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Public Law

Legal Theory in Relation to Public Law

Legal positivism reflects the belief that law is nothing more than the rules and principles that actually govern or regulate a society

Positivism insists on the separation of law and morality and, as a result, focuses on describing law without reference to justness or legitimacy

Natural law theory is aspirational in the sense that laws, properly called, are not simply all those official rules and principles that govern us, but only those that adhere to certain moral truths

Natural law does not deny the necessity of positive law, but where positive law contravenes natural law, the contravening positive law rules are held by natural law theorists not to be ‘true’ law in the sense that a citizen owes no allegiance to them

Re Drummond Wren [1945]

- Worker’s Educational Association had purchased a lot, intending to build a house on it then raffle the house for fund raising

- The land was restricted by covenant pronouncing that it was ‘not to be sold to Jews or person of objectionable nationality’

- WEA applied to have covenant declared invalid- Grounds were that the racially restrictive covenant was void against public policy and that it

contravened with the racial discrimination act- Held:

http://canadianlegalreference.yolasite.com/public-law.php 07/05/2023 01:18:14

Positive and Natural Law

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o Argument of the applicant is that the impugned covenant is void because it is injurious to the public good

o Courts and eminent judges have warned against inventing new heads of public policy, I do not conceive that I would be breaking new ground were I to hold the restrictive covenant impugned in this proceeding to be void against public policy

o Conclusion is that the covenant is void because it is offensive to the public policy in this jurisdiction

Re Noble and Wolf [1948]

- Individual lots in the Beach O’Pines subdivision contained covenant that the lands shall not be sold or transferred to any person of the “Jewish, Hebrew, Semitic, Negro or coloured race or blood”

- The Beach O’Pines protective association argued that there was a congenial summer community among its members and cottage value would be lost if any change to character occurred

- Difference in this case from Wren is that here there was an opposing party- Held, Schroeder J:

o It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments

o It is the province of the judge to expound the law onlyo Constitutes a radical departure from established principle to deduce there from any

policy of the law which any be claimed to transcend the paramount public policy that one is not lightly to interfere with the freedom of contract

o Cannot conceive of any established principle of law or any principles recognized in the courts or by the state as part of our public law which enables me to conclude that the covenant under review should be struck down as offending against the public policy of law

o Dismissed motion

The legislatures, in other words, acted to correct a deficiency that at least some judges (applying to the common law) were unprepared to correct

Both positivism and natural law are descriptive theories in that they are principally concerned with identifying what law is, as opposed to what law ought to be

Much of feminist legal philosophy reflects a critique (and often rejection) of liberalism as a political ideology

Throughout Canada, prior to 1916, laws related to elections did not allow women to vote


Feminist Perspectives on Law

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Edwards v AG Canada [1930]

- Held: Lord Sankey LC o The question at issue in this appeal is whether the words ‘qualified persons’ in that

section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada

o Their lordships are of the opinion that the word ‘persons’ in s.24 does include womeno Meaning of particular word in a particular Act of Parliament is permissible on 2 points

The external evidence is derived from extraneous circumstances such as previous legislation and decided cases

The internal evidence derived from the Act itselfo Customs are apt to develop intro traditions which are stronger than law and remain

unchallenged long after the reasons have disappeared o Their Lordships think that the appeal to Roman Law and to early English decisions is not

of itself a secure foundation on which to build the interpretation of the BNA Act 1876o Their Lordships are concerned with the interpretation of an Imperial Act, but an Imperial

act which creates a constitution for a new countryo Final reasons:

To the object of the Act- namely to provide a constitution for Canada That the word ‘person’ is ambiguous and may include members of either sex There are sections in the Act above referred to which show that in some cases

the word ‘person’ must include females That in some sections the words ‘male persons’ is expressly used Under the Interpretation Act Lordships have come to the conclusion that the

word ‘persons’ includes both male and female sex There are liberal feminist who argue that it is possible to have gender equality within a liberal

conceptual framework Radical feminists are not so sure- as division between men and women are seen as fundamental

and attribute to the very notion of liberal society Implicit in many of feminism’s central themes is that women, given the ability to reconstruct

society, could do better

R v Morgentaler [1988]

- Drs. Morgentaler, Smoling and Scott were each charged with conspiracy to procure a miscarriage contrary to ss.251(1) and 423(1)(d) of the Criminal Code

- On appeal by the accused to the SCC it was argued that s.251 was unconstitutional on the basis that if offended the guarantee of life, liberty and security of the person found in s.7 of the Canadian Charter of Rights and Freedoms

- Held, Wilson J:


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o The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being

o Given then that right to liberty guaranteed under s.7 of the charter gives a woman the right to decide for herself whether or not to terminate a pregnancy s.251 of the Criminal Code violates the charter

o The present legislative scheme for obtaining an abortion asserts that the woman’s capacity to reproduce is not subject to her own control

o S.251 is a complete denial of woman’s constitutionally protected rights under s.7, not merely a limitation on it

CLS adherents reject that there is any kind of ‘natural legal order’ discoverable by objective means

Critical legal theory not only denies the possibility of discovering a universal foundation for law through pure reason, but sees the whole enterprise of jurisprudence...as operating to confer a spurious legitimacy on law and legal systems

Much of CLS theory is post-Marxist and usually associated with the left; three stages

Law is not independent or instrumental- it is simply another form of politics

R v R.D.S [1997]

- Facts:o A white officer arrested a black 15 year hold who had allegedly interfered with the

arrest of another youth o The youth court judge weighed the evidence and determined that the accused should

be acquitted o When delivering her reasons judge remarked police officers had been known to mislead

the court in the past and they were known to overreact particularly with non white groups


Critical Legal Studies

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o Crown appealed and appeal allowed and new trial was reordered on the basis that the judge’s remarks gave rise to reasonable apprehension of bias

- Cory J: must be determined whether a reasonable apprehension of bias arises from comments o Ascertaining the Existence of a Reasonable Apprehension of Bias

Fair Trial and the Right to Unbiased Adjudicator A system of justice must ensure that trials are fair and that they appear

to be fair to the informed and reasonable observer S.27 of the Charter recognizes the multicultural nature of Canadian

society Question must be answered in this appeal is whether the comments

made by Judge Sparks give rise to a reasonable apprehension that she was not impartial between the crown and the accused

What is Bias All judges of every race, colour, religion, or national background are

entitled to the same presumption of judicial integrity and the same high threshold for a finding of bias

All judges are subject to the same fundamental duties to be and to appear to be impartial

Judicial Integrity and the Importance of Judicial Impartiality It is right and proper that judges be held to the bights standards or

impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them

True impartiality does not require that judge have no sympathies or opinions; it requires that the judge nevertheless to be free to entertain and act upon different points of view with an open mind

It follows that judges must strive to ensure that no word or action during the course of the trial or in delivering judgement might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations

Should Judges Refer to Aspects of Social Context in Making Decisions Each case must be assessed in light of its particular facts and

circumstances Use of Social Context in Assessing Credibility

It is the individualistic nature of a determination of credibility that requires the judge, as trier of fact, to be particularly careful to be and appear to be neutral

To state the general proposition that judges should avoid making comments based on generalizations when assessing the credibility of individual witnesses does not lead automatically to a conclusion that when a judge does so, a reasonable apprehension of bias arises


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- L’Heureux-Dube and McLachlin JJ: o Introduction

Test for reasonable apprehension of bias established in the jurisprudence is reflective of the reality that while judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality

o The Test for Reasonable Apprehension of Bias The Nature of Judging

Reasonable person demands that judges achieve impartiality in their judging

Where the matter is none of identifying and applying the law to the findings of fact, it must be the law that governs and not a judge’s individual beliefs that may conflict with the law

Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual

Application of the Test to the Facts Should be noted that if Judge Sparks had chosen to attribute the

behaviour of the constable to racial dynamics of the situation, she would not have necessarily erred

Conclusion A fair trial is one that is based on law, the outcome of which is

determined by the evidence, free of bias, real or apprehended Our jurisprudence has repeated prohibited the introduction of evidence

to show propensity There was no evidence before the trial judge to support the conclusions

she reached The trial judge presumably called upon her life experiences to decide

the issue, which she is not entitled to do Our jurisprudence prohibits tying credibility to something as irrelevant

as gender, occupation or perceived group predisposition- The error of law that is attributed to the trial judge’s assessment of the evidence or lack of

evidence is sufficiently serious that a new trial is ordered

Law and economics theories look at law from another perspective ,grounded less in mortal theory and more in ideas about efficiency

A traditional law and economics approach apples economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient

The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understand public policy


Law and Economics

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o Basic proposition of public choice theory is that diffuse and fragmented groups are less effective than more focused and concentrated groups in achieving success in the political arena and in influencing legislators and regulators

Duncan Estate v Baddeley (1997)

- Kerans JA:o The main issue in this appeal is whether a claim in tort for loss of future earnings

survives the death of the victim, and if it does, how to calculate such a claimo The defendant and respondent is, by his own admission, the tortfeasor who, by his

negligent acts, caused the death of Mr. Duncano Learned judge dismissed the claim because, in his view of the law, it did not survive the

death of Duncano Kerans JA unable to agree with the trial judge

Survivorship S.5 of the Survival of Actions Act limits rule to only those damages that

resulted in actual financial loss to the deceased or his estate Courts must consider and take into account all relevant and admissible

indicators of legislative meaning To recognize the capital of the propertied person but not that of the

unpropertied is to make an invidious class distinction In Kerans view the claim of Duncan survived his death

- Cote JA:o The issues here transcend questions of social utility of inheritance

- Lieberman JA (dissenting):o It was the intent of the legislature in framing the Survival of Actions Act to eliminate the

claim of a victim, who died instantaneously as a result of the tort of a wrongdoer, for damages for loss of expectation of life including loss of future income

Bhadauria v Board of Goveners of Seneca College of Applied Arts and Technology (1979)

- Wilson JA:o Plaintiff complains that she has been discriminated against by the defendant on the

grounds of her ethnic origino She alleges that she has been deprived of the opportunity to join the defendant’s

teaching staff and to earn her livelihood as a teacher and that she has suffered mental distress, frustration and loss of dignity and self-esteem

o Whether or not this could give rise to a civil cause of actiono She alleged:

That the respondent was in breach of its common law duty not to discriminate against her

That the respondent was in breach of its statutory duty not to discriminate against her


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o No authority cited has recognized a tort of discrimination but none has repudiated such a tort

o The plaintiff has a right not be discriminated against because of her ethnic origin and alleges that she has been injured in the exercise or enjoyment of it→ if this can be established then the common law must, in principle, afford her a remedy

o It is unnecessary, in view of the finding that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action

- Appeal allowed

Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1981]

- Laskin CJ:o Issue of appeal is whether this court should affirm the reorganization by the Ontario

Court of Appeal of a new intentional torto There is a narrow line between founding a civil cause of action directly upon breach of a

statute and as arising from the statute itself and founding a civil cause of action at common law by reference to policies reflected in the statute and standards fixed by statute

o The Ontario Human Rights Code foreclose any civil action based directly upon a breach thereof but is also excludes any common law action based on an invocation of the public policy expressed in the Code

o The code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use

- Appeal is allowed and judgement of Ontario CofA set aside


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Sources of Law

The term ‘aboriginals peoples’ is used to refer to three major groups of indigenous people: the Indians, Inuit and Métis

Some early Canadian cases recognized that the assumption of control by the British Crown during the colonial period did not automatically erase aboriginal legal systems→ Connolly v Woolrich (1867)

In Canada by virtue of s.91(24) of the Constitution Act, 1867 the federal parliament has power over ‘Indians’ and ‘lands reserved for Indians’

In 1982 with the patriation of the Constitution, aboriginal rights were constitutionally entrenched in s.35 of the Constitution Act, 1982

The constitutionalisation of aboriginal rights has restored at least some recognition of the aboriginal interests in Canadian law

Mitchell v Canada (Minister of National Revenue—MNR) [2001]

- McLachlin CJ:o English law accepted that the aboriginal peoples possessed pre-existing laws and

interests, and recognised their continuance in the absence of extinguishment by cession, conquest, or legislation

o Crown asserted that sovereignty over the land, ownership of its underlying title, vested in the crown

o With this assertion arose an obligation to treat aboriginal peoples fairly and honourably and to protect them from exploitation


Law and Aboriginal People

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o Aboriginal interests were presumed to survive the assertion of sovereignty and were absorbed into the common law rights unless:

They were incompatible with the crown’s assertion of sovereignty They were surrendered voluntarily via treaty process The government extinguished them

o The enactment of s.35(1) of the Constitution Act, 1982 elevated existing common law aboriginal rights to constitutional status

Delgamuukw v British Columbia [1997]

- Lamer CJ:o Appeal raises interrelated and novel questions which revolve around the nature and

scope of the constitutional protection afforded by s.35(1) to common law aboriginal title - Facts:

o Appellants, chief of the tribes, claimed aboriginal title- that is an interest in land that arises by virtue of an aboriginal group’s historic association with those lands

- What is the content of Aboriginal title, how is it protected by s.35(1) and what is required for its proof

o Content of aboriginal title: 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, custom and traditions which are integral to distinctive aboriginal culture

Those protected uses must not be irreconcilable with the nature of the group’s attachment to that land

o The relevance of the continuity of the relationship of an aboriginal community with its land is that it applies not only to the past but to the future as well→ as a result, uses of the land that would threaten that future relationship are, by their very nature, excluded from aboriginal title

o Virtue of aboriginal title may not be alienatedo Alienation would bring to an end the entitlement of the aboriginal people to occupy the

land and would terminate their relationship with ito If aboriginal peoples wish to use their lands in way that aboriginal titles does not permit,

then they must surrender those lands and convert them in to non title lands to do soo Aboriginal title at common law is protected in full form under s.35(1)

- Test for Proof of Aboriginal Titleo The land must have been occupied prior to sovereigntyo If present occupation is relied on as proof of occupation pre-sovereignty, there must be

a continuity between present and pre-sovereignty occupationo At sovereignty, that occupation must have been exclusive


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Indisputable that Canadian law remains a largely European inheritance The laws in force depended on whether colonies were simply settled, or were conquered or

ceded by indigenous peoples

Cooper v Stuart (1889)

- Lord Watson:o It was maintained for the appellant, in the first place, that the English rule against

perpetuities, as now settled, applied in all its entirety to the colony of New South Wales in the year 1823

o That the rule established in the law of England, applies to reservations made by the Crown in the interests of the public

o In so far as it is reasonably applicable to the circumstances of the Colony, the law of England must prevail, until it is abrogated or modified, either by ordinance or statute

o Applicable rules of reception varied between conquered and ‘settled’ colonieso The problem of determining which of these rules of reception would apply was

compounded by two facts: Aboriginal peoples were already present, so true ‘settlement’ in Blackstone’s

definition could not apply France also had an interest in much of British North America, and claimed much

of its territory o The rules of reception dictated that the entire body of English law, both statutory and

common, was imported into the settled colony o The date of reception was important because it was used to determine which English

statutory law applied: all statutes passed prior to such date were automatically ‘received’ (unless clearly unsuitable) and remained in force

o Date of reception for the common law was much less importanto Once a decision was made by either the Privy Council or the House of Lords on a

common law principle, all common law jurisdiction, at least in the formative years, would accept the decision as binding

English invention Judge-made law, developed through the common law courts Two fundamental ideas permeate common law theory:

o Judges do not make the law but merely declare ito All relevant past decisions are considered as evidence of the law, and judges infer from

these precedents what is the true law in a given instance Quebec inherited the vastly differently legal tradition of the civil law Civil law is based not on cases but established laws, generally written as broad legal principles


Reception of European Law

Nature of the Common and Civil Law

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In civil law countries, legislation is seen as the primary source of law Judicial reasoning is based extensively on the general principles of the rule of code British common law is the basis of private law in all provinces except Quebec Quebec’s private law derives from its Civil Code, its provincial statutes, and from federal private

law The Civil Code of Quebec reflects the bijural nature of Canada’s legal systems:

o It relies on civil law jurisdictions such as France and Germany to preserve its civilian integrity, but marries that with common law rules to ensure better harmonization with the rest of Canada and the U.S.

The genius of common law is that it makes adherence to legal principles established on past cases of foundational principle that inevitably leads to a more or less stable and certain legal structure

In common law systems, precedents are usually made up of principles form previous cases Serves variety of purposes:

o Aids in the stability and coherence of the lawo Fairness in decision makingo Promotes efficiency and eliminates sources of erroro Fulfills a symbolic roe by recognizing the relationship between courts and the legislature

Canada Trust Co. v Ontario Human Rights Commission (1990)

- Case was concerned with whether the terms of a scholarship trust established in 1923 contrary to public policy

- Tarnopolsky JA:o Did McKeown J have jurisdiction to determine this matter or should he have deferred to

the jurisdiction of the Ontario Human Rights Commissiono The Human Rights commission said the judge should have deferred to the commission

to exercise its jurisdiction under the Human Rights Code o Not only does the code foreclose any civil action based directly upon a breach thereof

but it also excludes any common law action based on an invocation of the public policy expressed in the code

o Code has its own set out procedures for vindication o This is not a case where the fact-finding role of the commission and a board of inquiry

would be requiredo Question of law (no facts in dispute) and thus the trustee is entitled to come to the

superior court pursuant to s.60 of the Trustee’s Act and seek advice and direction

Common law must sometimes be distinguished from equity


The Operation of Common Law and Precedent

The Operation of Common Law and Precedent

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Equity developed in tandem with the common law- its original function was to provide a corrective to the perceived harshness of the common law

Equity is a supplementary system that allows for the exigencies of the special case Its principles are more clearly tied to considerations of conscience, morality and the conduct of

particular persons than those of the law 1873 administration of the equitable and common law systems was fused through the adoption

of the judicature act

Re DeLaurier [1934]

- Appellants applied in the supreme court of Ontario for the custody of their infant child, who for about 10 years from early infancy, had been in the care of the respondents

- In equity a principle was early established that the court might control or ignore the parental right but in so doing it should act cautiously, and should act in opposition to the parent only when judicially satisfied that the welfare of the child required that the parental right should be suspended or superseded

- We are satisfied that s.24 of the Ontario Infants Act (none of the provisions of statute shall be deemed to alter whatever authority the father may otherwise by law possess as to the religious faith in which the child is to be educated) was not disregarded

- But if the court is satisfied in any case upon a consideration of all the facts then the father’s wishes must yield to the welfare of the child

- The equitable fiduciary obligation, long thought to apply only to private matters, has evolved into public realm

Guerin v Canada [1984]

- Issue of Crown’s liability was dealt with the courts below on the basis of the existence or non-existence of a trust

- The nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation enforceable by the courts

- It is rather a fiduciary duty - Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is

inalienable except on the surrender to the Crown- The surrender requirement and the responsibility it entails, are the source of a distinct fiduciary

obligation owed by the Crown to the Indians- The purpose of this surrender requirement is clearly to interpose the Crown between the

Indians and prospective purchasers or lessees of their land, so as to prevent Indians from being exploited

- Parliament has conferred upon the Crown a discretion to decide for itself where the Indians’ best interests really lie

- Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to fiduciary relationship

- In this sui generis relationship, it is not improper to regard the crown as fiduciary


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K.L.B. v British Columbia [2003]

- The appellants suffered abuse in tow successive foster home- The trial judge found that the government had failed to exercise reasonable care in arranging

suitable placements for the children and in monitoring and supervising these placements- All 3 judges overturned the ruling that the government had breached its fiduciary duty to the

children- However, they upheld the trial judge’s conclusion that the government was vicariously liable

and in breach of a non-delegable duty of care in the placement and supervision of children- Parties to this case do not dispute that the relationship between the government and foster

children is fiduciary in nature- Where the parties disagree is over the content of the duty that is fiduciary relationship imposes

on the government- what actions or inactions amount to a breach of this duty- Determining the content of the fiduciary obligation here at issue, we should focus generally on

cases dealing with the relationship of children to caregivers, and more particularly on the relationship between parents and their children

- The essence of the superintendent’s misconduct was negligence, not disloyalty or breach of trust

In Canada, domestic law exists as legislation enacted by the legislatures or made as regulations by the executive

Outside Quebec, domestic law also comes in the form of the common law, an amorphous body of principles developed through the application of precedent

Two most significant sources of international lawo Treaties: law-making contracts between stateso Customary International Law: binds all states, excepting only those that have been

sufficiently persistent in rejecting it prior to its emergence and binding norm International Law as Part of Canadian Law

o For the most part the executive branch of the federal government negotiates treaties and other international instruments on behalf of Canada

o The government must ensure that domestic law does not run counter to international law

Receiving Treaties into Domestic Law and Questions of Legitimacy

“Dualism” and the Separate Solitude of Domestic and International Law


International Law

Domestic Law

International Law

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- Canada traditionally considers domestic law and treaty law as two distinct universes- Canada is a ‘dualist’ jurisdiction- In the dualist tradition the treaty has no direct effect on domestic law until domestic legislation

is passed to ‘transform’ or ‘implement’ it into Canadian law

Dualism as a Rational Reaction to Democratic Legitimacy Questions in International Law-Making

- If treaties entered into by the federal executive had immediate and direct effect as the laws of Canada, the government’s treaty-making power could enable the executive to do an end-run around parliament’s federal law-making monopoly

- If treaties had immediate effect as laws, the federal exec could also dance around the division of powers of the Constitution Act, 1867 by employing its treaty-signing powers to legislate in provincial areas

- Canadian law insists that treaties be transformed into domestic federal law by an Act of Parliament

The Dualist Dilemma

- Canada is bound by the treaty as a matter of international law, and yet its policy-makers need not abide by the treat under the terms of domestic law

- This problem is remedied if the federal government delays ratification until parliament and the provincial legislature revise laws to bring them into compliance with the anticipated international obligation

The Uncertainties of Dualist Reception

- There are no clear rules on when a treaty has been ‘transformed’ or ‘implemented’ into Canadian law

- In many cases, existing statutes already conform to these obligations; in other cases, Canada can meet its international obligations through the formulation of policies

Recent Judicial Reactions to Dualism

- Courts are increasingly prepared to view even unimplemented international treaties as important interpretive aids in understanding Canadian statutes

Worst of Both Worlds

- Courts are not prepared to seek inspiration from unimplemented treaties- Canada’s dualist traditions means these treaties are not really the law of Canada, courts may

ignore the actual requirements of these treaties and devise some hybrid standard of their own

Customary International Law Reception and Legitimacy

The Incorporation of Customary International Law

- Once a rule becomes recognized as customary law, it is AUTOMATICALLY party of the Canadian common law

- With customary international law Canada is a ‘monist’ rather than ‘dualist’ jurisdiction- Like the rest of the common law, directly-incorporated customary international law can always

be displaced or overturned by a statute that is inconsistent with it


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Issues Raised by the Incorporation of Customary International Law

- When a legislature does legislate in a manner that displaces customary international law, Canada may be subsequently in violation of its international obligations

- If customary international law is part of the common law of Canada, its existence as domestic law is a matter determined by the courts exclusively

- Since the content of customary international law is sometimes uncertain (and disputed), courts asked to apply it as the domestic law of Canada rely on expert testimony (often competing) from international lawyers and academics, raising further questions of legitimacy

Parliament and provincial legislature are free, however, to enact new statutes to displace common law

One basic principle of common law interpretation is that a statutory rule will supersede a judge-made rule

Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1981]

- There is no gainsaying the right of the Legislature to establish new rights or the create new interests of which the court may properly take notice and enforce, either under the prescription of the Legislature or by applying its own techniques if, on its construction of the legislation, enforcement has not been wholly embraced by the terms of the legislation

- Foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather make them a part of the enforcement machinery under the Code

- Hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed by the Code

The interplay among the common law, statutory law, and constitutional law can be complex

Halpreen v Canada (AG) (2003)

- Introductiono Central question in the is appeal is whether the exclusion of same-sex couples from this

common law definition of marriage breaches ss.2(a) or 15(1) of the Canadian Charter of Rights and Freedoms in a manner that is not justified in a free and democratic society under s.1 of the Charter

o Case is ultimately about the recognition and protection of human dignity and equality in the context of the social structure available to conjugal couples in Canada

o Preamble affirms that ‘the inherent dignity and the equal and inalienable rights of all members of the human family and the foundation of freedom, justice and peace in the world


Statutory Law

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o Sexual orientation is an analogous ground that comes under the umbrella of protection in s.15(1) of the Charter

o Excluding same sex couples from another of the most basic elements of civic life-marriage- infringes human dignity and violates the Canadian Charter

- Facts:o Seven gay and lesbian couples wanted to celebrate their love and commitment to each

other by getting married in civil ceremonies- Analysis:

o Definition of marriage found at common lawo The ‘Modernization of Benefits and Obligations’ Act extends federal benefits and

obligations to all unmarried couples that have cohabited in a conjugal relationship for a year, regardless of sexual orientation

o It is clear that all parties accept that, the common law is subject to Charter scrutiny where government action or inaction is based on a common law rule

o Common Law Rule Regarding Marriage The preliminary argument on this appeal advanced by the couples is that there

is no common law bar to same-sex marriage Divisional Court was correct in concluding that there is as common law rule that

excludes same-sex marriageo Constitutional Amendments

The federal government has exclusive jurisdiction over ‘marriage and divorce’ The provinces have exclusive jurisdiction over the solemnization of marriage Whether same-sex couples can marry is a matter of capacity To freeze the definition of marriage to whatever meaning it had in 1867 is

contrary to this country’s jurisprudence of progressive constitutional interpretations

o The courts found that the common law definition of marriage infringed the claimants rights under s.15(1) of the Charter and this definition was not saved by s.1 of the Charter

o In July 2003 the federal government produced a draft bill that would redefine marriage Now the Civil Marriage Act 2005


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Fundamental Principles of the Canadian Legal System

Recurring Constitutional Principles

Constitutionalism in Canada

Society should strive to operate on ‘the rule of law rather than the rule of men or women’ The replacing of arbitrary, unconstrained power with rule-governed authority is clearly a

normative purpose of law The constitution serves as ‘a law to make law’: the ground rules for law making and governance Constitutionalism principle requires that all government action comply with the constitution Rule of law principle requires that all government action must comply with the law, including

the constitution Statutory powers must be limited to the express or implied purposes for which they were

granted, a principle enforceable by the judiciary

Roncarelli v Duplessis [1959] (pre-charter)


The Principles of the Rule of Law

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- It appears that the action taken by Mr. Archambaul as the general manager and sole member of the commission was dictated by Mr. Duplessis as Attorney General and Prime Minister of the province

- When the de facto power of the executive over its appointees at will to such a statutory public function is exercised deliberately and intentionally to destroy the vital business interests of a citizen is there legal redress?

o “discretion” necessarily implies good faith in discharging public dutyo There is always a perspective within which a statute is intended to operateo Any clear departure from its lines or objects is just as objectionable as fraud or

corruption- To deny or revoke a permit because a citizen exercises an unchallengeable right totally

irrelevant to the sale of liquor in a restaurant is equally beyond scope of the discretion conferred

- Act of the respondent through the instrumentality of the commission brought about a breach of an implied public statutory duty toward the appellant

o It was gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute

- “Good faith” means carrying out the statute according to its intent and for its purpose; it does not mean for the purpose of punishing a person for exercising an unchallengeable right, arbitrarily and illegally attempting to divest a citizen of an incident of his civil status

The principle achievement of the 1876 Act is federalism The 1982 Act is primarily knows for the Canadian Charter of Rights and Freedoms Constitution Act, 1982 provides an express definition of the constitution and its legal status SCC confirmed that the constitution also contains unwritten principles- see below

Reference re Secession of Quebec [1998]

- Constitution Act 1982 is in effect and its legality is neither challenged nor assailable- Four fundamental and organizing principles which are relevant for questions in this case:

o Federalismo Democracyo Constitutionalismo Rule of law

- The principles assist in the interpretation of the text and delineation of spheres of jurisdiction, the scope of rights and obligations and the role of our political institutions

- Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations which constitute substantive limitations upon government actions

- The process of constitutional adjudication, the court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada

- Unwritten principles can be identified and elucidated only by the courts- used to fill gaps


What Comprises the Constitution of Canada?

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British Columbia v Imperial Tobacco Canada Ltd. [2005]

- The tobacco damages and health care costs recovery act authorizes an action by the government of BC against a manufacturer of tobacco products for the recovery of health care expenditures incurred by the government in treating individuals exposed to those products

- These appeals question the constitutional validity of the Act on the basis that it violateso Territorial limits on provincial legislative jurisdictiono The principle of judicial independenceo The principle of the rule of law

- Background:o Creates cause of action for BC government to recoup losses from treating people who

have become ill from using tobacco products- Analysis:

o Rule of Law Rule of law has 3 principles:

The law is supreme over officials of the government as well as private individuals and there by preclusive of the influence of arbitrary power

Requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order

The relationship between the state the individual be regulated by law Rule of law requires that the court give effects to the constitution’s text and

apply, by whatever its terms, legislation that conforms to that text Prospectivity in the Law

There is as presumption of statutory interpretation that a statute should be given a retroactive effect, but, if the retroactive effect is clearly expressed, then there is not room for interpretation and the statute is effective according to its terms

Generality in the Law, Ordinary Law for the Government, and Fair Civil Trials Two prior decisions defeat appellants’ submission that the constitution,

through rule of law, requires legislation be general in character and devoid of special advantages of the government

- Held:o The act does not implicate the rule of law in the sense that the constitution

comprehends that termo It follows that the act is not unconstitutional by reason of interference with it

Constitutional Conventions

Another species of unwritten constitutional norm Represent accepted understandings of how organs of government operate


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Nature and effect of conventions:o Conventions come into existence on basis of 3 factors:

A practice or agreement developed by political actors A recognition by political actors that they are bound to follow convention The existence of a normative reason (a purpose) for the convention

o Conventions are NOT law, and as such cannot be enforced by the courts

The Patriation Reference [1981]

- Part of the constitution consist of the rules of common law- Those parts of the constitution which are composed of statutory rules and common law rules

are generically referred to as the law of the constitution- Main purpose of constitutional conventions is to ensure that the legal framework of the

constitution will be operated in accordance with the prevailing constitutional values or principles of the period

- Main reasons why conventional rules cannot be enforced by the courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce legal rules

- Held:o That the agreement of the provinces of Canada is constitutionally required for the

passing of the ‘proposal resolution for a joint address to her majesty the queen respecting the constitution of Canada’ and that the passing of this resolution without such agreement would be unconstitutional in the conventional sense

In the secession reference, SCC confirmed that with s.52(1) of the CA,1982 the Canadian system of government now operates under principle of constitutional supremacy or constitutionalism


- Constitutionalism principle requires all government action comply with the constitution- Rule of law principle requires that all government action must comply with the law, including

the constitution - Why the constitution is entrenched:

o Constitution may provide an added safeguard for fundamental human rights and individual freedoms which may otherwise be susceptible to government interference

o Constitution may seek to ensure that vulnerable minority groups are endowed against the assimilative pressures of the majority

o Constitution may provide for a division of political power that allocates political power amongst different levels of government

- Constitutionalism facilitates a democratic political system by creating an orderly framework within which people may make political decisions


Principle of Constitutional Supremacy

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Doctrine of constitutional supremacy carries with it certain necessary implications that speak to other aspects of public law

o Hierarchy of Law To state that the constitution is ‘supreme law’ implies hierarchy of law Doctrine of parliamentary supremacy stands for the proposition that a rule of

the common law can be overridden or amended by express statement of the legislature in the form of statute

Statute law is binding to the extent that it does not comply with the constitutiono Adjudication

To effect constitutional supremacy requires a mechanism for adjudicating alleged inconsistencies between the constitution and ordinary law, including the power to declare (and enforce) the invalidity of inconsistent ordinary law

Our system requires the legislature to be checked by the judiciary with authority to apply and interpret the constitution

S.52 provides source for thiso Counter-Majoritarianism

Legislatures express majority preferences Constitutional supremacy represents a check on majoritarian democracy

o Amendment by Super-Majority Constitutional supremacy implies that a constitution cannot be amended in the

same way that ordinary legislation can be enacted It requires majorities of federal and provincial legislature to agree on proposed

changes

SCC described human rights legislation as ‘quasi-constitutional’ this is because:o Human rights and anti-discrimination laws are important to individual rights in Canadian

society and closely related to other civil liberties protected by the constitutiono Due to their significance, human rights statutes deserve a broad and liberal

interpretation and can be used to interpret provisions in other legislationo Ex in Vriend v Alberta [1998]

The Exercise of Public Power in Canada

Refers to the division of governmental functions between the legislative, executive and judicial branches of the state

Important to public law because:


Constitutional Supremacy and Human Rights

The Separation-of-Power Doctrine

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o A functional purpose of identifying the institutional homes of each the 3 major forms of public power

o A normative purpose of providing general boundaries for the operation of each institution

In Canada, the legislative branch of the state is divided between the federal legislature (parliament) comprising of the elected House of Commons and the appointed Senate, and the elected legislatures in each province

Principle of Parliamentary Supremacy o Parliamentary supremacy is and was the basic constitutional rule of British

constitutional law that Canada’s founders adoptedo Doctrine of exhaustion of state power meant that if one level of government was unable

to enact a law for jurisdictional reasons, then the law could be passed to the other levelo The constitution acts 1867 and 1982 have an express declaration of constitutional

supremacy o Executive action must comply with the provisions of the Constitution because it can be

authorised only by statutes that themselves are consistent with the constitution

Babcock v Canada AG [2002]

- Case raises issue of when, if ever, Cabinet confidences must be disclosed in litigation between the government and private citizens

- Issues:o What is the nature of cabinet confidentiality and the process by which it can be

relinquished - Discussion:

o Cabinet confidentiality is essential to good government o S.39 of Canada Evidence Act is response to the need to provide a mechanism for the

responsible exercise of the power to claim cabinet confidentiality in the context of judicial and quasi-judicial proceedings

- Constitutionality of s.39o Respondents challenge the constitutionality of s.39 and argue that the provisions is ultra

vires parliament because of the unwritten principles of the Constitution: rule of law, independence of the judiciary and separation of powers

- Held:o S.39 does not offend the rule of law or the separation of powers doctrine and the

independence of the judiciary

Principle of Federalism o Unwritten principle in the Constitution of Canada as a means of recognizing regional

cultural diversity


What Comprises the Constitution of Canada?

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- Confirm the principle of federalism runs through the political and legal systems of Canada- Principle of federalism recognizes the diversity component parts of confederation, and the

autonomy of provincial governments to develop their societies within their sphere of jurisdiction- Facilitates the pursuit of collective goals by cultural and linguistic minorities which form the

majority in particular provinces

Executive branch replicates the duality created by federalism, with the executives at the federal and provincial levels

Executive includes all ministries of government and their employees- the civil service Executive branch is subordinate to the legislature

o Executive branch derives power solely from the laws or statutes passed by the legislature

o Executive responsible for legislature by constitutional convention

S.96 provides that the federal exec shall appoint justices of the country’s superior, county and district courts

Provinces, exercising their authority over the administration of justice, that establish these courts in their respective jurisdiction

SCC defined core jurisdiction of superior courts, which has 2 public law implications:o The jurisdiction to rule on the constitutional validity of all ordinary laws in Canadao Jurisdiction to supervise the activities of executive government and other statutorily

delegated actors to ensure that they act within statutory authority The Judiciary’s Constitutional Law Jurisdiction

o Principle of constitutional supremacy presupposes a role for an adjudicative institution to rule whether ordinary legislation has violated the limits on legislative powers set by the constitution

The Judiciary’s Administrative Law Jurisdiction o Superior courts exercise a supervisory jurisdiction with respect to exercises of executive

government authorityo Administrative law or judicial review jurisdiction is understood to be a matter of

common law development The Principle of Judicial Independence

o Element of constitutional doctrine tied to separation of powerso Ensures that judges, as arbiters of disputes, are not complete liberty to decide individual

cases on their merits without interferenceo Preserves the separation of powers by ‘depoliticizing’ the relationship with the other 2

branches


Executive Power

Judicial Power

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Basic Architecture of the Canadian Legal System

Parliament and the Legislative Process

Section 17 of the Constitution Act, 1867 creates a “parliament of Canada” consisting of “the queen, and Upper house styled the Senate, and the House of Commons”

The Monarch and Governor Generalo The Queen is Canada’s official head of stateo Many of the Queen’s powers are to be exercised by the governor generalo Selecting the Monarch

Identity of the monarch is determined in the United Kingdom according to rules of heredity and antiquated laws of succession

O’Donohue v The Queen (2003) Believes that certain provisions of the Act of Settlement are clearly

discriminatory against Roman Catholic people Breach of s.15(1) of Charter of Rights and Freedoms All parties acknowledge that if the impugned portions of the Act of

Settlement have constitutional status then the matter is not justicable


Structure and Operation of Parliament

Constituent Parts of the Parliament of Canada

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o Charter cannot be used to amend or trump another part of the our constitution

Fact that the rules of succession are part of our constitutional fabric is further supported by an analysis of the way in which these rules of succession have functioned within the commonwealth

The rules of succession and the requirement that they be the same as those of Great Britain are necessary to the proper functioning of our constitutional monarchy and therefore, the rules are not subject to charter scrutiny

o Selecting the Governor General By Canadian constitutional convention, the Queen follows the Canadian prime

minister’s recommendations in appointing the governor general There are no legal criteria constraining the prime minister’s choice for governor

general Convention dictates that only Canadians may not be appointed and Canadian

practice strongly favours alternating Anglophone and francophone representatives

Senateo Canada has an UNELECTED upper chamber of the federal legislatureo Section 24 of the Constitution Act, 1867 expressly anticipates the appointment of

senators by the governor general Governor general follows the advice of the prime minister, as required by

conventiono The appointment process has fuelled substantial controversyo Brown v Alberta (1999)

Bert Brown commenced proceedings seeking an order declaring the provisions of the CA 1867 providing for the appointment of senators to be contrary to democratic principles, senators must be appointed in a manner consistent with the provisions of the Alberta statute, the Senatorial Selection Act

Originating notice struck out for no cause of action Appellant’s claim based on 2 pillars:

The statements of the SCC on political institutions and democratic principles

His status as a ‘senate nominee’ elected through a democratic process Remedy being sought is an order declaring the senators appointed form Alberta

“must be appointed” in a manner consistent with the processes of the Senatorial Selection Act

Held: Do not view the SCC statement in Quebec Secession as modifying the

existing jurisprudence on what constitutes a legal issue


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Cannot find that the appellant’s originating notice, as it is presently structured, raises legal issues as required by the existing law

o Samson v A-G of Canada (1998) Application for an interlocutory injunction to restrain the GG form appointing to

Senate a qualified person from Alberta, unless person has been elected pursuant to the provisions of the Senator Selection Act

S. 24 and 32 of the CA,1867 expressly confer on the GG unfettered discretion to appoint qualified person to the Senate

Court cannot impose procedural or other limitations on the GG’s express power of appointment to senate or otherwise fetter the discretion

Applicant’s claim is political and not legal and thus relief sought can only be found in political arena

House of Commonso Members of the HofC are elected, a requirement found in s.37 of the CA, 1867o Elections Canada, Canada’s Electoral System

Representation in the HofC is based on geographical divisions, electoral districts, constituencies or ridings

Each riding elects 1 member to the HofC and the number of ridings is established through formula set out in constitution

First Past the Post In every riding the candidate with the most votes wins a seat in the

HofC Any number of candidates my run in one riding but only in one riding

either independently or under the banner of a registered party After an election, the party with the most elected reps usually becomes

the governing party Leader of that party becomes PM

o Figueroa v Canada [2003] Appeal focuses on purpose of s.3 of the Charter, which confers on each citizen

the right to vote in the election of member of the HofC and the provincial legislative assemblies and to be qualified for membership therein

Issue of whether the federal legislation that restricts access to certain benefits to political parties that have nominated candidates in at least 50 electoral districts violates s.3

S.3 not only right to vote but for each citizen to play meaningful role in the electoral process

The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option

Essential question to be determined is whether the 50 candidate threshold interferes with the capacity of the individual citizens to play a meaningful role in the electoral process


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Large or small, all political parties are capable of introducing unique interests or concerns into political discourse

There is no reason to think that political parties that have not satisfied the 50 candidate threshold do not act as an effective outlet for the meaningful participation of individual citizens in the electoral process

Finally to be determined is whether withholding these benefits from candidates of parties who have not met the 50 candidate threshold undermines the right of each citizen to meaningful participation in the electoral process

Conclude that 50 candidate threshold does infringe s.3 of the Charter To justify infringement must be saved by s.1 of charter

Government must demonstrate the objective of the legislation is sufficiently pressing and substantial to warrant violating charter rights

Infringement must be proportionate Was found that there was infringement of s.3 and government failed to justify

this violation

Elections to the house of commons take place in the period after the dissolution of the old parliament and the summoning of the new parliament

Summoningo S.38 CA, 1867 empowers the GG to summon and call together the House of Commonso By convention, the GG calls parliament to session on the advice of the PMo House of Commons, Précis of Procedure

Formal opening of a parliament Formal opening of the first session of parliament is distinguished from

the opening of subsequent sessions by 2 preliminary proceedingso The taking and subscribing of the oath of allegiance by members

and the election of a speaker Speech from the throne

Following the claim to privilege and the reply, GG reads the speech from the throne imparting the causes of summoning parliament, prior to which declaration neither house can proceed with any public business

Address in reply to the speech from the throne When the house returns from the senate after the speech form the

throne, its business includes a routine motion by PM that the throne speech be considered either that day or some future day

Prorogationo Once summoned, a given parliament is generally divided into several sessions,

separated by a prorogationo Prerogative of the GG, acting on the advice of the PMo House of Commons, Précis of Procedure


Bringing the Constituent Elements of Parliament Together

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Prorogation ends a session, but does not dissolve parliament Speaker is still in office for all purposes during period of prorogation Abolishes all pending legislation and quashes further committee activity Between a prorogation and the next session of the same parliament, the house

is said to be in recess Dissolution

o CA 1867 and charter limit the duration of the commons to 5 yearso Dissolution prompts electoral cycleo Instances where the PM might be forced by convention to seek dissolution from the GG

at time not of their choosing Vote of no confidence

o Special Committee on the Reform of the House of Commons The confidence of the HofC in the governing party lies at the heart of what we

know as responsible government There is no single definition of ministerial responsibilities, 3 part doctrine

There is the responsibility of a minister to the Queen or the GG There is the individual responsibility of the minister to the House If the confidence of the house is lost, it spells the end of the ministry

unless the government is granted a dissolution and is sustained through the electorate

Political parties are a recognized entity in Canadian election law Parties are the partial product of 2 legal aspects of parliamentary democracy

o Decision making in parliament depends on swaying a majority of votes in each chamber Commons makes decisions through device of motions Success of motion is determined by whether it attracts the majority of votes

o Confidence convention: by constitutional convention, the individual commanding the confidence of the commons (that is, its majority) is appointed PM

Individual members of parliament are not always able to vote with their conscience

House of Commons, Précis of Procedureo The Speaker

Member elected by other members to be speaker assumes the position of highest authority in the house and represents the commons in all its powers, proceedings and dignity

o The speaker as spokesperson


Key Actors in Parliament

Political Parties

The Speaker

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Position has evolved so that presiding over debates is now considered the primary role, certain activities continue to reflect the earlier function as petitioner for the guardian of the privileges of members

o Speaker as Presiding Officer Maintain order in debate and to apply and interpret the practices and traditions

of the houseo Maintaining Order

Standing orders set down only in general terms the authority of the speaker to maintain order and decorum in the house

o Legal status of the Speaker Provisions for the speakership in Canada is assured not only by tradition and

convention but also by constitution S.44 of CA,1867

o Election of the Speaker The election of the speaker at the opening of parliament is presided over by the

member who has the longest period of unrevoked service and who is not a member of the cabinet, nor holds any office within the house

Parliamentary committees are subsets of parliament tasked with much of the detailed work in parliament

House of Commons, Précis of Procedureo Types of Committees

Committees of the Whole(House) Standing committees Legislative committees Special committees Joint committees Subcommittees

o Powers of Committees Committees are given different types of powers by the House of Commons in

relation to their specific tasks

Parliamentary law- rules determining parliamentary procedure- flows from an array of sources Constitutional and Legislative Basis: Parliamentary Privilege

o Parliamentary privilege are those rights necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts

o Canada (House of Commons) v Vaid [2005] Former speaker of the house is accused of constructively dismissing his

chauffeur for reasons that amount to workplace discrimination


Parliamentary Committees

Parliamentary Procedure

Sources of Parliamentary Law

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Issue whether it is open to the Canadian Human Rights tribunal to investigate Mr.Viad’s complaint

Appellants contended that powers and immunities, the privileges, permit the senate and the house to conduct their employee relations free from any interference from the CHRC or any other body outside parliament itself

Parliamentary privilege is defined by the degree of autonomy necessary to perform parliament’s constitutional function

The appellants having failed to establish the privilege is the broad and all inclusive terms asserted, the respondents are entitled to have the appeal disposed of according to the ordinary employment and human right laws that parliament has enacted

Standing Orderso Canada’s legislatures has the power to administer that part of the statute law relating to

its internal procedure, without any intervention from the courtso Standing orders are rules of procedure adopted by at least a simple majority vote of the

members of commonso Constitute comprehensive code of commons operations

The Scope of Parliament’s Law Making Jurisdiction o Parliament is subordinated to other constraints in the constitution, most notably the

division of powers between federal and provincial powers governments but so long as it falls within these constitutional bounds, parliament may make any law on any topic it wishes

o Power to Pass Bad Laws Bacon v Saskatchewan Crop Insurance Corp. (1999)

Appeal calls into question the legality of the gross revenue insurance program (GRIP)

Purpose of legislation was to establish changed terms of GRIP and extinguish any breach of contract that might otherwise arise as a result of this change

Appellants contend that the government had no legal authority to pass legislation imposing new contractual and extinguishing the right to sue for breach of earlier contract

To say that since the courts do a good job in providing protection in one area against the arbitrary legislation is to misunderstand the democratic process by downgrading the importance of holding a government responsible to the will of the electors

Held:o There is no basis to challenge the validity of the legislation

which was used to impose GRIP 92 contract and to extinguish


Parliamentary Law Making

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the right to challenge its application through reliance upon the usual common law remedies

Turner v Canada [1992] Fundamental allegations iterated and reiterated throughout the

pleading are the parliament was tortuously misled to enact the retroactive amendment and that the respondent was denied a fair hearing by surreptitious procedures adopted by parliament

An action against Her Majesty based on allegations that parliament has been induced to enact legislation by the tortuous acts and omissions of ministers of the crown is not justicable

If parliament is competent to pass bad laws it is not to presumed that it means to do so

Wells v Newfoundland [1999] Deals with the position of the crown and its senior civil servants who

hold tenured appointments subject to good behaviour The respondent was informed by the minister of justice that the

government intended to act on the recommendations of the review and that on ‘balance of probabilities’ his position would be abolished

Appellant crown asserts that even if it breached the respondent’s contract by eliminating his position, it was entitled to do so as an exercise of its unfettered sovereign power

In a nation governed by rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to

o To argue the opposite is to say that the government is bound only by whim, not its word

Government cannot rely on formal separation of powers to avoid consequence of its actions

Crown breached contractual obligation and his right to seek damages for that breach was not taken from him by legislation and thus he is entitled to compensation

o The Power of Follow Unfair Procedure Courts have no role in querying the procedure parliament selects in passing law Internal procedure immunized form external court scrutiny includes the manner

in which parliament passes acts The SCC implied ‘ three readings in the senate and house of commons’ is a

procedure due any citizen of Canada by ‘long standing parliamentary tradition’ Authorson v Canada AG [2003]

The appellant, awhile agreeing that the respondent is owed money, argues that parliament has, by enacting legislation, made that debt unenforceable


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The governmental expropriation of property without compensation is discouraged by our common law, but it is allowed when parliament uses clear and unambiguous language

Appeal allowed The submission that a court can compel Parliament to change its

legislative procedures based on the Bill of Rights must fail Court interference with the legislative process is not an interpretation of

an already enacted law Due process protections cannot interfere with the right of the legislative

branch to determine own procedureo Ethics in Law Making

Parliament may be sovereign, but individual law makers are not Ethics rules exist both in statutory law and in the internal procedural rules

governing each house of parliament Conflict-of-Interest Rules for Federal Legislators, Margaret Young

Conflict of interest is one aspect of public sector ethics, and Canadian legislature and government have developed legislation and codes of conduct that show wide variety of approaches to this issue

Background:o Defined: situation in which a minister of the Crown has

knowledge of a private economic interest that is sufficient to influence the exercise of his or her public duties and responsibilities

o Principles underlying conflict of interest: Impartiality Integrity

o Unavoidable conflicts: Inherent conflict: arises out of the position of the

parliamentarian as an individual in society Representative interest: arises when members share

personal interests with constituency electing them Techniques of Control

o Disclosure: requires that legislators reveal their assets, first confidentially and then publicly so that personal interests become public knowledge

o Avoidance: requires legislators do divest themselves of interests or relationships that might impair their judgement

o Withdrawal: requires parliamentarians to refrain from acting on matters in which they have personal financial interest

Types of Interests


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o Investments: investments usually considered unlikely to give to a conflict of interest include bonds, GICs and open-ended mutual funds

o Debts: liabilities are potential sours of conflict because the creditors of persons in public office may give the appearance of having influence over debtors

o Corporate Positiono Outside Employment: cabinet minister prohibitedo Lobbyingo Government contracts and activitieso Gifts and honorariao Inside informationo Spouse and dependent children

Statutory and Parliamentary Ruleso Most conflict of interest rules for federal legislators found in the

criminal code, parliament of Canada act and Canada elections act

o Also in standing orders of the house of commons and rules of the senate

o Conflict of Interest and Post-Employment Code for Public Office Holders Public office holders should used avoidance, confidential report, public

declaration, divestment or recusal depending on the interest Public office holder is not to engage in the practice of a profession, actively

manage or operate a business or commercial venture, retain or accept directorship or offices in a financial or commercial corporation, hold office in a union or professional association or serve as a paid consultant

Parliament’s Law Making Procedure o Law making process is governed mostly by the rules of procedure of each chamber of

Parliament o House of Commons, Précis of Procedure

Two main types of bills: Public: concerned with matters of public policy Private: relates to matters of particular interest or benefit to a person or

persons, including corporations Public Bills

Two types of public billso Government public bills: introduced and sponsored by ministerso Private members’ public bills: sponsored by private member

Stages of a Bill- Traditional context Introduction


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o To introduce a public bill, a member must give 48 hours written notice and then, by motion, obtain leave to introduce the bill

First Readingo First reading follows immediately and is also automatically

adopted without debate, amendment or question put Second Reading

o Most important stageo It is then that the principle and object of the bill are debated

and either accepted or rejectedo 3 types of amendments may be proposed to the motion for

second reading Six months hoist Reasoned amendment: express specific reasons for

opposing 2nd reading Amendment may be introduced to refer the subject

matter to a committee before the principle of the bill is approved

Committeeo Standing orders provide that a bill be read twice and then

referred to a committeeo The committee then considers the bill clause by clause o Amendments in committee be in keeping with the principle of

the bill as agreed to at second reading in the House Report Stage

o Members- particularly those who were not on the committee- may propose amendments, after giving notice, to the text of the bill as it was reported by the committee

o There is no debate at the report stage unless notices of amendment are given, and debate is to relevant to these amendments

Third Reading o Basic principles governing the acceptability of amendments at

third reading are that they be strictly relevant to the bill and do not contradict the principle of the bill as passed at the second reading

Passage by Senateo If the senate passes the bill without any amendment, a message

to that effect is sent to the house of commons and unless it contains financial provisions, the bill is not returned to the House


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o If there are amendments to the bill, the Senate communicates this to the House by message

Royal Assent and Proclamationo CA 1867 states that the approval of the Crown, signified by

Royal assent, is required for any bill to become law after passage by both houses

Stages of a Bill- Variations on the Traditional Legislative Process Committee Prepares and Brings in a Bill

o The standing orders provide that a motion to appoint to instruct a committee to prepare a bill may be moved by a Minister or by a private member

Committee Study of Bill Before Second Readingo Generally, committee will conduct its clause by clause

examination of the bill subject to the same rules and procedures governing the committee study of bills after second reading

o When the bill is reported act to the house, what follows is essentially a combined report and second stage reading stage

o When bill has been concurred in and read a second time, it shall be set down for 3rd reading and passage into the house

Private Bills Bill designed to exempt an individual or group from the application of

the law is a private bill Introduced by means of a petition After approval of the petition, private bills are printed and ordered for a

2nd reading Notice of private bills must be posted in the lobbies of parliament

****

The Exercise of Administrative Authority

S.9 of the CA1867 states: “the executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen

Crown is the formal legal entity of the government and the Crown is the bearer of both legal rights and legal obligations


The Executive Branched Defined

The Crown

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The governor general is ‘to exercise all powers and authorities lawfully belonging to the Monarch in respect of Canada

‘cabinet’ is the collective decision-making committee comprising the prime minister and his or her ministers

Where powers in the 1867 act are exercisable by the GG in Council or the lieutenant governor in council they are in effected exercised by federal and provincial cabinets, respectively.

Ministers and the prime minister together comprise the ‘ministry’ Prime minister is considered the first among equals in the ministry and who presides over

cabinet Prime minister has unfettered authority to compel the removal of ministers Cabinet that determines the legislative agenda of the government in parliament and it is cabinet

and its ministers that are responsible for the administration of the individual departments of the government

Two key principles for responsible government:o Cabinet members are drawn from the legislative branch, almost always the House of

Commono Under the system of responsible government, the ministry is accountable to the

legislative branch both collectively and individually Cabinet minister have administrative responsibility for departments under their charge, which

may often include specific powers to make decisions affecting the rights of individuals

The employees of the various ministries of the government, often referred to as civil servants are also part of the executive branch

Kenneth Kernaghan identifies 3 principles that structure the relationship between the civil service and political officials within the government:

o Ministerial responsibility Requires that the presiding minister be held politically accountable for all

matters arising within the departmento Political neutrality

Requires that civil servants carry out their responsibilities loyally to the government in power without regard for the civil servants’ own political views

o Public service anonymity Provides that bureaucrats should be held accountable to their political

overseers, but are not answerable to parliament The loyalty owed by civil servants is not bound less, but requires that civil servants refrain from

public criticism of government policy

Fraser v Canada (Public Service Staff Relations Board) [1985]


The Prime Minister and Cabinet

The Public Service

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- A job in the public service has two dimensions, one relating to the employee’s tasks and how he or she performs then, the other relating to the perception of a job held by the public

- Public servant must not engage in sustained and highly visible attacks on major government policies

- There is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service

- Tradition emphasises the characteristics of impartiality, neutrality, fairness and integrity- A person entering in public service or only already employed there must know, or at least be

deemed to know that employment in the public service involves acceptance of certain restraints - The restrictions on political activities now apply only to senior members of bureaucracy

Executive function are extensively carried out by a variety of bodies that have a measure of independence from the government

Legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency

Similar justification underlies the creation of independent agencies to administer government entitlement disputes

Some public services requiring close cooperation and coordination between different jurisdictions can be delivered by multijurisdictional agencies

The provisions establishing the Canadian Human Rights Commission are typical of the statutory provisions used to created an independent administrative body

The independence of the commission is established through the provisions of security of tenure to the commissioners who may only be removed upon the address of both houses

By virtue of the Canadian Bill of Rights, the Canadian Human Rights Tribunal must have at lease some independence guarantees

Ocean Port Hotel Ltd v British Columbia [2001]

- Ocean Port argued that the Board lacked sufficient independence to make the ruling and impose the penalty it had and that as a result the decision must be set aside

- Issueo Concerns independence of liquor boardo Held that the tenure enjoyed by board members (appointed at pleasure to serve part

time) was insufficiently secure to preserve the appearance of their independenceo Confronted with silent or ambiguous legislation, court generally infer that parliament of

the legislature intended the tribunal’s process to comport with principles of natural justice

o The degree of independence required of tribunal members may be ousted by express statutory language or necessary implication


Independent Administrative Agencies

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o The degree of independence required of a particular tribunal is a matter of discerning the intention of parliament or the legislature and, absent of constitutional constraints, this choice must be respected

o Tribunals are not courts and do not occupy same the same constitutional role as the courts

Tribunals span the constitutional divide between the judiciary and the executive under the mandate of the legislature

Commercial nature of some activities may be ill-suited to government departmental structures and the related rules respecting financial matters, such as controls on the expenditure of public funds and the management of debts

CC have public objectives The private and public objects of CC require the government to balance the operational benefits

of independence and the need for accountability Primary act for feral CCs is Financial Administration Act, 1985 The government has in many cases the authority of appointment over corporate directors and

key corporate officers

Municipalities, which are created under provincial legislation, deliver a wide range of public services

Given their broad mandate municipalities are often considered to be a distinct level of government in Canada

Municipal powers are subject to the regulatory qualifications superior levels of government place on them, including the radical restructuring or even elimination of municipalities

Because municipalities are governed by elected officials and because they exercise broad plenary powers, municipalities are unlike most other forms of independent administrative bodies

Shell Canada Products v Vancouver City [1994]

- McLachlin J (dissenting):o Barring clear demonstration that a municipal decision was beyond its powers, courts

should not so holdo Whatever rules of construction are applied, they must not be used to usurp the

legitimate role of municipal bodies as community representatives This adheres to the fundamental axiom that courts must accoud proper respect

to the democratic responsibilities of elected municipal officials and rights of those who elected them


Crown Corporations

Municipalities

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A generous approach to municipal powers will aid the efficient functioning of municipal bodies and avoid the costs and uncertainty attendant on excessive litigation

A generous approach to municipal powers is arguably more in keeping with the true nature of modern municipalities

o City council may properly take measures related to fostering and maintaining this sense of community identity

o She was satisfied that the purpose of City Council in resolving not to do business with Shell were proper and fell within the powers of the City under the Vancouver Charter

Subsidiarity is described by the SCC as ‘the proposition that law-making and implementation are often best achieved at level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness and to population diversity

The executive branch of the government, in addition to being responsible for the implementation of government policy, is required to enforce those policies that have the force of law

In common law, police and prosecutors have been distinguished form other civil servants in that in their enforcement duties they are not subject to political oversight in the sense that they must exercise their powers without direction from political officials or in furtherance of partisan political activities

R v Campbell [1999]

- Question arose about the legality of the RCMP’s conduct- Crown argued that illegal conduct should be subject to Crown immunity- Binne J:

o Crown’s attempt to identify the RCMP with the crown for immunity purposes misconceives the relationship between the police and the executive government when the police are engaged in law enforcement

o While for certain purposes the commissioner of the RCMP reposts to the solicitor general, the commissioner is not to be considered a servant or agent of the government while engaged in criminal investigations

Krieger v Law Society (Alberta) [2002]

- Krieger was a crown prosecutor who was the subject f a complaint to the Law society- Krieger sought to prevent the law society from reviewing the matter on the basis that to do so

would interfere with the exercise of prosecutorial discretion- Iacobucci and Major JJ:

o Attorney General exercised on King’s behalf the prerogative to bring and terminate prosecutions


Enforcement Bodies: Police and Prosecutors

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o The gravity of the powers to bring, manage and terminate prosecutions, which lies at the hearts of the attorney general’s role, has given rise to an expectation that he or she will be in this respect fully independent from political pressures of the government

o It is a constitutional principle in this country that the AG must act independently of partisan concerns when supervising prosecutorial decisions

o Court acknowledgment of the AG’s independence from JR in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our constitution

o Quasi-judicial function of AG cannot be subject to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute

Prerogative powers are those powers exercisable by the crown that do not arise from a statutory grant of power to the crown

Prerogative powers themselves are not static in the sense that these powers will remain undiminished over time

Statute has effect to supersede prerogative powers At the present time the po0wers exercised by way of prerogative include many of the crown’s

powers of appointment, and powers relating to foreign affairs such as declaration of war, the appointment of ambassadors and the issuing of passports

Black v Chretien (2001)

- Dicey: crown prerogative is ‘the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the crown’

- Nothing in Letters of Patent or the case law requires that all prerogative powers be exercised exclusively the GG

o As members of the privy council, the PM and other ministers of the Crown may also exercise crown prerogative

- Giving advice to the Queen or communicating to her Canada’s policy on the conferral of an honour on a Canadian citizen is not justiciable

- Once a court established the existence and scope of a prerogative power it could not review how that power was exercised

- If an individual claims that the exercise of a prerogative power violates that individual’s charter rights, the court has a duty to decide the claim

- The exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual

o Where rights or LE are affected, the court is both competent and qualified to judicially review the exercise of the prerogative


Sources of Executive Power

Prerogative Powers

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- The refusal to grant an honour is far revoked from the refusal to grant a passport or a pardon, where important individual interests are at stake

- The discretion to confer or refuse to confer an honour is the kind of discretion that is not reviewable by the courts

The vast majority of the executive powers originate from the delegation of authority by the legislature in statute

There are few restrains on the legislature’s ability to delegate powers to administrative bodies The legislature cannot in law delegate powers that exceed the legislature’s own powers No delegate can be authorized to exercise an absolute discretion Delegation must not amount to a complete abdication of legislative authority

Re Gray (1918)

- Case concerned the legality of changes to statutory conscription rules that were enacted by cabinet pursuant to a general delegation of powers

- Under the constitution parliament alone is to make laws, the governor in council to execute them, and the court to interpret them

o That it follows that no one of these fundamental branches of government can constitutionally either delegate or accept the functions of any other branch

- Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country is the supreme law against which no other can prevail

- It was within the legislative authority of the parliament to delegate to the governor in council the power to enact the impugned orders in council

A-G v A-G Can. (Nova Scotia inter-delegation) [1951]

- The distinction between the status of such a legislature and a delegate arises from the difference in endowment by a paramount legislature of an original, self-responsible, and exclusive jurisdiction to enact laws, subject, it may be, to restrictions and limitations, and the entrustment of the exercise of legislative action to an agency of the entrusting authority

- Delegation has its source in the necessities of legislation- In the generality of actual delegation to its own agencies, Parliament, recognizing the need for

the legislation, lays down the broad scheme and indicates the principles, purposes and scope of the subsidiary details to be supplied by the delegate

The rise in the use of executive bodies to create rules of general application parallels the more general rise of administrative bodies


Statutory Powers

The Nature and Function of Delegated Powers

Rule Making

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Delegated legislation is considered inferior to statutes: a conflict between the two is always resolved in favour of the statutory provision

Legislators often prefer to delegate the authority to enact rules to those persons who are charged with the implementation of the statutes, such as the minister or an agency

regulation making is usually a fairly open activity, by virtue of government policy and some statutory law

Government of Canada, Guide to Making Federal Acts and Regulations (2001)o Regulations are form of law, often referred to as delegated or subordinate legislationo They are made by persons or bodies to whom parliament has delegated the authority to

make them, such as the Governor in council, a minister or an administrative agencyo An act generally sets out the framework of a regulatory scheme and delegates the

authority to develop the details and express them in regulations o See text, pg.273 for details

common for administrative agencies to be created in order to hear and decide specific kinds of disputes

Administrative tribunals are very similar in their form to courts in that they adjudicate claims between competing parties strictly on the basis of existing law

One justification for the use of administrative dispute resolution over courts is that the formalities associated with formal court proceedings can be dispensed with, making administrative tribunals more open to public participation

May afford greater flexibility in the range of considerations that decision makes may take into account

The most prevalent group of administrative decision makers are those empowered to determine whether a person will be granted a particular public benefit

Benefit determination will often have distributive consequences that require decisions makers to confer a certain benefit, on some but not on others, raising fairness concerns

Benefit determination may require decision makers to attach complex sets of conditions to an approval

Obligation determination may raise slightly different issues than benefit determination

Final area of delegated authority is to those decisions and activities that are required to promote compliance with legal obligations, including criminal and quasi-criminal enforcement proceedings

where reasonable grounds for violations of legal requirements are found by this body, the statute may empower the investigator to lay an information in order to initiate proceedings before a court pursuant to a statutory offence provision


Dispute Resolutions

Benefit or Obligation Determination

Enforcement Decisions

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While some decisions are easily recognizable as being legislative or judicial character, many other defy classification in functional terms

The rule that a delegated authority can exercise only those powers that are granted to it is conceptually straightforward and tends to turn on questions of the interpretation of the authorizing legislation

Determining whether an administrative act or decision is properly clothed with jurisdiction may require a consideration of whether the decision maker has complied with applicable statutory conditions or whether a certain set of required factual circumstances is present

Delegated authority must be exercised by the specific delegate to whom the authority is granted DELEGATED AUTHORITY CANNOT BE RE-DELEGATED Matters that are ‘merely administrative’ may lawfully be sub delegated

Administrative decision makers are generally required to by common law to act fairly toward those persons affected by their decisions

Duty to be fair refers to the procedures adopted by decision maker Rules of Natural Justice captured by 2 maxims:

o Audi alteram partem: right of a person to know and answer the case against themo Nemo judex in sua causa: requiring that a person not be the judge of their own cause

Knight v Indian Head School Division No.19 [1990]

- Issue of whether the respondent was owed a duty of fairness when he was dismissed because employer did not want to renew his contract

- General Duty of Fairness o Nature of the Decision

Deals with whether decision is judicial or quasi-judicial in nature However, no need to distinguish unless statute mandates A decision preliminary in nature will not in general trigger a duty to act fairly,

where as a decision of a more final nature may have such effecto The Impact of the Decision on the Employee

There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual


Overlapping Functions

Limits on the Exercise of Delegated Authority

Controlling Jurisdiction: Substantive Ultra Vires

Controlling Procedures: The Duty to Be Fair

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- In this case it was found that there was a general duty to act fairly based on the circumstances - Content of the Duty to Act Fairly

o Case specifico Both the rules of natural justice and the duty of fairness are variable standards- their

content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided

Baker v Canada (Citizenship & Immigration) [1999]

- Appellant, who was a Jamaican, was the subject of a deportation order- He application to stay based on humanitarian and compassionate grounds was denied - She was not given official reason but was give copy of notes used- Appellant sought to have the H&C decision reviewed by the court on the grounds she was

denied procedural fairness- Factors Affecting the Content of the Duty of Fairness

o The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances

o Underlying these factors is the notion that the purpose of participatory rights contained within the duty of procedural fairness

Nature of Decision being Made The more the process provided for, the function of the tribunal, the

nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protection closer to the trial model will be required by the duty of fairness

Nature of statutory scheme and the ‘terms of the statute pursuant to which the body operates’

The importance of the decision to the individual affected The legitimate expectations of the person challenging the decision may also

determine what procedures the duty of fairness requires to given circumstances Take into account and respect the choices of procedure made by the agency

itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances

- Legitimate Expectations o in this case there is no legitimate expectation affecting the content of the duty of

fairness- Participatory Rights

o At the heart of this analysis is whether those whose interests were affected had a meaningful opportunity to present their case fully and fairly

o Circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decisions in a fundamental way


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must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered

o The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations

- The Provision of Reasons o Traditional position at common law has been that the duty of fairness does not require,

as a general rule, that reasons be provided for administrative decision o Courts and commentators have, however, often emphasised the usefulness of reasons

in ensuring fair and transparent decision makingo It is now appropriate to recognize that, in certain circumstances, the duty of procedural

fairness will require the provision of a written explanation for a decision - Reasonable Apprehension of Bias

o Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker

o Test: What would an informed person, viewing the matter realistically and practically

and having thought the matter through, concludeo RAB standards may vary depending on context

The concern with broad discretion is that it is open for decision makers to exercise that discretion in ways that were not contemplated by the legislature and for the purposes that do not reflect the public interest

Bad faith should be distinguished from unreasonableness o Discretion may allow a decision maker to make a decision that is unreasonable

Bad faith goes beyond unreasonableness and amounts to a jurisdictional error since it is implied that the legislature would not have intended for a delegated legislation authority to act for some improper and ulterior purpose

Equity Waste Management of Canada v Halton Hills (1997)

- Municipal land-use bylaw as attacked by the affected landowners on the basis that the bylaws was passed for reasons of political expediency and not for land use planning

- This purpose was alleged as bad faith- Laskin J:

o Bad faith by a municipality connotes a lack of candour, frankness and impartialityo A court should not be quick to find bad faith because members of a municipal council,

influenced by their constituents, express strong view against projecto Important consideration in determining whether an administrative decision maker has

improperly exercised their discretion will be the amount of deference a reviewing court gives an administrative decision


Controlling Discretion: Bad Faith, Improper Purposes, and Irrelevant Considerations

Tax Court of Canada

Federal Court

Federal Administrative Tribunals

Provincial/ Territorial Superior

Courts

Provincial Courts

Provincial Administrative Tribunals

Military Courts

Court MartialAppeal Court

Provincial Courts of Appeal

Federal Court of Appeal

Supreme Court of Canada

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Baker v Canada [1992]

- Concept of discretion refers to decision where the law does not dictate a specific outcome- Decision maker is given choice of options within a statutorily imposed set of boundaries- Decisions classified as discretionary may only be reviewed on limited grounds

o Bad faitho Improper purpose o Irrelevant considerations

- Pragmatic and functional approach recognizes that standards of review for errors of law are appropriately seen on a spectrum, with certain decisions being entitled to more deference

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The Courts and the Judiciary

Starting point for the Canadian court system is the Constitution Act, 1867 These provisions mean that the provincial governments create s.96 courts, but the federal

government appoints the judges to these ‘superior’ courts and pays their salaries Under authority of s.101 of CA 1867 the federal government has created the supreme court as

the ‘general court of appeal for Canada’


Structure of the Canadian Court System

Constitutional Framework of the Judiciary

Overview of the Current Canadian Court System

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Provincial/Territorial Courts

Each province with the exception of Nunavut, has provincial/territorial court and these courts hear cases involving either federal or provincial laws

Preliminary matters take place before these courts

Provincial/Territorial Superior Courts

Each province and territory has superior courts Superior courts have ‘inherent jurisdiction’ which means that they can hear cases in any area

except those that are specifically limited to another level of court Tries most serious civil and criminal cases Judges appointed and paid by the federal government

Courts of Appeal

Each province and territory has a court of appeal division that hears appeals from superior courts and provincial/territorial courts

Usually a panel of 3 Also hear constitutional questions that may be raised in appeals

The Federal Courts

Federal court and federal court of appeal are essentially superior courts with civil jurisdiction Can only deal with matter specified in federal statute Only these courts have jurisdiction to review decisions, order and other administrative actions of

federal boards, commissions and tribunals

Specialized Federal Courts

Tax Court of Canadao Gives individuals and companies an opportunity to settle disagreements with the federal

government on matters arising under federal tax and revenue legislation Military Courts

o Code applies to all members of the Canadian Forces as well as civilians who accompany the Forces on active service

Supreme Court of Canada

SCC is the final court of appeal from all other Canadian courts SCC has jurisdiction over disputes in all areas of the law Before case can reach the SCC it must have used up all available appeals at other levels of court


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o Even then the Court must grant permission or ‘leave’ to appeal before it will hear case

New Approaches

Nunavut Court of Justiceo Combines the power of the superior court and the territorial court so that the same

judge can hear all cases that arise in the territory Unified Family Courts

o Permit all aspects of family law to be dealt with in a single court with specialized judges and services

Sentencing Circleso After finding or admission of guilt the court invites interested members of the

community to join the judge, prosecutor, defence counsel, police, social service providers, community elders, the offender, the victim and their family and supporters and meet in a circle to discuss the offence, factors that contributed to it, sentencing options, and ways of reintegrating the offender into the community

o First established in the Yukon to deal with Aboriginal offenders

Judicial selection vary internationally These models are:

o Confirmation hearingo Nominating committeeso Direct elections

US Department of Justice, State Court Organization 1998

- All federal judges are nominated by the President and serve ‘during good behaviour’ once confirmed by the US senate unless they resign or are impeached for terms between 6 and 14 years

- Judicial selection occurs for 3 purposes:o Fill an unexpired term upon the retirement, resignation or death of an incumbent judgeo To select for a full termo At the end of a term

- 39 states use some form of judicial nominating commission in judicial selectiono 16 combine such a commission with retention elections


A Range of Models

Judicial Appointments

Provincial Judicial Appointment Process

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The basic model is built on an advisory committee composed of a mixture of members from the legal community and laypersons

The criteria for evaluating candidates are analogous to those applicable at federal level in relation to personal and professional qualities and experience

Section 96 court, federal court, and tax court judges are appointed by the governor in council (effectively, the cabinet) usually following review of candidates by an advisory committee

No such advisory committee has existed for SCC appointmentso SCC justices have traditionally been simply appointed by the governor in council

For appointment procedure see pg.322 in text Criticism of the Non-Supreme Court Federal Appointment Process

o Too much discretion in the hands of the government- the minister has the power to appoint form the ‘recommended’ list as well as the ‘highly recommended’ list

o No transparency or accountability- candidates face no formal scrutiny and no information is made public to support the choice of appointee

o Patronage appointments- allegations have been made that appointments are tainted by political considerations and that candidates who contributed to political parties are appointed

It has been argued that the minister of justice requires flexibility in making recommendations in order to bring greater diversity to the courts

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness 2005

- The process by which judges are appointed by the federal government is largely unknown and therefore subject to the perception that it may be open to misuse

- It is accepted by the sub- committee that merit based appointments should be paramount over all other considerations

- The members of the sub-committee also agreed upon the need to limit the recommendations for judicial postings possibly to a short list of 3 to 5 candidates but further studies have to be done

- Consensus on the desirability of conducting interview of candidates for judicial office- The sub-committee members also agreed that the minister of justice should consult to chief

justice of the jurisdiction in question on the needs of his or her court- Consensus was reached upon the need for more open and transparent system for advertising

judicial vacancy

Supreme Court Appointments

It is argued that because the supreme court is, in effect, ‘legislating’ it should be more accountable to the public through the appointment process

Some authors have argued that the court must be ‘democratized’ by requiring public scrutiny of potential appointees


Federal Judicial Appointment Process

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Others have argued that the concept of ‘democratization’ is misplaced in relation to the judiciary

o Judges should not be accountable to any constituency but must be free to decide each case in accordance with their view of the law and their own conscience

Minister of Justice, Proposal to Reform the Supreme Court of Canada Appointment Process, 2005

Number of overarching principles have informed the development of the government’s proposal for a revised process

o Merit Overriding objective of the appointments process must continue to be to

ensure that the best candidates are appointed, based on merit Within this framework and to the extent possible, the SCC bench should reflect

the diversity of Canadian societyo Constitutional Framework for Appointments

Any revised appointments process must be rooted in the recognition that the appointment of the SCC judges is within the constitutional authority of the governor in council

o Transparency Transparency is accomplished by enhancing public knowledge and

understanding of the process and can be seen as a goal in itselfo Parliamentary Input

The government has clearly committed itself to ensuring meaningful parliamentary input

o Provincial Input The federal government has consistently acknowledged the importance of

provincial input through consultation with appropriate chief justices, AG, provincial BAR leaders and other provincial bodies that may wish to make recommendations

o Overview of proposal Government’s proposal consists of a 4 stage process

The minister would conduct consultations as under the current process An advisory committee would be established as each vacancy arises to

reflect the regional nature of appointments Minister would complete such further consultation as considered

necessary and provide his advice to the PM The minister would appear before the justice committee after the

appointment to explain the appointment process and the professional and personal qualities of the appointee


Judicial Independence

Sources and Scope

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S.96 to 100 of the CA 1867 provide for the appointment, tenure and remuneration of the federally appointed judges

Federally appointed superior court judges are removable only for breach of ‘good behaviour’ until mandatory retirement age of 75

S.100 indicates that the salaries, allowances and pensions of superior court judges ‘ shall be fixed and provided by the parliament of Canada

CA 1867 provisions apply only to superior courts Most obviously s.11(d) of the Charter imposes a requirement for judicial independence in

certain situations SCC developed the concept of “institutional independence” referring to those requirements that

must be in place in order for the judiciary to be sufficiently independent of pressures from the other branches of the state in order to meet this standard

o Security of tenureo Financial securityo Administrative control or independence with respect to the management of court

business

Reference re Remuneration of Judges of the Provincial Court of PEI [1997]

- Issue whether and how the guarantee of judicial independence in s.11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce salaries of provincial court judges

- One of the goals is the maintenance of public confidence in the impartiality of the judiciary- Judicial independence is at root an unwritten constitutional principle, in the sense that it is

exercised to the particular sections of the Constitution Acts- S.11(d) of the charter protects the independence of a wide range of courts and tribunals which

exercise jurisdiction over offences- To some extent gaps in the scope of protection provided by s.96-100 are offset by the

application of 11(d)- Problems with 11(d)

o Is limited in scope- it only extends to envelope of constitutional protection to bodies which exercise jurisdiction over offences

o Problem with reading 11(d) and 96-100 as an exhaustive code of judicial independence is that some of those provisions, by their terms, do not appear to speak to this objective

- The only way to explain the interpretation of s.96 and 100 is by reference to a deeper set of unwritten understandings which are not found on the face of the document itself

- The preamble is not only a key to construing the express provision of the CA 1867 but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme

- The express provisions of the constitution should be understood as elaborations of the underlying, unwritten, and organizing principles found in the preamble to the CA 1867


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- Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the CA 1867

- Judicial independence has been recognized as “the life blood of constitutionalism in democratic society”

For the SCC ‘ the general test for the presence or absence of independence consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status

Independence includes both a requirement of actual independence and also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well-informed person

The 3 core characteristics of judicial independence- security of tenure, financial security and administrative independence

While individual independence attaches to individual judges, institutional or collective independence attaches to the court or tribunal as an institutional certainty

Security of Tenure

- Has both an individual and an institutional dimensiono Individually: judges may not be dismissed by the executive before the age of retirement

except for misconduct or disabilityo Institutionally: before a judge may be removed for cause, there must be a judicial

inquiry to establish that such cause exists, at which the judge affected must be afforded the opportunity to be heard

- For compliant procedure for judges see pg.348

Report of the Canadian Judicial Council to the Minister of Justice concerning Conduct of Mr. Bienvinue

- Majority of the CJC is of the opinion that Mr. Justice Bienvenue has become incapacitated or disable from the due execution of the office of judge and recommends that he be removed from the office of judge of the Superior court of Quebec

- Showed lack of sensitivity to the committees and individuals offended by his remarks or conduct- He has undermined public confidence in him and strongly contributed to destroying public

confidence in the judicial system- It is essential to the integrity of the administration of justice that the public have confidence in

the impartiality of the judiciary- Reasons of the minority

o It is important and sometimes essential that a judge speak his or her mind, giving full reason for reaching a decision


Assessing Independence

Dimensions and Core Characteristics

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o Every judge knows, and every reasonably informed person not a judge who approaches the issue objectively ought to know, that like every other member of society all judges have certain predilections

o It is whether there is proof the judge has in fact recurringly in the past put the predilection to work to the detriment of litigants or in all likelihood intends in the future to recurringly put it to work to the detriment of litigants

o To be removed from the office for merely ‘having’ a predilection or predisposition or bias in the fact of the legitimacy of that unfettered and unhobbled judiciary

o View of minority that majority erred on 2 grounds The majority did not make the crucial distinction between ‘having’ a predilection

and putting it to work to the detriment of litigants The majority found that having a predilection and being unable or disinclined to

shed it is the same as putting a predilection to worko View that too much emphasis was placed by the majority of both the committee and the

council upon what judges think the public’s reaction ought to be rather than upon what the public’s reaction actually was

o Council members considering any disciplinary measures as serious as removal should approach the issue with a completely open mind and should not feel strait-jacketed by a committees recommendations

Financial Security

- Relates to the pay judges receive for performing their job- It protects against an ‘unscrupulous government’ that ‘could utilize its authority to set judges’

salaries as a vehicle to influence the course and outcome of adjudication

Reference re Remuneration of Judges of the Provincial Court of PEI [1997]

- Independence of the judiciary implies not only that a judge should be free from executive or legislative encroachment and from political pressures and entanglements but also that he should be removed from financial or business entanglement likely to affect or rather to seem to affect him in the exercise of judicial functions

- The salaries of provincial court judges can be reduced, increased, or frozen either as part of an overall economic measure which affects the salaries of all or some person who are remunerated from public funds or as part of a measure which is directed at provincial court judges as a class

- Under no circumstances is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature

- Any reductions to judicial remuneration cannot take those salaries below basic minimum level of remuneration which is required for the office of a judge

- The imperative of protecting the courts from political interference through economic manipulation is served by interposing an independent body- a judicial compensation committee- between the judiciary and the other branches of the government


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Provincial Court Judges Assn of New Brunswick v New Brunswick [2005]

- Unless the legislature provides that the report is binding, the government retains the power to depart from the commission’s recommendations as long as it justifies its decision with rational reason

- The reasons must reflect the underlying public interest in having a commission process, being depoliticization of the remuneration process and the need to preserve judicial independence

Administrative Independence

- Requires that the courts themselves have control over the administrative decisions ‘ that bear directly and immediately on the exercise of the judicial function’

o Assignment of judges, sittings of the court, and court lists

Canada (Minister of Citizenship and Immigration) v Tobiass [1997]

- Counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case

- Judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views

- We do not see how a reasonable person could fail at least to wonder whether the government had succeeded in influencing the associate chief justice to take a position more favourable to the government’s interests than he would otherwise done

- What the respondent’s submission overlooks is that the Chief Justice was not able to exercise is administrative function entirely free from outside interference

- To interfere with the scheduling of cases because of delay is one thing but to take all reasonable steps to avoid a reference to the SCC is quite another

- A reasonable observer apprised of the workings of the federal court and of all the circumstances would perceive that the chief justice and the associate chief justice were improperly and unduly influenced by a senior officer in the department of justice

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Constraints on Legislative and Administrative Action

Marbury v Madison (1803)

- The powers of the legislature are defined and limited; and those limits may not be mistaken or forgotten, the constitution written


The Role of Constitutional Judicial Review in a Democratic Society

The Justification for Constitutional Judicial Review

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- Certainly all those who have framed written constitution contemplated them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void

- If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply

- With the partition of the Canadian Constitution in 1982, the principle of the constitutional supremacy was expressly enshrined in s.52(1) of the Constitution Act, 1982

The Issue of Justiciability

Operation Dismantle v The Queen [1985]

- The case arises out of the appellants’ challenge under s.7 of the Canadian Charter of Rights and Freedoms to the Federal Cabinet to permit the testing of the cruise missile by the USA in Canada

- The federal court of appeal unanimously allowed the respondents’ appeal, stuck out the statement of claim and dismissed the appellants’ action

- I have concluded that the causal link between the actions of the Canadian government, and the alleged violation of the appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action

- Justiciability o Concerns in present case focus on the impossibility of the court finding, on the basis of

evidence, the connection, alleged by the applicants, between the duty of the government to act in accordance with the Charter of Rights and the violation of the rights under s.7

- Non-justiciabilityo Le Dain and Ryan JJ in the Federal court of appeal were of the opinion that the issues

involved in the case are inherently non-justiciable, either because the question whether testing the cruise missile increases the risk of nuclear war is not susceptible of proof and hence not triable or because answering that question involves factors which are either inaccessible to a court or are of a nature which a court is incapable of evaluating

o These kinds of issues are to be treated as non-justiciable not simply because of evidentiary difficulties but because they involve moral and political considerations which it is not within the province of the courts to asses

o The real there, and perhaps also in the case at bar, is not the ability of judicial tribunals to make a decision on the questions presented, but the appropriateness of the use of the judicial techniques for such purposes

- The Political Questions Doctrineo The non-justiciability of a political question is primarily a function of the separation of

powers


The Limitations of Judicial Review

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o Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitments of the issue to a coordinate political department

o Define political questions roots in terms of the separation of powers as set out in the constitution and turn to the constitution itself for the answer to the question when the courts should stay their hand

o Suggests that the political questions doctrine is not really a doctrine but simply ‘ a group of quite different legal rules and principles, each resting in part upon deference to the political branches of government’

o The manner of exercise of prerogative powers cannot be enquired into by the courts, whether in civil or criminal cases

o Lord Devlin Principle that the substance of discretionary decisions is not reviewable in the

courts is one basic administrative law and is not confined to matters of defence or the exercise of prerogative

Even though review on the merits of a discretionary decision was excluded, that did not mean that judicial review was excluded entirely

The nature and effect of the principle of judicial review is ‘to limit’ the issue which the court has to determine

o If we are to look to the constitution for the answer the question whether it is appropriate for the courts to ‘second guess’ the executive on matters of defence, we would conclude that it is not appropriate

o However, it what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the charter to do so

- Could the Facts as Alleged Constitute a Violation of S.7 of the Charter?o Even an independent, substantive right to life, liberty, and security of the person cannot

be absoluteo The concept of “right” used in the charter must also recognize and take account of the

political reality of the modern stateo The concept of “right” as used in the charter must take account of the fact that the self-

contained political community which comprises the state is faced with at least the possibility, if not the reality, of external threats to both its collective well-being and to the individual well being of its citizens

o It is not to say that every governmental action that is purportedly taken in furtherance of national defence would be beyond the reach of s.7

o S.1 is the uniquely Canadian mechanism through which the courts are to determine the justiciability of particular issue that comes before it

o It obviates the need for a ‘political questions’ doctrine and permits the court to deal with what might be termed ‘prudential’ considerations in a principled way without renouncing its constitutional and mandated responsibility of judicial review


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- Issue of Enforcemento Practical reality is that courts normally have to rely on the executive and legislative

branches of government for the enforcement of their decisionso Canadian courts are usually able to rely on the other branches of government for this

support, but it is not inevitable that this will always be the case

Doucet-Boudreau v Nova Scotia (Minister of Education) [2003]

- This appeal involves the nature of remedies available under s.24(1) of the Charter for the realization of the minority language education rights protected by s.23 of the Charter

- Backgroundo Appellants are Francophone parents living in five school districts in Nova Scotiao The AG of Nova Scotia is the respondent, acting on behalf of the department of

Educationo S.23 of the Charter has been the hope of the French- speaking minority of Nova Scotia

to redress the linguistic failings and inequality of historyo The government announced the construction of new French language school facilities,

construction of the promised school never began- Issue

o Only the retention of jurisdiction to hear reports is at issue in the present appealo A full appreciation of the balance and the moderation of the trial judge’s approach to

crafting this remedy requires that the reports respecting the respondent’s compliance with the order be viewed and evaluated in the context of the remedy as a whole

- Analysiso Retention of Jurisdiction

While courts must be careful not to overshoot the actual purpose of the Charter’s guarantees, they must avoid a narrow, technical approach to charter interpretation which could subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter

The requirement of generous interpretation holds the same for remedies Purposive approach to remedies requires

The purpose of the right being protected must be promoted- courts must craft responsive remedies

The purpose of remedies provisions must be promoted- courts must craft effective remedies

Courts depend on both the executive and the ctitzenry to recognize and abide by their judgements

In context of constitutional remedies, courts must be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of the others branches of governance by taking on tasks to which other person or bodies are better suited


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In this case it was open to the trial judge in all circumstances to choose the injunctive remedy on the terms and conditions that he prescribed

o Reporting order called on the function and powers of a court The range of remedial orders available to courts in civil proceedings

demonstrates that constitutional remedies involving some degree of ongoing supervision do not represent a radical break with the past practice of the court

The changed announced by s.24 is that the flexibility inherent in an equitable remedial jurisdiction may be applied to orders addressed to government to vindicate constitutionally entrenched rights

- Conclusiono Section 24(1) of the charter requires that courts issue effective, responsive remedies

that guarantee full and meaningful protection of charter rights and freedomso The remedy crafted by LeBlanc J meaningfully vindicated the rights of the appellant

parents by encouraging the Province’s prompt construction of school facilities without drawing the court outside its proper role

- LeBel and Deschamps JJ dissentingo The appropriate role of the judiciary

In context of constitutional remedies, courts fulfill their proper function by issuing orders precise enough for the parties to know what is expected of them and by permitting the parties to execute those orders

o Separation of Powers Courts should be wary of going beyond the proper scope of the role assigned to

them in public law of Canada This role is to declare what the law is, contribute to its development and to give

claimants such relief in the form of declarations, interpretation and orders as will be needed to remedy infringements of constitutional and legal rights by public authorities

Aside from their duties to supervise administrative tribunals created by the executive and to act as vigilant guardians of constitutional rights and the rule of law, courts should avoid interfering in the management of public administration

o Functus Officio If a court is permitted to continually revisit or reconsider final orders simply

because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding

If a court intervenes in matters of administration properly entrusted to the executive, it exceeds its proper sphere and thereby breaches the separation of powers

o Application of the Relevant Principles to the Present Case The judiciary is ill equipped to make polycentric choices or to evaluate the wide-

ranging consequences that flow form policy implementation


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After a judicial finding of a charter breach retain independence in writing its legislative response, the executive should after a judicial finding of a breach, retain autonomy in administering government policy that conforms with charter

With the reporting hearings, the trial judge may have sought to expert political or public pressure on the executive, and at least appeared to do so

Such action would tend to politicize the relationship between the executive and the judiciary

Reference re Language Rights under s.23 of Manitoba Act, 1870 and s.133 CA, 1867 [1985]

- S.23 of Manitoba Act was the culmination of many years of co-existence and struggle between the English and the French, and the Metis in the Red River colony, the predecessor to the present day Manitoba

- The MA,1870 is now entrenched in the Constitution of Canada by virtue of s.52(2)(b) of the CA,1982

- Upon enactment of the Official Languages Act, 1890 the province of Manitoba ceased publication of the French versions of legislative records, journals and acts

- Legal Challenges to Manitoba’s Language Legislationo The implication of hte court’s holdings in Blaikie No.1 and Forest, both supra, was that

provincial legislation passed in accordance with the ultra vires states, i.e. passed in one language only, was itself in derogation of the constitutionally entrenched language provisions of the CA,1867 and the MA,1870 and therefore invalid

- Consequences of the Manitoba’s legislature’ failure to Enact, Print, Publish in Both Languageso The constitutional entrenchment of a duty on the Manitoba legislature to enact, print,

publish in both languages in s.23 of the MA confers upon the judiciary the responsibility of protecting the correlative language rights of all Manitobians including French minority

o Courts have been unanimous in fining that failure to respect mandatory requirements ot enact, print, publish in both languages leads to inconsistency and thus invalidity

- Rule of Lawo Principle

The difficulty with the fact that the unilingual acts of the legislature of Manitoba must be declared invalid and of no force or effect is that, a legal vacuum will be created with consequent legal chaos in the province of Manitoba

All legal rights, obligations and other effects which have purportedly arisen under all acts of the Manitoba legislature since 1890 would be open to challenge to the extent that their validity and enforceability depends upon a regime of unconstitutional unilingual laws

Rule of law must mean 2 things Law is supreme over officials of the government as well as private

individuals and thereby preclusive of the influence of arbitrary power


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Requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order

o Application of Rule of Law The task the court faces is to recognize the unconstitutionality of Manitoba’s

unilingual laws and the legislature’s duty to comply with the ‘supreme law’ of this country, while avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law

Necessity in the context of the governmental action provides a justification for otherwise illegal conduct of the government during public emergency

The constitution will not suffer a province without laws Thus constitution requires that temporary validity and force and effect be given

to current acts of the Manitoba legislature from the date of this judgement

Issue of Legitimacy

The more immediate concern for Canadian judges in exercising their mandate to uphold the constitution is to identify principles that appropriately shape the exercise of this authority

Most criticisms of judicial review can be reduced to two main complaintso Under the banner of constitutional supremacy, courts have usurped power that is

properly the domain of parliament and the provincial legislatureo Substantive approach taken by the courts to particular rights, rights that may protect

unpopular elements of society

Vriend v Alberta [1998]

- Each Canadian was given individual rights and freedoms which no government or legislature could take away

- It was a deliberate choice of our provincial and federal legislatures in adopting the charter to assign an interpretative role to the courts and to command them under s.52 to declare unconstitutional legislation invalid

- In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches

- Although a court’s invalidation of legislation usually involves negating the will of the majority, we must remember that the concept of democracy is broader than the notion of majority rule, fundamental as it may be

- Judges are not acting undemocratically by intervening when there are indications that legislative or executive decision was not reached in accordance with democratic principles mandated by the charter

- Further elaborationo Built in Deference

Legislators can always turn to s.33 of the Charter, the override provision, which is ultimate parliamentary safeguard


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S.1 of charter speaks of safeguards but also of reasonable limits Many of the rights of the charter (2, 7-15) may be overridden by the exercise of

democratic willo Dialogue Model

The central feature of the charter is that all branches of government have an equal responsibility to carry out the charter’s mandate, and we should concentrate on the reciprocal role

Remarks of the Right Honourable Beverly McLachlin Respecting Democratic Roles

What is the role of courtso Define the precise contours of the division of legislative powers between the federal

and provincial governmento They rule on legislation alleged to be unconstitutional for violation of the charter, and in

doing so define the scope of constitutional rights and freedomso The court exercise de facto supervision over the hosts of administrative tribunals

created by parliament and legislature Not for judges to impose social change or impose personal views into society Judicial role is to resolve legal disputes formulated by others, impartially on the basis of the facts

and the law Judicial concern is focussed not on plans to change society, but on interpreting and applying the

law in a way that reflects legislative purpose Where legal issue is properly before the court, not deciding is not an option In deciding difficult social issues, the courts act with deference to the decisions of the legislative

branch

Reference re Remuneration of Judges of Provincial Court of PEI [1997]

- The judiciary derives its public acceptance and its strength for the fact that judges do not initiate recourse to the law

- By expressing a desire to have a constitution ‘similar in principle to that of the UK’ framers of the CA,1867 did not give courts the power to strike down legislation violating the principle of judicial independence

- The ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the constitution

- Judicial review, therefore, is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument

- Our constitution expressly contemplates both the power of judicial review and guarantees of judicial independence


Different Sorts of Judicial Review of Legislative Action

Unwritten Constitutional Principles

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Constitutional conventions depend on the political branches of government for their enforcement

Canadians courts have been willing to a limited extent to recognize underlying constitutional principles that can be given full legal effect

Bell Canada v Canadian Telephone Employees Association [2003]

- Appeal raises issue of whether Canadian Human Rights Tribunal lacks independence and impartiality because the power of the Human Rights Commission to issue guidelines binding on the tribunal concerning ‘a class of cases’ and the power of the tribunal chair person to extend tribunal members’ term in ongoing inquires

- Neither of the two powers challenged by Bell compromises the procedural fairness of the tribunal

- Analysiso Tribunal not involved in crafting policy nor does it undertake its own independent

investigations of complaintso The fact that the tribunal functions in much the same way as a court suggests that is

appropriate for its members to have a high degree of independence from the executive branch

o The act therefore evinces a legislative intent, not simply to establish a tribunal that functions by means of quasi-judicial process, but also to limit the interpretive powers of the tribunal in order to ensure that the legislation is interpreted in a non-discriminatory way

o Tribunals, thought not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under s.2(e) of the Canadian Bill of Rights

- The guideline Powero It may be the overlapping of functions in the Commission is the legislature’s way of

ensuring that both the commission and the tribunal are able perform their intended roles

o The commission, like other bodies to whom the power to make subordinate legislation has been delegated, cannot exceed the power that has been given to it and is subject to strict judicial review

o There are specific indications in the Act that the legislature intended the scope of the guideline power to be limited

o Given the many constraints on the commission’s guideline power, and the many ways in which the tribunal is empowered to question or set aside guidelines that are in violation of the law, it does not seem likely that the Commission’s guidelines could improperly influence the tribunal

o Parliament’s choice was obviously that the Commission should exercise a delegated legislative function

http://canadianlegalreference.yolasite.com/public-law.php 07/05/2023 01:18:16 The Constitution Act, 1867

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Establishes the basic institutional structure of the federal and provincial levels of government and assigns the respective roles of the federal and provincial governments in the establishment of a system of federal and provincial courts and the appointment of judges to those courts

The resolution of federalism disputes typically turns on the way a court decides to characterize a particular law or activity

Qu’Appelle Indian Residential School Council v Canada (Canadian Human Rights Tribunal) [1988]

- At issue is the constitutional jurisdiction of the Canadian Human Rights Tribunal to hear the complaint of Public Service Alliance of Canada against the plaintiff

- The plaintiff Qu’Appelle Indian Residential School Council contends that it is not subject to the labour relations law of the Government of Canada

- It concludes that the labour relations in the case ought not to be considered under subsection 91(24) of the CA,1867

o Dealing with “Indians, and lands reserved for the Indians” but under section 93 which in principle places education under provincial control

- It can be concluded that in deciding the jurisdiction of labour relations in a particular case, the focus should not be on who the employer is , who the employees are, where the activity is taking place, or who is funding the activity

o At issue is the character or nature of the activity concerned - The key issue is how to characterize the nature and the function of the plaintiff- The council considered itself to be under federal jurisdiction when it was confronted with

certification of the PSAC as bargaining unit for its employees- The Council’s employees here are so directly involved in activities relating to Indian status, rights

and privileges that their labour relations with the Council should be characterized as forming an integral part of the primary federal jurisdiction over Indians and Indian lands, under subsection 91(24) of the CA,1867

- Application by the defendant Canadian Human Rights Commission for dismissal of the plaintiff’s action should be granted, with costs against the plaintiff

The first is the process of defining the substantive right protected by the relevant provision of the Charter

Important feature of the decision is the relationship between substantive rights and the justification on limits on those rights under s.1 of the Charter

Canada (Human Rights Commission) v Taylor [1990]

- Primary issue in the appeal is whether s.13(1), in so far as it restricts the communication of certain telephone messages, violates the “freedom of expression” as guaranteed by s.2(b) of the Canadian Charter Rights and Freedoms


The Canadian Charter of Rights and Freedoms

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- Section 13(1): Infringement of Section 2(b)o The s.2(b) guarantee is infringed if it can be shown that either

The purpose of the impugned government regulation is to restrict expressive activity

The regulation has such an effect, and the activity in question supports the principles and values upon which the freedom of expression is based

- The inescapable conclusion is that the activity affected by s.13(1) constitutes ‘expression’ as the term envisioned by 2(b)

- The desire of the government in enacting s.13(1) being to restrict expression by singling out for censure particular conveyances of meaning, the second requirement of Irwin Toy is met

- Section 13(1): Analysis Under Section 1 of the Chartero Having determined that s.13(1) infringes s.2(b), the question becomes whether the

provision can be justified under s.1 of the Charter S.1 requires that a limit on a Charter right or freedom be “prescribed by law”

o Utmost importance is a recognition that s.1 both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society

o Objective It is the purpose- the promotion of equal opportunity unhindered by

discriminatory practices based on race or religion- which informs the objective of s.13(1)

Parliament’s concern that the dissemination of hate propaganda is antithetical to the general aim of the Canadian Human Rights Act is not misplaced

o Proportionality Adopting the analytical guidelines suggested in Oakes, an impugned reassure is

seen as proportionate only if the state shows that: A connection exists between the measure and objective so that the

former cannot be said to be arbitrary, unfair or irrational The measure impairs the charter right or freedom at stake no more than

necessary The effect of the measure are not so severe as to represent an

unacceptable abridgement of the right or freedom Rational Connection

Once it is accepted that hate propaganda produces effects deleterious to the guiding principles of s.2 of the Canadian Human Rights Act, there remains no question that s.13(1) is rationally connected to the aim of restricting activities antithetical to the promotion of quality and tolerance in society

In combating discrimination legislative efforts to suppress hate propaganda are but one available form of response, and the fact that the international community consider such laws to be an important


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weapon against racial and religious intolerance strongly suggests that 13(1) cannot be viewed as ineffectual

Minimal Impairment Language employed in s.13(1) of the Canadian Human Rights Act

extends only to that expression giving rise to the evil sough to be eradicated and provide a stand of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity

Effects Effects of S.13(1) upon the freedom of expression to be so deleterious

as to make intolerable its existence in a free and democratic society It is therefore my opinion that the degree of limitation imposed upon

the freedom of expression by s.13(1) is not unduly harsh, and that the 3rd requirement of the Oakes proportionality approach is satisfied

- Section 13(1) and the Freedom of Expression: Conclusion Under s.1 of the Chartero The government has satisfactorily demonstrated the proportionality of the provisiono S.13(1) is saved under s.1 of the Charter as a limit reasonable in a free and democratic

society - McLachlin J (dissenting in part)

o Proportionality Real issue in this case is whether the means chosen to pursue the end of curbing

discrimination are reasonable and proportionate to the limitation on freedom of expression

Question is rather whether the particular infringement effected by s.13(1) of the Act can be justified by the actual benefit which the legislation is calculated to bestow

Notwithstanding the sensitive and appropriate enforcement procedure established by the Act, the dimension of the over breadth of the legislation is such that the tests established by this court for the application of s.1 cannot be met

o Rational Connection Rational connection must be viewed, not only from the perspective of the

intention of the legislators, but from the perspective of whether in fact the law is likely to accomplish its objective

By using such vague, emotive terms without definition, the state necessarily incurs the risk of catching within the ambit of the regulated area expression falling short of hatred

While the chilling effect of human rights legislation is likely to be less significant than that of a criminal prohibition, the vagueness of the law means it may well deter more conduct than can be legitimately targeted given its objectives

o Minimum Impairment


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Where the measure seriously overreaches and unjustifiably infringes the right or freedom in question, the Court has no choice but to find the test not met

Conclude that s.13(1) does infringe freedom of speech seriously and ultimately unjustifiably

Absence of defence of truth People in a free society believe they will always have the right to say

what is true If the aim of the Charter is to secure to all persons, regardless of economic

means, a justifiable measure of free expression, then particular care should be taken in drafting legislation suppressing telephonic communication

S.13(1) seriously overshoots the mark, going beyond what can be defended as a reasonable limit on free speech justified by the need to combat discrimination against members of a particular groups

o Importance of the Rights versus Benefits Conferred The goals of elimination of discrimination or promotion of social harmony may

conceivably be advanced by suppression of some of the expression caught by s.13(1), although this is not beyond conjecture

Judicial review of the executive or administrative action raises somewhat different questions about institutional relationship than does judicial review of legislative action

Constitutional review of legislative action contains democratically elected legislatures in a way that judicial review of administrative action using ordinary legal principles does not

Non-constitutional review by judges of the actions of administrative officials does not tend to raise the same kinds of questions about the democratic legitimacy of judicial review that arise when judges engage in the constitutional review of legislation

The SCC pragmatic and functional test is designed to extract from an assortment of variables Parliament’s “intent” as to how intense judicial scrutiny of administrative action ought to be

Dr. Q v College of Physicians and Surgeons of British Columbia [2003]

- The college of physicians appeals to this court, arguing that the BC courts erred in setting aside the decision if the Inquiry Committee and Dr. Q’s suspension

- Analysiso Role of the Committee

It has delegated part of this responsibility to the College of Physicians through the mechanism of an inquiry committee whose task it is to investigate complaints against members of the profession

Committee had 3 tasks before it dealing with allegation against Dr. Q Make findings dealing with credibility


Judicial Review of Administrative Action

Standards of Review

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Select the appropriate standard proof Had to apply the standard of proof to the facts as found to determine

whether the alleged impropriety had been proven Conclusion that a sexual relationship had existed and that constituted infamous

and unprofessional conduct flowed inexorably once these findings of credibility had been made

Key question whether reviewing judge should have interfered with the findings of credibility made by the committee

o Role of Reviewing Judge Act permits an appeal to the SC of BC Distinction Between Standard of Proof at 1st Instance and Standard for Judicial

Review First erroneous assumption was that because the standard was that of

clear and cogent evidence, the reviewing judge was required to revisit the committee’s findings of credibility of fact

Standard of clear and cogent evidence does not permit the reviewing judge to enter into a re-evaluation of the evidence

Question of standard of review, to be resolved by applying the pragmatic and functional approach

- The Primacy of the Pragmatic and Functional Approacho Erroneous assumption that because the Act grants the right to appeal, the matter could

be dealt with without recourse to the usual administrative law principles pertaining to standard of review

o The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed

o Pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts’ constitutional duty to protect the rule of law

o Calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by the court, undergo “significant searching or testing” or be left to the near exclusive determination of the decision maker

- Reveiw of the Pragmatic and Functional Factorso Standard of review determined by contextual factorso Overall aim is the discern legislative intent, keeping in mind the constitutional role of

the courts in maintaining the rule of lawo Factors of review:

Statute may afford broad right of appeal to superior court suggesting a more searching standard of review


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Relative expertise that legislatures will sometimes remit an issue to a decision-making body that has particular topical expertise or is adept in the determination of particular issues

Purpose of statute If the question before the administrative body is one of law or engages a

particular aspect of the legislation, the analysis under the factor must be specific legislative purpose

Nature of problemo In appellate review of judicial decisions, the nature of question

is almost entirely determinative of stand of reviewo When the finding being reviewed is one of pure fact, this factor will militate in favour of

showing more deference towards the tribunal decisiono An issue of pure law counsels in favour of a more searching review

- Applying to the Case at Baro Applying the pragmatic and functional approach in this case, the four factors lead to a

standard of reasonableness simpliciter (THIS DOES NOT EXIST ANY MORE- only reasonableness)

o Assessment of the purpose of the statute and the provision in particular yields ambivalent result

o The need for deference is greatly heightened by the nature of the problem- a finding of credibility

o The reviewing judge erroneously instructed herself to review the committee’s findings of the fact on a correctness basis

o The reviewing judge’s analysis of the corroborative evidence confirms that she assessed the Committee’s findings of credibility form the perspective of correctness, rather than reasonableness

o Conclude that the reviewing judge erred by applying a standard of review and substituting her own view of the evidence for that of the committee

MacLean v Canada (Human Rights Provision) 2003

- Application for judicial review in respect of the decision of the Canadian Human Rights Commission wherein the applicant’s complaint against Marine Atlantic and Canadian Auto Workers was dismissed

- Analysis and Decision o Issue 1: what is the appropriate standard of review of the commission’s decision to

dismiss complaint In order to determine the appropriate standard of review of administrative

decisions-makers, the pragmatic and functional approach must be applied Presence or absence of privative clause

Act did not contain one Salience equal neutrality


The Standard of Review in Operation

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Expertise The commission’s greater expertise in fact-fining and screening

complaints favours greater deference on judicial review Purpose

The choice of language in the Act leaves no doubt that Parliament intended reviewing courts to refrain from intervening lightly in the screening decisions of the commission

Nature of question Although issue is fact driven, it involves applying facts to the statutory

scheme which is a question of mixed law and fact The discretionary nature of the complaint screening function and the

fact-intensive nature of the question call for greater deference Balancing these factors this cased should be reviewed on a standard of

reasonableness simplicitor o Issue 2: has the commission failed to observe principle of natural justice or procedural

fairness by failing to supply applicant with copy of all materials it considered in reaching a decision?

Commission is only required to disclose to one party comments it receives from another party when the comments contain new facts not in the investigatory report

Disclosure is not required by rules of procedural fairnesso Issue 3: has the commission breached the rules of procedural fairness by failing to

provide applicant reasons for its decision SCC in Baker held that in certain circumstances ‘some form of reasons should be

required”o The commission clearly stated it was not discriminatory to provide different categories

of benefits and reasons by the commission sufficient

Quigley v Ocean Construction Supplies Ltd. 2004

- Every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach

- While the purpose of the Canadian Human Rights Act militates in favour of greater deference, the role played by the tribunal on the facts essentially dealing with the resolution of dispute or the determination of rights between two parties, will demand less deference

o Need to use standard of correctness

Remedies

Parliament and provincial legislatures are entitled to choose what opportunities are available to persons affected by administrative decisions to seek relief from the courts

Where rights of appeal to the courts are not made available remedies include:o Certiorari, prohibition, mandamus and habeas corpus

Where superior courts decide to intervene in response to an application of judicial review, its supervisory jurisdiction is generally exercised in a manner that has the effect of nullifying acts taken pursuant to defective decision making and requires delegates to start over


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Relationship of Aboriginal Peoples to the Canadian State

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

24. Indians, and Lands reserved for the Indians.

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of "aboriginal peoples of Canada"


Legal Background

Section 91(24) Constitutional Act, 1867

Section 35 Constitution Act, 1982

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(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and MÃ©tis peoples of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.(97)

R v Sparrow (1990)

PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.

SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.

The effect of the word “existing” in s.35 was to exclude from constitutional protection those rights that had been validly extinguished before 1982.

The court attributed an expansive or liberalizing effect to the word “existing”: the word “existing” meant that the guaranteed rights are “affirmed in a contemporary form rather than in their primeval simplicity and vigour”. For example, hunt and fish by bow and arrow where not


Re Aboriginal Rights

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limited to these means and a right to trade in the form of barter in modern times extend to the use of currency, credit, etc.

The rights protected by s.35 are not absolute, they are subject to regulation by federal laws, provided the laws met a standard of justification like that of s.1. A justified impairment would have to pursue an objective that was “compelling and substantial”.

o For example, the conservation and management of a limited resource would be a justified objective, but “the public interest” would be too vague to serve as a justification.

In the Sparrow case itself, the court did not feel able to decide whether the net-length restriction would satisfy the standard of justification.

R v Van der Peet (1996)

PRINCIPLE: Legal test to identify an “existing aboriginal right” within the meaning of s.35:

“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 asserting the right”. In order for a practice to be “integral”, the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society. The practice must have developed before “contact”, that is, “before the arrival of Europeans in NA. ... the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on. ... Contemporary practices that developed “solely as a response to European influences” do not qualify.

Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.

SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.

R v Sappier (2006)& R v Grey (2006) – harvesting of wood for domestic uses was integral to the distinctive culture.

The respondents, S and P who are Maliseet and G who is Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents’ respective First Nations. Those taken by S and P were to be used for the construction of P’s house and the residue for community firewood. Those cut by G were to be used to fashion his furniture. The respondents had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. They


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were acquitted at trial. S and P’s acquittals were upheld by the Court of Queen’s Bench and the Court of Appeal. G’s acquittal was set aside by the Court of Queen’s Bench but restored on appeal. G did not pursue his treaty right claim before the Court of Appeal or before this Court.

Held: The appeals should be dismissed. The respondents made out a defence of aboriginal right.

By definition, Van der Peet, could not apply to the Metis since their society was formed after European contact (with Europeans).

R v Powley (2003) – for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of European sovereignty, but to ‘the time of effective European control”. Apart from this shift in time, the same Van der Peet definition applied.

The view that Métis rights must find their origin in the pre-contact practices of their aboriginal ancestors must be rejected. This view in effect would deny to Métis their full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1). The historical record fully supports the trial judge’s finding that the period just prior to 1850 is the appropriate date for finding effective European control in the Sault Ste. Marie area. The evidence also supports his finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850. This practice has been continuous to the present.

Ontario’s lack of recognition of any Métis right to hunt for food and the application of the challenged provisions infringes the Métis aboriginal right and conservation concerns did not justify the infringement. Even if the moose population in that part of Ontario were under threat, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs. Further, the difficulty of identifying members of the Métis community should not be exaggerated so as to defeat constitutional rights. In the immediate future, the hunting rights of the Métis should track those of the Ojibway in terms of restrictions for conservation purposes and priority allocations. In the longer term, a combination of negotiation and judicial settlement will more clearly define the contours of the Métis right to hunt.

Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). However, the duty to consult does NOT extend to a private party like Weyerhaeuser.

While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy, which may fail to adequately take account of their interests prior to final determination thereof. If they can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies.

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously. While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run


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roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35 of the Constitution Act, 1982, demands.

The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith. The content of the duty varies with the circumstances and each case must be approached individually and flexibly. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake. The effect of good faith consultation may be to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

s.35(1) – declares that the federal and provincial governments “are committed to the principle” that, before any amendment is made to s.91(24) or to s.35 or to s.25, a constitutional conference will be convened to which representative of the aboriginal peoples will be invited to participate.

Through s.35(1), the aboriginal peoples have gained entry to the constitutional amendment process.

Section 25

s.25 – part of the Charter, but it does not create any new rights. It is an interpretative provision, included to make clear that the Charter is not to be construed as derogating from “any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”.

In the absence of s.25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s.15 (equality).

Taku River Tlingit First Nation 2004 SCC, supp.20

Since 1994, a mining company has sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation (“TRTFN”), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act, objected to the company’s plan to build a road through a portion of the TRTFN’s traditional territory. The Province granted the project approval certificate in 1998. The TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. The chambers judge


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concluded that the decision makers had not been sufficiently careful during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFN’s concerns. She set aside the decision and directed a reconsideration. The majority of the Court of Appeal upheld the decision, finding that the Province had failed to meet its duty to consult with and accommodate the TRTFN.

Crown had satisfied its duty to consult regarding construction of road through TRTFN’s traditional territory

“The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”

Delgamuukw v British Columbia [1997]

- Lamer CJ:o Appeal raises interrelated and novel questions which revolve around the nature and

scope of the constitutional protection afforded by s.35(1) to common law aboriginal title - Facts:

o Appellants, chief of the tribes, claimed aboriginal title- that is an interest in land that arises by virtue of an aboriginal group’s historic association with those lands

- What is the content of Aboriginal title, how is it protected by s.35(1) and what is required for its proof

o Content of aboriginal title: 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, custom and traditions which are integral to distinctive aboriginal culture

Those protected uses must not be irreconcilable with the nature of the group’s attachment to that land

o The relevance of the continuity of the relationship of an aboriginal community with its land is that it applies not only to the past but to the future as well→ as a result, uses of the land that would threaten that future relationship are, by their very nature, excluded from aboriginal title

o Virtue of aboriginal title may not be alienatedo Alienation would bring to an end the entitlement of the aboriginal people to occupy the

land and would terminate their relationship with it


Re Aboriginal Title

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o If aboriginal peoples wish to use their lands in way that aboriginal titles does not permit, then they must surrender those lands and convert them in to non title lands to do so

o Aboriginal title at common law is protected in full form under s.35(1) - Test for Proof of Aboriginal Title

o The land must have been occupied prior to sovereigntyo If present occupation is relied on as proof of occupation pre-sovereignty, there must be

a continuity between present and pre-sovereignty occupationo At sovereignty, that occupation must have been exclusive

Tsilhqot’ in Nation v British Columbia, 2007 BCSC

The plaintiff seeks declarations of Tsilhqot’in Aboriginal title in a part of the Cariboo-Chilcotin region of British Columbia defined as Tachelach’ed (Brittany Triangle) and the Trapline Territory.

In addition, the plaintiff seeks declarations of Tsilhqot’in Aboriginal rights to hunt and trap in the Claim Area and a declaration of a Tsilhqot’in Aboriginal right to trade in animal skins and pelts.

Aboriginal title land is not “Crown land” as defined by provincial forestry legislation. The provincial Forest Act does not apply to Aboriginal title land. The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s. 91(24) of the Constitution Act, 1967.

The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title.

Tsilhqot’in people have an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial, and cultural uses. This right is inclusive of a right to capture and use horses for transportation and work.

Tsilhqot’in people have an Aboriginal right to trade in skins and pelts as a means of securing a moderate livelihood.These rights have been continuous since pre-contact time which the Court determines was 1793.

Land use planning and forestry activities have unjustifiably infringed Tsilhqot’in Aboriginal title and Tsilhqot’in Aboriginal rights.

The plaintiff’s claim for damages is dismissed without prejudice to a renewal of such claims as they may pertain to Tsilhqot’in Aboriginal title land.

R v. Marshall (1999) SCC


Re Aboriginal Treaties

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Facts: Marshall, a Mi’kmaq citizen, was charged with selling eels without a license contrary to federal regulations made pursuant to the Fisheries Act. Marshall claimed he was entitled to sell the eels by virtue of a treaty right agreed to by the British Crown in 1760. In the treaty of 1760, the Mi'kmaq's ability to trade with non-government persons was restrained: “and I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by [the Crown]”.

Issue: Did Marshall have an existing treaty right exempting him from compliance with the Fisheries act?

-Does the exemption clause actually grant him a positive right to trade, because the truck houses don’t exist anymore, so should he be able to trade generally?

Decision: Court infers the right to trade fruits of Mi’kmaq hunting and fishing into the treaty. Court infers the treaty term by reference to the historical record, stated objectives of the parties, and political and economic context in which these objectives were reconciled.

HELD: Appeal allowed and acquittal entered on all charges.

o The trade arrangement had to be interpreted in light of the oral promises made by the Crown during the treaty negotiations. The Crown's promise of the Mi'kmaq's access to necessaries through trade in wildlife was the key.

o Where a right had been granted, there had to be more than a disappearance of the mechanism created to facilitate the exercise of the right to warrant the conclusion that the right was extinguished. (i.e. the main point of the agreement was access to necessaries, not to provide Truck houses or limit who Mi’kmaq could trade with).

Analysis:

Evidentiary Sources

-Cannot follow a strict/narrow interpretation, the historical and cultural context is needed, which could involve using extrinsic evidence

-The Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the Mi’kmaq interests and those of the British Crown (quote from Sioui).

R v Bernard [2005] 2 S.C.R. 220

Leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties were the right to commercial fishing was granted in the R. v. Marshall decision.

This decision considers two separate cases. In the first one, Stephen Marshall (no relation to Donald Marshall) and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia Crown land


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without a permit. In the second case, Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that was cut from Crown lands.

In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.

At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.

Opinion of the court

McLachlin, writing for the majority, held that there was no right to logging under the treaties. From the evidence she found that it did not support the conclusion that logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.


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David M. Tanovich: The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System (2008),

While the charter has had many successes (ie: groups of women, gays, and lesbians), it has failed to bridge the gap of racial equality in regards to our justice system.

We are continuing to incarcerate African Canadians and aboriginals at alarming rates, racial profiling at our borders and in our streets, and more legislation being introduced to further the problem

What is the point of recognizing same sex marriages then putting no obligation on religious officials to accept them?

Successful litigation is the key as it bring about public attention, and thus awareness

Must find a way to bring hard evidence and data that shows the fact of racial injustice

Also there is no real racial profiling legislation; rather there is terrorism acts and the sort

There has been some increase in cases against the police (ie: r v. khan. Cambell, brown, nyugen)

There is over incarceration and constant surveillance of racizalized communities vs. others

Some strategies to help include: anti racist training for all criminal justice actors, creating monitosing systems, creating anti racist actors (ie: gladue workers- those who prepare sentencing reports for aboriginal offenders), appointing more aboriginal judges, and funding for community programs

The problem is not with the charter but those who argue and interpret it (narrow approaches to judicial review and lack of judicial imagination). Courts refusing to adopt critical race standards when arguments are advance on issues such as bail, jury selection and racial profiling … example of some cases

R v. law – courts didn’t express concerns of Ontario systemic racism commission about system barriers to blacks and other racialized people and trial juries

R v. hall – submissions by racism commission on impact of race on bail decisions … these submissions were not considered in majority or dissenting opinions

R v. gay – argument of needing more effective means of detecting racial bias … arguments were rejected because of conflicting expert evidence

Presumably, if a better evidentiary record if put before the courts, the result might be different

In a number of cases, judgues have been or appeared hostile when asked to adjudiciate a race issue


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R v. Parks – challenge for cause cases being dismissed on grounds that defence counsel had failed to establish that racism extended beyond the borders of Toronto

Instances of judicial reluctances and hostility certainty tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change

There has been a large scale failure of trial lawyers to raise race once critical race standards have been established by the courts… (ie: small number of racial profiling cases following decision in R v. Brown or anyone challenging the legitimacy of R v. Ladouceur)

Why are trial lawyers not raising these issues when it is now appropriate to do so?

This may be because most lawyers are white … and ‘not seeing the issue’ occurs because for the most part, whites do not see themselves as a race or everyday conduct as the product of white privilege

On a number of occasions, appellate lawyers have failed to raise the issue of race on appeal (ie: no argument made in R v. Law, despite evidence of racial profiling) … Or see the case of R v. Harris – an example of where racial profiling could have been raised on for the first time

While appellate lawyers are constrained on alleging racial profiling for the first time on appeal in the absence of a fresh evidence application, doesn’t mean they can use other means to bring it up (ie: charter 9 or 10 and using race as one of the contextual factors to consider)

Ie: R v. Harris – courts recognized that disproportionate effects of racial profiling felt by racialized communities is a relevant consideration in assessing the seriousness of the violation

R v. Golden – race was not raised as an issue but it did not foreclose the approach the court took in its constitutional analysis (talking about race as a factor in charter breaches – section 8 and strip searches)

Refusal of judges to act and lack of race consciousness by lawyers are having a direct impact on the limited effect of the charter to remedy racial injustice

While some judgements have helped the issue, the limited scope of the sections (ie: section 9 can only be used when in detention which courts have narrowed in application regarding street level detentions and how s.8 can only be advanced where the individual has standing (ie: reasonable expectation of privacy)

Engaging in race talk and developing critical race standards are crucial in helping the justice system battle racial inequality as the more awareness that is created, and the more actors involve, the more that can be done to remedy the injustice of our system


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Bijuralism and Harmonization: Gensesis (Department of Justice)

Talking about the co existence of English common law and French civil law traditions within a country

Common Law: built on a hierarchy of its sources and inductive reasoning. Concept of ration descendi and how previous decisions affect future ones. Life of this law is not logic, but experience

Civil Law: emphasis the primacy of written laws. Civil law is not judge made, but if codified law. Second source of law in civilian tradition is legal scholarship ‘la doctrine’ and the third source is prior judicial decisions.

The history of Canadian bijuralism supposes an ability to function in the two languages of our country. At present, there are still reasons to fear that we are less than well equipped to meet this challenge.

Much of Quebec civil law and French commentary ‘remains a closed to book to those outside Quebec’

Today, several law facilities have successfully undertaken multi traditional or multi lingual legal training (ie: faculties of Ottawa uni and mcgill offer both civil and common law degrees)

Federal legislation must apply in both Quebec and Ontario and to all those practicing within … all audiences of lawyers must be able to read and understand federal legislation

Requirement in Canada that legislation be enacted in both English and French is important. Neither version is paramount over the other and they work together (equal authenticity rule – confirmed in cpr v robinson)

Gulf Oil Canada – court recognized that in its English and French versions of the provision, the legislate sough to take into account the two legal system of Canada

Re Education act of Ontario language education rights – court adopted the highest common meaning and accorded a guarantee of schools managed by francophone’s

Harmonization – done by parliament enacting a considerable number of laws aimed at regulating private law issues (ie: divorce, bankruptcy, copyrights)

Ie: Bankruptcy and Insolvency act contains several provisions that demonstrate the required reference to the civil code for its effect

Quebec North Shore Paper v. Canadian Pacific – law of Quebec if called upon as the droit commun even with respect to some matters within federal competence what that jurisdiction has not been exercised by the federal parliament

There is evidence of a certain convergence between the civil law and common law traditions in Canada. Mobility of persons, the grown in the number of sources of international law, influence of media, attracting foreign investment, etc. has resulted in the legal systems moving further apart.


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Conclusion: things have changed substantially. Codification in both systems increasing … more new sources of substantive law, including international law and native law … language training for judges has increased … universities offering double degrees … summer exchange programs, equal authority of both versions of the charter…. However the negative is that French language books, articles, and cases from Quebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories.

A Hesitant embrace: Baker and the application of International Law by the Canadian Court: Jutta Brunnee and Stephen J Toope

The courts appear to be recognizing the relevant of international norms whether or not they have been implemented though Canadian legislation, and whether or not they are binding on Canada.

In Baker – Majority of the Supreme Court held that ‘the values reflected in international human rights law may help form the contextual approach to statutory interpretation and judicial review.

However, the international law doesn’t seem to meet the challenges of domestic law and there has been very little application.

We treat international law as relevant and persuasive, but not binding and determinative.

Author agrees with Justice Lebel that what is most needed most in the growing domestic engagement with international law is greater analytical rigour. Courts must be precise in describing how much effect is to be given to international law.

When the purpose of a statute is to implement an international treaty, the court must adopt an interpretation that is consistent with Canada’s obligation under the treaty. The Canadian courts have tended towards a narrower approach of the implementation requirement.

As far as the charter is concerned, the Supreme Court decisions appear to invoke the presumption of conformity to interpret the charter in light of international human rights law, but then to eviscerate the presumption in practice. Thus, law is more persuasive and obligatory. International law is read in light of the charter, not the other way around (ie: Suresh)

A number of important decisions where the courts decided not to touch on the issue of international law (ie: Secession reference)

Conclusion: recognizing international law is welcomed, but as Justice Lebel says, greater clarity needed regarding what is persuasive, and what is mandatory. Lawyers should provide detailed and rigorous arguments regarding the international norms on which they rely. This will help reinforce attitudes regarding international law and its application in our legal system. Also consider the effects of globalization and how laws must be in conformity with one another on a global scale. This is the reason for a lot judges calling the Canadian courts ‘international courts’.


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Mary C. Hurley, "The Crown's Fiduciary Relationship with Aboriginal Peoples",

Aboriginal people have always held a unique legal and constitutional position (ie: royal provocation of 1763 referred to as the ‘magna carta of Indian rights’

91(24) grants legislature authority over ‘Indians, and lands reserved for the Indians’

R v. Guerin – ‘Fiduciary relationship is rooted in the concept of aboriginal title, coupled with the idea of surrender only available to the crown’

R v. Sparrow – extended the scope of the fiduciary concept

Delgamuukw v. BC – court ruled that degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the aboriginal right at issue

1996 report on royal commission of aboriginal peoples saw the fiduciary relationship as originating in treaties and other historical links. RCAP was critical of past and current governments performance of their fiduciary role. Federal government has not issued a comprehensive official policy in this area.

Application of the supreme court of Canada decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for example, land claim and self government negotiations. Aboriginal people and government are always at odds in litigation, negotiation, and policy fora. The crown is not an ordinary fiduciary, and may be required to consider multiple interests in some contexts. There should be more interests given to aboriginals to allow them to govern themselves, or at least support the aboriginals view that the crowns obligations are wider than the government appears to endorse.

The relationship between Aboriginal and non-Aboriginal people in Canada has long been troubled and recently has shown signs of slipping into more serious trouble. The relationship can most certainly be mended - indeed, turned from a problem into an asset and one of the country's greatest strengths.

The direction change must take is toward freeing Aboriginal people from domination by and dependence on the institutions and resources of governments. The end of dependence is something Aboriginal and non-Aboriginal people alike profoundly desire. It would be quite unacceptable for First Nations, Inuit and Métis peoples to continue to find their autonomy restricted and constrained in the twenty-first century.

Yet renewal of the relationship must be done with justice and generosity. History and human decency demand restoration of fair measures of land, resources and power to Aboriginal peoples. On those foundations, self-respect and self-reliance will grow steadily firmer in Aboriginal communities. In their absence, anger and despair will grow steadily deeper - with conflict the likely result.


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What we propose is fundamental, sweeping and perhaps disturbing - but also exciting, liberating, ripe with possibilities.

Aboriginal people must be enabled to function once again as nations. This is a new way of thinking about old and persistent problems. For many years, the watch-word for the progress of Aboriginal people was 'self-government'. But this is only one piece of a larger undertaking - the restoration of nations, not as they were, but as they can be today. Land and economic vitality are essential for successful, hard-working governments. Whole, healthy, hopeful people are more vital still.

The Commission proposes a 20-year agenda for change, encompassing these things and more. In just 20 years, the revitalization of many self-reliant Aboriginal nations can be accomplished, and the staggering human and financial cost of supporting communities unable to manage for themselves will end. From that time forward, the return to the country will continue to grow.

That so much is possible in so short a time is good news for Canadians.

The changes we propose are not modest. We do not suggest tinkering with the Indian Act or launching shiny new programs. What we propose is fundamental, sweeping and perhaps disturbing - but also exciting, liberating, ripe with possibilities.

Nor do we propose a set of lock-step directives. We offer a vision of what is possible and lots of ideas about how to get started. The agenda for change can begin today, and there are many starting places for it. Indeed, it is already getting started, as good ideas take shape and gather momentum in Aboriginal communities from coast to coast to coast.

Yet change must take place at a pace that allows Aboriginal people and nations to work through the pains of rebirth and in a way that encourages non-Aboriginal people to participate in it. Transition is something we must do together.

All of us have a part in securing the new relationship - people and governments, Aboriginal and non-Aboriginal, organizations big and small. We have 20 years of building and experimentation to look forward to - using, for the first time in many decades, all the energies of Aboriginal people as they create and live the dream of a Canada that they can share with others and yet be fully at home.

During that time - and beyond it - we can look forward to a Canada that celebrates Aboriginal heritage and draws strength from Aboriginal peoples as full partners in a renewed federation.


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