Constitutional Aw

8/3/2019 Constitutional Aw

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1) Basic theories of law

Craik Reading

Backgrounds - Competing approaches/theories affect judicial decision making and legal

outcomes - They each offer compelling arguments as to the basic nature, origin, authorityand responsibility of the law

Positivism and Natural Law

- Both legal positivism and natural law are descriptive theories, in that they areprincipally concerned with identifying what law is, as opposed to what the law ought tobe. Both positivism and natural law are concerned with concepts of law and justice, evenif they diverge as to how the two relate to one another. Both are largely based onWestern, liberal ideas about law and society.

- Legal positivism reflects the belief that law is nothing more than the rules andprinciples that actually govern or regulate society (laws are made by human beings);insists on separation between law and morality; focuses on describing laws withoutreference to justness/legitimacy/fairness. Legal positivism is only concerned with what islegally valid, not what is morally valid. The common slogan of legal positivists is ―the

existence of a law is one thing; it’s merit or demerit is another‖. Thus, on this view, the

Nazis had a legal system used for evil ends and the British had a legal system used forgood ends; both, however, were legally valid. See, e.g, Noble and Wolf, and note how judge appeals to the CERTAINTY of positivism, and the lack of certainty of relying onpublic policy and morality.

- Natural law theory is aspirational, in that laws are only those rules which adhere tocertain moral truths, most often of a universal and immutable nature; i.e. law’s legal

authority depends upon an external moral standard that holds across all societies. SeeDrummond Wren, and note how judge appeals to our moral conscience

Feminist Perspectives on Law: critical legal theory

- A normative theory, seeking to describe how existing laws fail to achieve an externalobjective.

- Feminist perspective on law reflects a critique of liberalism as a political ideology; laws

that existed from 17th century did not normally respond to the needs of women and evenaided in their oppression. Feminism takes issue with the liberal basis of law and itsrelationship to justice, and attempts to establish a different vision of what justice mightbe.

- Early formalist feminism attempted to replace laws that favoured men w/ more genderneutral laws



- Contemporary feminism consists of different sects with different beliefs. It is a morecomplex movement, relying on various disciplines such as criminology and sociology

– the general gist of feminism is that the legal system is seen as paternalistic and male-centred.

- The subject of abortion provides a good forum to examine how feminist theory maytranslate into practice (see Morganteler: In this case on the constitutionality of theabortion restrictions, the majority found them unconstitutional on procedural grounds.Justice Wilson, however, wrote a concurring opinion focusing on much more ―feminist‖

topics, such as rights in a wider social context, the female experience, and far moreemotional issues)

Critical Legal Studies: critical legal theory

- Like some forms of feminism, critical legal studies is a radical alternative to established

legal theories; rejects that there is any kind of natural legal order discoverable byobjective means.

- CLS is a direct attack on traditional legal theory, scholarship and education.

- The CLS movement can be very theory-driven and densely philosophical.

- CLS, like the feminist perspective, takes issue with the liberal basis of law and itsrelationship to justice, and attempts to establish a different vision of what justice might be

- The liberal belief that law should be certain and natural is, for CLS scholars, illusory.

Law reproduces the oppressive characteristic of contemporary Western societies

- 3 stages governing the application of CLS ideas: (1) Hegemonic consciousness:Western laws are maintained by a system of beliefs that have their foundation in a liberal,market driven economy, which reflect interests of a dominant class; (2) Reification: Thebeliefs that maintain Western laws are presented as essential and objective, and the lawsthat prop up this belief system necessary follow suit, becoming equally incontrovertible;(3) Denial: Laws and legal thinking aid in the denial of real truths

- See R v R.D.S: Compare how the judges in this case dealt with the issue of race withthe judges in Re Drummond Wren and Re Noble and Wolf

Law and Economics

- Law and economics theories look at law differently, less grounded in moral theory andmore in ideas about efficiency (as opposed to feminism, which deals with producingequality); law and economics scholars have applied economic analysis to explain variousareas of law.



- The traditional law and economics approach applies economics methodology to legalrules 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 economictheory in an attempt to understand public policy. It attempts to explain government

intervention as a corrective to market failure. The theory seeks to understand why somegovernment programs seems to run counter to the public good, or at least do notmaximize the public good. This theory says that policy makers (e.g. legislators) act inorder to maximize political support; they are not necessarily attempting to maximizesocial welfare and are motivated by self interest

- See Duncan Estate v Baddeley (This case dealt with the issue of how to calculatedamages for an estate arising out of a negligence action for wrongful death. Should futureearnings be included or not? While the court did not do any explicit calculations oreconomic reasoning, there was a clear subtext that the judge had to consider the widersocial-economic implications of allowing for recovery of future earnings or not);

Bhadauria v Board of Governors (public choice theory behind the Court of Appealsdecision; the Court recognised, on public policy grounds, a new ―tort of discrimination‖.

But, at the Supreme Court level, this idea was rejected this idea of a new ―economic tort‖

- Note: One of the themes in public law is to show how common law has been displacedby policy formation (in the form of legislation) as the primary means of social regulation.A number of important questions lie at the heart of this analysis: (1) What, in economicterms, is the problem that a legal rule or structure is attempting to resolve? What effectdoes this rule have on society? Why do we have the laws that we have? Should we havedifferent laws?

Cases

Hill v Church of Scientology - FACTS: Hill is a prosecutor in Toronto suing the Church of Scientology as a privateindividual. Hill brought a common law libel action based on allegedly false statementsthe church made about him.- ISSUE: Is the Charter applicable to a private action based on a common law tort? Is thecommon law tort of defamation inconsistent with the Charter (s. 2b)?- REASONING: Private parties owe each other no constitutional duties and cannot foundtheir cause of action upon a Charter right. The party challenging the common law cannotallege that the common law violates a Charter right because, quite simply, Charter rightsdo not extend in the absence of state action. The most that the litigant can do is argue thatthe common law is inconsistent with Charter values. ―The party who is alleging that the

common law is inconsistent with the Charter should bear the onus of proving both thatthe common law fails to comply with Charter values and that, when these values are balanced, that the common law should be modified.‖ So, it is up to the party challenging

the common law to bear the burden of proving not only that the common law isinconsistent with the Charter values but also that its provisions cannot be justified.- HELD: Even though private parties owe each other no constitutional duties and cannot



found a cause of action upon a Charter right, the Court concluded that the common lawtort of defamation reflected an appropriate balance between freedom of expression valuesand the legislative objectives underlying the law. As such, there was no need to amend oralter the legislation.- RATIO: Even though Charter doesn’t apply directly to this action, Common law should

be interpreted with reference to Charter values (as per obiter in Dolphin). If common lawis inconsistent with Charter values, and not justifiable, the common law should bemodified.

Societe de l’assurance automobile du Quebec v Cyr- FACTS: Pursuant to s. 520 of the Highway Safety Code (HSC), The Société del'assurance automobile du Québec (SAAQ) entered into a contract with the Centre devérification mécanique de Montréal (CVMM) to carry out the mechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated asan accredited mechanic for the purpose of the SAAQ's vehicle inspection program.However, following notices of breach for failure to apply the appropriate standards

during certain inspections, Cyr's accreditation was revoked by SAAQ. Cyr and CVMMfiled a motion for judicial review of the decision to revoke the accreditation, claimingthat it had not been rendered in a manner consistent with the Act respectingadministrative justice (AAJ). The Superior Court concluded that the actions of the SAAQin sending the notices of breach and subsequent revocation of accreditation were anexercise of contractual rights and dismissed the application. The majority of the Court of Appeal set aside the decision, holding that Cyr had the right to procedural fairness andthat the existence of a contract could not be used by the SAAQ to avoid the obligationscodified by s. 5 of the AAJ. ISSUES: Whether a government body will avoid public lawduties when delegating its functions by way of contract or other form of agreementREASONING Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation asan accredited mechanic for the purposes of the SAAQ's mechanical inspection programconstitutes an administrative authorization. Cyr cannot be considered a party to thecontract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr.Delegations of government power are authorizations. In delegating to Cyr the power toconduct vehicle inspections, the SAAQ was granting him the authorization to act on itsbehalf. Moreover, the authorization in the present case is specifically provided for in s.520 of the HSC. The legislative origin of the authorization further confirms itsadministrative nature. Consequently, section 5 of the AAJ and its proceduralrequirements are applicable to the present matter because (1) the revocation of Cyr'sdesignation is a "decision concerning a permit or licence or other authorization of likenature", and (2) Cyr is a "citizen" as contemplated by the AAJ. Not all acts of the SAAQare subject to public law, but the act of authorization has specifically been deemedworthy of procedural fairness protection by the legislature. HELD: Appeal dismissedCOMMENT: This case distinguishes between the applicability of public and private law.The dissent held that the parties are bound by contract, since the SAAQ chose to use acontract to appoint the persons authorized to conduct the mechanical inspection

Articles



David Tanovich, ―The Charter of Whiteness: Twenty-five years of Maintaining RacialInjustice in the Canadian Criminal Justice System‖ Introduction As we reflect on the 25

year anniversary of the Charter, much will be written about the impact this documenthas had on those living on the margin. Has the Charter given any hope to Aboriginal andracialized communities? While there is reason to be optimistic about the possibilities for

future reform, the Charter to date has had very little impact on racial injustice in CanadaWe continue to incarcerate Aboriginals and African Canadians at alarming rates, racialprofiling at our borders and in our streets flourishes The utility of using litigation toaddress racial injustice Successful litigation brings with it considerable attention –

media, community organizations etc – and can help raise public consciousness,stimulate academic research and political action. And one of the most important politicalresponses could be the collection of data which will reveal the extent and scope of racial

injustice Absence of any racial profiling legislation, and the passing of Anti TerrorismLegislation, and the Conservative Criminal Code amendments, all of this has had adisproportionate impact on racialized communities. So, Charter litigation remains asimportant means of addressing fundamental injustice ―While I place considerable

reliance on Charter litigation to address racial injustice, there is no question that otherlegal and extra-legal strategies are necessary in order to ensure implementation of thechanges and to fill the gaps when litigation fails. Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actorsetc are all examples of strategies that can work together with litigation‖ The problem is

not with the Charter but with those who argue and interpret it Narrow approaches to

judicial review and lack of judicial imagination have played a role in limiting the impactof Charter litigation on racial injustice. In a number of key cases addressing issues suchas bail (because blacks are more likely to be detained), jury selection (because blacks areless likely to be found on juries), the use of peremptory challenges and racial profiling,courts have refused to adopt critical race standards or arguments when they were

advanced. See, e.g.: R. v. Pan; R. v. Sawyer — Sawyer, who is White, was tried togetherwith Galbraith, who is Black, on a charge of assault. Following the conviction, a jurorcontacted Sawyer and told him that she had been under ―undue pressure to come to averdict and that certain racial comments were made by other members of the jury‖. The

accused argued that the common law jury secrecy rule needed to be altered under section7 of the Charter to ensure that verdicts were not tainted by racism. The argument was

rejected. Also, in a number of cases, trial judges have been or appeared hostile whenasked to adjudicate a race issue. E.g. in R v Brown, B was asked by the judge toapologize to the officer for raising racial profiling. Sometimes, hostility can be impliedfrom the reasoning employed by the Court to dismiss the argument. The relevantinstances of judicial reluctance and hostility certainly tend to confirm the theory that the

composition of the judiciary and inherent conservatism of judicial review are some of thebiggest hurdles in using litigation as a political tool of change With respect to litigation,

there has been a large-scale failure of trial lawyers to raise race once critical racestandards have been established by the courts. Why are trial lawyers not raising racewhen it is appropriate to do so? E.g. small number of racial profiling cases litigatedfollowing the R v Brown decision. Race is not being raised because some lawyers are notseeing the issue, while others are uncomfortable engaging in race talk before courts

Appellate lawyers often fail to raise the issue of race on appeal. The SCC has yet to deal



with the racial profiling issue. And they face the hurdle of not having a record fromwhich to work (i.e race issues may not be raised at the trial level) Conclusion This

refusal of judges to act and lack of race consciousness by lawyers are having a directimpact on the ability of the Charter to remedy racial injustice The two bright spots have

been race-based challenges for cause, and the recognition of the existence of racial

profiling by our courts. But even in these areas, there is still room for improvement

Rostam Josef Neuwirth, ―International Law and the Public/Private Law Distinction‖

Background The role of law is to provide rules to coordinate reciprocal behaviour amongst various members of a social order, in order to avoid conflicts or detrimentaleffects amongst these members. A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible It is the ill-defined

notion of international law that is called to face the challenge of a menacing disorderspreading over the emerging international community The two categories of public

international and private international law are most likely to fulfil this function in theemerging international community Public international law, or the ―law of the nations‖,

is defined as the system of law governing the relations between states. Privateinternational law, or the ―conflict of laws‖, is a system co-ordinating the different lawsfrom different countries, and it responds to the question of applicability of foreign ordomestic law within domestic courts In the present time, complex interactions between

states and private individuals occurs, and harmony between public and privateinternational law cannot be confirmed anymore The decline of state sovereignty and the

increasing insufficiency of a pure positivist theory of law to explain phenomena on thelegal plane, are two examples of how global change has shattered the fundaments of doctrinal thinking on which the classical doctrine was built

Legal pluralism and legal polycentricity in international law The world community of

today is formed by a great number of diverse societies; each political society has its ownlaw which is based on its own traditional religious, cultural or social values The first

steps in the recognition of the diversity of the world community are found in the termsof legal pluralism and legal polycentricity, repudiating both the presumption of the soleexistence of one total legal order and a single value approach to law. Cconsidering the

very nature and rationale of public and private international law - both dealing withinteractions amongst these various societies, whether organised as states, peoples, groupsor individuals, that together form the world community - different legal traditions must begiven their equal and due place in the international legal order, This can be achieved byemphasising the continuity in the evolution of law; an evolution that has constantly beeninfluenced by the exchange of many different cultures.

The critical point: tendencies in contemporary law The second half of the 20th century

has faced dynamic development in all areas affecting human society, and driven by thetheory of legal positivism law was not spared from this development and underwent, andis undergoing, significant changes Law has reached a critical point which is cause for

hope and concern – the critical point is understood as two parallel yet mutuallyantagnostic trends. The evolution of technology has affected the evolution of law – lawhas rapidly evolved, but the question is whether it has progressed or regressed? Law has



progressed EXTERNALLY – almost every action in daily life is subject to law (i.e.broad scope of application). From an INTERNAL point of view, as far as theFUNCTION OF LAW WITH RESPECT TO JUSTICE is concerned (thus includingmorality, predictability and continuity), the issue is less clear. The huge quantity of normsenacted gives rise to concern. A law is an attempt to formulate a norm with the use of

abstract wording, that governs the broadest area of life possible. Aristotle pointed outthat every law is laid down in general terms, while there are maters about which it isimpossible to speak about in general terms. But the defect lies not in the law, but in thenature of the subject matter. Because of this flaw apparently inherent in law, thechallenge in the near future is to examine the traditional perception of the theoryunderlying law. This flaw, and various opposite tendencies in the evolution of law, callfor new theoretical approaches to the law regulating the present world order. From apractical perspective, it calls for a simpler general theory, allowing for a rapid orientationbut also a just application of the vast variety of norms.

A Law for the World of Today The present challenge is to find a legal notion that faces

the challenges of the new realities that a global political world order has created. Such anotion would not only have to cover the different categories of law, but also it wouldhave to meet the implications of an immense cultural diversity of legal systems created

by a large number of states In this process of adaptation, the preliminary step is to bringabout the desired change by redefining existing notions, or by creating new notions used

in legal discourse Since codification – the process whereby legal ideas become positive law – is taking place extensively, changes in the ideas do not automatically result inchanges of the written positive law (i.e. the more condicitaiton, the more difficult it is tochange notions). Therefore, when new legal ideas emerge, they are still expressedthrough notions that gave shape to their previous legal norms. The new ideas may thenstand in clear contradiction to each other. This fate is shared by the notion of

international law

The notion of ―international law‖ This seems to be an outdated concept, not fit for

responding to new realities [Author then lists numerous notions related to international

law]

A synthetic search for a suitable notion When contemplating the variety of notions that

exist for the law of today, it is hard to make a choice. Each notion has appeared in adifferent time and context, but they all appear to overlap The essay will use the term

international law, because its covers broadest range of these contexts. Instead of tryingto change the term itself the focus will be on a change of its understanding and scope of

application

The Dynamism of Public/Private Dichotomy Public international law foundations - Theevolution of public international law reveals the strong influences that theories exerciseon the shape of law and its institutions; on the other hand, the theories themselves areshaped by influences stemming from the factual developments occurring in this world

This becomes obvious when one considers the two main theories competing ininternational law: natural law and positive law, the first emphasising moral standards and



the latter a more practical approach. While a naturalist view dominated the 17th and 18thcenturies, the positivist view gained importance throughout the 19th century. Since WWII, the naturalist and positivist views can be said to co-exist in parallel. The atrocitiescommitted by the Nazi government that culminated in World War UU revived thepopularity of natural law. Since then, the naturalist and positivist view can be said to co-

exist in parallel - Principle sources of international law: (i) international conventionsestablishing rules expressly recognised by contesting states (corresponds more withpositivist thought) (ii) international custom (e.g. treaties which lack universal bindingforce) (corresponds with naturalist thought): The universally binding force of custom isexpressed in the concept of ius cogens, i.e. peremptory norms, which is based upon an―acceptance of fundamental and superior values within the system and ins some respectsis akin to the notion of public order‖. A further expression of the naturalist character

expressed by custom is found in the concept of obligations erga omnes. With fullawareness of the major importance of the distinction between customary and treaty law

Private international law - Conflict of laws in its widest sense deals with 3 subjects:

jurisdiction, choice of law and recognition of foreign judgments - The body of rulescalled private international law fulfills a coordinating function between legal orders of different states, in search for a greater decisional harmony - From a theoreticalperspective, the historical development of private international law was dominated by 2major ideas

Private and public law - The classical distinction is that public law governs the relationsbetween the state and its nationals, while private law governs their relations amongstthemselves.

The implementation of international law - The way a state approaches this depends on

whether the state practice is influenced by the monist or dualist concept - The receptionand implementation of the international norm in the national realm is necessary because astate, the traditional subject of international law, can in some cases only achievecompliance w/ international obligations by assuring that the behaviour of its nationals isin conformity w/ international obligations entered by the same state - Customaryinternational law and treaties: Distinguish between these two, the two main sources of international law. - International customary law is considered to be part of municipal lawif incorporated. The incorporation can be made on the basis of a relevant constitutionalprovision or by judicial practice. Incorporation doesn’t automatically give such law

higher standing within the national legal order. A later national law is capable of nullifying the obligation set forth - Treaties: The way treaties are transferred into thenational legal system not only depends on the constitution but also the character of thetreaty. The CONSTITUTION determines the process from the beginning of negotiationsuntil the final administration of a negotiated treaty within a national legislation. From aconstitutional point of view, the implementation of a treaty can take place through aspecial or general transformation. Special = international norm must be adopted bylegislation/regulation; general = declared part of municipal law without any speciallegislation. Treaties can either be self-executing or non-self executing, the formerrequires implementation by way of statute.



Advantages/disadvantages of direct applicability of international

laws in a municipal court: advantages include the increase for the

effectiveness of international law, a better fulfillment of relevant

treaty obligations etc. Disadvantages are recognized when one

considers democratic participation in the international law making

process, the adaption of international norms to domestic particular

circumstances, the adequate fulfillment of the respective international

obligations, possible conflicts between international and other nations

norms

2. SOURCES OF LAW Overview - Early relations with Aboriginal Peoples - Receptionof English Common Law - French Civil Law and Bijuralism - Convention - Statute -Treaty

Law and Aboriginals - It is important for a legal system to recognize that Canada waspopulated by aboriginal people prior to its colonization by the European empires -Aboriginals’ cultural, political, economic and legal systems/rights not protected after

colonization - But in 1982, with the patriation of the Constitution, aboriginal rights wereconstitutionally entrenched in s 35 of the Constitution Act, 1982 - Cases such as Mitchellv Canada and Delgamuukw v BC interpreted s 35

Canada’s Common and Civil Law Traditions

a. Reception of European law: - Canada law remains a largely European inheritance.British concepts of ―reception‖ determined how Canada’s common law and statute law

was received - Just as the aboriginal legal systems, the British had special rules of incorporation that defined how non-British law would apply in their colonies. If alocation was conquered or ceded, the local laws would continue to apply, modified only

as far as was necessary to integrate them into the Imperial legal system. For thoseterritories that were simply colonized, the Common law, as it stood at the time of firstsettlement, was imported (Cooper v. Stewart) - So there is an important distinctionbetween CONQUER and SETTLE (that latter of which ignores the presence of Aboriginals; it entails the automatic reception of English law) - Most of Canadaconsidered ―settled‖, so entire body of English law was imported to the settled colonies -The courts were the arbiters of settlement dates

b. Nature of the Common and Civil law: - Common law: Common law is an Englishinvention. It is judge-made law, developed through the common law courts (as opposedto the Court of Chancery). Two fundamental ideas permeate common law theory: (1)

Judges do not make the law but merely declare it; (2) all the relevant past decisions areconsidered as evidence of the law, and judges infer from these precedents what is the truelaw in a given instance - Civil law: Quebec inherited civil law. Civil law is based onestablished laws, normally written as broad legal principles. The difference between civiland common law lies more in their different methodological approaches as opposed tocodification per se. In civil law countries, legislation is seen as the primary source of law.Judgements normally rely on the provisions of codes and statutes. Judicial reasoning isbased extensively on the general principles of the rule or code. On the other hand,





(a) Treaties - Dualism: Canada has a dualist tradition – an international treaty has nodirect effect in domestic law until domestic legislation passed to transform or implementthe law into Canadian law by an act of Parliament (if a federal matter) or provincialLegislatures (if a provincial matter) - There are advantages, disadvantages anduncertainties with the dualist mode of reception (e.g. implementation issue – no clear

rules on when a treaty has been implemented into Canadian law; in this context, theBaker approach seems to be unsatisfactory, which states that for a treaty to be consideredimplemented, it must be done so explicitly in the relevant statute – see the ―A Hesitant

Embrace‖ article below for a critique of Baker and this approach in general; further, the

Suresh approach appears to not be satisfactory either, which suggests that you can useunimplemented treaties to aid interpretation of legislation)

(b) Customary international law - Once a rule becomes recognized as customary law, it isAUTOMATICALLY part of domestic law - Can be displaced by statute - There are alsosome concerns related to incorporating customary international law into domestic law -But the SCC has been unclear on the statutes of customary international law in Canadian

domestic law - The following are two cases on the application of international law inCanadian domestic law:

Baker v Canada L’Heureux-Dube: Importance of considering best interests of childrenindicated by Canada’s ratification of the Convention on the Rights of the Child, an

international instrument. International treaties and conventions are not part of Canadianlaw unless they have been implemented by statute. The Convention has not beenimplemented by Parliament, and therefore its provisions have no direct affect onCanadian law. Nevertheless, the values reflected in international human rights law mayhelp inform the contextual approach to statutory interpretation and judicial review.

Iacobucci: It is a matter of well-settled law that an international convention ratified by

the executive branch of government is of no force or effect within the Canadian legalsystem until such time as its provisions have been incorporated into domestic law by wayof implementing legislation. I do not agree with the approach adopted by my colleague,wherein reference is made to the underlying values of an unimplemented internationaltreaty in the course of the contextual approach to statutory interpretation andadministrative law, because such an approach is not in accordance with the Court’s

jurisprudence concerning the status of international law within the domestic legal system.

De Guzman v Canada FACTS: Ms G’s application to have her sons sponsored foradmission to Canada was refused under the Immigration and Refugee ProtectionRegulations. Ms G argued, inter alia, that the relevant provision is invalid. One ground

was that it is inconsistent with international human rights instruments to which Canada isa signatory, and which protect the right of families to live together and the best interestsof children. G argues that priority should be given to international instruments whichprevail over any inconsistent provision in either the IRPA or the regulations ISSUE: Isparagraph 117(9)(d) invalid because it renders the IRPA non-compliant with―international human rights instruments to which Canada is signatory REASONING: -To conclude that the terms of the IRPA, which have been debated and approved byParliament, are overridden by a conflicting international legal instrument does not respect



the legislative process in this country. Only express indication of such a principle byParliament would allow such an outcome - But the applications Judge took an overlynarrow view on the value of international law - International law can be used to interpretthe Charter and it can influence the common law - In Baker, Court endorsed the use of international law to interpret a statutory provision as requiring immigration officers to

give great weight to the best interests of any affected children when exercising discretion,EVEN IF NOT IMPLEMENTED - Further, Brunnees and Troope in a Hesistant Embraceargue that courts have not always made it clear how influential international law shouldbe in the interpretation of domestic legislation. Sometimes it is treated as merelypersuasive, while at other times it is presumed to be determinative, unless the statutorytext is irremediably inconsistent with international law. In an attempt to bring greaterclarity to the analysis in the evolving domestic jurisprudence, the authors suggest thatParliament should be presumed not to legislate in derogation of international legal normsthat are binding in Canada. In contrast, non binding international norms should not begiven the same interpretive weight, but should be regarded as no more than persuasiveand contextual HELD: I conclude that paragraph 3(3)(f) does not incorporate into

Canadian law international human rights instruments to which Canada is a signatory, butmerely directs that the IRPA must be construed and applied in a manner that complieswith them

- The following is an article on issues concerning the application of international law inCanadian courts:

Brunnee, Jutta & Stephen Toope, ―A Hesitant Embrace: Baker and the Application of

International Law in Canadian Courts‖ Background - Today, Courts appear to recognizethe relevance of international norms whether or not they have been implemented throughCanadian legislation, and whether or not they are binding on Canada - In Baker, theCourt held that the values reflected in international human rights law may help inform thecontextual approach to statutory interpretation and judicial review - Canadian courts aregrappling more with the ―practical application‖ of international law - Canadian courts,however, are still inclined to avoid deciding cases on the basis of international law: andthe avoidance strategy is subtle – even when they invoke international law, Canadiancourts generally do not give international norms concrete legal effect in individual case -After the Baker decision, there appears to be a trend towards treating all internationallaw, whether custom or treaty, binding on Canada or not, implemented orunimplemented, in the same manner – as relevant and persuasive, but not determinative(this comes implicitly from the decision, not explicitly) - The point is the Supreme Courtand other courts have confused, rather then clarified the domestic impact of internationallaw - Job for academics and judiciary to attack international law questions in a moreprincipled manner. Same with courts - The SCC in Baker and in Suresh said that therelevant international instrument was not implemented in Canada (but we think it’s

arguable that there is implied implementation because of the Charter and its protections) -We argue that its is not enough to treat ALL normative threads as potentially persuasive,but not mandatory – over time, this approach risks weakening the fabric of the law.CONCERN: If international law is merely persuasive, it becomes purely optional, and it



can be ignored at the discretion of the judge - We argue that in the case of norms that arebinding on Canada under international law, Canadian courts have an obligation tointerpret domestic law in conformity with the relevant international norms as far as possible. By contrast, norms that aren’t binding (e.g. soft law) can help inform the

interpretation of domestic law and may be persuasive.

Implemented Treaties - In Canada, the executive controls both the signature andratification of international treaties. If the treaty is in force and Canada has ratified it, thetreaty is binding on Canada as a matter of international law; but this does not answer thequestion of whether the treaty is effective within the Canadian domestic legal system -International treaties are not directly applicable in Canada but require transformation. -Canadian courts struggle not only to determine when international norms requireimplementation through legislation but also to determine whether such implementationhas actually occurred. They wrestle as well with the implications of the common lawprinciple that "Parliament is not presumed to legislate in breach of a treaty or in a mannerinconsistent with the comity of nations and the established rules of international law."76

In the case law, it remains unclear when this principle comes into play and how it relatesto the implementation requirement. - So while the power to enter into an agreement restswith the federal executive, transformation generally requires legislation that enacts treatyobligations into domestic law. - Transformation must occur w/in the jurisdictionalframework set out by the Constitution Act 1867. - It is unclear what constitutesimplementation, and there are potentially many ways this can be done in a statute. Leastcommon practice is ―inferred implementation‖ - When a treaty is explicitly transformedinto Canadian law, its provisions should be determinative in the interpretation of domestic legislation - When the purpose of a statute is to implement an internationaltreaty, the Court must adopt an interpretation consistent with Canada’s obligations under

the treaty. - A court must rely on the treaty to interpret the statute and on the internationalrules of treaty interpretation to interpret the treaty and resolve any textual ambiguities -Canadian courts have tended towards a narrow construction of the implementationrequirement, effectively equating implementation with statutory implementation - Butsurely there can be implicit implementation, e.g. by way of the Charter. - In Ahani, it wasstated that absent implementing legislation, international law has no effect -Traditionally, however, Canadian law did not categorically require statutoryimplementation

Unimplemented treaties - There are cases where treaties are genuinely unimplemented. -What is the legal effect of such treaties? We submit that a treaty that is binding onCanada, while not directly applicable in Canada, is nonetheless subject to the presumption of legislative intent to Act consistently with Canada’s international

obligations. - As we understand the presumption, it applies to all of Canada’s

international obligations, whether treaty based or rooted in customary international law -This understanding leads to the inference that courts should make every effort to interpretCanadian law so as to conform to Canada’s international obligations - Unfortunately,Canadian case law has not taken a consistent approach to the presumption of conformityw/ international law. - First, there is an uncertainty of the effect of that presumption in thecontext of Charter interpretation. The SCC has tended to draw upon international norms



merely to inform its interpretation of the Charter. In the Charter context, a weaker versionof the presumption of conformity has emerged. - Secondly, the case law since Baker isunclear on whether the presumption applies equally to Canada’s international obligationsand non-binding international norms - The ambiguous state of the case-law in this regardis reflected in the Court’s decision in Baker. One of the principle causalities of this lack

of clarity is customary international law. The central ruling in Baker was that eventhough Canada had never explicitly transformed its obligations under the Convention of the Rights of the Child into domestic law, the immigration official was bound to considerthe ―values‖ expressed in that Convention when exer cising discretion. Therefore, theConvention’s emphasis upon ―the best interests of the child‖ should have weighedheavily in considering Ms Baker’s application. - How did majority arrive at theconclusion ―that the values reflected in international human rights law may help informthe contextual approach to statutory interpretation and judicial review? More specifically,the central question is how the majority conceived of this principle in relation to thetraditional presumption of statutory conformity with international obligations. - It wouldseem that the primary question for the majority with respect to the relevant international

instrument was how to give effect to the unimplemented treaty. As said above, themajority took the narrow view on the question of implementation and observed that,absent implementation by Parliament, it’s provisions have no DIRECT application in

Canadian law. Yet the ―values‖ reflected in the Convention could shape statutory

interpretation. - In our view the majority erred for 2 reasons: (1) While the provisions inthat instrument were not directly applicable IN Canadian law, they were binding ONCanada and therefore relevant to statutory interpretation through the presumption of conformity (from the standpoint of this presum ption, the Court wouldn’t have had to

distinguish between the provisions and ―values‖, and could have used both). The Court

simply failed to adopt the presumption which they should have, based on the very quotewhich they relied to cite authority for the presumption; it would have been clearer forthem to just have used the presumption in arriving at the conclusion; (2) By avoiding thepresumption, the interpretation of the international instrumental taken was overly narrow- Baker results in 2 questions: (1) How should courts approach international treaty normsthat are binding on Canada, but absent implementation, not directly applicable inCanada? (2) How should they approach norms that do not bind Canada but reflectimportant international values? - Some have suggested to ignore the rigid distinctionbetween binding and non binding. Doing so risks some norms being ignored completely,simply because they are not legally binding. Similarly, legal norms produce a false senseof security when it is assumed that they require nothing other than ―mechanical‖

application by a judge. According to Knop, an approach focused on persuasiveness of norms can improve the domestic application of both types of norms. Knop therefore likesBaker’s approach - But we are worried that Baker has not signaled a positive shift. Worryis that Baker signals a path towards treating all international law as persuasive authority,which the Court MAY use to inform its interpretation of domestic law. By treating bothbinding and non-binding international norms in this manner, courts move away from theirduty to strive for an interpretation that is consistent with Canada’s international

obligations. - Binding international norms are not only persuasive, they are obligatory. If we fail to uphold our obligations, we undermine respect for law internationally



[Note: binding = ratified; implemented = implemented by statute]

Customary international law - The existence of a binding rule of custom is proven withreference to two distinct, but interrelated, elements: state practice and opinio juris. - Theproper application of customary international law has emerged in a series of cases after

Baker as a major question for the Supreme Court. To what extent can internationalcustomary law inform domestic legal processes? The best view appears to be thatcustomary law can operate directly within the Canadian legal system - We hope that theSCC intended to suggest that the precautionary principle can inform statutoryinterpretation even if it should not yet have become customary international law. If thisreading is correct the Court would have confirmed a principle that it alluded to in Baker:in appropriate cases, international norms that are not legally binding on Canada mayinform statutory interpretation and judicial review - Another case after Spraytech that theSCC commented on customary international law was in Suresh. Jus cogens norms are aparticularly compelling form of customary international law.

Summary - Customary international law (a peremptory norm of customary internationallaw which emerges by general consensus of the international community): should bedirectly applicable (it is a part of Canadian law). Courts should strive to interpret statutesand common law to be consistent with obligations under customary law. However, theapproach of Canadian courts to customary international law is unclear. There is nounequivocal statement on whether custom is part of Canadian law or not. If anything,there are some indications that our courts may be retreating from custom. The SCCdecisions in Spraytech and Suresh leave room to be interpreted as suggesting thatcustomary law, including even just cogens, is not directly binding in Canada. The twodecisions permit the inference that custom merely helps inform a contextual approach tostatutory interpretation, furnishing a potentially relevant and persuasive source for thispower, but nothing more. - International treaty law: treaty that has been explicitlyimplemented by statute is part of our domestic law and should be determinative in theinterpretation of Canadian law. When Charter issues arise, Canadian legislatures retaincontrol over domestic law. The presumption of conformity is to be applied only wherepossible, and it can be rebutted by an explicit legislative Act. - International law that isNOT binding: finally, there is an array of international normative statements that may notbe legally binding on Canada, but Canada may find relevant to the interpretation of adomestic statute. E.g. might encounter non-binding parts of a treaty (preamble);international treaties to which Canada is not a party etc (SOFT LAW) - These normsshould be treated as potentially relevant and persuasive for the interpretation of domesticlaw

Conclusion - Canadian courts are becoming international courts, as the boundariesbetween nations becomes more blurred

The ―Bijuralism‖ Issue



Department of Justice, ―Bijuralism and Harmonization: Genesis‖ ―Bijuralism‖ signifies

the co-existence of the English common law and French civil law traditions, within acountry organized along federal lines

Common Law Tradition The common law tradition can be distinguished from the civil

traditional essentially by its method, that is, its rules of interpretation, the hierarchy of itssources and its inductive reasoning. The principle characteristic of the common law is

this inductive process, which consists of generalizing from common points betweendistinct cases and then establishing legal categories with vague foundations and flexible

limits To practitioners, the common law means that they have access to a fragmentedlaw that they will discover incrementally as needed. This leads to the legal fiction that a judge does not make the law but discovers it, as a legal vacuum is impossible

Civil Law Tradition The most important feature of the civil law tradition differentiating it from the common law tradition is its emphasis on the primacy of written laws. Civillaw is not judge made/recognized law, it’s codified law Another def ining characteristic

of the civilian tradition is its conceptualism as the civil law tradition is characterized byits emphasis on abstract concepts. What follows from this is the use of a deductiveapproach to legal reasoning is used, proceeding from the general to the specific (asopposed to specific to general like in C/L). The second source of law in civilian tradition

is legal scholarship ―la doctrine‖, and the third source is prior judicial decisions.

Language One integral issue relating to Canada's bijuralism is that of "language". It isvery important for me to stress that I consider language to play a crucial role in the

evolution of law. The sources of common law were established in the English language. Translation often results in some very difficult problems for the practice of the commonlaw in French. The same holds true for the practice of civil law in English The suitability

of judges educated in the common law tradition hearing cases involving civil law issueshas been the subject of some debate in Quebec and has even led to some opinionfavouring a distinct Supreme Court for Quebec or a separate civil law division within theexisting Supreme Court One question that often arises is whether the common law

system is intimately linked to the Anglo-Saxon mentality and language? Is the system of values of Francophones inconsistent with the common law tradition? In this regard, Icannot emphasize enough that my experience has taught me that French is not theexclusive linguistic vehicle for the expression of the civil law tradition nor is English theexclusive vehicle for the expression of the common law. I highly doubt that there is anymystical connection between the French language and the civil law tradition and theEnglish language and the common law tradition.

Bilingual legislation

It is perhaps trite to state that federal legislation in Canada is

intended to apply consistently across the provinces and territories —

that the same federal law must apply in both Quebec and in Ontario.

While this may be the ultimate goal of federal legislation, in practice

this goal is not easily attained, since federal legislation must be

drafted in the English and French languages and in a manner which is



compatible with two legal systems. Federal legislation must not only

be bilingual, but also bijural. Indeed, federal legislation must

simultaneously address four different groups of persons:

1. anglophone common law lawyers; 2. francophone common law lawyers; 3. anglophoneQuebec civilian lawyers; and 4. francophone Quebec civilian lawyers. - It is crucial that

these four legal audiences in Canada be able to both read federal statutes and regulationsin the official language of their choice and also be able to find in them terminology andwording that are respectful of the concepts, notions and institutions proper to the legaltradition of their particular province or territory

- One distinctive and often difficult feature of Canadian bijuralism is

the task of rendering the common law in French and the civil law in

English. More specifically, how legislative statutes and judicial

decisions of either legal tradition can be "transposed" into the

language of the other. With respect to the process of drafting federal

legislation, it is now readily recognized that this process should not

rely upon the technique of simply transposing the concepts of one legal

tradition into the corresponding functional equivalents of the otherlegal tradition. In many areas, a new vocabulary must be forged.

Interpreting Bilingual Legislation The requirement in Canada that legislation beenacted in both English and French has important implications. It means that bothlanguage versions of a bilingual statute are original, official and authoritative expressionsof the law. Neither version has the status of a copy or translation — and neither has

paramountcy over the other. This is known as the "equal authenticity rule" The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extractthe "highest common meaning" from the two versions that is consistent with the contextof the provision. Where there is a blatant conflict between the English and French

versions, courts must examine the legislative history of the two linguistic versions of theprovision, looking also to the purpose and object of the statute. One must therefore gofurther than mere verbal comparisons, looking to the highest common meaning of the two

versions Courts are therefore required to interpret bilingual legislation in a manner thataccords with the true spirit, intent and meaning of an enactment and that best ensures theattainment of its objectives.

Harmonization The interaction of law emanating from the federal and provincial levelsand the potential conflicts between them and possible harmonization is a complex issue

Over the years, pursuant to the division of powers under the Constitution Act, 1867,Parliament has enacted a considerable number of laws aimed at regulating private law

issues. Certain public law statutes, when applied in Quebec, require that recourse be hadto the Civil Code of Quebec to identify the precise nature of the juridical act in question.Consequently, there are several areas of law found in federal statutory enactments whichrequire harmonization with Quebec private law, expressed primarily in the Quebec Civil

Code As such, civil law is called upon to fill the gaps left by the federal law While

civil law and common law complement the private law provisions of federal legislation,at the same time, federal legislation should not be applied uniformly throughout thecountry in every respect. Our objective is legal duality, not necessarily to achieve one



rule to be applied uniformly across Canada; this requires respect for the character anduniqueness of the concepts and principles of each legal system

Convergence and Progress There is evidence of a certain convergence between the civil

law and common law traditions in Canada. While the common law and civil law

families share common origins, these legal systems have been moving farther and fartherfrom those origins. This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of international law, the mobility of persons, the influence of the media, the production of indigenous reference works and thegrowing use of legislation, even in common law jurisdictions, to enable the law to adaptquickly to societal change. One often-cited example of the convergence of the two legal

traditions in Canada focuses on the acceptance in Quebec of specific institutions of thecommon law tradition — namely, the trust. Another instance of this "rapprochement " of

the two traditions can be discerned from the current situation where common law courtsare required to apply and interpret substantive civil law – .e.g recent tort case whereCourt made extensive reference and resorted to civilian authority Chief Justice

McLachlin stated that looking to how other courts in different jurisdictions deal withthis issue provides perspective both on the nature of the problem and possible solutions.

Conclusions

Our legal system must now incorporate the shared values of society as

a whole, without excluding or discriminating against anyone. It must

evolve in light of our background and needs. In the Canadian context,

it seems to me that a new analysis of the situation is also needed

It is true that things have already changed substantially. The

codification of the law is increasingly extensive in both systems.

There are more and more new sources of substantive law, including

international law and native law. Translation, language training for

judges and jurists, and exchanges between law schools are far more

common. There is widespread access to criminal justice in French at the

trial level throughout the country. Some universities offer a double

law degree; others have organized one-year work terms for students

studying the other system. POLAJ is doing important work

The negative side is that French-language books, articles and cases from Quebeccontinue to be inaccessible to the vast majority of practitioners and judges in the commonlaw provinces and territories. I have also noticed that the bilingualism of many youngQuebec jurists is insufficient to give them full access to English-language legal sources.On the flip-side, if French is not understood in most of English Canada, how can we be

expected to make use of the insights it offers in resolving legal disputes?

St-Hilaire v Canada (A-G) FACTS: The respondent asked the Treasury Board to pay her,in her capacity as a surviving spouse and as heir of her husband's succession, theallowances prescribed in the Act. The Treasury Board refused to pay anything on thebasis of a public policy rule that no one may profit from his own crime. The respondentthen applied to the Federal Court, Trial Division for a declaratory judgment that would



recognize her right to the benefits provided by the Act. Allowing the application, Blais J.ruled that the applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of lawunless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. ISSUE: The main issue on appeal was whether the

civil law of Quebec is the suppletive law where a court must interpret and apply a federalenactment which is silent concerning civil rights in Quebec and if so, whether therespondent was unworthy by operation of law of inheriting from her husband undersubsection 620(1) of the Civil Code of Québec. REASONING: Decary JA (dissenting inpart): - What is the applicable law: the civil law of Quebec or the common law? - Unlessindicated otherwise, no document other than the Civil Code shall serve as ordinary law,in private law, in the federal legislation applicable to Quebec. - Whenever a federalstatute that is to be applied to Quebec resorts to a private law concept without defining it,and the Interpretation Act is likewise silent, or the federal statute does not fully occupythe possible field of private law jurisdiction in question, it is the Civil Code that suppliesthe necessary conceptual support for an intelligent application of that statute - In Quebec

it is trite law that the "ordinary law" of the province is constituted by the Civil Code of Québec and the Code of Civil Procedure - Of course, there are a number of situations inwhich the civil law is required to assume what might be called a passive role. Suchsituations include every instance where, in furtherance of its own purposes, a federalstatute assigns certain effects to juridical acts or facts governed by the Civil Code. Morefrequent, however, are situations in which the civil law plays an active role by applyingdirectly to complement federal private law statutes, just as it does with regard toprovincial statutes of the same type. Most of the time, of course, these laws do notcontain all that is necessary for their application. In one way or another, they are almostalways incomplete. They employ civil law concepts without defining them; they refer toinstitutions enshrined in the Civil Code or fail, wittingly or unwittingly, to state all of theprinciples that apply to the field they regulate. The civil law is therefore called upon tofill in the lacunae or gaps left by federal law - What, in my view, should determinewhether or not it is necessary to resort to the private law (in Quebec, the civil law) is notthe public or private nature of the federal enactment at issue but the fact, quite simply,that the federal enactment in a given case must be applied to situations or relationshipsthat it has not defined and that cannot be defined other than in terms of the personsaffected. - It is also worth remembering the complementary nature of federal and civillaw: all of the Federal statutes created do not create an independent legal system. Becausethese Acts derogate from or add to the jus commune of each province, they aresupplemented by the relevant provincial law, which is used to interpret them and to applythem. There is, therefore, a complementary relationship between federal legislation andthe jus commune of the provinces - I do not think there can be any doubt that this part of the Act, which refers to "succession" without defining it, should be interpreted in Quebecin light of the civil law. The answer is not so obvious when it comes to defining the rightsof the "surviving spouse". This expression, as I said earlier, is defined in the Act andfurthermore does not correspond to any concept that is defined in the Civil Code of Québec. The Act appears, prima facie, to constitute a complete code in this regard. But isthis really the case? What we are looking for here is not who is the surviving spouse. Weknow her. What we are asking ourselves, rather, is whether this surviving spouse is



eligible to receive the benefit provided by the Act. - Since the Act is silent on thequestion of eligibility, the Attorney General submits that the legislative void must befilled by the common law. This argument cannot succeed, since the question of eligibilityis a question of civil rights and the applicable rule is one of private law, and thus, in thiscase, of civil law - The Civil Code of Québec recognizes the principle that no one should

profit from his or her crime. The question then is what the civil law understands by theprinciple that no one should profit from his or her crime. - In ab intestate andtestamentary succession, there is unworthiness by operation of law only if the heir isconvicted of making an attempt on the life of the deceased. Should the circumstances of the crime in the case at bar lead to the disqualification of the respondent, given that therespondent has been convicted of manslaughter? I think so. It would be too easy foranyone charged with murder to avoid the civil consequences of a conviction for murderby pleading guilty to a reduced charge of manslaughter and avoiding a trial in the courseof which all of the relevant facts would be disclosed. The civil court, faced with a plea of guilty to a charge of manslaughter, may be sceptical and conclude, from the scantevidence at its disposal, and given the balance of probabilities, that there was a sufficient

intention to kill. - In sum, the respondent was forfeited from her entitlement to thebenefits payable to a surviving spouse under subsection 13(3) of the Act, but she wasentitled in her capacity as heir, to the minimum amount of $75,202.50 payable undersubsection 27(2) of Part I of the Act and to the supplementary death benefit of about$81,750.

Letourneau JA: - The Federal Court of Appeal has on many occasions recognized thecomplementarity of the Quebec civil law with federal law where the latter is silent. It hasalso endeavored to harmonize the effects of federal statutes in order to avoid possibleinequities as a result of disparities while acknowledging a right to be different whereharmonization proves impossible. The unworthiness to inherit under subsection 620(1) of the Civil Code of Québec attaches to the person convicted of making an attempt on thelife of the deceased. The wording of this article creates serious difficulties since there isno offence in Canadian criminal law of making an attempt on the life of the deceased.But Subsection 620(1) of the Civil Code of Québec does not exclude from its purview allcases of manslaughter. Where, as here, a person commits aggravated assault or inflictsserious bodily harm likely to cause death, knowing that death may result but beingindifferent as to whether or not it results, that person is by operation of law unworthy of inheriting from his victim - Held that respondent was disqualified

Desjardin JA: - To determine the meaning of the words "surviving spouse" and"succession" when the federal statute in question, the Public Service Superannuation Act,is silent, it is necessary to refer to the Civil Code of Québec and not the common law.The Civil Code of Québec is the foundation not only of all other Quebec laws, but also of the relevant provisions of the Act in question. The first paragraph of article 620 of theCode, which states that "a person convicted of making an attempt on the life of thedeceased" is unworthy of inheriting by operation of law, does not rule out theapplicability thereto of some cases of manslaughter, let alone the manslaughtercommitted by the respondent - Since the respondent was "convicted of making an attempt



on the life of the deceased", she was unworthy by operation of law of inheriting from herhusband under that provision and could not receive the surviving spouse's annuity.

HELD: Appeal allowed

Convention

- Constitutional conventions are a species of unwritten constitutional norms. The BritishConstitution was understood to include certain conventions that govern the workings andinteraction of the branches of the state. Because the Constitution Act 1867 sought toeffect ―a Constitution similar in Principle to that of the UK,‖ Canada inherited these

conventions. - The following is a case where a specific convention was recognized:

Re: Resolution to amend Constitution: FACTS: The References in question wereprompted by the opposition of eight provinces to a proposed Resolution, published onOctober 2, 1980. The proposed Resolution contained an address to be presented to Her

Majesty The Queen in right of the United Kingdom and a statute, to which was appendedanother statute provid¬ing for the patriation of the B.N.A. Act, with an amend¬ingprocedure, and a Charter of Rights and Freedoms. The proposed Resolution carried theapproval of only two provinces, Ontario and New Brunswick. The opposi¬tion of theothers, save Saskatchewan, was based on their assertion that both conventionally andlegally the consent of all the provinces was required for the address to be forwarded toHer Majesty with the appended statutes. The proposed Resolution was adopted by theHouse of Commons and by the Senate on April 23 and 24, 1981. ISSUES: All partiesagreed that proposed amended constitution would affect provincial rights and powers. 2key issues: (1) Is agreement of provinces constitutionally (legally) required?; (2) Is therea constitutional convention? REASONING: Issue 1: Majority of 7:2 - ―Legally‖

provincial consent was not

required. Issue 2: Constitutional convention, 6:3 majorityfound an existing convention that a ―substantial measure of provincial consent‖ isrequired. Re: provincial consent there was precedent. Since 1930 all amendmentsaffecting the provinces were passed with provincial consent – there were no exceptions.

Precedent indicated intent to have consent. confirms Canada’s federal principle.Reason

1. ―Legal Issue‖ [7:2] The Majority No unanimity for constitutional amendment w/ all

provinces impacted.[CJ Laskin] Majority took view of legal authority. It w/n power of feds to pass such a resolution and take it on to the UK.

[MartlandThe Dissent & ―federalism‖ principleRitchie and precedent to support the

view that ―in law‖ provincial approval was required. P. 33 ―history of amendmentsreveals the operation of constitutional constraints.‖ A unilateral power to amend could

see feds take away all provincial powers [the in terrorem argument]. Argued: feds doingindirectly what cannot do directly by having UK amend constitution w/o provincialapproval.

2. The Constitutional Convention [6:3] [Including MartlandMajority & p. 46

―ConstitutionalRitchie] conventions + constitutional law = total constitution‖ - Majority



recognized conventions. - Constitutional conventions unenforceable by courts. Exist andrecognized to ensure that framework of const. will be operated with prevailingconstitutional values or principles [p.44]. - Three key elements to convention: (1)precedent (2) intent to be bound by the convention & (3) reason for the convention.

HELD: Convention needs ―substantial measure of provincial consent‖ was not supportedby precedent – arguably required unanimous consent. But, here, 8 provinces opposed theamendments it did not matter. Insufficient provincial support.

3. Fundamental Principles of the Canadian Legal System Overview - Rule of law -Parliamentary sovereignty and constitutional supremacy - Separation of powers - Judicialindependence

Craik Reading Background - Public law concerns the relationship between the state andcivil society - Private persons may only create legal rights and duties b/w each other, and

only on the basis of consent. In comparison, the state holds all authoritative power (thestate may impose its dictates on persons without their individual consent) - In a societygoverned by the rule of law, the state may not act arbitrarily. The state must impose itswill lawfully, and in accordance with law - The starting point in assessing the legitimacyof state action is the Constitution - The Constitution establishes the foundational lawthrough which the rule of law can occur. Second, it establishes the respectiverelationships between the institutions or branches of the state that perform the functionsnecessary to operationalize law in society

Rule of law - Everyone, including the powerful state, must act in accordance with the law- Rule of law is similar, but broader than the concept of constitutionalism, which requires

that all government action comply with the Constitution; rule of law is a prerequisite tothe constitutionalism - Rule of law means that laws must meet certain qualitativestandards, but being prospective and being general in character are not necessarilyrequirements (see the BC v Imperial Tobacco case) - The rule of law is an implicitprinciple underlying the Constitution (and such principles have full force of law) (see,e.g, BC v Imperial Tobacco) - See Roncarelli v Duplessis, where it was held that even afully discretionary power is subject to the rule of law - See BC v Imperial TobaccoCanada, where manufacturers of tobacco claimed that legislation enacted which favouredBC government in many respects violated principle of rule of law. In the case, the courtdescribed the rule of law as embracing 3 principles: (1) The law is supreme over officialsof the government as well as private individuals (i.e. the law applies to everyone equally)(2) Rule of law requires the creation and maintenance of an actual order of positive lawswhich preserves and embodies the more general principle of normative order (i.e. must bepositive laws) (3) Requires that the relationship between the state and the individual beregulated by law

Unwritten constitutional principles - Reference re Secession of Quebec case confirmedthat the Constitution contains unwritten principles - These unwritten principles areimportant to understanding the legal constraints under which public power is exercised by





normative purpose of providing general boundaries for the operation of each institution -Legislative power and parliamentary supremacy: Separated between the federal (theParliament) and provincial legislatures. The principle of parliamentary supremacy is thatCanada’s federal and provincial legislatures are understood to be the sole sovereign

holders of state authority, subject to authority being divided between them along the lines

set out in ss 91 and 92 of the Constitution Act, 1867.

But with the Constitution Act, 1982, Canada adopted both a Charter of

Rights and Freedoms and an express declaration of constitutional

supremacy (which put new limits on the lawmaking ability of either

level of legislature). Thus, the concept of parliamentary supremacy

was modified (and constitutional supremacy trumps it)

The principle of federalism - Dividing legislative power between a federal governmentand regional governments, each being assigned respective spheres of jurisdiction -Federalism is an unwritten principle of the Canadian Constitution (see Reference reSecession of Quebec); the SCC in that case described this principle as a means of

recognizing regional cultural diversity at the founding of Canada, particularly w/ respectto the distinct nature of Quebec as predominantly a French-speaking society

The executive power - The executive derives any power it has solely from the laws orstatutes passed by the legislature. That is, the executive must locate any authority it has toact in Canadian society from a statutory source - The executive, by constitutionalconvention, is responsible to the legislature – which is essentially the meaning of ―responsible government‖ in the parliamentary tradition

Judicial independence - Judicial independence is an elemental constitutional doctrine,closely tied to the separation of powers - Judicial independence ensures that judges, as

arbiters of disputes, are at a complete liberty to decide individual cases on their meritswithout interference - Judicial independence also preserves the separation of powers b/wthe three branches of our democracy by depoliticizing the relationship between the judiciary and the other two branches

Cases

Reference re Secession of Quebec (Recognizes and explains the importance of 4unwritten constitutional principles) Nature of unwritten principles: These principles

inform and sustain the constitutional text: they are the vital unstated assumptions uponwhich the text is based. The following discussion addresses the four foundational

constitutional principles that are most germane for resolution of this Reference:federalism, democracy, constitutionalism and the rule of law, and respect for minorityrights. These defining principles function in symbiosis. No single principle can bedefined in isolation from the others, nor does any one principle trump or exclude the

operation of any other. Use of unwritten principles: The principles assist in theinterpretation of the text and the delineation of spheres of jurisdiction, the scope of rightsand obligations, and the role of our political institutions. Equally important, observanceof and respect for these principles is essential to the ongoing process of constitutional



development and evolution of our Constitution as a "living tree", to invoke the famousdescription in Edwards v. Attorney-General for Canada

The effect of the preamble to the Constitution Act, 1867 was to

incorporate certain constitutional principles by reference, a point

made earlier in Fraser v. Public Service Staff Relations Board. In the

Provincial Judges Reference, we determined that the preamble "invitesthe courts to turn those principles into the premises of a

constitutional argument that culminates in the filling of gaps in the

express terms of the constitutional text"

Federalism: It is undisputed that Canada is a federal state. In a federal system of government such as ours, political power is shared by two orders of government: thefederal government on the one hand, and the provinces on the other. Each is assignedrespective spheres of jurisdiction by the Constitution Act, 1867. In interpreting ourConstitution, the courts have always been concerned with the federalism principle,inherent in the structure of our constitutional arrangements, which has from the beginningbeen the lodestar by which the courts have been guided. This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, we confirmed thatthe principle of federalism runs through the political and legal systems of Canada.

The principle of federalism recognizes the diversity of the

component parts of Confederation, and the autonomy of provincial

governments to develop their societies within their respective spheres

of jurisdiction

The principle of federalism facilitates the pursuit of collective

goals by cultural and linguistic minorities which form the majority

within a particular province. The federal structure adopted at

Confederation enabled French-speaking Canadians to form a numerical

majority in the province of Quebec, and so exercise the considerableprovincial powers conferred by the Constitution Act, 1867 in such a way

as to promote their language and culture. It also made provision for

certain guaranteed representation within the federal Parliament itself

Democracy: The principle of democracy has always informed the design of ourconstitutional structure, and continues to act as an essential interpretive consideration tothis day. The democracy principle can best be understood as a sort of baseline againstwhich the framers of our Constitution, and subsequently, our elected representativesunder it, have always operated. It is perhaps for this reason that the principle was notexplicitly identified in the text of the Constitution Act, 1867 itself

Democracy is commonly understood as being a political system ofmajority rule. Democracy encompasses a number of values, including:

respect for the inherent dignity of the human person, commitment to

social justice and equality, accommodation of a wide variety of

beliefs, respect for cultural and group identity, and faith in social

and political institutions which enhance the participation of

individuals and groups in society.

In institutional terms, democracy means that each of the provincial

legislatures and the federal Parliament is elected by popular



franchise. In individual terms, the right to vote in elections to the

House of Commons and the provincial legislatures, and to be candidates

in those elections, is guaranteed to "Every citizen of Canada" by

virtue of s. 3 of the Charter.

The relationship between democracy and federalism means, for

example, that in Canada there may be different and equally legitimate

majorities in different provinces and territories and at the federal

level. No one majority is more or less "legitimate" than the others as

an expression of democratic opinion, although, of course, the

consequences will vary with the subject matter

Yet democracy in any real sense of the word cannot exist without the

rule of law. It is the law that creates the framework within which the

"sovereign will" is to be ascertained and implemented. To be accorded

legitimacy, democratic institutions must rest, ultimately, on a legal

foundation

Constitutionalism and the Rule of Law: The 'rule of law' is a highly texturedexpression, importing many things which are beyond the need of these reasons to explorebut conveying, for example, a sense of orderliness, of subjection to known legal rules and

of executive accountability to legal authority".

At its most basic level, the rule of law vouchsafes to the

citizens and residents of the country a stable, predictable and ordered

society in which to conduct their affairs. It provides a shield for

individuals from arbitrary state action.

Protection of Minorities: There are a number of specific constitutional provisionsprotecting minority language, religion and education rights. Undoubtedly, the three otherconstitutional principles inform the scope and operation of the specific provisions thatprotect the rights of minorities. The concern of our courts and governments to protectminorities has been prominent in recent years, particularly following the enactment of the

Charter. Undoubtedly, one of the key considerations motivating the enactment of theCharter, and the process of constitutional judicial review that it entails, is the protectionof minorities.

Singh v Canada (Explains some of the fundamental principles discussed above) Parliamentary sovereignty: It is the prerogative of a sovereign Parliament to make itsintention known as to the role the courts are to play in interpreting, applying andenforcing its statutes. While the courts must determine the meaning of statutoryprovisions, they do so in the name of seeking out the intention or sovereign will of Parliament, however purposively, contextually or policy-oriented may be theinterpretative methods used to attribute such meaning.

Both before and after 1982 our system was and is one of

parliamentary sovereignty exercisable within the limits of a written

constitution

Prima facie, then, this appears to be an intra vires measure by

Parliament to define privileges of the federal Executive in the

furtherance of the well-established and well-accepted principles of

Cabinet secrecy. In the absence of some clear and compelling



constitutional imperative to the contrary the legislation is valid and

effective

Separation of powers: The appellants argue that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive. Theycharacterize the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial in nature because it involves a determination of whether a court should haveaccess to certain evidence

In Canada, and unlike the US and UK, there are many other examples

of the mixing of functions among the various branches of government,

the most obvious being the statutory power of the Supreme Court of

Canada to give advisory opinions, a function not countenanced in

systems of true separation of powers such as the United States. The

Canadian Constitution does not insist on a strict separation of powers.

In the Quebec Secession Reference the Court unanimously confirmed its

right to perform this function as follows

Moreover, the Canadian Constitution does not insist on a strict separation of powers.Parliament and the provincial legislatures may properly confer other legal functions onthe courts, and may confer certain judicial functions on bodies that are not courts. Theexception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation,and such opinions are traditionally obtained by the executive from the law officers of theCrown, there is no constitutional bar to this Court's receipt of jurisdiction to undertakesuch an advisory role

It is not surprising that the Court reached this conclusion, as it

was there engaged in a celebrated exercise of advising the Executive,

answering several hypothetical questions posed by the Governor in

Council in the absence of any real "case or controversy" in the legalsense (the criterion in the U.S. for the exercise of judicial power).

In the present context it is difficult to see how, even on the basis

of the separation of powers, the refusal of one branch of the

Executive, the Privy Council Office, to give to another branch of the

Executive,31 the Royal Canadian Mounted Police Public Complaints

Commission, both governed by the laws of Parliament, access to certain

Cabinet information, can be seen to be a violation of the separation of

powers. Just as there are fundamental policy reasons of a quasi-

constitutional nature as to why legislators should have full control of

their procedures and judges should not have to reveal the processes by

which they reach a given decision, so the Executive (with the guidance

of an Act of Parliament) should be able to identify those documents

generated in its internal decision-making process which should not, forthe integrity of the system of Cabinet secrecy, be disclosed.

Rule of law: The elements of rule of law include: that the law is supreme over the actsof both government and private persons ("one law for all"); that an actual order of positive laws be created and maintained to preserve "normative order"; and that "theexercise of all public power must find its ultimate source in the legal rule". As they said,



put another way, "the relationship between the state and the individual must be regulatedby law".

In this case, the rule of law cannot be taken to invalidate a

statute which has the effect of allowing representatives of the Crown

to identify certain documents as beyond disclosure: that is, the rule

of law does not preclude a special law with a special result dealingwith a special class of documents which, for long standing reasons

based on constitutional principles such as responsible government, have

been treated differently from private documents in a commercial law

suit.

Independence of the judiciary: Appellants’ position is essentially that any limitation onthe jurisdiction of judicial bodies, precluding them in certain instances from engaging inthe review of government decisions, is a violation of a constitutionally guaranteedindependence of the judiciary. The Trial Judge, correctly I believe, held that this did notconstitute an interference with independence as measured by the now well-establishedrules in Valente v. The Queen. Section 39 in no way interferes with the security of tenure,

the financial security, or the administrative independence of judges as dealt with in thatcase

Reference re Rumuneration of Judges of the Prov Court of PEI FACTS: Certain statutescreated by provincial governments interfered with judicial independence of provincialcourts; although invalidated, those invalidations didn’t cure all of the unconstitutional

effects of the relevant provisions. The upshot of this judgment is that every person foundguilty by a provincial court in one of the relevant provinces while the unconstitutionallaws were being applied has suffered a breach of his or her s 11(d) rights (―right to be

heard by an independent and impartial tribunal‖). The provinces have requesteddeclarations that these decisions cannot be reopened (i.e. they remain valid)

REASONING: One effect to those legislative provisions that had undermined thefinancial security of provincial court judges was to render those tribunals dependent. Theretroactive annulment of the salary reductions does not change the fact that thatprovincial court judges were not independent during the period of time when those

reductions were imposed on them DOCTRINE OF NECESSITIY: But here is no needto make those declarations. Past decisions cannot be reopened. In fact, there is a doctrinethat recognizes that in some situations it is better to have a non-impartial and independent judge to none at all – the doctrine of necessity. The doctrine of necessity finds its sourcein the rule of law: the doctrine of necessity is applied to prevent a failure of justice. Butthere are 2 qualifications to the rule: (1) the rule will not apply in circumstances where itsapplication would involve positive and substantial injustice; (2) when the rule does apply,

it only applies to the extent that necessity justifies Like res judicata, the doctrine of necessity recognizes the importance of finality and continuity in the administration of justice. However, these doctrines should be applied rarely, and with great circumspection,as both preserve the effects of an unconstitutional law

Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (Identifies judicial independence as stemming from an unwritten constitutional principle, and getsinto a detailed discussion of ―financial security at the institutional level‖) FACTS: A



statute decreased provincial court justices’ salaries b/c of a provincial deficit. Concern

that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. ISSUE:Appeal raises a range of issues relating to the independence of provincial courts, but areunited two interrelated issues: (1) Whether and how the guarantee of judicialindependence 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 reducethe salaries of provincial court judges; (2) Whether the constitutional home of judicialindependence lies in the express provisions of the Constitution Acts, 1867 to 1982, orexterior to the sections of those documents REASONING: Background

Litigation has ensued between two primary organs of our constitutional system — theexecutive and the judiciary — which both serve important and interdependent roles in theadministration of justice. The aspect of judicial independence which is engaged by the

impugned reductions in salary — financial security — has only been dealt with in anydepth by Valente v. The Queen. But only individual financial security was considered.

Financial security must be understood as merely an aspect of judicial independence,

which in turn is not an end in itself. Judicial independence is valued because it servesimportant societal goals — it is a means to secure those goals. One of these goals is the

maintenance of public confidence in the impartiality of the judiciary, which is essentialto the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal served by judicialindependence is the maintenance of the rule of law, one aspect of which is theconstitutional principle that the exercise of all public power must find its ultimate sourcein a legal rule. It is with these broader objectives in mind that these reasons, and thedisposition of these appeals, must be understood.

The Unwritten Basis of Judicial Independence

Judicial independence is at root an unwritten constitutional principle. Although severalsections of the Constitution guarantee things such as financial security (e.g. s 11(d) of theCharter)), these don’t provide an express code for the protection of judicial independence

for all types of courts There are serious limitations with the view that expressprovisions of the Constitution comprise an exhaustive and definitive code for theprotection of judicial independence. The first and most serious problem is that the range

of courts whose independence is protected by the written provisions of the Constitutioncontains large gaps. Sections 96-100, for example, only protect the independence of judges of the superior, district, and county courts, and even then, not in a uniform orconsistent manner. Thus, while ss. 96 and 100 protect the core jurisdiction and the

financial security, respectively, of all three types of courts (superior, district, and county),s. 99, on its terms, only protects the security of tenure of superior court judges. Moreover,ss. 96-100 do not apply to provincially appointed inferior courts, otherwise known as

provincial courts. Section 11(d) is limited as well (only applies to bodies which exercise jurisdiction over offences). So, the independence of provincial courtsadjudicating in family law matters, for example, would not be constitutionally protected.

The Preamble has been used as a reference point to fill the gaps in the Constitution.Example where the Court has inferred a basic rule of Canadian constitutional law despite



the silence of the constitutional text is the doctrine of paramountcy. Also, preamblerecognizes and affirms that we are governed by a Parliamentary democracy. Oneimplication of the preamble’s recognition and affirmation of Parliamentary democracy isthe constitutionalization of legislative privileges for provincial legislatures, and mostlikely, for Parliament as well. These privileges are necessary to ensure that legislatures

can perform their functions, free from interference by the Crown and the courts Theseexamples — the doctrines of full faith and credit and paramountcy, the remedialinnovation of suspended declarations of invalidity, the recognition of the constitutionalstatus of the privileges of provincial legislatures, the vesting of the power to regulatepolitical speech within federal jurisdiction, and the inferral of implied limits onlegislative sovereignty with respect to political speech — illustrate the special legal effectof the preamble. The preamble identifies the organizing principles of the ConstitutionAct, 1867, and invites the courts to turn those principles into the premises of aconstitutional argument that culminates in the filling of gaps in the express terms of the

constitutional text The same approach applies to the protection of judicial independence

Section 11(d) of the Charter

Three core characteristics of judicial independence include: security of tenure, financialsecurity and administrative independence. And there are 2 dimensions of judicial

independence: individual (i.e. of the judge) and institutional/collective (i.e. of the courtor tribunal of which that judge is a member). The conceptual distinction between the corecharacteristics and the dimensions of judicial independence suggests that it may bepossible for a core characteristic to have both an individual and an institutional orcollective dimension Financial security has both an individual and institutional

dimension A reasonable person test employed to determine whether there is judicialindependence under s 11(d)

Institutional Independence

The institutional independence of the courts emerges from the logic of federalism,which requires an impartial arbiter to settle jurisdictional disputes between the federaland provincial orders of government. But the institutional independence of the judiciary

reflects a deeper commitment to the separation of powers between and amongst thelegislative, executive, and judicial organs of government The point I want to make first

is that the institutional role demanded of the judiciary under our Constitution is a rolewhich we now expect of provincial court judges It is worth noting that the increased role

of provincial courts in enforcing the provisions and protecting the values of the

Constitution is in part a function of a legislative policy of granting greater jurisdiction tothese courts. Often, legislation of this nature denies litigants the choice of whether theymust appear before a provincial court or a superior court. As I explain below, theconstitutional response to the shifting jurisdictional boundaries of the courts is toguarantee that certain fundamental aspects of judicial independence be enjoyed not onlyby superior courts but by provincial courts as well

Collective Financial Security





the commission must also be effective. While not binding, these reviews should be takenseriously

(2) No negotiations on judicial remuneration b/w the judiciary and theexecutive/legislature (as they are indelibly political; they would undermine public

confidence in the impartiality of the independence of the judiciary; also, a conflict of interest would arise, as the Crown is almost always a party to a criminal prosecution)

(3) Judicial salaries may not fall below a minimum level (the Constitution protects judicial salaries from falling below an acceptable minimum level. The reason it does isfor financial security to protect the judiciary from political interference through economicmanipulation, and to thereby ensure public confidence in the administration of justice. If salaries are too low, there is always the danger, however speculative, that members of the judiciary could be tempted to adjudicate cases in a particular way in order to secure ahigher salary from the executive or the legislature or to receive benefits from one of thelitigants) Application of Legal Principles

The Supreme Court faulted the governments of Prince Edward Island and Alberta forneither consulting salary commissions nor having such bodies to begin with. For thisreason, the actions of these governments breached section 11(d) of the Charter of Rights.

Manitoba did have a salary commission, but its actions were unconstitutional becausethe provincial government did not use it. Since these considerations were made using

section 11(d), the Court considered whether violations of these rights could be justifiedunder section 1 of the Charter of Rights, as is normal procedure. Section 1 typicallyrequires a valid government reason for violating rights, and in this case Prince EdwardIsland and Alberta's actions failed the section 1 test because they did not explain whythey did not have salary commissions. Likewise, Manitoba did not explain why they did

not use their salary commission

COMMENT: Although this case was settled using s 11(d), the Court went on torecognize the general principle of judicial independence as an unwritten rule

4. Basic Architecture of the Canadian Legal System Overview - Relationship betweenbranches of government: judicial review; constraints on power of each branch (1)Executive Branch: structure; powers (e.g. delegated legislation); introduction to natureand role of administrative tribunals (2) Legislative Branch: structure and operation of Parliament; legislative process; formation of statute versus regulations; ethics and

accountability (3) Judicial Branch: Canadian court systems; appointment of judges; judicial independence

Legislative Branch (Chapter 4 of Craik) Structure/operation of Parliament - Parliamentconsists of the Queen, an Upper House styled Senate, and House of Commons: s 17,Constitution Act - The Monarch and Governor General: Queen is essentially Canada’s

head of state. Governor general, in practice, exercises Queen’s powers Canadian head

of state is not elected; his/her identity depends – in the case of Monarch – on birth, and



– in the case of governor general – on appointment. Selection of Monarch is

discriminatory, and has been challenged with Charter, see e.g., O’Donohue v The

Queen, which decided that Canada cannot unilaterally change succession rules In

practice, the monarch appoints the governor general. But the monarch does so on theADVICE of the PM (a constitutional convention)

- The Senate: Canada has an unelected upper chambers of the federal legislature; the Constitution expressly anticipates the appointment of senators by the governor general(see s 24 of the Constitution Act 1867) In exercising that power, the governor general

follows the advice of the PM, as required by constitutional convention. Two cases

attempted to dispute this process, but failed (see Brown v Alberta, where it was held thatthe appellant didn’t raise legal issue; and Samson v A-G, where it was held that the Courtcannot fetter the governor general’s discretion)

- House of Commons: Members of the House of Commons are elected Each riding

elects 1 member to the house (the current number of districts, and thus members of

Parliament, is 308) Canada’s electoral system is referred to as a ―single-member plurality‖ or ―first-past-thepost‖ system After an election, the party with the most

elected representatives usually becomes the governing party. The leader of this partybecomes the PM, and chooses people to head the various government departments All

the elected candidates have a seat in the House of Commons, where they vote on Bills

Until recently, the Canada Elections Act required a registered party to run candidates inat least 50 electoral districts. This rule was struck down by the SCC in Figueroa v Canada

- Bringing the constituent elements of Parliament together: Summoning: the calling of

Parliament. Prorogation: once summoned, a given Parliament is generally divided intoseveral sessions, separated by a prorogation. A prorogation is the prerogative of thegovernor general, acting on the advice of the PM. Section 5 of the Charter provides thatthere shall be a sitting of Parliament and of each legislature at least once every 12 months(i.e. Parliament cannot be entirely sidelined) Dissolution: the dissolution of Parliament

prompts a new electoral cycle, governed by the Canada Elections Act. The ConstitutionAct, 1867 (s 5), and the Charter (s 4(1)) limit the duration of a Commons to 5 years,except in times of war or insurrection. (Note that the PM must resign or seek parliamentary dissolution after a no confidence vote, as a matter of constitutionalconvention)

Key actors in parliament (a) Political parties (b) The speaker (c) Parliamentarycommittees

Parliamentary procedure/law making (a) Source of parliamentary law - Parliamentarylaw, i.e. the rules determining parliamentary procedure, flows from an array of sourcesincluding statute, Constitution, etc

(1) Constitution and statute: - The starting point to understanding parliamentary law is theConstitution. The Canadian Constitution incorporates British parliamentary traditions via



the preamble to the Constitution Act, 1867. That Act speaks of Parliament possessing parliamentary ―privileges‖, and so doeas the Parliament of Canada Act - The importantpart in this section is parliamentary privilege. - Parliamentary privileges are those rightsnecessary to ensure that legislatures can perform their functions, free from interferenceby the Crown and the courts. - ―Privilege‖ in this context usually means legal exemption

from some duty, burden etc to which others are subject. See Canada v Vaid for an outlineof the scope of parliamentary privilege; in this case, the dismissing of a chauffeur was notconsidered part of parliamentary immunity) - [NOTE: The idea of privilege reflects andenforces the separation of powers, specifically the separation betweenParliament/legislatures and courts]

(2) Standing orders: - Canada’s legislatures can administer that part of a statute relating toits internal procedure, as well as to determine the contents of such things as StandingOrders on Procedure, without court intervention. - Standing orders are rules of procedureadopted by at least a simple majority vote of the members of the Commons. Standingorders constitute a fairly comprehensive code of Commons operations, including in

relation to Commons law making

(b) Parliamentary law making

Scope of law making jurisdiction (substantive law focus) Parliamentary supremacy

means that Parliament is the source of all power and Parliament has the jurisdiction tomake or unmake any law whatever [NOTE: Some suggest that, unlike the Parliament atWestminster, the Parliament of Canada is NOT supreme; the division of powers found inss 91 and 92, for example, identify certain subjects in respect of which Parliament cannotlegislate; then, also consider the limitations put on it by the Charter] Nonetheless, the

scope of Parliament’s law-making jurisdiction is endless, so law is it conforms to the

Constitution (rules governing division of powers between fed and prov legislatures), andconstitutionally protected individual rights and liberties found in the Charter (this goesback to parliamentary supremacy). Parliament is, therefore, even free to pass careless or

bad laws, so long as it sticks within its Constitutional mandate (see Bacon vSaskatchewan Crop Insurance, where the applicant failed in using the rule of lawprinciple in an attempt to challenge an allegedly bad law). Further, even if Parliament is

tricked into passing a law by the executive, that alone is insufficient for a court to strikeit down; such an issue is not justiciable (see Turner v Canada). Further, Canadians aren’t

entitled to due process or procedural fairness in the law-making process (so long as theprocedures in the Constitution have been met). Courts say that this aspect of law makingshould be looked after by Parliament/legislatures themselves. To do so would trench

parliamentary privilege (see Wells v Newfoundland, as an example). This means thatParliament would be free to act unfairly, such as by passing a law without any notice tothose implicated in it. But Parliament can be held somewhat in check if it passes

arbitrary laws: e.g, if it strips away contractual rights (by legislation), may be heldresponsible for, e.g., paying compensation to those the legislation affects (Wells v

Newfoundland) Thus, no prudential constraints exist on Parliament, except those foundin the Constitution To demonstrate the breadth of Parliament’s law making power, it



has been held that there can be expropriation of property without compensation, so longlegislation makes such an intent clear (Authorson v Canada) [That’s bull shit!]

Ethics in law making (focussing on conflicts of interest) Parliament may be sovereign,

but individual parliamentarians are not Thus, although the discussion up to this point

suggests that no prudential constraints exist on Parliament other than those found in theConstitution, it must be noted that, for example, a parliamentarian induced by theprospect of financial gain to vote in one way or another in performing his or her lawmaking functions is subject to sanction in a number of ways Ethics rules exist both in

statutory law and in the internal procedural rules governing each hose of Parliament

Parliament’s law-making procedure (bill to law) Parliament is free to determine its own

procedure and pass laws as it pleases within its constitutional zone of jurisdiction; sowhat rules does it follow? Mainly governed by rules of procedure of each chamber of

Parliament, e.g. Standing Orders of the House of Commons There are 2 types of bills:

public (centred on public policy) and private (relates to matters of a particular

interest/benefit to a person/persons). The legislative process for each is a bit different

(1) Public bills: - Goes through 9 stages, the second reading being the most importantstage (it is then that the principle and object of the bill are debated/accepted/rejected;three types of amendments may be proposed at this stage) - A bill becomes law when itreceives Royal Assent. For Royal Assent to be given, the bill has to be passed in the sameform by both Houses (i.e. the Senate and House of Commons).

(2) Private bills: - A bill designed to exempt an individual or group of individuals fromthe application of the law is a private bill. Private bills are subject to special rules in bothHouses of Parliament, however, most private bills originate in the Senate where the fees

and charges imposed on the promoter are less - They are introduced by means of apetition signed by the interested parties and presented in the House by a Member who hasagreed to sponsor it

The Executive Branch (Chapter 5 of Craik) Background - The executive branch refers toinstitutions in government that are responsible for implementing and enforcing laws,whether those laws – created by both the legislature or judiciary - Notwithstanding theabsence of a rigid separation of powers doctrine in Canada, it is still useful to speak abouta distinct executive branch of government - A clear set of legal principles governing theboundaries of executive powers and manner by which executive powers are to beexercised has been developed (namely administrative law) - At the heart of administrative

law is a requirement that government officials exercise their powers in furtherance of public, not private , interests. A similar expectation underlies the exercise of legislativepowers, but in the case of legislators, public preferences are made know, and the creationof public policy is legitimized through democratic processes. Administrative actors,however, are generally not elected - In cases where administrative officials exercisenarrow powers that are carefully defined through legislation, the democratic legitimacy of administrative decisions is derived from the close relationship between admin officialsand the legislature.



- To a large degree, the legal rules that have developed in admin law

have arisen so as to constrain the exercise of administrative

discretion in ways that respect the intentions of the legislative

branch and promote outcomes that take into account the public interest

The rise of the administrative state in Canada - Growth of gov leads to ad hoc growth of

executive branch (not planned) - One of the implications of this transformation s a moreattenuated link between decision makers and elected officials

The executive branch defined a. The Crown: - The entire authority of the executivebranch is vested in the monarchy. Thus, the Crown is the formal legal entity of thegovernment, and the Crown is the bearer of both legal rights and obligations - This isentrenched in s 9 of the Constitution Act 1867 - Identification of the government with theCrown speaks only to the formal legal status of the executive. The governor general is toexercise all powers and authorities lawfully belonging to the monarch in respect of Canada - But in a system of responsible government, the Crown’s representative is not as

potent as these provisions imply. Remember, the Queen appoints the governor general

and lieutenant governors to act as her representatives, although by constitutionalconvention these appointments are now made on the advice of the PM, who the Queenmust follow; in turn, the governor general and lieutenant governors for each province arebound by constitutional convention to exercise their powers with the advice of theCabinet of their respective government

b. The Prime Minister and the Cabinet - Ministers and the prime minister togethercomprise the ministry (which is used interchangeably with the word cabinet). It is theprime minister who presides over the Cabinet - The Cabinet is in most matters thesupreme executive authority: It is the Cabinet that determines the legislative agenda of the government in Parliament and it is the Cabinet and its ministers that are responsible

for the administration of the individual departments of the government - The separationof the executive branch from the legislative branch is not absolute. The constitutionalconvention of ―responsible government‖ lies at the foundation of Canadian governance.Under a system of responsible government, the ministry is accountable to the legislativebranch both collectively and individually. Collective responsibility requires that theministry maintain the confidence of the Parliament. Individual ministerial responsibilityrequires that each minister be answerable in Parliament for the activities of his or herdepartment - In addition to Cabinet responsibilities, Cabinet ministers haveadministrative responsibility for departments under their charge

c. The Public Service - The employees of ministries of the government, often referred to

as civil servants, are also part of executive - They are distinct from ministers, however, inthat they are politically neutral - Civil servants must be loyal to the government theyrepresent (Fraser v Canada)

d. Independent Administrative Agencies - As a matter of express constitutionalrecognition, the formal executive bodies are limited to the governor general andlieutenant governors, the federal and provincial Cabinets, and the system of governmentaldepartments and ministries that are overseen by individual ministers - However,



executive functions are also carried out by a variety of bodies that have a measure of independence from the government, for a number of reasons (e.g. the legislature maydetermine that certain decisions are best made on a principled basis and therefore shouldbe insulated from considerations of political expediency; also, particular kind of expertisemight be needed) - Independent admin bodies appear in a broad range of forms

depending on their function - An administrative body is the product of the legislativeinstrument that creates it - As a constitutional matter, adjudicative admin bodies do nothave to be independent, although there may be circumstances which require theirindependence. - Ocean Port Hotel case draws the distinction between independencerequired by courts and that required by admin bodies that are adjudicative. It isParliament/legislatures that determines, by way of statute, the independence required byadmin bodies.

e. Crown corporations - These are essentially administrative bodies that have a legalpersonality separate from the government. - The purpose of creating Crown corporationsis that they may be useful where there is a strong commercial aspect to the governmental

service, which may require decisions to be made free from political influences that mayunduly interfere with the commercial objectives. Additionally, the commercial nature of some activities may be ill-suited to government departmental structures

f. Municipalities - Municipalities, which are created under provincial legislation, deliver awide range of public services, such as the provision of road, sewer and water services -Unlike other forms of independent administrative bodies, municipalities are governed byelected officials and they exercise broad plenary powers

e. Enforcement bodies: Police and Prosecutors - The executive branch of government, inaddition to being responsible for the implementation of government policy, is required to

enforce those policies that have the force of law. The enforcement duties fall primarily onthe police and to prosecutors - There is a tension b/w accountability and independence inthe context of enforcement (i.e. free from political oversight, yet they have to be heldaccountable)

Sources of executive power - All executive power flows from the royal prerogative andstatutory delegation:

Prerogative powers: - Prerogative powers are those exercisable by the Crown that donot arise from a statutory grant of power to the Crown - These powers can be overriddenby statute - There has been debate over who can exercise these powers, and when they

may be subject to judicial oversight. Black v Chretien says that such powers are subjectto judicial oversight in certain circumstances, although in that case, the issue was non justiciable

Statutory powers: - The majority of executive powers originate from a delegation of authority by the legislature by statute - Delegation power of Legislatures is wide(parliamentary sovereignty), but the powers delegated must conform to the Constitution,and another rule which says that no delegate can be authorized to exercise absolute



discretion (Ronceralli v Duplesis) - Legislatures can delegate power to executive, butcannot abdicate their power (see Re Gray re: delegation of war time powers) - Parliamentcannot delegate to provincial legislatures, and vice versa (i.e. inter delegation) (the basisof this principle is that an inter-delegation would upset the constitutional division of powers contained in ss 91 and 92 of the Constitution Act, 1867), although there can be

indirect inter-delegation (namely where the inter-delegation was to an administrativebody) (PEI Potato Marketing Board v Willis).

Nature and function of delegated powers - Delegated authority has been granted invirtually every area of public policy. - Despite that there is now a de-emphasis onfunctional distinctions in order to determine administrative actors’

duties/functions/responsibilities, it helps to review the major types of decisionscommonly made by admin decision makers:

(1) Rule making (i.e. delegated legislation) - Most pervasive form of admin rule makingis the regulation making power that is delegated to the Cabinet through the governor in

council; but admin rule making isn’t restricted to this form - The legal effect of delegatedlegislation is determined by the parent legislation - Benefits of delegated forms of legislation relate mainly to the relative flexibility of regulations. The statutory process ismuch more cumbersome and time consuming than the process for enacting regulations;AND regulations are suited where rules require readjustment (impossible for legislatorsto know in advance the range of circumstances that will require specialized rules); ANDexpertise AND it is impossible for legislators to know in advance the range of circumstances that will require specialized rules - There are concerns as well though (i.e.lack of same scrutiny legislation is enacted with) - See the ―Government of Canada,

Guide to Making Federal Acts and Regulations‖, p. 273 of the book for more

(2) Dispute resolution - It is common for administrative agencies to be created in order tohear and decide specific kinds of disputes - There are some advantages (public participation; time/expense; don’t have to follow rigid laws all the time and can rely

heavily on policy etc)

(3) Benefit or obligation determination - The most prevalent group of administrativedecision makers are those empowered to determine whether a person will be granted aparticular public benefit (e..g a welfare entitlement) - Also, obligation determinationsmay raise different issues; these decisions usually initiated by the imposing agency,leaving an affected person to take affirmative steps to protect interest - The desire forfairness is often in conflict with the need for administrative efficiency in these situations

(4) Enforcement decisions - E.g. by police/prosecutors and some administrative officialswhose enabling statutes confers investigatory powers

[NOTE: Each of these functions may overlap, as shown by the Canadian Human RightsCommission example]



Limits on the exercise of delegated authority - While the constraints on the ability of thelegislative branch to delegate authority are minimal, once authority is delegated, the lawimposes a rigorous set of limitations on the exercise of power - The overarching principleis that delegated authority must be exercised within the boundaries of the statutory grantof power - The determination of the legality of the exercise of administrative authority is

the function of the courts. The supervisory role of the courts raises complex issuesconcerning the conditions under which the judicial branch should interfere with decisionstaken by the executive branch (see chapter 8)

(1) Controlling Jurisdiction: Substantive Ultra Vires - Can only exercise the powersgranted by the enabling statute - Cannot sub-delegate duties (with some exceptions – i.e.matters that are merely administrative may be subdelegated)

(2) Controlling procedures: The duty to be fair - Duty to be fair refers to the proceduresadopted by the decision maker - Admin decision makers are generally required bycommon law to act fairly toward those persons affected by their decisions. - The duty to

be fair is no longer confined to judicial/quasi judicial decisions - See Knight v IndianHead School and Baker

(3) Controlling discretion: bad faith, improper purposes and irrelevant considerations -There are benefits of admin decision makers having broad discretion. However, there arealso concerns - If admin decision maker exercises discretion in (1) bad faith; or (2) takesinto account irrelevant considerations or (3) ignores mandatory considerations, then theirdecision may be overturned - These are jurisdictional errors - The standard of review of these decisions is important: an important consideration in determining whether anadministrative decision maker has improperly exercised his or her discretion will be theamount of deference a reviewing court gives an admin decision - See Baker excerpt (SCC

considered the proper approach to the judicial review of discretionary decisions and therequirements of administrative decision makers who exercise discretionary powers)

Courts and the Judiciary (Chapter 6 of Craik) Court system Constitutional framework: -Starting point in understanding the Canadian court system is the Constitution Act 1867 -Fed government created the Supreme Court of Canada, the Federal Court/Federal AppealCourt, and the Tax Court, as authorized by the Constitution - Provinces create s 96superior courts - Fed government appoints and pays the salaries of provincial superiorcourt judges - Provinces appoint and pay the salaries of provincial court judges -Provinces cannot pass legislation creating a tribunal, appoint members and then confer onthe tribunal the jurisdiction of superior courts. Re Residential Tenancies Act developed a

3 part test in order to determine whether creating such a tribunal would erode the s 96power. This is because superior courts are a fundamental institution protected by ourConstitution through the interpretation of s 96. The provinces, or federal Parliament,cannot enact legislation to encroach on their core jurisdiction

Overview of the court system - First level is the provincial/territorial courts, whichevery province/territory has except Nunavut (there, there is no territorial court — mattersthat would normally be heard at that level are heard by the Nunavut Court of Justice,



which is a superior court) - Second level is provincial/territorial superior courts (s 96courts) (except for Nunavut, where the Nunavut Court of Justice deals with bothterritorial and superior court matters) - Third level is courts of appeal - The highest levelis the supreme court of Canada - Note, also, the federal courts, specialized federal courts(e.g. the tax court of Canada and military courts)

Judicial appointments - Are the right people appointed as judges? - There has beencontroversy surrounding judicial appointment, especially at the federal level (i.e.appointment of superior court judges) - In Canada, note that judges are selected by theexecutive branch, often following a short-listing procedure involving an advisorycommittee

Provincial appointments - Basic model is built on an advisory committee made up of amixture of members from the legal community and laypersons, which makesrecommendations to the provincial attorney general

Federal (non-Supreme Court) appointments): - s 96 courts, Federal court and tax courtare appointed by the governor in council (i.e. the Cabinet) (and the process is overseen bythe Office of the Commissioner for Federal Judicial Affairs), and the Supreme Court of Canada justices are simply appointed by the governor in council

a. Overview - The office of the Commissioner for Federal Judicial Affairs oversees thefederal judicial appointment process for s 96 courts - Independent judicial advisorycommittees constitute the heart of the appointments process - Federal appointments aremade by the governor general, acting on the advice of the federal Cabinet. Arecommendation is made to Cabinet by the Minister of Justice; that recommendation ismade from amongst the names which have been previously reported by the committees to

the Minister The recommendation for appointment as a judge is made to Cabinet by theminister of justice, who has been advised by the judicial advisory committee

b. Criticisms - Questions have remained about political influence on the selectionprocess. Concern for patronage appointments (i.e. allegations have been made thatappointments are tainted by political considerations and that candidates who havecontributed to political parties are appointed) - Too much discretion in the hands of thegov – e.g. minister has power to appoint from the ―recommend‖ and ―highly recommendlist‖ (big lists = room for abuse of discretion) (―the basic concern‖) - No transparency oraccountability - Calls for change have been made (one suggestion is to have interviews)

Supreme Court appointments - None of the appointment processes described aboveapply to the SCC (SCC judges normally appointed by governor in council) - Yet, in thepost –Charter era, the court’s decisions will have a great effect on public policy. It isargued that the SCC is ―legislating‖. As a result, calls for change to the federal

appointment process have been especially persistent in relation to appointments to theSCC



Judicial independence - Judicial ind. is the notion that judges are at arm’s length from the

other branches of government - Judicial ind. consists essentially in the freedom to renderdecisions based solely on the requirements of the law and justice. - It requires that the judiciary be left free to act w/out improper interference from any other entity – i.e. thatthe executive and the legislative branches don’t impinge on the essential authority and

function of the court

Sources and scope - JI is richly a constitutional concept; e.g. sections 96 to 100 of theConstitutional Act, 1867 provide for the appointment, security of tenure andremuneration of federally appointed judges [Note: these provisions only apply to superiorcourts] - Other than those provisions, s 11(d) imposes a requirement for judicialindependence - It’s source is also in unwritten constitutional principles (see Reference re

Rumuneration of Judges of the Provincial Court of PEI) - Judicial independence, as anunwritten constitutional principle, extends to ALL courts, not just superior courts (seeReference re Rumuneration of Judges of the Provincial Court of PEI)

Assessing independence - How is independence measured? - The test to assess whetherthere is judicial independence is an objective, reasonable persons test, - Requires actualindependence and a reasonable perception of independence on the part of a reasonableand well informed person - Independence includes both a requirement of actualindependence, and also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well-informed person

Core characteristics - There are 3 core characteristics and 2 dimensions (i.e individualand institutional)

(1) Security of tenure: - This has both institutional and independent - Individual security

of tenure means that judges may not be dismissed until the age of retirement except breaches of ―good behaviour‖, which have been interpreted to include misconduct or

disability. Institutional security of tenure means that, before a judge may be removed forcause, 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 - Thus a judge can only beremoved from office for a reason relating to his or her capacity to perform his or her judicial duties. - the Judges Act establishes the Canadian Judicial Council as the bodyresponsible for investigating complaints about the conduct of federally appointed judges.If the Council concludes that removal of a judge is warranted, it makes a report to theminister of justice, who may introduce a motion before Parliament. - The actual authorityto recommend removal of a judge is found in s 69(3) of the Judges Act

(2) Financial security - Financial security relates to the pay judges receive for performingtheir job – and protects against an unscrupulous government that could utilize itsauthority to set judges salaries as a vehicle to influence the course and outcome of adjudication - It has both an individual and institutional dimension. - Institutionalfinancial security has 3 requirements (1) changes to remuneration require prior recourseto a special process, governed by an independent, effective and objective body whomakes a recommendation of salary (2) Not permissible for judiciary to engage in



negotiations over remuneration with the executive or representatives of the legislature;(3) Reductions to judicial remuneration cannot take those salaries below a basicminimum level of remuneration that is required for the office of a judge (see Reference reRumuneration of Judges of the Provincial Court of PEI).

(3) Administrative independence - Admin independence requires that courts themselveshave control over the administrative decisions that bear directly on the exercise of the judicial function - See Canada v Tobiass (where SCC concluded that at least theappearance of independence was transgressed)

Constraints on Legislative and Administrative Action (Chapter 8 of Craik) - This partexplores the role that the judiciary plays in constraining legislative andadministrative/executive action

The role of constitutional judicial review in a democratic society Justification for

constitutional judicial review

- Constitution, designed by the will of the people, made upof principles that are so fundamental and established, and so the legislative acts must beconsistent with it - And it’s the province of the judiciary to say what the law is (those

who apply rules to cases must interpret that rule), and even the Constitution requiresinterpretation

Limitations of judicial review - Issue of justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial determination (see OperationDismantle v The Queen) - Issue of enforcement: although the Constitution is supremeand the judiciary is relied on to interpret and invalidate legislation that is inconsistentwith it, the practical reality is that courts normally have to rely on the executive and

legislative branches of government for the enforcement of their decisions. In DoucetBoudreau v NS, the issue of court usurping executive function arose (where the courtordered the government of Nova Scotia to use its best efforts to build a French Languageschool to comply with its duties under the Charter (minority language rights). Periodicreports on its progress was also ordered [How close is this to the judiciary usurping therole of the executive?]

A related issue is how courts address the sometimes sweeping

disregard by the legislature of constitutional rules. See Reference re

Language Rights Under s 23 of Manitoba Act: Validity of s 23 was

struck down 4 times, without legislative response. It was the Court’s

duty to ensure that the language rights in the constitution are

protected. To conform with rule of law, Court decided on a drastic

remedy – namely allowing the invalid acts to remain law until statutes

were translated.

- Issue of legitimacy: A more prominent concern is that judges have to interpret vaguestatements in the Constitution; when judges give concrete shape to vague ideas set out inthe Charter for example, and then invalidate laws that do not conform to theirinterpretation of these requirements, the rule of law may subtly be transformed into therule of unelected judges. Two main complaints about judicial review aspect:



(1) Under the banner of constitutional supremacy, courts have usurped power that isproperly the domain of Parliament and the provincial legislatures. Argument is that courtshave expanded their proper role of interpreting the Constitution and have thereby undulyshrunk the zone of parliament supremacy

On one side, the concern is that sometimes judicial review is

illegitimate, because it is anti-democractic, in that unelected

officials (judges) are overruling elected representatives

(legislators). Also, they read in concepts to laws which amounts to

changing the law in itself (e.g. reading in judicial independence

principle in the Constitution by reference to the preamble, in

Reference re Rumeneration of Judges of PEI, was criticized in a

dissenting opinion of La Forest J)

The other side is that it was the will of the people that enacted

the Constitution (including the Charter) and administrative tribunals.

And it is the Court’s job to oversee adherence to these laws. Judicial

review is not anti-democratic, therefore. Further, there is a lot of

built in deference to the legislature (see s 1, s 33). Also note the

dialogue model which some say occurs between the judiciary and

legislature (which preserves a proper separation of power). Further,there is no clear line b/w applying, interpreting and making the law as

critics appear to think.

(2) Concern about the substantive approach courts have taken to particular rights, rightsthat may be unpopular elements of society

[A core question lies at the heart of both of these complaints: in rendering constitutionaldecisions, how much deference should courts show elected officials?]

Different sorts of judicial review (specifically constitutional litigation) of legislativeaction - The value of what follows is to show various types of approaches courts use toaddress different types of constitutional challenges to legislation

Unwritten Constitutional principles - Canadian courts have been willing to a limitedextent to recognize underlying constitutional principles that can be given full legal effect(e.g. Reference re Secession of Quebec; Reference re Rumeration of Provincial CourtJudges)

The Constitution Act, 1867 - In terms of their potential to generate litigation, the mostimportant features of the Constitution Act 1867 are the provisions of ss 91 – 95 thatdistribute legislative power between the federal and provincial levels of government

The Canadian Charter of Rights and Freedoms - The other type of constitutionallitigation arises from the Charter - Two aspects: (1) Process of defining the substantiveright protected by the relevant provision of the Charter; (2) Relationship between thesubstantive rights and the justification of limits on those rights under s 1

Judicial review of administrative action



- Judicial review of executive or administrative action raises somewhat differentquestions about institutional relationships than does judicial review of legislative action -There is some overlap, at least to the extent that judges will normally want to respect thechoice of democratically elected legislatures to allocate decision-making authority toinstitutions other than courts. On the other hand, the judicial invalidation of particular

administrative acts on non-constitutional grounds often does not preclude the decisionmaker from repeating his or her actions, this time in compliance w/ the standards set outin the statute delegating power or common law procedural fairness - As Canadian courtshave become more sophisticated in their approach to judicial review, they have becomemore willing to take into account a number of other factors in determining the nature of their institutional relationship with administrative decision makers. These factors havebecome part of the standard of review analysis that has become the first step a court musttake when reviewing an administrative decision - The basic question addressed by thestandard review analysis is how deferential should the courts be to executive branchinterpretations of the mandate accorded to them by statutes?

5. Relationship of Aboriginal Peoples to the Canadian State

Overview - Aboriginal rights and title - Aboriginal Self-Government aspirations - Themodern treaty making process

Articles ―Mary C Hurley, ―The Crown’s fiduciary relationship w/ Aboriginal peoples‖: -Aboriginal peoples have always had a unique legal and constitutional position. (i) Firstthere was the Royal Proclamation of 1763, which reserved to the Crown the exclusiveright to negotiate cessions of Aboriginal title (ii) Then came subsection 91(24) of theConstitution Act, 1867 granted the federal Parliament legislative authority over ―Indians,

and Lands Reserved for the Indians.‖ (iii) Finally, section 35 of the Constitution Act,1982 recognizes and affirms ―existing aboriginal and treaty rights‖ of Canada’sAboriginal peoples, defined as including the ―Indian, Inuit and Métis peoples

Judicial interpretation - A ―fiduciary relationship‖ is one in which someone in a positionof trust has ―rights and powers which he is bound to exercise for the benefit‖ of another.

The Supreme Court of Canada has adapted these largely private law concepts to thecontext of Crown-Aboriginal relations - See Guerin v R, for example, which establishedthat: - the fiduciary relationship is rooted in the concept of Aboriginal title, coupled withthe requirement, outlined above, that the Aboriginal interest in land may be alienatedonly via surrender to the Crown; - this requirement, which places the Crown between theAboriginal group and third parties to prevent exploitation, gives the Crown discretion todecide the Aboriginal interest, and transforms its obligation into a fiduciary one so as toregulate Crown conduct when dealing with the land for the Aboriginal group; - in theunique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is suigeneris, or one of a kind - The scope of the relationship was extended in R v Sparrow,which was the Court’s first s 35 decision:



the ―general guiding principle‖ for section 35 is that ―the Government has the

responsibility to act in a fiduciary capacity with respect to aboriginal peoples. Therelationship between the Government and aboriginals is trust-like, rather than adversarial,and contemporary recognition and affirmation of aboriginal rights must be defined in

light of this historic relationship‖; "the honour of the Crown is at stake in dealings with

aboriginal peoples.(7) The special trust relationship and the responsibility of thegovernment vis-à-vis aboriginals must be the first consideration in determining whether

the [infringing] legislation or action in question can be justified‖; ―[t]he justificatorystandard to be met may place a heavy burden on the Crown,‖ while inquiries such aswhether the infringement has been minimal, whether fair compensation has beenavailable, and whether the affected Aboriginal group has been consulted may also beincluded in the justification test.(8) - See also R v Adams, Delgamuukw v BC etc whichexpanded on the duty. But then see Wewaykum Indian Band v Canada which set outsome limitations of the fiduciary duty (e.g. that the fiduciary duty ―does not exist at large)

Extra-judicial considerations - The federal government identifies 2 principal categories of fiduciary obligations for government managers to take into account: Guerin-type

obligations arise in situations where the Crown has a duty to act in the interests of anAboriginal group and has discretionary power in the matter (for example, in connectionwith the surrender of reserve land). Sparrow-type obligations arise when the Crown mustrespect constitutionally protected Aboriginal or treaty rights and justify interferences withthose rights

Commentary - The foregoing overview suggests that the Crown’s fiduciary relationship

with and ensuing obligations toward Aboriginal peoples have implications for thedevelopment and conduct of government policy in matters that engage Aboriginalinterests. - Important questions related to implementation of the Crown-Aboriginalfiduciary relationship remain. The application of 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. Similarly, the standard(s) forgovernment conduct that will uphold ―the honour of the Crown‖ in various situations

require clarification

―Highlights from the Report of the Royal Commission on Aboriginal Peoples‖ Stage 1:

Separate worlds - Aboriginals inhabited the Americas

Stage 2: Nation-to-nation relations - Cautious co-operation was the theme of this period.Aboriginals in charge of own affairs - Co-operation was formalized in two importantways: (1) treaties; (2) the Royal Proclamation of 1763

(a) Treaties: - Treaties were a way for Europeans and Ab’s to recognizing each others

sovereignty and mutual respect - Ab’s later found out that the treaties were used different

to what they expected

(b) Royal proclamation: - The Royal Proclamation of 1763 was a defining document inthe relationship between Aboriginal and non-Aboriginal people in North America. - Theproclamation summarized the rules that were to govern British dealings with Aboriginal



people - especially in relation to the key question of land. - Aboriginal people were not tobe "molested or disturbed" on their lands - Transactions involving Aboriginal land wereto be negotiated properly between the Crown and "assemblies of Indians". Aboriginallands were to be acquired only by fair dealing: treaty, or purchase by the Crown. - Theproclamation portrays Indian nations as autonomous political entities, living under the

protection of the Crown but retaining their own internal political authority. - It walks afine line between safeguarding the rights of Aboriginal peoples and establishing a processto permit British settlement. It finds a balance in an arrangement allowing Aboriginal andnon-Aboriginal people to divide and share sovereign rights to the lands that are nowCanada.

Stage 3: Respect gives way to domination - Ironically, the transformation from respectfulcoexistence to domination by non-Aboriginal laws and institutions began with the maininstruments of the partnership: the treaties and the Royal Proclamation of 1763 - Thencame Confederation in 1867, a new partnership b/w English and French, which wasnegotiated w/out Aboriginal nations - Then came the BNA Act, young Canada’s new

constitution, which made ―Indians and Lands reserved for the Indians‖ subject for government regulation

Stage 4: Renewal and renegotiation - Policies of domination and assimilation batteredAboriginal institutions, sometimes to the point of collapse. Poverty, ill health and socialdisorganization grew worse. Aboriginal people struggled for survival as individuals, theirnationhood erased from the public mind and almost forgotten by themselves. - Resistanceto assimilation grew weak, but it never died away. In the fourth stage of the relationship,it caught fire and began to grow into a political movement. - One stimulus was the federalgovernment's White Paper on Indian policy, issued in 1969 - They studied their historyand found evidence confirming that they have rights arising from the spirit and intent of their treaties and the Royal Proclamation of 1763. They took heart from decisions of Canadian courts, most since 1971, affirming their special relationship with the Crown andtheir unique interest in their traditional lands. They set about beginning to rebuild theircommunities and their nations with new-found purpose. - A dozen years of intensepolitical struggle by Aboriginal people, including appeals to the Queen and the BritishParliament, produced an historic breakthrough: "Existing Aboriginal and treaty rights"were recognized in the Constitution Act, 1982.

The way forward - The policies of the past have failed to bring peace and harmony to therelationship between Aboriginal peoples and other Canadians. Equally, they have failedto bring contentment or prosperity to Aboriginal people - In the following chapters, weoutline a powerful set of interlinked ideas for moving forward. - But governments haveso far refused to recognize the continuity of Aboriginal nations and the need to permittheir decolonization at last. By their actions, if not their words, governments continue toblock Aboriginal nations from assuming the broad powers of governance that wouldpermit them to fashion their own institutions and work out their own solutions to social,economic and political problems. It is this refusal that effectively blocks the way forward.- The new partnership we envision is much more than a political or institutional one. Itmust be a heartfelt commitment among peoples to live together in peace, harmony and





Economic development - Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go withdependence, and free of the debilitating effects of poverty. Economic self-reliance will letthem thrive as individuals and as nations and make their new governments a success -Several factors will make revitalization of Aboriginal economies a big challenge:

dependence on government for funds; inequality; variability (in that aboriginalcommunities are located all over the country) - Ownership of lands and resources isessential to create income and wealth for Aboriginal individuals and nations -Transforming Aboriginal economies from dependence to self-reliance will not be easy.The greatest boost for most nations will come from access to a fair share of lands andresources. But that won’t be enough. We call on federal and provincial governments to

enter into long-term development agreements with Aboriginal nations to provide support,advice and stable funding for economic development - The employment problem isimmense, and needs reform/support - Public investment in education and training is vitalto improve employment prospects for Aboriginal people in the existing job market. -Alternatives to welfare are needed. There may never be enough jobs to go around in

Aboriginal communities. Yet social assistance, as now delivered, is not a good way of providing cash income, for it traps recipients in a marginal existence

Treaties: the mechanism for change - The Commission proposes a wide-ranging agendafor change to achieve two goals: • Rebuilding Aboriginal nations as the best and proper

way for Aboriginal people to protect their heritage and identity, restore health and prosperity to their communities, and reorganize their relations with Canada. • Restorationof relations of mutual respect and fair dealing between Aboriginal and non-Aboriginalpeople. - As complex as the project appears, it can be done. The central mechanism of change is the treaty. - We propose that the treaty relationship be restored and used fromnow on as the basis of the partnership between Aboriginal and non-Aboriginal people inCanada - Implementation of treaty terms and promises was problematic from the start. Astime passed and the balance of power between Aboriginal and non-Aboriginal peopleshifted, governments were able to ignore terms and promises that no longer suited them -On the second point, the Commission has concluded that the treaties should beimplemented to reflect their spirit and intent - not just their words, whether spoken orwritten - It is deeply self-serving of Canadian authorities to insist on a literalinterpretation of such clauses. If the relationship between Aboriginal and non-Aboriginalpeople is ever to be set right, the underlying intentions of treaty promises - not the letterof outdated terms - must guide their present-day implementation - We believe that thosewithout a treaty, accord, compact or other agreement clarifying their relationship withCanada have the right to seek one. For its part, Canada has a duty to conclude suchtreaties. - We propose a new treaty process to lead the way to reconciliation betweenAboriginal and non-Aboriginal people over the next 20 years. An agreed treaty processcan be the mechanism for implementing virtually all the recommendations in our report -indeed, it may be the only legitimate way to do so. -To set the stage, we recommend thatParliament declare its support for the treaty relationship in the form of a new RoyalProclamation. By itself, a new proclamation will change nothing; it needs to be backed upby companion legislation setting out guiding principles for the treaty processes andestablishing new decision-making bodies, independent of government, to conduct them. -





for salmon" is supported by the evidence and was not contested The respondent

contends, however, that the progressive restriction and detailed regulation of thefisheries has had the effect of extinguishing any aboriginal right to fish. But thisargument confuses regulation with extinguishment. Prior to 1982 when this provision

was enacted, the only way extinguishment could have occurred is with a clear and plain

intention by Parliament; there is nothing in the Fisheries Act that demonstrates this. Wehave no doubt that the Indians have an existing aboriginal right to fish in the relevantarea. ―Recognized and affirmed‖ We now turn to the impact of s. 35(1) of the

Constitution Act, 1982 on the regulatory power of Parliament and on the outcome of

this appeal specifically. It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum andthe courts for the constitutional recognition of aboriginal rights. Section 35(1), at the

least, provides a solid constitutional base upon which subsequent negotiations can takeplace. It also affords aboriginal peoples constitutional protection against provincial

legislative power. In our opinion, Guerin, together with R. v. Taylor and Williams, ground a general guiding principle for s. 35(1). That is, the Government has the

responsibility to act in a fiduciary capacity with respect to aboriginal people. Therelationship between the Government and aboriginals is trust like, rather than adversarial,and contemporary recognition and affirmation of aboriginal rights must be defined inlight of this historic relationship The constitutional recognition afforded by the provision

therefore gives a measure of control over government conduct and a strong check onlegislative power. While it does not promise immunity from government regulation in asociety that, in the twentieth century, is increasingly more complex, interdependent andsophisticated, and where exhaustible resources need protection and management, it doeshold the Crown to a substantive promise. The government is required to bear the burdenof justifying any legislation that has some negative effect on any aboriginal right

protected under s. 35(1). In short, s 35(1) is a constitutional guarantee of aboriginal and

treaty rights. However, the guarantee isn’t absolute, and the s 35 rights are subject toregulation by federal laws, provided that the laws meet a standard of justification. Section35(1) and Justified Interferences The first question to be asked is whether the legislation

in question has the effect of interfering with an existing aboriginal right. If it does havesuch an effect, it represents a prima facie infringement of s. 35(1) [Ask: is the limitationunreasonable? Second, does the regulation impose undue hardship? Third, does theregulation deny to the holders of the right their preferred means of exercising that right?].The onus of proving a prima facie infringement lies on the individual or groupchallenging the legislation. If there is a prima facie infringement, the second question is

whether the Crown can justify it (for the law to be upheld, there must be sensitivity toand respect for the rights of aboriginal peoples on behalf of the government) (a) What

constitutes legitimate regulation of a constitutional aboriginal right [Is there a validlegislative objective? Is the regulation sought to be imposed required to complete thatobjective?]. If yes, go on to (b). (b) Consider the special trust relationship andresponsibility of government vis a vis aboriginals [There must be a link between thequestion of justification and the allocation of priorities in the fishery]

R v Van der Peet (The Court articulated the legal test to be used to identify an ―existingaboriginal right‖ within the meaning of s 35) FACTS: The appellant Dorothy Van der



Peet was charged under s. 61(1) of the Fisheries Act, R.S.C. 1970, c. F-14, with theoffence of selling fish caught under the authority of an Indian food fish licence, contraryto s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248. Thecharges arose out of the sale by the appellant of 10 salmon. The appellant, a member of the Sto:lo, has not contested these facts at any time, instead defending the charges against

her on the basis that in selling the fish she was exercising an existing aboriginal right tosell fish. The appellant has based her defence on the position that the restrictions imposedby s. 27(5) of the Regulations infringe her existing aboriginal right to sell fish and aretherefore invalid on the basis that they violate s. 35(1) of the Constitution Act, 1982.ISSUE: How are the aboriginal rights recognized and affirmed by s. 35(1) of theConstitution Act, 1982 to be defined? REASONING: Although equal in importance and

significance to the rights enshrined in the Charter, aboriginal rights must be vieweddifferently from Charter rights because they are rights held only by aboriginal members

of Canadian society. The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which does so without losing sightof the fact that they are rights held by aboriginal people because they are aboriginal. The

way to accomplish this task is, as was noted at the outset, through a purposive approachto s. 35(1). It is through identifying the interests that s. 35(1) was intended to protect thatthe dual nature of aboriginal rights will be comprehended This purposive approach must

be guided by the general principle that s 35(1) should be given a generous and liberalinterpretation in favour of aboriginal peoples, which arises from the nature of therelationship b/w the Crown and aboriginals (i.e. fiduciary one) A purposive analysis of s

35(1) results in the following conclusions: the aboriginal rights recognized and affirmedby s. 35(1) are best understood as, first, the means by which the Constitution recognizesthe fact that prior to the arrival of Europeans in North America the land was alreadyoccupied by distinctive aboriginal societies, and as, second, the means by which that prioroccupation is reconciled with the assertion of Crown sovereignty over Canadian territory.

The content of aboriginal rights must be directed at fulfilling both of these purposes; thenext section of the judgment Test for identifying aboriginal rights in s 35(1): - The testfor identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directedat identifying the crucial elements of those pre-existing distinctive societies. - Thefollowing test should be employed: ―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 theaboriginal group claiming the right‖ - Things that must be considered in applying the test:(1) Courts must identify precisely what it is that is being claimed (2) Must satisfy the―integral‖ test: The claimant must demonstrate that the practice, custom or tradition was a

central and significant part of the society's distinctive culture prior to contact. Note thatthis test requires the practice to be distinctive, not distinct. Distinct means unique.

Consider things like whether the practice was merely incidental to another practice; (a)The practices, customs and traditions must have continuity with those that existed prior tocontact (b) Courts must approach the rules of evidence in light of the evidentiarydifficulties inherent in adjudicating aboriginal claims (c) Claims to aboriginal rights mustbe adjudicated on a specific rather than general basis: the existence of an aboriginal rightwill depend entirely on the practices, customs and traditions of the particular aboriginalcommunity claiming the right HELD: The appellant has failed to demonstrate that theexchange of fish for money or other goods was an integral part of the distinctive Sto:lo



society which existed prior to contact. The exchange of fish took place, but was not acentral, significant or defining feature of Sto:lo society. The appellant has thus failed todemonstrate that the exchange of salmon for money or other goods by the Sto:lo is anaboriginal right recognized and affirmed under s. 35(1) of the Constitution Act, 1982.

R v Sappier; R v Gray (Even though a practice may have been undertaken for survivalpurposes, it can still be considered integral to an Aboriginal community’s distinctive

culture) FACTS: Charged w/ unlawful possession or cutting of Crown timber. In defence,they say they possess an aboriginal and treaty right to harvest timber for personal use.ISSUE: Whether a right to harvest timber existed pre-contact for the relevant aboriginalpeoples REASONING: The Aboriginal right claim In order to be an aboriginal right, an

activity must be an element of a practice, custom or tradition integral to the distinctiveculture of the aboriginal group claiming the right: R. v. Van der Peet. The respondents

rely on the pre-contact practice of harvesting timber in order to establish their aboriginal

right. Section 35 of the Constitution Act, 1982 seeks to provide a constitutionalframework for the protection of the distinctive cultures of aboriginal peoples, so that their

prior occupation of North America can be recognized and reconciled with the sovereigntyof the Crown: Van der Peet, at para. 31. In an oft-quoted passage, Lamer C.J.acknowledged in Van der Peet, at para. 30, that, ―the doctrine of aboriginal rights exists,

and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeansarrived in North America, aboriginal peoples were already here, living in communities onthe land, and participating in distinctive cultures, as they had done for centuries‖. The

goal for courts is, therefore, to determine how the claimed right relates to the pre-contactculture or way of life of an aboriginal society. Second, it is also necessary to identify thepre-contact practice upon which the claim is founded in order to consider how it might

have evolved to its present-day form STEP 1 (CHARACTERIZATION): In the presentcases, the relevant practice for the purposes of the Van der Peet test is harvesting wood.

The record shows that wood was used to fulfil the communities’ domestic needs for suchthings as shelter, transportation, tools and fuel. I would therefore characterize therespondents’ claim as a right to harvest wood for domestic uses as a member of theaboriginal community. STEP 2 (The INTEGRAL to a DISTINCTIVE CULTURE

TEST): Evidence established that the wood was critically important to the Maliseet andMi’Kmaq people pre-contact. Further, even though the practice may have beenundertaken for survival purposes, it can still be considered integral to an Aboriginalcommunity’s distinctive culture (THIS IS THE PRINCIPAL ISSUE ON THIS

APPEAL). (a) Continuity: Although the nature of the practice which founds theaboriginal right claim must be considered in the context of the pre-contact distinctiveculture of the particular aboriginal community, the nature of the right must be determined

in light of present-day circumstances; ―logical evolution means the same sort of activity,carried on in the modern economy by modern means.‖ So, the right to harvest wood for

the construction of temporary shelters must be allowed to evolve into a right to harvestwood by modern means to be used in the construction of a modern dwelling. Any other

conclusion would freeze the right in its pre-contact form. Extinguishment This issuewas raised in the Gray case. The Crown must show that legislation evidenced a clearintention to extinguish the right. But this argument fails



R v Powley ((1) For Metis claimants of aboriginal rights, the focus on European contacthad to be moved forward to the time of effective European control; (2) Courts lays down3 indicia of ―Metis people‖) FACTS: P charged with unlawfully hunting moose; P arguesthat, as Metis, they have an aboriginal right to hunt for food in the Sault Ste Marie areaISSUE: Whether members of the Métis community in and around Sault Ste. Marie enjoy

a constitutionally protected right to hunt for food under s. 35 REASONING: We upholdthe basic elements of the Van der Peet test and apply these to the respondents’ claim.However, we modify certain elements of the pre-contact test to reflect the distinctivehistory and post-contact ethnogenesis of the Métis, and the resulting differences betweenIndian claims and Métis claims. The pre-contact test is inadequate to capture the range of

Metis customs, practices or traditions that are entitled to protection, since Metis cultures

by definition post-date European contact First, the court set out the indicia to determinewhether a claimant meets the definition of Metis people: (1) Self-identification (2)

Ancestral connection (3) Community acceptance In this case, there is no reason tooverturn the TJ’s findings that P is member of Metis community that arose and still exists

in and around Sault Ste. Marie The relevant time frame? The test for Métis practices

should focus on identifying those practices, customs and traditions that are integral to theMétis community’s distinctive existence and relationship to the land. This unique historycan most appropriately be accommodated by a post-contact but pre-control test thatidentifies the time when Europeans effectively established political and legal control in aparticular area. The focus should be on the period after a particular Métis communityarose and before it came under the effective control of European laws and customs (THE

PRE-CONTROL TEST) The Van der Peet test STEP 1 (Characterization of the right):Here, the right being claimed can therefore be characterized as the right to hunt for food

in the environs of Sault Ste. Marie. STEP 2 (Integral test): The practice of subsistencehunting and fishing was a constant in the Métis community, even though the availabilityof particular species might have waxed and waned. The evidence indicates that

subsistence hunting was an important aspect of Métis life and a defining feature of theirspecial relationship to the land. Evidence supports the trial judge’s finding that huntingfor food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to1850 (which meets the modified time frame test) (a) Continuity: Hunting for food was animportant feature of the Sault Ste. Marie Métis community, and the practice has been

continuous to the present. Infringement of right Ontario currently does not recognizeany Métis right to hunt for food, or any ―special access rights to natural resources‖ for theMétis whatsoever (appellant’s record, at p. 1029). This lack of recognition, and theconsequent application of the challenged provisions to the Powleys, infringe theiraboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie Métis community

Is the infringement justified? The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with

the trial judge that the record here does not support this justification. If the moosepopulation in this part of Ontario were under threat, and there was no evidence that it is,the Métis would still be entitled to a priority allocation to satisfy their subsistence needsin accordance with the criteria set out in R. v. Sparrow HELD: Legislation is invalid



Haida Nation v BC

(This case deals with the situation where aboriginal interests are in

the process of being proved: (1) The duty to consult and accommodate is

rooted in the honour of the Crown; (2)The duty arises when the Crown

has knowledge, real or constructive, of the potential existence of the

Aboriginal right or title and contemplates conduct that might adverselyaffect it; that is, knowledge of a credible, but unproven claim,

triggers the duty; (3) The scope of the duty is proportionate to a

preliminary assessment of the strength of the case supporting the

existence of the right or title, and to the seriousness of the

potentially adverse effect upon the right or title claimed; (4) When

the consultation process suggests amendment of Crown policy, we arrive

at the stage of accommodation; (5) Third parties do not owe such a

duty; (6) The provincial and federal government are subject to the

duty; (6) There is no duty for the governments to agree)

FACTS: This brings us to the issue before this Court. The government holds legal title tothe land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the

forests in Block 6 of the land (which is subject to a land title claim by the Haida people).ISSUE: Is the government required to consult with Haida people about decisions toharvest the forests and to accommodate their concerns about what if any forest in Block 6should be harvested before they have proven their title to land? REASONING: Source of

duty to consult and accommodate Duty grounded in honour of the Crown: in all itsdealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably Where treaties

remain to be concluded, the honour of the Crown requires negotiations leading to a justsettlement of Aboriginal claims. Underlying this duty is s 35 of the Constitution, which

implies a duty to consult and, if appropriate, accommodate The Court’s seminaldecision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land and

resources, confirmed and expanded on the duty to consult, suggesting the content of theduty varied with the circumstances Put simply, Canada’s Aboriginal peoples were her e

when Europeans came, and were never conquered. Many bands reconciled their claimswith the sovereignty of the Crown through negotiated treaties. Others, notably in BritishColumbia, have yet to do so. The potential rights embedded in these claims are protectedby s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rightsbe determined, recognized and respected. This, in turn, requires the Crown, actinghonourably, to participate in processes of negotiation. While this process continues, thehonour of the Crown may require it to consult and, where indicated, accommodateAboriginal interests When the duty to consult and accommodate arises Is the Crown,

under the aegis of its asserted sovereignty, entitled to use the resources at issue as it

chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust itsconduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants? The

answer, once again, lies in the honour of the Crown. The Crown, acting honourably,cannot cavalierly run roughshod over Aboriginal interests where claims affecting theseinterests are being seriously pursued in the process of treaty negotiation and proof The

Crown isn’t rendered impotent – it may continue to manage the resource in questionpending claims resolution; but depending on the circumstances, the honour of the Crown



may require it to consult and reasonably accommodate Aboriginal interests Neither the

authorities nor practical considerations support the view that a duty to consult and, if appropriate, accommodate arises only upon final determination of the scope and content

of the right. But, when precisely does a duty to consult arise? The foundation of theduty 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 theAboriginal right or title and contemplates conduct that might adversely affect it

Knowledge of a credible but unproven claim suffices to trigger a duty to consult andaccommodate. The scope and content of the duty to consult and accommodate In general

terms, it may be asserted that the scope of the duty is proportionate to a preliminaryassessment of the strength of the case supporting the existence of the right or title, and tothe seriousness of the potentially adverse effect upon the right or title claimed In all

cases, the honour of the Crown requires that the Crown act with good faith to providemeaningful consultation appropriate to the circumstances. Sharp dealing is not permitted.However, there is no duty to agree; rather, the commitment is to a meaningful process of

consultation At one end of the spectrum lie cases where the claim to title is weak, the

Aboriginal right limited, or the potential for infringement minor. In such cases, the onlyduty on the Crown may be to give notice, disclose information, and discuss any issuesraised in response to the notice. At the other end of the spectrum lie cases where a strongprima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage ishigh. In such cases deep consultation, aimed at finding a satisfactory interim solution,

may be required 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 theAboriginal peoples with respect to the interests at stake. When the consultation process

suggests amendment of Crown policy, we arrive at the stage of accommodation (i.e. thismay require taking steps to avoid irreparable harm or to minimize the effects of

infringement, pending final resolution of the underlying claim) Do third parties owe aduty to consult and accommodate? No. The Crown alone remains legally responsiblefor the consequences of its actions and interactions with third parties, that affect

Aboriginal interests The provinces’ duty Provinces and federal government are subjectto this duty

Taku River v BC

(Example of how the duty to consult is fulfilled, and reinforces the

principle set out in Haida that meaningful consultation doesn’t require

agreement)

FACTS: A mining company applied to the BC government for permission to reopen anold mine in an area that was subject of an unresolved land claim by the TRTFN people.This application triggered a statutory environmental assessment process, which endedwith the approval of the application to reopen the mine. Through the environmentalassessment process, the TRTFN’s concerns with the road proposal became apparent. Its

concerns crystallized around the potential effect on wildlife and traditional land use, aswell as the lack of adequate baseline information by which to measure subsequent effects



ISSUE: Duty to consult and of accommodation REASONING: In Haida Nation v.British Columbia (Minister of Forests), this Court has confirmed the existence of theCrown’s duty to consult and, where indicated, to accommodate Abor iginal peoples prior

to proof of rights or title claims. The principle of the honour of the Crown grounds theCrown’s duty to consult and, if indicated, accommodate Aboriginal peoples, even prior to

proof of asserted Aboriginal rights and title. The duty of honour derives from theCrown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been

enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existingAboriginal rights and titles The duty to consult arises when a Crown actor has

knowledge, real or constructive, of the potential existence of Aboriginal rights or titleand contemplates conduct that might adversely affect them When Redfern applied for

project approval, in its efforts to reopen the Tulsequah Chief Mine, it was apparent thatthe decision could adversely affect the TRTFN’s asserted rights and title. The

contemplated decision thus had the potential to impact adversely the rights and titleasserted by the TRTFN. It follows that the honour of the Crown required it to consult

and if indicated accommodate the TRTFN in making the decision whether to grant

project approval to Redfern, and on what terms The scope of the duty to consult is―proportionate to a preliminary assessment of the strength of the case supporting theexistence of the right or title, and to the seriousness of the potentially adverse effect upon

the right or title claimed‖ There is sufficient evidence to conclude that the TRTFN haveprima facie Aboriginal rights and title over at least some of the area that they claim andthe potentially adverse effect of the Ministers’ decision on the TRTFN’s claims appears

to be relatively serious. In summary, the TRTFN’s claim is relatively strong While it is

impossible to provide a prospective checklist of the level of consultation required, it isapparent that the TRTFN was entitled to something significantly deeper than minimumconsultation under the circumstances, and to a level of responsiveness to its concerns thatcan be characterized as accommodation. The Crown fulfilled its duty to consult and

accommodate. The process of granting project approval to Redfern took three and a half years, and was conducted largely under the Environmental Assessment Act. Members of the TRTFN were invited to participate in the Project Committee to coordinate reviewHELD: Crow fulfilled duty

Aboriginal Title

Delgamuukw v BC (The leading case on Aboriginal title and shows how to prove it)FACTS: In 1984, 35 Gitxsan and 13 Wet’suwet’en Hereditary Chiefs institutedproceedings against the Province of British Columbia. They claimed, both individuallyand on behalf of their respective Houses, ownership (unextinguished Aboriginal title) and

resulting jurisdiction (entitlement to govern by Aboriginal laws) over separate portions of territory in northwest British Columbia totalling 58,000 square kilometres ISSUE: Thenature and scope of the constitutional protection afforded by s. 35(1) to common lawaboriginal title. REASONING: Trial judge errors - First thing court noted is the errorsmade by the TJ, including giving little weight to aboriginal oral histories andrecollections of aboriginal live - These errors are particularly worrisome because oralhistories were of critical importance to the appellants’ case. They used those histories in

an attempt to establish their occupation and use of the disputed territory, an essential



requirement for aboriginal title - The trial judge, after refusing to admit, or giving noindependent weight to these oral histories, reached the conclusion that the appellants hadnot demonstrated the requisite degree of occupation for ―ownership‖. Had the trial judge

assessed the oral histories correctly, his conclusions on these issues of fact might havebeen very different. - A new trial is warranted

Content of aboriginal title/how it’s protected by s 35(1)/requirements for proof

General points - The parties disagree over whether the appellants have establishedaboriginal title to the disputed area. However, since those factual issues require a newtrial, we cannot resolve that dispute in this appeal. But factual issues aside, the partiesalso have a more fundamental disagreement over the content of aboriginal title itself, andits reception into the Constitution by s. 35(1). In order to give guidance to the judge at thenew trial, it is to this issue that I will now turn. - Aboriginal title is a right in land and, assuch, is more than the right to engage in specific activities which may be themselvesaboriginal rights - Unique dimensions of aboriginal title: Aboriginal title is a sui generis

interest in land. The idea that aboriginal title is sui generis is the unifying principleunderlying the various dimensions of that title. One dimension is INALIANABILITY(lands can’t be transferred sold or surrendered to anyone other than the Crown). Anotherdimension of aboriginal title is its SOURCE (it’s source, although thought to be in the

Royal Proclamation, 1763, arises from the prior occupation of Canada by aboriginalpeoples; what makes aboriginal title sui generis is that it arises from possession before theassertion of British sovereignty, whereas normal estates, like fee simple, arise afterward).A further dimension of aboriginal title is the fact that it is held COMMUNALLY(aboriginal title cannot be held by individual aboriginal persons)

Content - Although cases involving aboriginal title have come before this Court and

Privy Council before, there has never been a definitive statement from either court on thecontent of aboriginal title - I have arrived at the conclusion that the content of aboriginaltitle can be summarized by two propositions: first, that aboriginal title encompasses theright to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditionswhich are integral to distinctive aboriginal cultures; and second, that those protected usesmust not be irreconcilable with the nature of the group’s attachment to that land -Regarding the second proposition, it is drawn by reference to the other dimensions of aboriginal title which are sui generis as well‖. Implicit in the protection of historic

patterns of occupation is a recognition of the importance of the continuity of therelationship of an aboriginal community to its land over time. As a result, uses of thelands that would threaten that future relationship are, by their very nature, excluded fromthe content of aboriginal title. For example, if occupation is established with reference tothe use of the land as a hunting ground, then the group that successfully claims aboriginaltitle to that land may not use it in such a fashion as to destroy its value for such a use(e.g., by strip mining it). It is for this reason also that lands held by virtue of aboriginaltitle may not be alienated. Alienation would bring to an end the entitlement of theaboriginal people to occupy the land and would terminate their relationship with it.



Aboriginal title under s 35(1) - Aboriginal title at common law is protected in its fullform by s. 35(1).

Proof of aboriginal title - Aboriginal title is different than aboriginal rights (which aredefined in terms of activities). Aboriginal title is a right to the land itself. - In order to

make out a claim for aboriginal title, the aboriginal group asserting title must satisfy thefollowing criteria:

(i) The land must have been occupied prior to sovereignty: The relevant time period forthe establishment of title is, therefore, different than for the establishment of aboriginalrights to engage in specific activities. Proof of occupancy must be established by bothcommon law (i.e. physical occupation/possession) and aboriginal perspective on land.

If present occupation is relied on as proof of occupation pre-sovereignty, there must be acontinuity between present and pre-sovereignty occupation: Conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, an aboriginal community

may provide evidence of present occupation as proof of pre-sovereignty occupation insupport of a claim to aboriginal title. What is required, in addition, is a continuitybetween present and pre-sovereignty occupation, because the relevant time for thedetermination of aboriginal title is at the time before sovereignty. Needless to say, there isno need to establish ―an unbroken chain of continuity

(iii) At sovereignty, that occupation must have been exclusive: Exclusivity, as an aspectof aboriginal title, vests in the aboriginal community which holds the ability to excludeothers from the lands held pursuant to that title. As with the proof of occupation, proof of exclusivity must rely on both the perspective of the common law and the aboriginalperspective, placing equal weight on each

Infringement of aboriginal title: the test of justification - The aboriginal rights recognizedand affirmed by s. 35(1), including aboriginal title, are not absolute. Those rights may beinfringed, both by the federal (e.g., Sparrow) and provincial (e.g., Côté) governments.However, s. 35(1) requires that those infringements satisfy the test of justification. - Thegeneral principles governing justification laid down in Sparrow operate with respect toinfringements of aboriginal title (I.e. Ask, first, whether the infringement is in furtheranceof a legislative objective that is compelling and substantial; and, second, an assessmentmust be made of whether the infringement is consistent with the special fiduciaryrelationship between the Crown and aboriginal peoples – the fiduciary duty principle hasbeen interpreted in terms of the idea of priority, namely that aboriginal demands shouldbe placed first; but this does not demand that aboriginal rights always be given priority.Other contexts permit that the fiduciary duty be articulated in other ways, such as:whether there has been as little infringement as possible in order to effect the desiredresult; whether, in a situation of expropriation, fair compensation is available; and,whether the aboriginal group in question has been consulted with respect to theconservation measures being implemented) - In this context, with regard to the secondstage, aspects of aboriginal title suggest that the fiduciary duty may be articulated in amanner different than the idea of priority. This point becomes clear from a comparison



between aboriginal title and the aboriginal right to fish for food in Sparrow. Theaboriginal right to fish for food, by contrast, does not contain within it the samediscretionary component. This aspect of aboriginal title suggests that the fiduciaryrelationship between the Crown and aboriginal peoples may be satisfied by theinvolvement of aboriginal peoples in decisions taken with respect to their lands. Also, the

economic aspect of aboriginal title suggests that compensation is relevant to the questionof justification as well HELD: Remit case back to trial

Tsilhqot’in Nation v BC Aboriginal title (a) Nature - Canadian courts began to outlineand define Aboriginal title in St Catherine’s Milling case - The description of Aboriginaltitle as a usufructuary right was favoured by the SCC in the 1980s (usufructuary meaninga legal right to use, benefit from and derive profit from property belonging to anotherperson) - But, viewed through a contemporary lens, it is not surprising that the SCC hasfound that describing Aboriginal title as a usufrutuary right isnt’ helpful (see

Delgamuukw). Now, it can no longer be characterized as such - The notion of anoccupancy based Aboriginal title started to gain acceptance at a time when countries such

as Canada began the process of decolonization. In Canada, decolonization experienced itsfirst legal challenge with the SCC in Calder - Calder was a turning point in our basicunderstanding of Aboriginal rights. The Baker Lake case, decided shortly after Calder,said that Calder was solid authority for the general proposition that the law of Canadarecognizes the existence of an aboriginal title independent of The Royal Proclamation orany other prerogative act or legislation (it arises at common law) - The next importantdevelopment in Canadian Aboriginal law was the patriation of the Canadian Constitutionwith the enactment of the Constitution Act, s 35(1). Professor Slattery argues that thisprovision represents a basic shift in our understanding of the constitutional foundations of Canada. Section 35 renounces the old rules of the game under which the Crownestablished courts of law and denied those courts the authority to question sovereignclaims made by the Crown. Professor argues for a new concept of the Constitution whichhe calls the Organic Model, under which it is said that the Constitution is rooted inCanadian soil - The view that aboriginal title is rooted in Canadian soil is embodied in thetheory that title is sui generis. Put simply, aboriginal title in this country is unique and ina class by itself. The description of Aboriginal title as sui generis captures the essence of a proprietary right shaped by both common law and Aboriginal systems (note the 3 suigeneris aspects noted in Delgamuukw) - One of the key challenges of Aboriginal law isreconciliation between present day Aboriginal title holders and the Crown. Any definitionof existing aboriginal rights must take into account that they exist in the context of anindustrial society with all of its complexities and competing interests. - The common lawrecognition of Aboriginal rights and title calls for a reconciliation of Aboriginal people’s

prior occupation of Canada and the sovereignty of the Crown. - The Van der Peetdecision clarified our current understanding of the origin and nature of these rights (andarticulated a test for determining whether a particular activity is protected as anAboriginal right) - Today, we no longer speak of an overarching Aboriginal title. It ismore accurate to speak of a Variety of Aboriginal rights, one of which is title to land. It ispossible for an Aboriginal group to show that a particular practice taking place onparticular lands was integral to their distinctive culture so as to establish site specificAboriginal rights, but not establish Aboriginal title on those same lands - Delgamuukw is



a significant case in relation to aboriginal title - To summarize, aboriginal title is aSPECIES of aboriginal right which differs from aboriginal rights to engage in particularactivities. It confers a sui generis interest in land, that is, a right to the land itself. Itconfers a right to exclusive use, occupation and possession to use the land for the generalwelfare and present day needs of the Aboriginal community. Aboriginal title also

includes a proprietary type right to choose what uses aboriginal title holders can make of their lands, which is subject to an inherent limit which is defined by the nature of theattachment to the land. Such inherent limits prohibit uses that would destroy the ability of the land to sustain future generations of Aboriginal peoples. Aboriginal title also has aneconomic component, which will ordinarily give rise to fair compensation whenAboriginal title has been infringed. Aboriginal title is held communally. It is inaliable tothird parties, but can be surrendered to the Crown.

(b) Test for aboriginal title 1. Pre-sovereignty occupation: ―Any land that was occupiedpre-sovereignty, and which the parties have maintained a substantial connection withsince then, is sufficiently important to be of central significance to the culture of the

claimants‖. The standard of occupation required to prove aboriginal title may beestablished in a variety of ways (e.g. construction of dwellings) 2. Continuity: This onlybecomes an aspect of the test where an aboriginal claimant relies on present occupation toraise an inference of pre-sovereignty occupation. Aboriginal claimants do not need toestablish an unbroken chain of continuity. 3. Exclusivity: Exclusive occupation may bedemonstrated to exclude others, including the intention and capacity to retain exclusivecontrol of the lands. Proof must rely on both common law and aboriginal perspective onland, each being given equal weight.

BC Treaty Commission, ―Why treaties in the modern age‖ - When the early Europeansfirst began to settle in the eastern part of North America, Britain recognized that thosepeople who were living there had title to land: the Royal Proclamation of 1763 declaredthat only the British Crown could acquire lands from First Nations, and only by treaty -In most of the treaties, aboriginal people gave up their title in exchange for land reservesand for the right to hunt and fish on the land they’d given up - In BC, aboriginal peoplessigned treaties, but they were later on extinguished by the Dominion of Canada - Over thedecades, aboriginal people protested demanding treaties to be signed. The demandintensified, culminating in the formation of the Allied Tribes of BC in 1916 to work fortreaties. In response, Ottawa amended the Indian Act in 1927 to make it illegal to raisefunds to pursue land claims (which was lifted only in 1951) - So treaties should have been made but they weren’t. Isn’t it simply too late to revisit this? - Under s 35 of theConstitution Act 1982, aboriginal rights and treaty rights are recognized and affirmed

The Evolution of Aboriginal Title - Calder decision recognizes aboriginal title (1973).The decision was a legal turning point. The recognition of aboriginal title in Calder as alegal right was sufficient to cause the federal government to establish a land claimsprocess; but BC refused to participate. - Still, the question remained: had aboriginal titlebeen extinguished before BC joined Confederation or not? In Sparrow, the Court took thesame approach as in Calder, who said that unless legislation had evinced a ―clear and

plain intention‖ to extinguish aboriginal rights, it did not have that effect. This case dealt



with particular aboriginal rights, not rights in land. - But in Delgamuukw, the SCCconfirmed that aboriginal title exists in BC - Morever, the Marshall and Bernard decisionsets limits on aboriginal title. In the case, the Court unanimously dismissed the claim to both treaty and aboriginal rights. It found that although the treaty protected the Mi’kmaq

rights to sell certain products, this right did not extend to commercial logging. The Court

said that while rights are not frozen in time, the protected right must be a logicalevolution of the activity carried on at the time of treaty-making. Treaties protecttraditional activities expressed in a modern way and in a modern context; new anddifferent activities are not protected. The Court adopted strict proof of aboriginal title. Itstated that any claim to aboriginal title would depend on the specific facts relating to theaboriginal group and its historical relationship to the land in question. Traditionalpractices must translate into a modern legal right, and it is the task of the court toconsider any proper limitations on the modern exercise of those rights. The Court furtherstated that aboriginal title would require evidence of exclusive and regular use of land forhunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular areaamounted to hunting or fishing rights only, not aboriginal title.

What do these legal decisions mean? - The courts have confirmed that aboriginal titlestill exists in BC, but they have not indicated where it exists. To resolve this situation, thegovernments and First Nations have two options: either negotiate land, resource,governance and jurisdiction issues through a treaty process or go to court and haveaboriginal rights/title decided on a case to case basis - The Haida Nation and Tlingit FirstNation cases provide guidelines for the negotiation and definition of aboriginal title inBC. - In Mikisew, the SCC extended the Crown’s obligation to consult and accommodateaboriginal interest (established in Haida and Taku) to include existing treaty rights.

All of these landmark judgments together confirm that: (1) Aboriginal rights exist in

law (2) Aboriginal rights are distinct from the rights of other Canadians (3) They includeaboriginal title, which is a unique communally held property right (4) Aboriginal rightstake priority over the rights of others, subject only to the needs of conservation (5) Thescope of aboriginal title and rights depend on specific facts relating to the aboriginalgroup and its historical relationship with the land (6) The legal and constitutional statuteof aboriginal peoples derives not from their race but from the fact that they aredescendants of the peoples and governing societies that were resident in North Americalong before settlers arrived (7) Aboriginal rights and title cannot be extinguished bysimple legislation because they are protected by the Constitution Act, 1982 (8)Government has a duty to consult and possible accommodate aboriginal interest evenwhere title has not been proven (9) Government has continuing duty to consult, and

perhaps accommodate, where treaty rights might be adversely affected

Aboriginal Treaties

R v Marshall; R v Bernard FACTS: M and B were convicted of offences related to theselling/possession of timber ISSUE: Whether the Mi’kmak people in NS and NB have

the right to log on Crown lands for commercial purposes pursuant to either treaty orAboriginal title REASONING: Aboriginal treaty right: the test - The cases raise issue of



scope of treaty right. - Crown argues that scope of treaty right is to be determined bywhat trading activities were in the contemplation of the parties at the time the treatieswere made. This is correct - But treaty rights are not frozen in time. Modern peoples dotraditional things in modern ways. ―The question is whether the modern trading activity

in question represents a logical evolution from the traditional trading activity at the time

the treaty was made‖ - Thus, the question is whether the commercial logging here at issueis the logical evolution of a traditional Mi’kmaq trade activity Test applied - In each case,the trial judge concluded that the evidence did not support a treaty right to commerciallogging - In Marshall, Curran Prov. Ct. J. found no direct evidence of any trade in forestproducts at the time the treaties were made. In Bernard, Lordon Prov. Ct. J. made similarfindings on similar evidence. - I conclude that the evidence supports the trial judges’

conclusion that the commercial logging that formed the basis of the charges against therespondents was not the logical evolution of traditional Mi’kmaq trading activity

protected by the treaties of 1760-61 Aboriginal title - The respondents also claim theyhold aboriginal title to the lands they logged - The common law theory underlyingrecognition of aboriginal title holds that an aboriginal group which occupied land at the

time of European sovereignty and never ceded or otherwise lost its right to that land,continues to enjoy title to it. Prior to constitutionalization of aboriginal rights in 1982,aboriginal title could be extinguished by clear legislative act (see Van der Peet). Now thatis not possible. The Crown can impinge on aboriginal title only if it can establish that thisis justified in pursuance of a compelling and substantial legislative objective for the goodof larger society: R. v. Sparrow) - These principles were canvassed at length inDelgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, which enunciated a test foraboriginal title based on exclusive occupation at the time of British sovereignty. -Delgamuukw requires that in analyzing a claim for aboriginal title, the Court mustconsider both the aboriginal perspective and the common law perspective. Only in thisway can the honour of the Crown be upheld - A sub issue here is whether nomadic andsemi-nomadic peoples can ever claim title to aboriginal land. The answer is that itdepends on the evidence. Whether a nomadic people enjoyed sufficient ―physical

possession‖ to give them title to the land, is a question of fact HELD: Court concludes

that there is no ground to interfere w/ the trial judges finding that no title existed

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