extinguished by the Dominion of Canada d. Under s 35 of the Constitution Act 1982, aboriginal rights and treaty rights are recognized and affirmed e. The Evolution of Aboriginal Title 38

f. Calder decision recognizes aboriginal title (1973). The decision was a legal turning point. The recognition of aboriginal title in Calder as a legal right was sufficient to cause the federal government to establish a land claims process; but BC refused to participate. g. Still, the question remained: had aboriginal title been extinguished before BC joined Confederation or not? In Sparrow, the Court took the same approach as in Calder, who said that unless legislation had evinced a clear and plain intention to extinguish aboriginal rights, it did not have that effect. This case dealt with particular aboriginal rights, not rights in land. h. But in Delgamuukw, the SCC confirmed that aboriginal title exists in BC i. Morever, the Marshall and Bernard decision sets limits on aboriginal title. In the case, the Court unanimously dismissed the claim to both treaty and aboriginal rights. It found that although the treaty protected the Mikmaq rights to sell certain products, this right did not extend to commercial logging. The Court said that while rights are not frozen in time, the protected right must be a logical evolution of the activity carried on at the time of treaty-making. Treaties protect traditional activities expressed in a modern way and in a modern context; new and different activities are not protected. The Court adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in question. Traditional practices must translate into a modern legal right, and it is the task of the court to consider any proper limitations on the modern exercise of those rights. The Court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title. j. What do these legal decisions mean? k. The courts have confirmed that aboriginal title still exists in BC, but they have not indicated where it exists. To resolve this situation, the governments and First Nations have two options: either negotiate land, resource, governance and jurisdiction issues through a treaty process or go to court and have aboriginal rights/title decided on a case to case basis l. The Haida Nation and Tlingit First Nation cases provide guidelines for the negotiation and definition of aboriginal title in BC. m. In Mikisew, the SCC extended the Crowns obligation to consult and accommodate aboriginal interest (established in Haida and Taku) to include existing treaty rights. n. All of these landmark judgments together confirm that: i. Aboriginal rights exist in law ii. Aboriginal rights are distinct from the rights of other Canadians iii. They include aboriginal title, which is a unique communally held property right iv. Aboriginal rights take priority over the rights of others, subject only to the needs of conservation v. The scope of aboriginal title and rights depend on specific facts relating to the aboriginal group and its historical relationship with the land vi. The legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the peoples and governing societies that were resident in North America long before settlers arrived vii. Aboriginal rights and title cannot be extinguished by simple legislation because they are protected by the Constitution Act, 1982 39

viii. Government has a duty to consult and possible accommodate aboriginal interest even where title has not been proven ix. Government has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected ABORIGINAL TREATIES I. R v Marshall; R v Bernard a. FACTS: M and B were convicted of offences related to the selling/possession of timber b. ISSUE: Whether the Mikmak people in NS and NB have the right to log on Crown lands for commercial purposes pursuant to either treaty or Aboriginal title c. REASONING: Aboriginal treaty right: the test d. Crown argues that scope of treaty right is to be determined by what trading activities were in the contemplation of the parties at the time the treaties were made. e. But treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. The question is whether the modern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made f. Test applied: In each case, the trial judge concluded that the evidence did not support a treaty right to commercial logging g. In Marshall, Curran Prov. Ct. J. found no direct evidence of any trade in forest products at the time the treaties were made. In Bernard, Lordon Prov. Ct. J. made similar findings on similar evidence. h. Aboriginal title i. A sub issue here is whether nomadic and semi-nomadic peoples can ever claim title to aboriginal land. The answer is that it depends on the evidence. Whether a nomadic people enjoyed sufficient physical possession to give them title to the land, is a question of fact j. HELD: Court concludes that there is no ground to interfere w/ the trial judges finding that no title existed