Things to Remember by 1GNdSx

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									SOURCES OF LAW

Hierarchy of law in our system:
- Constitution (highest)
- Statutes: legislature is the main law making body (speaks on behalf of the people, so it should prevail
   over regulations etc.)
- Regulations: subordinate laws passed by other bodies to whom the legislature delegates law making
   power (these have to comply with the statutes that give them this law-making power, they fill in the
   details of the legislative scheme since legislature does not have the capacity to make laws of all details
   – i.e.: administrative bodies, tribunals, ministers, cabinets, etc. like Ontario Human Rights
   Commission).
- Common law (lowest)

-   Subordinate laws that don’t comply with laws above them will be challenged in court to be of no force
    and effect. If court rules them invalid, Parliament can still reenact them with s.33 Notwithstanding
    Clause of the Charter (notwithstanding clause is a power that may be invoked by Parliament or any of
    the provincial legislatures) (so courts don’t have the last word) but s.33 only allows Parliament to
    override s. 2 and ss. 7-15 of the Charter (not all of the Constitution). Since s.33 is part of the
    Constitution, it is consistent with notion of Constitutional supremacy/rule of law.


1) CONSTITUTION:

The Constitution of Canada includes:
4 original provinces that formed Canada in 1867: Ontario, Quebec, New Brunswick, and Nova Scotia.

    -   a) The 1982 Constitution Act (Charter is part 1, ss. 1-34, of the 1982 Constitution Act)
            o Also includes Aboriginal Rights Act (Aboriginal and Treaty rights contained in s. 35(1),
               which is part 2 of the Constitution), Procedures of Amending Constitution of Canada,
               which is part 5 of the act).
    -   b) The acts and orders referred to in the schedule under s. 52(2):
            o Lists the 1867 Constitution Act (a.k.a. BNA – British North American Act before 1982).
    -   c) Any amendment to any Act or order referred to in (a) or (b).

    -   Note, s. 52(2) says Constitution “includes” these things (not an exhaustive list). But no court
        rulings have thus far added to this list of documents yet. But courts have added some unwritten
        constitutional principles that can have a binding force in some circumstances (i.e.: rule of law)
            o So Constitution includes written texts specific specified in s. 52(2) and unwritten
                fundamental principles.

See Edwards Persons case for judicial interpretation of constitutional text.

Unwritten Principles Underlying our Constitutional Identified by SCC – can impose binding legal
obligations on government – but written constitution trumps unwritten principles.

SCC says these principles can:
  - 1) Help guide judicial interpretation of constitutional texts:
          o Normal approach for judges to try to identify underlying values, purposes etc. of a text in
             order to interpret the text = not controversial use of unwritten constitutional principles
             (Secession Reference court did this).
   -   2) More controversially, SCC. says the unwritten fundamental principles can fill in the gaps of the
       express terms of the constitution and place binding legal constraints on governments (paras. 53-54
       of Secession Reference) – i.e.: nothing in Constitution about impact of referendum vote, or the
       process of secession, so SCC used unwritten principles to fill in this gap.
           o This is controversial, it may be argued that filling in the gaps of the Constitution text
              should be up to the people (should go through the Process of Amending the Constitution,
              found in part 5 of the Constitution,), not something for judges to do.
           o But most commentators argue that SCC has used this power wisely and have placed
              constraints on government with unwritten fundamental principles in a way that shows skill
              and diplomacy.

           o Examples of how SCC has used unwritten fundamental principles to fill in the gaps of the
               Constitution to give rise to new legal binding obligations on the government (these
               principles prevail over statutes etc.):
                    1) SCC said unwritten principles of federalism and democracy impose a
                       duty/obligation on governments to negotiate secession in good faith following a
                       clear majority vote on a clear question: (Secession Reference 1998, cb131, at
                       para.88). SCC also found that unilateral secession would violate the principles of
                       democracy, the rule of law, federalism and minority rights (Secession Reference).
                    2) In the Provincial Judges Reference, SCC. said the unwritten principle of
                       judicial independence requires the creation of independent Judicial Compensation
                       Commissions (Judicial Compensation and Benefits Commission)(JCCs) to make
                       recommendations to government regarding judges’ salaries (even though nothing in
                       the Constitution explicitly imposes this obligation (Provincial Judges Reference
                       1997, cb332, 359) – see La Forest’s dissent below regarding this.
                    3) Used it in Manitoba Reference too (see notes on this case, and see 2006 exam)
           o This methodology also seen in provinces:
                    Ontario Court of appeal said unwritten principle of Protection of Minorities made it
                       unconstitutional to close a hospital that provided comprehensive services in French,
                       even though nothing in the Constitution speaks directly to the issue (nothing says
                       that health services have to be in French in Canada) (Lalonde v. Ontario 2001 Ont
                       CA (regarding the Montfort Hospital).
   -   But interestingly, while SCC used unwritten constitutional principles to fill in the gaps in the
       above cases, they would not in Christie, saying that doing so would be rewriting the Charter and
       that such changes should be undertaken by the people through the process of constitutional
       amendment. SCC said it is not for courts to invent right to access to legal services and impose it
       on the government.
           o Opens SCC up to criticism (SCC used unwritten principles to fill in gaps in other cases
               above = being inconsistent). Maybe SCC didn’t use unwritten principles to impose legal
               obligations in Christie because they did not want to get involved with dictating legal aid
               programs (political matter). This may also be why SCC said Rule of Law could not work
               in favour for Tobacco companies in Imperial Tobacco.
           o Indeed, La Forest J. in Provincial Judges Reference said, “the express provisions of the
               constitution ... are the constitution. To assert otherwise is to subvert the democratic
               foundation of judicial review.” (page 413).


1) Rule of Law/Constitutional Supremacy (theses are connected in our system) – also codified in s.
52(1) of the 1982 Constitution Act (page 90 of casebook) – “The Constitution of Canada is the supreme
law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force or effect.” This is the Constitutional Supremacy Principle that the
Constitution is the supreme law (a.k.a. The rule of law).
        o Hierarchy of law in our system:
                 Constitution (highest)
                 Statutes: legislature is the main law making body (speaks on behalf of the people, so it
                    should prevail over regulations etc.) Regulations: subordinate laws passed by other
                    bodies to whom the legislature delegates law making power (these have to comply with
                    the statutes that give them this law-making power, just fill in the details of the
                    legislative scheme since legislature does not have the capacity to make laws of all
                    details – i.e.: administrative bodies, tribunals, ministers, cabinets, etc. like Ontario
                    Human Rights Commission).
                 Common law (lowest)
        o Subordinate laws that don’t comply with laws above them will be challenged in court to be of
           no force and effect. If court rules them invalid, Parliament can still reenact them with s. 33
           Notwithstanding Clause of the Charter (notwithstanding clause is a power that may be invoked
           by Parliament or any of the provincial legislatures) (so courts don’t have the last word). s. 33
           only allows Parliament to override s. 2 and ss. 7-15 of the Charter (not all of the Constitution).
           Since s. 33 is part of the Constitution, it is consistent with notion of Constitutional
           supremacy/rule of law.

-   3 Elements of Rule of Law:
       o 1) The law is supreme - No one is above the law, regardless of who you are, all actions have to
          have their sources in legal authority (Roncarelli and Manitoba Language Rights Reference)
               Cannot have complete discretion (Roncarelli) – no law can, without express language,
                  be taken to give unlimited arbitrary power for any purpose (Roncarelli).
       o 2) Rule of Law means that an actual normative order of positive law must exist (Manitoba
          Language Rights Reference).
                   i.e.: Bush bringing a system of law to areas where is chaos.
                   i.e: Manitoba Reference 1985 – pg 393 casebook.
                          When Manitoba joined the confederation in 1870, s. 23 of the Manitoba Act
                             entrenched in the Constitution that laws would be passed in English and
                             French (had approximately equal Anglo and Franco population, so
                             Manitoba was guaranteed that rights/legislature would be passed down and
                             written in both English and French), but later more Anglo than Franco =
                             Manitoba stopped passing laws in both languages even though it was still
                             constitutionally required to do so (simply passed the Official Languages
                             Act 20 years later, which said laws could be passed only in English – but
                             inconsistent statutes cannot prevail over Constitution). SO bilingual
                             activists took case to the courts in 1970.
                          Tension between constitutionalism and the Rule of law
                                  o Constitutionalism (s. 52 of 1867 Act) and Rule of Law would say
                                     that all the laws made only in English are of no force and effect
                                     (against constitutional requirement that the laws be passed in
                                     English and French), but striking down whole order of laws (90
                                     years worth) would result in chaos and would go against the Rule of
                                     law principle that an order of laws must exist. So court gave them
                                     time to translate the laws.
                                          Manitoba should’ve used s. 43 bilateral procedure instead to
                                              change the Constitution.
                              o So courts gave remedy to preserve the rule of law and follow the
                                constitution by giving Manitoba government a couple of years to
                                translate laws. – see protection of minorities.
                                     Sensible SCC approach – hard to imagine a better solution –
                                        court did its best to affirm constitutional supremacy (s.
                                        51(2)) and had creative remedy to preserve legal order to
                                        affirm rule of law (common for courts to issue suspended
                                        declaration of invalidity now).

       o 3) The relationship between state and individual must be regulated by law, so all exercise
         of state public power has to have a source in a legal rule (common law prerogative powers,
         or more commonly in a statute) (Roncarelli, also discussed in Manitoba Language Rights
         Reference, confirmed in Judicial Judges Reference).
               State actors (executive and judicial branch etc.) have no powers except for those
                 that are conferred in law (has to be found in a statute) (Roncarelli). Except
                 executive can also get powers from Royal Prerogative.
               These statutory powers must be limited to what the implied purpose of the statute is
                 (i.e.: Liquor Act purpose has nothing to do with racial discrimination, so Roncarelli
                 using these powers for racial discrimination is illegal) (Roncarelli).
                       Would have been different for Roncarelli pre-Charter if statute explicitly
                          said Roncarelli could cancel licences of holders he was satisfied were
                          engaging in activities contrary to public interest but, now if the statute
                          explicitly allows violation of fundamental rights and freedoms it can be
                          challenged with the Charter – now would argue that Roncarelli’s actions
                          went against s. 2(a) (protects freedom of conscience and religions) and s. 15
                          (protects equality).
                       If no legal basis for state member’s (executive, judicial etc.) actions, then
                          they are illegal.
       o But rule of law does not constrain (federal and provincial) legislature’s law-making so long
         as it doesn’t violate the Constitution (legislature is supreme and can pass any law it likes so
         long as it doesn’t violate the constitution) - Bacon 1999 (and Authorson). Court in
         Imperial Tobacco and Bacon said the remedy for a statute that doesn’t violate the
         constitution is at the ballot box. Sask CA (pg 187) – shows also that parliamentary
         supremacy (legislature as a whole) is still strong in our system (see section). See
         parliamentary Authorson etc. cases for more. See Parliamentary Law-Making for more
         on parliamentary supremacy. Also see constitutional supremacy for more (rule of law
         means counter-majoritarianism, which means no unbridled parliamentary supremacy).


-   Judicial independence from legislative and executive branches required to give effect to the rule of
    law ideal that we live in a society governed by law rather than by particular individuals or partisan
    outlooks (also means that state actors’ actions must always be open to judicial oversight).
        o Also means judicial appointments should be done by independent body (see judicial
            appointments etc.) – argue that judicial appointments should also be independent due to
            judicial independence principle. See Constitutional Supremacy implications for more.
-   * Direct elections (especially direct partisan elections) (type of judicial appointment process) are
    bizarre according to the rule of law, because this means that judges can be politically influenced.
    Have to campaign and raise money (see judicial appointments etc.)
           * Rule of law also discussed in Secession Reference.

    What the Rule of Law doesn’t mean:
      o 1) Cannot use rule of law to challenge substantive content of legislation (it only limits the
          actions of the executive and judicial branches of government). Rule of Law is necessary
          for a just society (curtails arbitrary government action etc.), but it is not sufficient for a just
          society (the context of a law could be unjust and it would not be inconsistent with the rule
          of law) (Imperial Tobacco at para.60).
      o 2) Rule of Law does mean that general access to legal services is a constitutional right
          (Christie at para.21).
      o 3) Rule of Law does not require that legislation be prospective or that it be general in
          character. Rule of law does not require that legislation cannot confer special privileges on
          the government, rule of law does not ensure a fair civil trial (Imperial Tobacco at paras.63-
          64). SCC says in response to Imperial Tobacco’s claims that none of these things have
          Constitutional Protection.
               Possible policy argument: may show SCC doesn’t want to include too much into
                  Rule of Law (may render it less powerful if it covers everything).



    Implications of Constitutional Supremacy (which connects to Rule of Law in our system)
    (not from cases except specified)
-   1) Hierarchy of Law: Constitution is supreme law (top of hierarchy) so any laws inconsistent with
    it will be invalidated (see hierarchy of laws).
-   2) Adjudication:
        o Constitution has basic principles of our political state (sets our values / main architectural
             government principles) that is supposed to last for generations, but it is not self-
             executing/has sparse language and abstract ideals like liberty, equality etc. So need
             independent judiciary to interpret and apply constitution as objectively as possible (without
             political influence):
                  i.e.: Reference questions.
                  i.e.: Adjudicates inconsistencies between Constitution and Common Law and
                     declares inconsistent ordinary laws invalid.
        o But lots of tension/criticism that the “supreme” Constitution is what judges say it is = lots
             of debate/accusations about judges acting undemocratically and enforcing their own values
             against those of the elected governments.
                  Judges’ response is that political actors explicitly included power to
                     interpret/enforce Constitution in the written Constitution and this means having to
                     declare limits on political powers sometimes.
-   3) Counter-Majoritarianism: Canada adopted written supreme Constitution to make certain matters
    beyond the reach of the legislative majority so that there is no unbridled Parliamentary supremacy
    (current and future governments will have to protect these matters in the Constitution, which can
    only be amended through extraordinary process in part V, not through ordinary legislative
    process).
        o S.C.C. gives 3 main reasons for constitutional supremacy (have to put 3 things beyond the
             reach of legislative majorities) Secession Reference (page 109)
                  1) Protection of fundamental rights and freedoms:
                           SO current and future governments have to protect basic fundamental rights
                             and freedoms even during crises.
                   2) Protection of minorities:
                         SO vulnerable minority groups can maintain / promote their identities
                            against majority assimilative pressures.
                         i.e.: Constitution guarantees language rights (heavy 19th century Catholic
                            church influence insisted on denominational school rights being protected =
                            written into Constitution Act SO Catholic schools are fully funded now).
                  3) Protection of federalism division of power between two or more levels of
                    government (government levels have to be equal and autonomous in their own
                    spheres, not in a hierarchical relationship):
                         Rules about which subjects each government level can legislate are in the
                            Constitution SO that one government level CAN’T just unilaterally alter
                            power in its favour.
   -   4) Amendment by Super-Majority: Need a super majority (Federal AND provincial legislatures) to
       amend the Constitution (have to go through part 5 procedures).
           o Extraordinary process to amend Constitution turns largely on federalism

Corollaries of the Rule of Law:
   - Judicial independence.
   - Police and prosecutorial independence (for certain decisions – see police in executive section for
       more). Have to have balance with police/prosecutorial accountability to the government, which is
       also crucial to the rule of law.
See implications of the Rule of Law in independent administrative agencies (executive) for more.


   2) Federalism - also supported by rule of law (counter-majoritarianism and amendment by super-
   majority – see constitutional supremacy) – also related to 1982 Constitutional Amendment
   Procedures. Judicial Independence is also a corollary of Federalism (see judicial independence).
   - In our Federal state (state that has 2 or more government levels that are coordinate/equal in status
       and are autonomous within own spheres, meaning they cannot interfere with each others’
       jurisdiction), political power is shared by federal and provincial governments. The courts “control
       the limits of” these respective sovereignties.
           o This division of powers found in ss. 91 and 92 of the Constitution Act, 1867 (sets out
               subject matters/areas of regulatory or legislative concern for Federal Parliament and for
               Provincial Legislatures). – so division of powers is written/
                    s. 91: gives residual law-making powers to Federal Parliament to make laws for the
                       Peace, Order, and good Government.
                    s. 92: gives law-making powers to Provincial Legislature.
           o But 1982 Charter has placed limits on what laws can be enacted by Parliament AND by the
               Provincial legislatures.

   -   SCC said unwritten principles of federalism and democracy impose a duty/obligation on
       governments to negotiate secession in good faith following a clear majority vote on a clear
       question: (Secession Reference 1998, cb131, at para.88).

   -   Why did Canada adopt a federal form? – related to democracy and protection of minorities.
         o Canada was the first to adopt federal state for purpose of protecting group based cultural
            diversity (this tradition influenced Canada’s evolution a lot) – related to senate function.
       o When forming the new state, there was tension between wanting unity and wanting to
           protect regional diversity (different regions wanted to come together but insisted on
           protecting their linguistic, cultural, and regional differences)
-   Did the 1867 Act create a truly federal state?
       o No, even though Canada adopted the federal form more than anywhere else in the world
           and is theoretically a federal state, it is not in practice. Provinces are legally subordinate
           and are not autonomous in many ways:
                i.e: Federal power of disallowance (a.k.a. “power of reservation”) means that
                   provinces don’t have autonomous law making capacity = shouldn’t be a federal
                   state feature (but legally and conventionally unconstitutional).
-   Do municipal, territorial and Aboriginal governments have a federal relationship to the
    other levels of government? see notes on municipal growing up (analogy to adolescence).
       o No – municipal, territorial, and Aboriginal governments do not have federal relationships
           with the provincial/federal government levels – they are not coordinate/equal with these
           other levels and do not have guaranteed autonomy.
       o These governments exist only through federal statute, and can be repealed by federal
           statute at any time.
       o i.e.: municipal governments are within the provincial jurisdiction under s. 92 of
           Constitution, so municipal powers are delegated to them by provinces.
                This is one of the ridiculous aspects of our Constitution (that municipalities don’t
                   have constitutional protection and can be abolished at Provincial government’s
                   whim).
       o i.e.: Aboriginal governments: There has been significant evolution from a federal state
           based on two levels of government to one including this third level (changing mostly
           through treaties between the federal/provincial governments and the aboriginal nations).
           When these treaties are concluded, Aboriginal governments will be protected.


    Parliamentary Supremacy – (idea that Federal parliament is supreme/has unbridled power to
    make whatever law it wants – unity, not a federal state) - not an unwritten constitutional principle.
-   Preamble to the 1867 Constitution Act indicates that Canada wanted a constitution similar in
    principle to that of the United Kingdom (which has parliamentary supremacy), but Canada still
    wanted federalism. So the 1867 Constitution is a mix of a federal state with a written constitution
    (from the U.S. tradition) and parliamentary supremacy, conventions, and monarchy as head of
    state (from the British tradition).
        o ss. 91 and 92 of 1867 Constitution Act = Federal and Provincial legislatures are the sole
             sovereign holders of state authority.
-   But 1982 Charter placed limits on what laws legislatures can enact (i.e.: freedom of expression
    etc.) (this combined with existing ss. 91-92 from 1867 Constitution indicates that the Constitution
    is now the supreme source of law making authority in Canada and thus, some say Canada moved
    from a Parliamentary supremacy to Constitutional supremacy (more like U.S. system)).
        o BUT if something is not competent to provinces, it must be to federal parliament, due to
             the principle of exhaustive powers so Parliamentary supremacy is still strongly influences
             our constitution (alongside Constitutional supremacy):
                  i.e.: s.33 “Notwithstanding” Clause reasserts some Parliamentary sovereignty.
                  Court can still find that Parliamentary sovereignty decides an issue. (i.e.: Babcok v.
                     Canada (Attorney General) [2002] 3 SCR 3.)
                  i.e.: Legislative and Executive branches are fused even though they have separate
                     functions (not strong separatation of powers like U.S. system).
           o So cannot lose sight of how important parliamentary supremacy still is in our government
              system (federal parliament is still supreme as it can pass any law it likes, subject to
              constraints of Charter and Constitution).
   -   See Parliamentary Law-Making for more on parliamentary supremacy. Also see constitutional
       supremacy for more (rule of law means counter-majoritarianism, which means no unbridled
       parliamentary supremacy).




3) Protection of Minorities - also supported by counter-majoritarianism in rule of law, see
Constitutional Supremacy (mentioned in Secession Reference and in Lalonde v.
Ontario)
    - Ontario Court of appeal said unwritten principle of Protection of Minorities made it
       unconstitutional to close a hospital that provided comprehensive services in French, even though
       nothing in the Constitution speaks directly to the issue (nothing says that health services have to
       be in French in Canada) (Lalonde v. Ontario 2001 Ont CA (re Montfort Hospital) – court used
       unwritten fundamental principles to fill in the gaps of the Constitution to give rise to new legal
       binding obligations on the government.

          o Could also be shown in Manitoba Reference 1985 – pg 393 casebook (also illustrates Rule
               of Law principle that an actual normative order of positive law must exist)
                    When Manitoba joined the confederation in 1870, it has approximately equal Anglo
                      and Franco population, so Manitoba was guaranteed that rights/legislature would be
                      passed down and written in both English and French, but later more Anglo than
                      Franco = Manitoba legislation stopped passing laws in both languages even though
                      it was still constitutionally required to do so. SO bilingual activists took case to the
                      courts in 1970.
                    But, problem was that almost a century of statues were passed only in English, and
                      it would be difficult to strike down almost a century of statutes (entire legal order)
                      to have no force and effect. So courts gave remedy to preserve the rule of law and
                      follow the constitution by giving Manitoba government a couple of years to
                      translate laws
   -   SCC also found that unilateral secession would violate the principles of democracy, the rule of
       law, federalism and minority rights (Secession Reference).



4) Judicial Independence (pg 330) – closely tied to the separation of powers (which theoretically
depoliticizes the relationship between the judiciary and the other two government branches).
    - Supreme Court said judicial independence was like the “lifeblood of constitutionalism in
        democratic societies” (Beauregard v. Canada, [1986] 2 SCR 56).

Why must judges be independent of the other branches of government?
  - Separation of powers not so much between executive and legislature (they are actually fused in
     our parliamentary system). But strong separation of powers between the judiciary, which is
     articulated through our principle of judicial independence, and the other two branches of
     government due to:
         o i) Judicial independence is a corollary of the Rule of law (unwritten constitutional
             principle):
                a) We live in a society/system built on the rule of law, and a corollary of the rule of
                 law is that we need adjudication and interpretation of the law to be by a
                 neutral/independent/objective decision maker (because the law is not self-enforcing
                 and needs to be interpreted – relates to counter-majoritarianism) so there is a level
                 playing field when enforcing the law (executive controlling the judiciary would
                 make it unfair). – another thing that makes law level playing field relates to
                 elections (s.3).
              b) We also need judicial independence because populations’ confidence in the
                 judicial system is essential in our democratic society that is founded on the rule of
                 law. People have to be satisfied that judges are impartial or their confidence in the
                 system will be undermined. – so relates to democracy
       o ii) Also a corollary of federalism principle (unwritten constitutional principle):
         (mentioned in Secession Reference along with the Rule of Law principle).
              Need neutral umpire to adjudicate disputes between the different levels of
                 government or else our commitment to the federalism principle can be
                 compromised (federalism is where 2 or more levels of government are
                 equal/autonomous in the sphere). Without judicial independence/neutral umpire,
                 this equality can be threatened.

Have to look at judicial independence along 2 dimensions: see directly below security of tenure
- i) Institutional - Have to know that, institutionally, courts as a whole are free from interference
  from other branches of government.
- ii) Personal – Have to know that the mind of the independent judge is impartial.

3 Core Characteristics/Components of Judicial Independence in the Canadian System:

   1) Security of Tenure – judges insulated from political threats (appointed for long term and not
   easily removed – see process to remove, have to be both houses etc.)
   Constitutionally protected security of tenure has an individual and institutional dimension:
       - (individual: judges cannot be dismissed by the executive before the age of retirement
           except for misconduct or disability. So a judge can only be removed from office for a
           reason relating to his or her capacity to perform his or her judicial duties. This means that
           arbitrary removal is prohibited – Mackin [2002])
       - (institutionally: before a judge can be removed for cause, there has to be a judicial inquiry
           to establish that this cause exists, where the judge affected must be given the opportunity
           to be heard.” – Re Therrien [2001]).

   Role and composition of CJC – established through the Judges Act, RSC 1985, c. J-1 (CJC is the
   body responsible for investigating complaints about the conduct of federally appointed judges
   (superior, federal, and SCC). If the council concludes that removal of a judge is warranted, it
   makes a report to the Minister of Justice, who can introduce a motion before Parliament.
   Authority to recommend removal of a judge from office is found in s. 69(3) of the Judges Act.
   But in practice, every judge facing convincing allegations of misconduct has resigned at some
   stage of the council’s proceedings instead of going before Parliament for an ultimate
   determination.

   Process for removal – CJC’s (Canadian Judicial Council) complaints process (pgs 342-343)
      - For federally appointed judges (SCC, superior, and federal), have to have both houses of
         parliament agree to remove a judge, can only be removed by legislation, removal can only
         be for violation of judicial standards of good behaviour, which is determined by a set of
        judges themselves who receive complaints and investigate ones they deem to be well
        founded, hold inquiries, and make recommendations to the Minister of Justice).



2) Financial Security – so other government branches cannot interfere for partisan purposes.
Provincial Judges Reference 1997 SCC (359)
- Lamer J., based on s.11(d) of the Charter ruled that provinces had to go through a process
    involving an independent body when setting salaries for provincial judges.
- * But, obiter shows that implications of Provincial Judges Reference are the same for
    other courts: Lamer J., said holding in Provincial Judges Reference is based in s. 11(d) of
    the Charter, but obiter looked at unwritten principle of judicial independence as grounded in
    1867 Constitution preamble, which SCC said is a constitutional binding principle to all courts
    (Federal, superior, SCC etc.), but can make argument that for lower inferior courts, going
    through this process would be too much (may be ok as long as legislature sets it, don’t need
    whole process of independent committee etc.)
- SCC. said the unwritten principle of judicial independence requires the creation of independent
    Judicial Compensation Commissions (Judicial Compensation and Benefits Commission)
    (JCCs) to make recommendations to government regarding judges’ salaries (even though
    nothing in the Constitution explicitly imposes this obligation (Provincial Judges Reference
    1997, cb332, 359) – said have to insulate judiciary from partisan influences as much as
    possible too – power from executive to legislation (like 1701 Act of Settlement that we
    followed for judicial salaries/tenure) is not enough, so need JCCs.
- This protects judges from being punished if they interpret the Constitution in a way that
    conflicts with political preferences.
            o Also means that judges should be reserved about publicly speaking out on public
                policy issues that are subject to political debate, which do not relate to the proper
                administration of justice – Provincial Judges Reference, (1997) 3 SCR 3. – Why
                Rothstein questions couldn’t look at this.

    -   But note La Forest J. dissent in the Provincial Judges Reference 1997 SCC (page 409):
           o Majority used preamble to say Canadian constitution is similar to the UK, so at
               most, Canada can only import judicial independence for superior court judges
               cause that’s all UK had (and we already had this in judicature sections of 1867 Act
               anyway). So cannot rely on preamble to purport judicial independence for all
               courts when UK doesn’t even have this legal guarantee for all courts themselves. –
               Ryder says this is a strong argument.
                    Also disagrees wth Majority methodology: says if there is a gap in the text,
                       it is not for the judiciary to rewrite the text, but for the people to initiate
                       constitutional amendment (says it should be left up to the legislature) –
                       relates to democracy. People have given power to the courts to constrain
                       the other branches of government, but filling in Constitutional gaps with
                       preamble is not acting with legitimacy (said this is engaging in a power-
                       grab, says it’s judicial activism/illegitimate judicial decision making).


-   3 elements of financial security (page 359):
        o 1) As a general constitutional principle, the salaries of provincial court judges can be
           reduced, increased, or frozen, either as part of an overall economic measure which
           affects the salaries of all or some persons who are remunerated from public funds, or as
         part of a measure which is directed at provincial court judges as a class. But these
         changes have to be made with a process that is independent, objective, and effective
         (which are the 3 components of JCCs – see below).
       o 2) Judiciary cannot negotiate over salary with executive or legislature (has to be done
         through independent body – like JCC).
       o 3) Any reductions in judicial salary cannot take the salaries below a basic minimum
         level of remuneration that is required for the office of a judge (public confidence in the
         independence of the judiciary would be undermined if judges were paid such a low rate
         that they could be perceived as susceptible to political pressure).

Features and role of JCCs:
   - So Principle of Judicial independence requires all provinces to implement a Judicial
      Compensation Commission (JCC) process (independent body has to analyze judicial
      salaries, and at least make initial recommendations to parliament regarding judicial
      salaries), to insulate judiciary from other 2 government branches. JCC (independent
      commission) operates as a buffer to filter out partisan influences. So this means that
      judges cannot negotiate their salaries directly with the other branches of government.
          o This caused much difficulty in the provincial courts, so SCC suspended the effect
              of their decision to give the provincial courts time to adjust to the requirement
              (familiar technique courts use especially for Charter rights – issuing a suspending
              declaration of validity to give legislature a chance to fix the problem/temporarily
              suspend operation of the remedy – also happened in Manitoba Language Rights
              Reference).
   - Provinces could work out the details, but the basic components of JCCs are (whole point of
      Provincial Judges Reference is SCC saying that legislature as opposed to executive
      paying judicial salaries is good, but still not enough, still need JCC to depoliticize salary
      setting, which is the objective of these 3 basic components of JCC’s):
          o 1) Independence: cannot be controlled by any other branch of government, so have
              to have fixed terms so they are not removable at the pleasure of the
              executive/security of tenure allows for independent thinking, and the members of
              the commission should not be dominated by any one branch of government –
              should be drawn or chosen from representatives of each branch of the government
              (i.e.: from the executive, judicial, and legislature).
          o 2) Objectivity – criteria JCC uses to make recommendations about judicial salaries
              have to be rational, objective (such as keeping up with inflation, comparing salaries
              of other judges in other jurisdictions etc.), and publicly available, and the reasons
              the commission has for making recommendations should be publicly available and
              should be made based on this criteria.
          o 3) Effectiveness: Not so effective that JCC’s recommendations are binding, but
              legislature cannot set judicial salaries until they receive JCC’s recommendations,
              and if they do not want to follow JCC recommendations, they have to reject the
              recommendations publicly and offer reasons for the rejection that are related to the
              same criteria that guide JCC’s decisions (cannot just give reason like “we
              disagree”).
                    Whether the reasons legislature gives to reject JCC recommendations are
                        reasonable depends on:
                             1) Is there a legitimate reason that has been articulated?
                             2) Is there a reasonable factual foundation for the rejection? (i.e.:
                               inflation hasn’t been that high, other public employees haven’t had
                              that much of a salary increase etc. – point is to treat judges the same
                              as other public employees).


Provincial Judges’ Association 2005 SCC (364)
   - Idea of JCC is to depoliticize the process and make it hard for the government to ignore
       JCC recommendations, but legislation makes the decision in the end (JCC
       recommendations are not binding), and legislature is controlled by the executive in our
       government system. So legislature has to offer rational reasons for departing from JCC
       recommendations.
           o In 2005, Quebec rejected JCC recommendation, but didn’t give reasons why and so
              this was seen as unconstitutional, but other provinces did give reasons so their
              rejection was upheld as valid.


* Can make an argument that this Provincial Judges Reference reasoning applies to the
judicial appointment process too: - we need judicial independence (all 3 aspects and for judicial
appointment process too since it is also a necessary corollary of the Rule of Law) – see Rule of
Law.
   * Reasoning is also relevant to other areas (i.e.: may argue that it needs to be put in place, that
   s. 7’s commitment to fundamental justice requires that this process be put in place, and can
   argue that reasoning should also be applied to judicial appointment process).
       - And similar process used for riding boundaries (which is also closely related to
           democratic process – idea is to limit capacity of government to manipulate political
           boundaries for partisan purposes). Unlike in the U.S., where there is a lot of partisan
           influence in setting riding boundaries, our model has an independent commission
           established by legislation (the electoral boundary commissions), which is headed by a
           judge in most provinces and at the federal level too. The Commission applies objective
           criteria like geography etc., and makes recommendations to the legislature that can be
           departed from but not easily (Ryder says it works reasonably well).

-   Can argue that judicial appointment process also affects judicial independence - Should
    insulate judiciary from partisan influences as much as possible too, so we should not allow
    executive control over judicial appointment process either. Should take the power from
    executive and give it to legislation (like the 1701 Act of Settlement that we followed for
    judicial salaries/tenure). And then we can try to argue that like Provincial Judges Reference,
    this still is not enough, but the judicial appointment process should be filtered through
    independent bodies too. Can argue that judicial independence is not just a crucial
    constitutional guarantee that applies after judges are appointed (tenure/salary security) but
    should also apply before in the appointment process.
        o Argument to broaden our idea of judicial independence to include judicial appointment
             process too (may be presented to court one day/might be persuasive argument).
                   Now there are 3 elements of judicial independence: i) Security of tenure ii)
                      Financial security iii) Administrative independence (should add security of
                      independent appointment process too).
                   Can argue that JCC or similar should be used to insulate judicial appointment
                      process from partisan influences due to the basic principles of procedural
                      fairness in our system where there is incentive for the government to act in a
                      self-perpetuating way (our government stays in power as long as they have the
                       support of the majority of the House of Commons, pursuant to fixed election
                       dates) – so have to insulate government influence from these sorts of processes.
            o Can back argument up with evidence of partisan influence in judicial appointment
              process (like 60% of federal appointees made donations to party in power etc.), that
              this interferes with judicial independence.

    -   Executive will try to hang onto the powers to control SCC judicial appointment process, but if
        the Ontario model influences the superior and federal judicial appointment processes, it may
        get to a point where executive solely controlling SCC judicial appointment process would look
        anomalous both internationally and within Canada (this would be an embarrassment). Peter H.
        Russell (cite lecture) says Canada is still one of the only democracies that leaves the judicial
        appointment process of a top court/SCC solely in the hands of the executive (PM) in a legally
        unconstrained way. But it is changing, even though it’s slow and out of sync with the other
        top courts of the world (have to change things as a matter of principle continually, see
        Rothstein etc. for more).


-   3) Administrative Independence - Inappropriate for other branches of government to interfere
    with autonomy of the courts in controlling the administration of justice. In a general sense,
    governments are responsible for maintaining courts but cannot interfere with matters that are
    directly related to the adjudicative process.
        o Courts must have control over administrative decisions affecting judicial functions –
            judges have to be autonomous collectively (Chief Justice of Court should determine who
            sits on what case, when cases will be heard etc., other levels of government should not
            interfere with this) – sort of like prosecutorial and police independence for certain
            decisions.

        -   Tobiass 1997 SCC (365) - Case is example of violation of administrative independence.
               o Why was judicial independence compromised in this case? - yes
               o Federal government was unhappy with the court’s slow consideration of claims
                   against people alleged to have engaged in war crimes. So the Department of
                   Justice Deputy Minister of the Canadian government (executive) met with the
                   Associate Chief Justice of the Federal Court and expressed this upset about the
                   cases moving slowly. The Associate Chief Justice responded by quickly
                   accelerating a hearing, but SCC said this was a gross mistake (both by the Deputy
                   Minister, and the Associate Chief Justice – said it was wrong to meet without
                   opposing council because it created an appearance of government interference in
                   judicial administration, and this appearance can invalidate the proceedings).
               o Here the principle of administrative independence was violated in a way that gave
                   reasonable apprehension of bias that required a remedy in terms of how the
                   litigation progressed.
               o What should the Deputy have done to express its concerns about the slow pace
                   of the litigation? Should not have arranged to speak privately with Associate Chief
                   Justice – should have done it with opposing counsel present.
               o What remedy did the court order? SCC required that the proceedings be
                   conducted by a trial division judge who was not tainted by the improper
                   communications between the court and the Department of Justice Deputy Minister.
Written Constitutional Sources of Judicial Independence (pg. 331). Canadian constitutional source of
judicial independence is complicated.
    - 1) ss. 96, 99-100 of 1867 Constitution Act “Judicature sections” only deal with Superior Court
        independence.
            o Sections reproduce the British Act of Settlement of 1701. Federal executive can appoint
               superior court judges pursuant to s. 96 and s. 99 gives judges tenure security (see section
               for process of removing superior court judge) / s. 100 gives judges salary security (salary
               provided by Parliament of Canada). s. 96 (GG will appoint judges to superior courts) is
               like staffing power, but it’s part of the constitutional protection (alongside ss. 99-100) of
               judicial independence because courts have interpreted it to secure superior courts’
               jurisdiction – will only allow their jurisdiction to be diminished/given to other tribunals if
               legislature has a very good reason to do so (good reason usually has to be grounded in
               policy concerns, like Labour Board issue). If legislature does not have a good reason,
               superior court will strike down the legislation that seeks to diminish their jurisdiction. To
               allow legislature to subtract from their jurisdiction easily can mean allowing legislature to
               turn superior courts into empty shells, which would undermine ss. 99 and 100.
            o Independence of other courts not explicitly guaranteed in 1867 Constitution like this.

   -   2) s. 11(d) of Charter (for courts trying criminal offences)
           o Guarantees right to trial before an impartial tribunal for people charged with an offence/not
               relevant to civil proceedings = constitutional guarantee of judicial independence when
               courts are trying criminal matters. Provincial Judges Reference also decided this.

   -   These in-text constitutional guarantees are imperfect because there are gaps in it (does not include
       all courts) and provisions that do address judicial independence (above) are not strong enough.
       SO SCC in Provincial Judges Reference relied on an unwritten principle of judicial
       independence, affirmed in 1867 Constitution Preamble to make it stronger. So:
            o Unwritten principle, recognized and affirmed by preamble to the 1867 Constitution Act
               Preamble by SCC in the Provincial Judges Reference 1997 SCC (pg 332) (means that
               under this, all courts have constitutionally guaranteed judicial independence).
                     NOTE: Court using same language in Secession Reference 2 years later – use
                       fundamental unwritten constitutional principles (democracy, federalism, protection
                       of minorities, and rule of law) to fill in the gaps of the constitution. SCC here says
                       unwritten principle of judicial independence can do the same thing (so 5 unwritten
                       constitutional principles can fill in constitutional gaps). These unwritten
                       constitutional principles prevail over statutes etc.
            o Here, Lamer J. says the explicit mention of federalism in 1867 Constitution preamble
               recognizes/reaffirms this unwritten principle of judicial independence. NOTE that
               preamble mention of having a constitution similar to that of the UK seen through
               importation of the British Act of Settlement in ss. 96, 99-100 of the 1867 Constitution.
            o This was obiter in Provincial Judges References (ratio of case was s. 11(d) interpretation
               above), but later courts have confirmed this as law (i.e.: Ell v. Alberta 2003 SCC (pg
               338)).

   -   Method was controversial/radical (rewriting the text/filling in the gaps) courts’ legitimacy could
       be questioned for making a self-interested law like this.
           o Preambles to Constitution Act and statutes not seen as part of the law it introduces (usually
              meant to give contextual information about the political objectives of enacting the law, to
              help with interpretation of the text). So according legal weight to preamble as an
              interpretive aid is normal/accepted practice, but controversial to say that the text is
             imperfect (gaps, and provisions that do discuss judicial independence are not strong
             enough), and use the preamble to make it stronger.
           o And unwritten principles prevail over legislation = controversial for court to do this, filling
             in gaps/changes usually done through constitutional amendment.
           o But there is general consensus that this is worked out well (see above under rule of law)


   -   SO Provincial Judges Reference articulates idea that judicial independence is a necessary
       corollary of the rule of law. So have to depoliticize the relationship between the judiciary and the
       other two branches of government.
   -   The British had 1701 Act of Settlement took executive’s power to set judicial salaries and to
       remove judges away, and gave this power to the legislature/parliament (so the process would be
       more open). We followed this Act of Settlement and it was important in our 1867 Constitution
       Act (1701 Act of Settlement essentially reproduced in our 1867 Constitution Judicature ss. 96,
       99-100).
          o But the court in 1997 Provincial Judges Reference SCC said this is still not good enough.
               Legislature could still use these powers for political manipulation/could pass legislation
               that sets judicial salaries and remove judges in a way that is politically manipulative
               (executive normally controls parliament on our system anyway, especially if we have a
               majority government). So SCC said need intermediate/independent/objective intermediary
               between the other two levels of government and the judiciary (there is a constitutional
               requirement for this SCC says since judicial independence is a constitutional guarantee) –
               see above

NOTE: Act of Settlement is not listed in s. 52(2) of the Constitution as a document that is part of the
Constitution, but O’Donoghue court (talked about Succession to the throne) said the act had
constitutional status (said s.9 of the 1867 Constitution said monarch is the head of state so rules about
succession has to come with the constitutional status of the queen (which includes the Act of Settlement)).
And act has been imported to Judicature sections anyway, so adding it as a document of Constitution
would not make much of a difference.




Legal Guarantees of Judicial Independence (add unwritten principles, rule of law, judicial
independence principles etc) – KNOW for exam (especially Ocean Port) – cases hyperlinked. (see legal
guarantees of courts for more) for judges/courts, there is a constitutional guarantee of judicial
independence (written or unwritten) – more complicated for tribunals though.
    - 1) Administrative quasi-judicial tribunals (complicated situation for them):
           o Ocean Port 2001 SCC (pg 236) - liquor board situation – SCC said no constitutional
               guarantee of judicial independence for decision makers on administrative tribunals. Their
               independence depends on what the statute says (if statute is silent on question of judicial
               independence, courts can use common law principles of procedural fairness to impose
               obligation on executive to make sure decision makers have some security of tenure etc.).
               But here, SCC said common law rules of procedural fairness are excluded from
               legislation/statute made it clear the decision makers on this tribunal had low independence
               so common law could not be used to read more independence in. So common law
               procedural fairness principles can fill in gaps of legislation, but cannot override it, since
               statutes trump common law. SO don’t have to be independent/can be influenced by
           political fray = that’s why judicial review of their decisions is a necessary corollary to the
           Rule of Law (see judicial review notes for more)
       o
                  Bell Canada 2003 SCC (pg 235) - SCC said same thing here - common law rules
                   of procedural fairness can give rise to more independence. Here, SCC found that
                   Canadian Human Rights Tribunal has to have high degree of independence (may
                   be guaranteed by Canadian Bill of Rights – a federal statute that prevails over
                   other federal statutes).

-   2) Provincial court judges:
        o s.11(d) of the Charter (“right [when charged with an offence] to be presumed innocent
           until proven guilty according to law in a fair and public hearing by an independent and
           impartial tribunal.” – can try to use s.7 to say person not charged with criminal offence has
           right to hearing before impartial body (see Ocean Port for more).
        o Preamble; Provincial Judges Reference 1997 SCC (pgs 332, 339)


-   3) Justices of the peace:
        o Preamble; Ell v. Alberta 2003 SCC (pg 338) – said Justices of peace have guarantee of
           judicial independence (followed reasoning in Provincial Judges Reference – see above).

-   4) Superior court judges:
        o ss.96-100 of the Constitution Act 1867


-   5) Federal Court judges:
        o Federal Courts Act - s.8 – Gives federal judges security of tenure (cannot be removed
           unless it goes through 2 houses etc.).
        o Judges Act - s.10 – sets out federal court judge salaries.
        o Preamble

-   6) SCC judges:
        o Supreme Court Act - s.9 – gives SCC judges security of tenure.
        o Judges Act - s.9 – sets out SCC judge salaries.
        o Preamble

-   Federal courts/SCC are creatures of federal legislation made pursuant to s. 101 of 1867
    Constitution (nothing in Constitution mentions them so these statutory provisions above (Supreme
    court act etc.) can be repealed at any time/but cannot be changed by executive alone, only
    parliament can amend these acts – issue for SCC debated though/Peter Hogg debate):

                   Friday, November 9th, 10:40-12:30, room 107: Judicial Independence –
                   pp.330-343, 358-368 – ss.96-100 of the Constitution Act, 1867 – s.11(d) of the
                   Charter of Rights and Freedoms - judicial independence as an unwritten
                   constitutional principle - Provincial Judges Reference 1997 SCC (332) –
                   dimensions of judicial independence – security of tenure – the Canadian Judicial
                   Council - financial security – judicial compensation commissions (JCCs) -
                   Provincial Judges Reference 1997 SCC (359) – administrative independence –
                   Canada v. Tobiass 1997 SCC (365) -
                     In the Provincial Judges Reference, what two reasons did Chief Justice Lamer give
                     for rejecting the view that the written provisions of the Constitution comprise and
                     exhaustive code for the protection of judicial independence? Where did the Chief
                     Justice locate the “constitutional home of judicial independence”? (preamble)
                     What legal effects did the Chief Justice attribute to the preamble of the Constitution
                     Act, 1867? (Jenna Colle) – reaffirmed/recognized judicial independence
                     unwritten principle.

                     Do the following decision-makers have legal guarantees of judicial independence?
                     If they do, what is its source? (i.e., for each, identify the relevant constitutional
                     provisions, constitutional principles, statutes and court rulings)
                         i)     members of administrative quasi-judicial bodies
                         ii)    provincial court judges
                         iii)   justices of the peace
                         iv)    superior court judges
                         v)     Federal Court judges
                         vi)    Supreme Court of Canada judges

                         On what grounds and according to what procedures can federally-appointed
                         judges be removed from office? Should the body charged with making
                         recommendations to Parliament about whether a judge should be removed from
                         office be composed entirely of judges?

                         What is the purpose of providing judges with financial security? What are the
                         three components of financial security described by Chief Justice Lamer in the
                         Provincial Judges Reference? Why does judicial independence require the
                         establishment of independent judicial compensation commissions (JCCs)?
                         According to Lamer C.J., what features must JCCs have to comply with
                         constitutional requirements? Is it difficult for government to depart from the
                         recommendations of JCCs? (Jeffrey McLaughlin)

                         In the Tobiass case, why did the Supreme Court find that the actions of the Mr.
                         Thompson and Chief Justice Isaac seriously compromised the appearance of
                         judicial independence? In what manner should the Department of Justice have
                         communicated its concerns to the Chief Justice without giving rise to an air of
                         impropriety? What remedy did the Court order?


KNOW Provincial and Secession References FOR EXAM (impact and articulation of principles).
  - Provincial Judges Reference: Judicial independence is a necessary corollary of the rule of law
    (see rule of law). So have to depoliticize the relationship between the judiciary and the other two
    branches of government.
  - The British had 1701 Act of Settlement which took executive’s power to set judicial salaries and
    to remove judges away, and gave this power to the legislature/parliament (so the process would be
    more open). We followed this Act of Settlement and it was important in our 1867 Constitution
    Act (1701 Act of Settlement essentially reproduced in our 1867 Constitution Judicature ss. 96,
    99-100).
        o But the court in 1997 Provincial Judges Reference SCC said this is still not good enough.
            Legislature could still use these powers for political manipulation/could pass legislation
              that sets judicial salaries and remove judges in a way that is politically manipulative
              (executive normally controls parliament on our system anyway, especially if we have a
              majority government). So SCC said need intermediate/independent/objective intermediary
              between the other two levels of government and the judiciary (there is a constitutional
              requirement for this SCC says since judicial independence is a constitutional guarantee).


   -   Can make an argument that this Provincial Judges Reference reasoning applies to the
       judicial appointment process too:
   -   Can argue that judicial appointment process also affects judicial independence (so should insulate
       judiciary from partisan influences as much as possible too). So we should not allow executive
       control over judicial appointment process either. Should take the power from executive and give it
       to legislation (like the 1701 Act of Settlement that we followed for judicial salaries/tenure). And
       then we can try to argue that like Provincial Judges Reference, this is still not enough (and say
       that judicial appointment process should be filtered through independent bodies too). Can argue
       that judicial independence is not just a crucial constitutional guarantee that applies after judges are
       appointed (tenure/salary security) but should also apply before in the appointment process.
           o Argument to broaden our idea of judicial independence to include judicial appointment
               process too (may be presented to court one day/might be persuasive argument).
                     Now there are 3 elements of judicial independence: i) Security of tenure ii)
                        Financial security iii) Administrative independence.
           o Can back argument up with evidence of partisan influence in judicial appointment process
               (like 60% of federal appointees made donations to party in power etc that this interferes
               with judicial independence.


   -   Executive will try to hang onto the powers to control SCC judicial appointment process, but if the
       Ontario model influences the superior and federal judicial appointment processes, it may get to a
       point where executive solely controlling SCC judicial appointment process would look anomalous
       both internationally and within Canada (this would be an embarrassment). Peter H. Russell (cite
       lecture) says Canada is still one of the only democracies that leaves the judicial appointment
       process of a top court/SCC solely in the hands of the executive in a legally unconstrained way.
       But it is changing, even though it’s slow and out of sync with the other top courts of the world
       (have to change things as a matter of principle continually, see Rothstein etc. for more)




5) Democracy
    - SCC said unwritten principles of federalism and democracy impose a duty/obligation on
      governments to negotiate secession in good faith following a clear majority vote on a clear
      question: (Secession Reference 1998, cb131, at para.88). SCC also found that unilateral secession
      would violate the principles of democracy, the rule of law, federalism and minority rights
      (Secession Reference).
         o Brown (1999) tried to use Secession Reference argument (Alberta population had clear
             vote on clear question of who they wanted to be Senator on senate, so democracy meant
             that government had a legal obligation to appoint senators that were chosen). SCC rejected
             this (said used democracy principle in Secession Reference to fill in the gaps of the
           Constitution, but cannot use it to rewrite the Constitution like they would be if they
           allowed Brown’s argument – Constitution gives GG power to appoint senator on advice of
           PM, and unwritten democracy principle cannot go against this written power).

-   s.3 of 1982 Constitution (Charter) says “Every citizen of Canada has the right to vote in an
    election of members of the House of Commons or of a legislative assembly and to be qualified for
    membership therein.”
        o Unwritten principle of democracy means that s. 3 is more than just dropping a ballot in the
            box – it’s a right to for every citizen to meaningfully participate in the electoral process –
            Figueroa v. Canada.
        o s. 3 is about i) the right to effectively and meaningfully participate in the electoral process
            (so government has to maintain a level playing field so the political marketplace can
            operate effectively and hear all voices), ii) the right to rough parity of voting power (which
            controls the governments power to set riding boundaries – we tolerate that urban ridings
            are typically bigger than rural ones, but there can’t be a huge disparity between the ridings)
            – look at riding committee for more iii) the right to a genuine opportunity to take part in
            the governance of the country. - Figueroa v. Canada.
                 s. 3 doesn’t give non-citizens the right to vote (government can extend the right,
                    but not constitutionally required because s.3 only applies to citizens). Some other
                    Charter rights are not so restrictive and can apply to anyone on Canadian soil (SCC
                    looks at s. 3 in Figueroa v. Canada).
                 Since s. 3 doesn’t say anything about age, denying people under 18 the right to vote
                    violates Charter, but so far, charter challenges on this basis have failed because the
                    violation can be justified under s. 1 of the Charter. This limit can be demonstrably
                    justified in a free and democratic society because people younger than 18 are not
                    ready to vote due to their limited knowledge etc. Ryder says this is highly debated
                    and will likely change in the future (SCC looks at s. 3 in Figueroa v. Canada).
                 s. 3 isn’t about the right to have the candidate or government you want elected, it’s
                    about the right to effectively participate in the electoral process and this vote is
                    meaningful regardless of the result due to the mere fact of being able to express the
                    vote – so long as there’s a level playing field etc, stated directly above (SCC looks
                    at s. 3 in Figueroa v. Canada).

-   Normal rule that parliament’s statutes prevail over inconsistent regulations made by the executive
    branch is also required for democracy (parliamentary legislative process is more open/has more
    democratic legitimacy than cabinet’s order making process – so changes to statutes should be
    made by legislature, not cabinet). See statutory delegation, under executive powers for exceptions
    to normal rule and more.

-   Some judges (like Iacobucci J) disagree with how L’Heureux-Dube J. used the unimplemented
    Convention of the Rights of Child to support idea that minister should look at best interest of the
    child in Baker (see Baker case)
        o Gave argument based on principle of democracy (treaty making and ratification is an
            executive responsibility, so allowing an unimplemented treaty, which means Parliament
            has not passed legislation to implement it, is allowing the executive to make laws through
            the treaty process). This is inappropriate in our system of parliamentary supremacy.
        o BUT Ryder says what L’Heureux-Dube J. did was fine (just like other courts/judges, she
            used other sources to interpret legislation, she was not using it to override legislation).
            And in some sense, executive is more accountable to the people than scholars etc. that
               courts use to interpret legislation. So fine to use unimplemented international law to
               interpret our legislation.
                    NOTE L’Heureux-Dube J. also used international law to interpret municipal
                       powers in the Spraytech case. Sending messages that these treaties can be given
                       some weight. But other judges are against using unimplemented
                       treaties/international customary law to do this.



2) STATUTES – see all statutes.
    - Also includes implemented international treaties (ones that have only been ratified are not statutes
      in our dualist system).
    - Human Rights Code is technically a statute but has quasi-constitutional status so it hovers
      between Statutes and Constitutional status (overrides any inconsistent statutes).

3) REGULATIONS – see all.

4) COMMON LAW - see all cases, also includes Customary International Law (automatically becomes
binding on all courts).
       - Includes Royal Prerogative Common Law Powers (See executive for more – statutes made in the
       same area trump these!)



   A) International Law (pgs 67-72)
   - Our legal system is getting more international/increasing interdependence between jurisdictions.
       Have to look at significance of this, look extent to which we can cite decisions in other
       jurisdictions.

2 Distinct types of international law (have to look at 3 government branches to see how
international law interacts with domestic law)

   1) Customary International Law – generally binding on all states (except those who showed
      sufficient persistence before it became a binding norm) - automatically becomes part of common
      law binding on all levels of courts.
   - Similar origins to constitutional conventions, - formed by consistent general and universal state
      practice due to a sense of legal obligation (when this state practice and sense of legal obligation
      become sufficiently widespread among the states of the world (not clear what this threshold is
      though), the practice becomes legally binding to all nations as customary international law).
          o i.e.: Universal Declaration of Human Rights (strong consensus that we should follow this
              = became a legally binding norm).
   - Does not become legally binding to nations who sufficiently persisted in rejecting if before it
      became a binding norm though.
          o i.e.: Declaration of Rights of Indigenous Peoples – White political state actors refused to
              sign this and put their opposition to the Declaration on record. So even if it becomes an
              international customary law in the future, it won’t be binding on our legal system, and this
              may actually lessen the chance that it can evolve into a conventional international law
              treaty too.
-   Canada is a monist state for customary international law (once a practice becomes customary
    international law, it automatically becomes part of the common law, and is binding on all courts,
    even SCC). But, legislature can make laws contrary to customary international law that will
    prevail (due to common law being at bottom of hierarchy).
        o Nevertheless, courts will always presume that the legislature didn’t mean to legislate
            against the customary international law, and will try their best to harmonize the two.


2) Conventional International Law (like treaties) – binding on states that are parties to them (like
   contracts between states) – implemented conventional international laws are statutes
- Content of treaty discerned from its text.
- Treaties are negotiated and ratified by states (form an international contract between the states,
   a.k.a. -conventions, protocols etc.). States that ratify them are bound by them as a matter of
   international law (i.e.: Convention against torture, Convention on Rights of the Child, Kyoto
   Protocol etc.).
- There are thousands of conventional internal law treaties that we are bound to as a matter of
   international law.

How are Conventional International Law Treaties formed? see 2006 exam

1) Signing/Negotiating/Forming Agreement (national executive government branch has the power to
   enter into treaties).
- Canada was still a UK colony/not an independent sovereign state in 1867. The 1867 Constitution
   said nothing about Canada’s ability to act independently in the international sphere. Nothing in
   our Constitution on Canada’s ability to enter treaties on our own behalf, on procedures to follow to
   bind ourselves to international law treaties, and on the obligations that international law treaties
   have on Canadian domestic law. The understanding at the time was that the British executive
   would continue to enter into international treaties that would be binding to UK and its colonies
   (which included Canada).
- BUT after the Treaty of Versailles, which ended WW1, Canada entered into sovereign status in
   the international sphere and entered into treaties on our own – the national executive assumed
   power/responsibility from the British government to enter international law treaties due to the
   Royal Prerogative (powers that flow from common law, so this can be changed through legislation
   or by constitutional amendment). So, federal executive has been responsible for negotiating
   treaties (signing) (and directly see below - ratifying them) on our behalf since the 1920’s.
- But Federal government doesn’t recognize provincial power to enter international law treaties
   (provinces can enter agreements that are not part of the international law treaty process though).
       o France is the only country that sometimes lets its provinces enter into international law
           treaties.


2) Ratifying Agreement (also done by national executive due to Royal Prerogative) – this step makes
   the treaty binding at international law.
- Executive (cabinet, ministers, PM – executive is part of parliament, but it’s not the whole
   parliament) does and should involve (whole) parliament in this step (like it did with the Kyoto
   Protocol) – used to routinely involve parliament for the first 40 years of us acting as a sovereign
   nation, but fell off in mid-1960’s. Should include parliament because parliament is supposed to be
   the dominant law making body/while executive branch is accountable to parliament, it is not as
   openly accountable to the public and the public needs a more direct form of accountability when
binding ourselves to international law (see legislative process- more open than executive order
making). But executive not required to obtain Parliamentary approval prior to ratification.
   o So lots of people argue that the current international law treaty making process is a
       democratic deficit (relates to democracy principle) and that it goes against federalism
       because provinces don’t have a legal role before we are bound to treaties. But Ryder says
       federal executive usually won’t commit to treaties that affect the provinces without strong
       provincial support (but it does happen sometimes anyway).
   o Ryder says it would be best if we had a system like South Africa’s (where it is a
       legal/constitutional requirement that the legislative bodies that will have to implement
       treaties approve of them before they are ratified). – see 2006 exam. This would be better
       so there are no embarrassing gaps between executive ratified laws and domestic legislation
       (cause Parliament would be required to approve of the ratification and implementation).
   o But our Constitution is out of date. One of the oddities of our legal system is that even
       some Aboriginal nations have more rights regarding treaties than provinces do.
            i.e.: s. 35(1) of the 1982 Constitution = gives Aboriginal nations the right to be
               consulted before the federal executive agrees to treaties that impacts Aboriginals.
            So it would make sense to always require impacted provinces’ and parliamentary
               approval.
                    Another oddity of our constitution: lower superior courts have
                       constitutionally protected status (ss. 96-100 “Judicature” sections of the
                       1867 Constitution act deal with/entrench superior courts in the
                       Constitution).
                    And Aboriginal governments - there has been significant evolution from a
                       federal state based on two levels of government to one including this third
                       level (changing mostly through treaties between the federal/provincial
                       governments and the aboriginal nations). When these treaties are
                       concluded, Aboriginal governments will be protected (provinces are
                       changing too, but seems like Aboriginal governments have more equality to
                       provinces and federal government than municipalities and territories). – this
                       is not in Constitution though (this government level still exists due to
                       statute like municipalities and territories).
   o i.e.: Executive made sure Parliament agreed to the Kyoto Protocol but it would have been a
       good idea to get provinces’ approval too (some provinces were not happy with this
       protocol).
   o There is a gap in time between signing/negotiating/forming and ratifying the agreement,
       which allows the executive to return home to see if politicians are on side (have to see if
       the country is willing to take steps to implement and meet the treaty). If yes, then ratify, if
       no internal agreement within the sovereign state that the treaty is worth committing to, then
       don’t ratify or else state may violate its international obligations.
   o i.e.: Knew that Kyoto Protocol was controversial after signing at stage one, so the full
       parliament debated on the issue, and voted in favour of it = ratified/committed selves to the
       international law treaty and its obligations but we haven’t complied with it (not on the path
       to meet Kyoto targets so it was signed and ratified but not implemented). Indeed, PM’s
       October 16, 2007 throne speech said that Canada won’t meet the goals of the Kyoto
       Protocol.
   o Ryder says this is embarrassing because international law and treaties are very important
       now.
   3) Implementing Agreement (implemented treaties are statute – but unimplemented treaties are not
      statutes) – this is process of international obligations/treaties being transformed into domestic
      legal systems – for international obligations to be binding on Canadian domestic law, Parliament
      has to pass legislation allowing for this because we are a dualist state.
   - In Monist States conventional international law and domestic law are harmonized into a single
      legal system (So as soon as the international law treaty is ratified, it automatically becomes legally
      binding as well)
   - But Canada (inherited from the British Parliamentary tradition), and other Parliamentary systems
      like the UK are Dualist States, where international conventional law and domestic law operate in
      separate spheres (So treaties are not automatically binding in domestic law – have to be passed
      through legislation first).
   - Executive can’t make treaties legally effective on its own – parliamentary supremacy in our
      tradition = federal parliament has all the law making powers (and executive supposed to derive its
      law making powers from parliament so executive can’t make laws that are binding to Canada
      simply by entering into treaties).
          o So which legislative assembly has power to pass treaties? 1867 Constitution divides the
              power over legislative responsibility – only s. 132 looks at treaty obligations (said the
              national parliament in Ottawa could implement Empire Treaties (the treaties UK entered
              on our behalf), but when we entered our own in 1920, the court was asked whether
              parliament could pass legislation to implement Canada treaties).
                    i.e.: Treaty of Versailles had a series of issues – one of the issues that arose was
                       whether national parliament could pass labour standards on our own behalf due to
                       this treaty. The Privy Council in the 1930’s Labour Convention case said no,
                       parliament cannot implement Canadian treaties. Court said “ship of state may sale
                       on larger waters (referring to Canada now acting on its own in the international
                       sphere) but it retains the water tight compartments of its original design (so
                       parliament has jurisdiction to pass legislation for national jurisdiction, and
                       provinces can implement legislation for provincial legislation)”. So jurisdiction to
                       pass laws implementing treaties is divided between Parliament and the provincial
                       legislatures depending on the subject matter of the treaty – good for federalism
                       principle.

                     Also, due to federalism, treaty implementation is divided depending on who has
                      jurisdiction over the subject matter, which makes it harder to implement our
                      international obligations in Canada (i.e.: Kyoto has federal and provincial
                      jurisdiction matters, so at least 11 jurisdictions have to pass legislation to comply
                      with these international legal obligations).
                     So Canada = dualist and federal state = hard to maintain standing as a good
                      international actor (being faithful to federalism = compromising our ability to
                      comply with our international obligations).



NO clear rules in our dualist system for when a treaty has been implemented BUT when it is clear,
implemented and non-implemented treaties have different legal effects on our domestic legal
system:

1) Implemented treaties (passed in statute) = binding in the domestic sphere. So both statute and the
treaty text can determine the rights and obligations created in our legal system by the treaty.
2) Non-implemented treaties (not passed in statute) = shouldn’t be binding to courts since we are a dualist
state. But courts say since unimplemented treaties still bind us to international law once they have been
ratified, they can influence the interpretation of domestic law (the principle is to harmonize domestic and
international law obligations where possible).
     - i.e.: Baker v. Canada [[1999] 2 SCR 817] – unimplemented “Convention on the Rights of the
        Child” was used to interpret ministers’ use of discretion in deporting illegal immigrants (court
        used convention to say that the minister has to consider the children born in Canada before
        deporting their mothers). – Good case to look at impact of international law treaties on domestic
        law.

SO non-implemented treaties CANNOT override statutes, BUT they can be used to interpret statutes,
other Canadian laws, and the discretion of political actors.



   B) Constitutional Conventions not legally binding/NOT law (court cannot force GG to give royal
   assent to bill that has passed 2 houses of parliament, but politically binding because withholding her
   consent would create a political crisis).

   -   Conventions exist due to 3 factors:
          o 1) A practice or agreement has been developed by political action;
          o 2) Political actors recognize that they are bound to follow the convention/have a sense of
             obligation to;
          o 3) Exists due to an articulated normative reason/purpose (pg 101).
   -   Customary International Law has similar origins to this.

   -   Conventions (not law) are still crucial to the operation of the parliamentary government.
         o 1) PM not mentioned in 1867 Constitution, but it is a constitutional convention that GG
            should summon a leader of the party to be PM to command the government (can’t be
            legally enforced though).
                 But when it’s not clear who PM should be, GG has power (reserve power) to
                     determine who should be invited to form a government that can attempt to govern
                     with the support of the house.
         o 2) A minority government party needs the support of at least one opposition party after its
            throne speech, or they will be deemed to have lost confidence of the majority of the House
            of Commons, and PM by convention has to either resign and ask someone else in House of
            Commons to command government or, ask GG to dissolve Parliament and call another
            election (can’t be legally enforced but violating this would result in the gravest political
            crisis).
         o 3) British rules are conventional (not legally binding on us, but have powerful political
            consequences).
         o 4) Convention that Federal Disallowance power should not be used (Constitution says
            Federal government can disallow any provincial law within a year of it being passed, but
            hasn’t been used since WW2).
                 But also legally not allowed to use this due to unwritten principle of Federalism
                     (Federal government cannot disallow provincial laws because provinces are
                     considered sovereign and of equal status – provincial and federal levels have
                     coordinate status and occupy horizontal spheres, not hierarchical).
-   Conventions are not enforceable by courts (not legally binding/no formal legal sanction if
    they are breached), but courts can still recognize them:
       o i.e.: Patriation Reference 1981 SCC (pg 102) (SCC said constitutional conventions are not
           legally binding) - SCC said no legal/Constitutional requirement for Federal government to
           obtain provincial consent before asking UK Parliament to patriate and make Constitutional
           changes (which resulted in 1982 Constitution Act), but SCC said there is a convention that
           the federal government should obtain substantial provincial consent before proposing
           Constitutional changes to the British that would affect the provinces since political actors
           have followed a consistent practice of doing this throughout history due to the unwritten
           constitutional principle of federalism (which goes against proceeding unilaterally with
           significant changes without provincial consent).
                So not legally binding, but Trudeau had to follow this convention or he would be
                   acting unconstitutionally in a conventional sense, which would result in a political
                   crisis.
                So Trudeau negotiated with the provinces (which resulted in provinces securing s.
                   33 to override the Charter).
       o Critics and SCC dissent in Patriation Reference said SCC, should not have answered this
           political question. Supreme Court Act says Reference procedure enlists SCC (or appeal
           courts) to give opinions on law, not politics. Dissent said answering political questions can
           compromise unwritten constitutional principle of judicial independence.
                Quebec consent not required for this “substantial consent” – Quebec Veto
                   Reference (1982 SCC).
       o Patriation Reference and Quebec Veto Reference show us that 1982 amendment of the
           Constitution was both legally and conventionally constitutional (following unwritten
           principle of federalism, and followed constitutional convention).
           Sections in Hogg book to back up that conventions are not legally binding – page 1.9.

-   Other examples of Conventions
       o Constitutional convention that executive members also have to be legislature members – so
          mostly only House of Common members are appointed to executive, but if they aren’t
          already House of Commons members, they have to become one soon.
       o If Bill C-43 is passed (there will be senate consultations), and if GG appoints senates who
          win these consultations on advice of PM due to sense of obligation, GG only appointing
          people who win these consultations could become a constitutional convention.


-   Examples where courts ruled there was no convention
       o Brown and Samson tried to argue that there was a constitutional convention for GG to
         only appoint senators (on advice of PM) who has been elected by people pursuant to the
         Senatorial Act because Stan Waters was appointed this way. But court rejects this because
         something happening only once does not constitute a convention. – see below for exact
         court reasoning and Brown and Samson’s arguments.
              But now, we have two (Stan Waters and Brown from Brown) senators who were
                 elected under Alberta’s Senatorial Selection Act before being appointed by GG on
                 the advice of PM. So if PM appointed senators who had been elected pursuant to
                 the act, due to feeling obligated by the democratic principle (3 elements of
                 convention), so that such a convention has arisen courts may recognize it. But
                 courts could respond with the Patriation Reference ruling that a convention is not
                 legally binding. To make this legally binding, have to use Constitutional
                 Amendment Process or unwritten principles.
3 Levels of Government (3 basic institutions of Canadian government) – have different
responsibilities/relationships to the law:


1) Legislative branch (primary law making body, but not exclusive to legislative as judges also interpret
laws etc.):
    - Divided into Federal and Provincial legislatures due to Federalism (Constitution gives both levels
       powers to make laws).
            o Legislature delegates powers to other law making bodies (elected municipal board etc.),
               which do not otherwise have sovereign status under the Constitution.

Parliamentary Law-Making/regarding Parliamentary Supremacy – see Parliamentary supremacy
(under Federalism) for more.
Notion that we went from Parliamentary to Constitutional supremacy since 1867 Constitution isn’t good
if it makes us lose sight of how important parliamentary supremacy (as a whole – federal and provincial
put together) still is in our government system.
     - Legislatures (provincial and federal) are still supreme – can pass any law they want subject to
        constraints set out in our Constitution or and Charter (such as division of powers, and
        constitutional rights etc.)

But Parliamentary Supremacy has been constrained by the 1867 Constitution and we can no longer say
that Canadian Federal Parliament is supreme in the sense that:
    - 1) Adopted federalism with 1867 Constitution (divided law making powers between federal and
       provincial legislatures like each having half of a pie, thus, federal parliament and provincial
       legislatures are horizontal, and legislatures as a whole in Canada are supreme, but neither federal
       nor provincial legislature is supreme over the other).
    - 2) Legislatures powers are curtailed by Constitutional rights - from 1982 Constitution, ss. 2-23 of
       the Charter, and the Aboriginal rights in s. 35 from 1867 Constitution Act, as well as Language
       rights in other parts of our Constitution like the right to use English and French, and
       Denominational School rights (Catholics guaranteed in s. 93(1) of 1867 Constitution a right to
       public funding). – so can’t make laws that go against these.

1867 Constitution evolved from 19th Century UK tradition of Parliamentary supremacy, but UK
parliament itself isn’t totally supreme anymore now either: UK situation has become complicated due to:
    - 1) Europe complications
    - 2) UK is now becoming a de facto federal state (federalism isn’t written for them like it is in our
       Constitution/no written division of powers between Westminster Parliament and other legislatures,
       but Westminster has given significant law making powers to other legislatures). Not a true federal
       relationship (powers are from statutes that can be repealed at anytime, not written in a
       Constitution like ours) – more like the relationship between Canada’s provinces and municipalities
       and between Canadian federal government and territories.
    - 3) Judges can now look at whether UK legislation complies with the Human Rights Act. If UK
       statutes don’t comply with the Human Rights Act, courts can issue a declaration to that effect that
       UK Parliament will have to respond to (not a declaration of invalidity like when Canadian
       legislation doesn’t comply with the Constitution), but this still complicates UK situation.

So parliamentary supremacy as a whole (federal and provincial parliament) is still very
important/powerful in Canada.– federal and provincial legislative powers can only be constrained by
Constitutional constraints. - See Parliamentary Law-Making for more on parliamentary supremacy.
Also see constitutional supremacy for more (rule of law means counter-majoritarianism, which means no
unbridled parliamentary supremacy).
   - Bacon, Turner, Wells, and Authorson show us that even where people are treated horribly
       because of terrible exercises of law making power, only claims against legislatures’ law making
       powers that are supported by constitutional constraints can succeed. Can’t argue that a law passed
       by federal/provincial legislatures is unfair and thus shouldn’t be valid.
           o 1) Rule of law constrains state actors (executive and judiciary) discretion, but it does not
               constrain legislature (it is supreme and can pass any law it likes so long as it doesn’t
               violate the constitution). Bacon court echoed what was said in Imperial Tobacco case –
               the remedy for a statute that doesn’t violate the constitution is at the ballot box. - Bacon
               1999 Sask CA (pg 187). (so legislature can take farmer’s rights pursuant to Crop
               Insurance Saskatchewan Legislation away as long as it doesn’t violate the constitution).
           o 2) Parliament is supreme with the types of law it can enact and in governing its own
               procedures (arguments about due process/fair treatment etc. when dealing with judicial and
               quasi-judicial bodies like tribunals and when dealing with the executive can be made – but
               it is not for the courts to meddle with legislature’s internal procedures, unless it violates
               constitution). - Turner 1992 Fed CA (pg 190).
           o 3) SCC says legislature is supreme and can take jobs away (legislature can even explicitly
               state in the legislation that wrongfully dismissed employees cannot claim damages for
               breached employment contracts). - Wells 1999 SCC (pg 192)
                     Government initially tried to defend wrongful dismissal with the “doctrine of
                        frustration” (that they breached the employment contract due to conditions out of
                        their control – said legislature passed the law that eliminated job, so government
                        could not pay employee). SCC rejects this as disingenuous – especially in majority
                        government, legislature and executive branches are fused (executive usually
                        controls the legislature), so government cannot argue that they had nothing to do
                        with the job cut. - Wells 1999 SCC (pg 192)
           o 4) SCC affirmed Imperial Tobacco and Bacon ruling regarding the Rule of Law in
               Aurthorson. Authorson also argued with Bill of Rights (s. 1(a) right to the “enjoyment of
               property” - though this section is similar to s. 7 of the Charter, s. 7 of Charter doesn’t have
               “enjoyment of property” text) and said parliament took this s. 1(a) right away “without due
               process of law” (clause in s. 1(a) that is similar to s. 7 Charter clause “in accordance with
               the principles of fundamental justice.”). But SCC said Bill of Rights is a federal statute
               (not part of the Constitution, so doesn’t constrain legislature).
                     S.C.C. also said there nothing in the Bill of Rights that explicitly protects against
                        parliament taking property away through the legislative process so it is not a strong
                        protection for the property right. – Aurthorson.
   - NOTE, while Bill of Rights is supposed to prevail over other inconsistent federal statutes, courts
       have taken an ambivalent approach to its interpretation (not always comfortable using it to
       supersede other federal legislation even though it can). But still an important tool, use it with
       Charter.

               See Lecture 9 Notes for Facts/Actual Arguments from Cases:
                  1. What argument did the appellants (Bacon et al) make to challenge the legality of
                      the Saskatchewan legislation at issue in Bacon (187)? On what basis did the Court
                      reject this argument? How did the Court distinguish Roncarelli v. Duplessis?

                   2. Relying on the court decisions in Bacon, PSAC (noted at the top of p.190), and
                      Imperial Tobacco (p.94, especially at paras. 57-68), how would you summarize the
                       principle of Parliamentary supremacy, how it is limited in the Canadian
                       constitutional context, and how it interacts with the rule of law principle?

                   3. What arguments did the appellants make against the validity of the legislation at
                      issue in Turner (190)? On what basis did the Court reject their arguments?

                   4. On what basis did Wells recover damages from the government of Newfoundland
                      in Wells (192)? Does the Constitution provide protection against expropriation by
                      the government of contractual or property rights?

                   5. What are the procedural requirements that a legislature must comply with to enact
                      valid legislation? Can the Charter of Rights or the Canadian Bill of Rights impose
                      additional procedural requirements on the legislature? In Authorson (196), why did
                      the disabled veterans base their claim on the Canadian Bill of Rights rather than the
                      Charter?

                   6. What are the functions of the executive branch of government? How would you
                      describe the various components of the executive branch?

                   7. On what basis did the SCC in Fraser v. Canada (229) uphold the dismissal of Mr.
                      Fraser from his employment with the federal government? Would the result have
                      been different if the Charter of Rights and Freedoms was in force at the time that
                      Fraser was fired (Feb. 1982)?




Legislation process At federal Level – bicameral (need approval from majority of both houses of
Parliament and GG Royal assent to become law).
    - Most laws start as government public bills. Government bills usually start with a debate between
       the ministers in the cabinet. Ministries present policy ideas to cabinet, to decide which ones will
       be put to the department of justice etc.
    1. When the government thinks it’s ready for the 1st reading = the bill is introduced to one of the
       houses of parliament.
    - Bills can be introduced in either house of Parliament (Senate, except for money bills, or House of
       Commons – but usually first introduced in House of Commons).
            “S” = senate bills/introduced in senate.
                    i.e.: Bill S-4 (about term limits) and Bill S-3 (about senator tenure)
            “C” = House of Commons bills/introduced in House of Commons.
                    i.e.: Bill C-43 (now different bill number - Senate consultations/senate reform) -
                       (pg S10) – was reintroduced in 2nd session of 39th Parliament.
    2. 2nd Reading continues in the same house (more detailed debate than the first reading).
    3. Committee Stage: If the bill passes the 2nd reading, it is referred to a series of standing committees
       that study the bills in depth and hold public hearings (public can appear and voice their
       opinions/suggestions etc.). Committees normally call on witnesses to speak to the proposed
       legislation and suggest improvements etc. (most intense debates happen at this committee stage).
       This stage is televised, open to public, transcripts are available online etc.
   4. Then, the committee reports back to the House of Commons (or wherever the bill started) and any
      additional amendments are voted on.
   5. Then the bill goes to the 3rd reading and debate and the House of Commons (or whichever house it
      is in) debates and votes on the bill as amended.
   6. If passed the bill then goes to the other house of parliament (i.e.: senate) and goes through 1st, 2nd,
      3rd readings, then committee etc.
   - Once it’s passed both houses, bill given to GG for royal assent (constitutional convention that
      she/he give consent) and it becomes law.

       REMEMBER: Aurthorson etc. cases show that there are no legal requirements regarding
       parliament’s procedures/procedural fairness though (strong political conventions support
       legislative process, but it’s not a legal requirement).


At provincial Level: (need majority of House of Commons and GG royal assent to become law).
   - Provincial legislature is unicameral = same process but for only one house (since senate
      abolished), then goes directly to GG.

Some Bills proposed by Parliament:
   - Bill C3: Case in Supplement Volume 2 said this violated s. 7 of Charter and declared it invalid,
      but gave government 12 months to fix it. So government proposing a new one now (will take a
      while to go through legislative process of 3 readings in each house and getting GG assent), so that
      they meet the 12 month deadline.
   - Public Government Bills: More likely to become law.
   - Private Bills: No government support for these bills, they are for individual/corporation
      exemption from law (for private interests) – not as likely to become law.
   - Senate Bills: i.e.: senate reform bill.
   - Senate Public Bills: Also no government support for these bills, but deals with broader public
      interests than private bills, but not as likely to become law as public government bills.
   - C6: would make people uncover faces when voting (could argue this goes against right to vote s.
      3, use the Figueroa v. Canada case), and that it goes against freedom of religion etc. Charter
      provisions.
   - C19 (about senate tenure) and C20 (about senate consolations, to put these in place) were from
      last parliament sessions (had different bill numbers before). – these are current numbers.
          o There is a debate about whether these changes to the Constitution can be made through s.
              44 or whether they require provincial consent – see amendment notes.
   - C22: Controversy in Ontario (about changing the number of seats each province will have in the
      House of Commons, if passed, then all provinces will have at least enough seats in the House of
      Commons to correspond to their share of the population, except for Ontario (will have a lot less).
          o Doesn’t have to be passed through 7/50 formula even though changing seats in the House
              of Commons applies to all provinces, because it falls within s. 44 (it is a change that has
              routinely been made by Parliament alone under s. 44) – see amendment notes.

   When judges says that a change is better left to legislature to make = saying that the legislative
   process has capacity to produce a more thorough public debate/study etc. = presumably better law
   making than judges can at the time (process of going through 2 houses is open to public/more
   transparent).
   - Legislative law making is almost always prospective (applies to things in the future after law
       made), UNLESS legislature decides to make it retrospective, which is rare.
   - WHEREAS judicial law making is retroactive (idea that state of the law is as it always was).
Federal parliament in Ottawa and Provincial legislatures:
NOTE: “Parliament” typically refers to the national parliament in Ottawa/ “Legislature” typically refers to
the provincial legislatures.

   -   Provincial legislature is a unicameral legislature (only one house of parliament due to senate being
       abolished). Provincial Parliament consists of the Lieutenant Governor and the legislative
       assembly.

National Parliament in Ottawa is a bicameral legislature (2 houses of Parliament – House of Commons
and Senate)
          o Federal Parliament includes (pursuant to s.17, Constitution Act 1867), the elected House
              of Commons, the appointed Senate, and the Queen

   -   1) Head of state, Monarch (represented by Governor General)
   -   GG (pgs 165-174) see GG notes under Executive for more
           o Queen is the head of state (pursuant to s. 9 of 1867 Constitution) but all
             Queen’s/Monarch’s power is delegated to the GG due to the Letters Patent (1947) (a
             formal letter, which is a legal instrument, issued by the Monarch, speaking on our behalf).
             i.e.: governor general gives royal assent to complete the legislative process at the federal
             level (on behalf of the Queen).
           o GG Royal Prerogatives include summoning, proroguing, and dissolving parliament: (pgs
             165-172).
                   Summoning Parliament: s. 38 of 1867 Constitution gives GG power to summon
                      and call together the House of Commons. But this is now constrained by
                      constitutional convention (GG calls Parliament to session on advice of PM – this
                      convention has been codified in the Writ of Election, as schedule 1 of the Canada
                      Elections Act), and in the Charter.
                   Proroguing Parliament: Called by GG on advice of PM. Prorogation ends a
                      session, but doesn’t dissolve Parliament (PM etc. all remain in office and members
                      of the House retain their rights and privileges).
                   Dissolving Parliament: Called by GG usually on advice of PM (when PM still has
                      confidence of the house, the timing is good for his ruling party, and when he thinks
                      that the populous won’t rebel). So parliament will be dissolved and another
                      election will be called, because GG can’t second guess PM when he/she has the
                      confidence of the house. s. 5 of the 1867 Constitution Act and s. 4(1) of the
                      Charter say that Parliament must be dissolved and elections must happen at least
                      every 5 years (page 169) except in times of war or insurrection.
                           Within these 5 years, PM usually chooses when to dissolve Parliament (so
                              parliamentary session usually doesn’t last for 5 years anyway), if there is a
                              “no confidence” vote by the house, however, PM is forced by constitutional
                              convention to ask GG for dissolution or has to resign from government.

           o BUT GG has personal prerogatives/reserve powers (real power) that she/he can exercise
             against the advice or without advice of PM:
           o In reality, GG is only a figure head that generally does what she’s told by her “political
             masters”/politically accountable members of the executive (PM and the cabinet).
           o But GG has important reserve/personal powers that are sometimes crucial to the operation
             of our Parliamentary System, where we need an independent body that is removed from
         the political fray to make crucial decisions for the nation’s best interests at no one’s
         discretion. On these crucial occasions, GG can make own decisions about what is best for
         Canada without direction from her “political master (see Hogg for more reserve powers of
         GG)
              1) GG has discretionary power to determine when parliament should be dissolved
                 and an election should be held:
                      GG can refuse PM’s request to dissolve parliament/has personal discretion
                          about when and who should form a new government, and when the current
                          government should cease to govern. Our system has no fixed term and one
                          governs as long as one has the confidence of the house. If PM could always
                          choose when to dissolve parliament, PM would determine transitions
                          between governments and act in a self-perpetuating way where he/she
                          would always be the PM (elections do have to be every 5 years, but if PM
                          can act in self-perpetuating way, PM can govern as long as he/she has the
                          confidence of the house).
                      i.e.: King-Bing Affair: 1926 McKenzie King tried to govern with a minority
                          government. When he knew he was about to lose a crucial Parliament vote
                          and lose the confidence of the house, he went to GG Bing and asked that
                          Parliament be dissolved and a new election be called, which would
                          hopefully create a more stable parliament so he could govern with the
                          confidence of the house. But GG said it wasn’t in the nation’s best interest
                          to have another election so soon and asked the opposition to try to form a
                          government that would have the confidence of the house. When the
                          opposition failed, GG say that no one could govern with confidence of the
                          majority of the House and called another election.
              2) GG can select PM (person who would be in the best position to receive the
                 support of the majority of the House): Usually as a matter of convention, PM is the
                 head of the party that wins the most seats after an election. But, when it’s not clear,
                 GG has power to determine who should be invited to form a government that can
                 attempt to govern with the support of the house.
                      i.e.: if no party has a clear majority, GG can say that no one is in position to
                          command the majority of the house, and appoint someone who can try to
                          receive the support of the majority of the House.
                      But if PM sick, GG wouldn’t use reserve powers, would just follow advice
                          of the party to put someone else in the position temporarily.
       o 3) GG can also refuse to give royal assent to a bill: She usually signs by convention, but is
         not legally bound to do so – cite Hogg – see Hogg for more GG reserve powers.



-   Rules of Succession (O’Donohue – case to cite for all rules below)
       o Act of Settlement (1701) set up many basic constitutional principles (such as judicial
           independence) after long religious struggles and struggles between Parliament and the
           Crown in Great Britain. This was an important part in the evolution of parliamentary
           supremacy over the monarchy power in Great Britain and also dealt with the rules of
           succession.
                Act of Settlement legally bars anyone who “should be reconciled to or shall hold
                  Communion with the See or Church of Rome or should profess the Popish Religion
                  or marry a Papist” (basically a papist or someone who is married to a
          papist/Catholics) from becoming the Monarchy (Canada’s head of state). This act
          is still legally effective, O’Donohue raised argument that it is offensive to human
          rights and freedoms to say that a particular religious denomination cannot be the
          head of state (due to s. 15(1) of the Charter – “Equality Rights”). This would be a
          good argument, but SCC struck the argument down.
o O’Donohue’s claim was struck down because the rules of succession are part of the
  Constitution (and there is no hierarchy between different parts of the Constitution, all
  provisions are equally supreme law according to the Rule of Law and Constitutional
  Supremacy so cannot use one part to strike down another). Can only use Constitution to
  knock down inconsistent subordinate laws.
       1) Court refers to the Preamble to the 1867 Constitution, which says Uniting
          Colonies decided to form a federal state that operates in a manner that is similar in
          principle to the UK constitution, so Canada was established as a Constitutional
          Monarchy.
                Act of Settlement is an integral part of the rules of succession that govern
                    the selection of the monarch in Great Britain. Due to our constitutional
                    structure, Canada is united under the Crown of Great Britain, so the same
                    rules of succession that apply to the Head of State in Britain must apply to
                    the head of state of Canada. So the rules of succession are a necessary part
                    of the constitution, and are not subject to Charter scrutiny.
       2) While the Act of Settlement 1701 is not part of the Constitution (not listed in s.
          52(2) of the 1982 Constitution) the Statute of Westminster is (so any alterations to
          rules of succession would no longer be imposed by Great Britain),
                But Court says it doesn’t make sense to have different succession rules for
                    the commonwealth members (all 15 members similarly have the queen as
                    their head of state). SCC says commonwealth realm consensus required to
                    change succession rules. In Canada, this change would affect the
                    monarchy, which would require the s. 41 unanimity procedure.
                But Ryder says Act of Settlement is a British Statute, and UK parliament
                    could change British succession despite SCC’s judgment that consensus of
                    the commonwealth realm is required. Ryder says if UK did do this, we
                    probably wouldn’t even need to go through the unanimity procedure
o So we are stuck with the rules of Succession of the British Monarch. The British
  parliament still has control over the rules of who our head of state is, which means Canada
  did not have complete patriation of our constitution. To really get rid of these ties, we
  have to have our own rules about our head of state.

   On what basis did O'Donohue argue that the rules of succession of the British monarch
   are unconstitutional and of no force and effect? On what basis did the court conclude that
   O'Donohue's argument had no merit? According to the Court's reasoning, how can the
   rules of succession of the British monarch be changed?

o SO can’t use one part of the constitution to strike down another (O’Donohue)
      This is why we still have Catholic school funding (Courts agree it’s discriminatory,
        but the Constitution guarantees the right to fund denomination schools and can’t
        use constitution parts like “religious freedom” etc. against it).
      General principle that senates are to be appointed to life until age 75 also written
        into the Constitution = can’t try to strike is down with Charter by claiming it’s age
        discrimination.
-   2) Senate (“upper house of Parliament”)
                Senate theoretically has equal powers to the House of Commons in our
                  constitution. Both the Senate and House of Commons have to approve of bills
                  before they become law (bills can originate in either house, so senate is
                  theoretically an equal partner in the legislative process, except that money bills
                  cannot originate in the Senate).
                But practically not an equal partner in the legislative process (Canadian Senate is
                  appointed, so it has less democratic legitimacy than the democratically elected
                  House of Commons. So House of Commons is the dominant house in Parliament
                  for passing bills. If the Senate disagrees with the democratically elected House of
                  Commons and rejects or fundamentally changes a bill that has passed through
                  House of Commons, they will thus be operating on thin ice. So Senate rarely
                  interferes with House of Commons decisions (relates to principle of democracy)
                       But Senate does occasionally block passage of bills that have passed the
                          Housed of Commons and thus sometimes does disagree with the House of
                          Commons (i.e.: abortion bill in 1990 etc.)

       o Senators being appointed by GG on advice of PM (pursuant to s. 24 of 1867 Constitution)
         is a fatal flaw in the senate design. But Canada still appointed this “upper house” in our
         legislature in 1867 due to:
               1) To protect class interests (in mid-19th century, when white people controlled
                  political processes, the Fathers of Confederation were afraid of even this level of
                  democratization. So the senate was made (only property owners could be
                  members) to ensure that the property classes would not be overthrown and to
                  ensure that the House of Commons wouldn’t be captured by popular interest).
                        But Ryder says it makes sense to repeal this purpose now (purposes 2 and 3
                          are more relevant today).

                  2) To protect regional interests (it is common for federal states to have a bicameral
                   legislature – relates to federalism): in the lower house (House of Commons),
                   elected representatives and seats are allocated based on population so it is
                   dominated by the more populous areas of Canada (B.C., Ontario etc.). But, the
                   federal state wants to protect other regions too, so the high house (Senate) is
                   supposed to have more regional representation (i.e.: Atlantic provinces etc.) to
                   balance the populous interest in the lower house.
                        But senators are appointed by GG on the advice of the PM (not elected)
                           (s.24 Constitution Act 1867, pgs152-3). So it is still dominated by partisan
                           interests (namely, the interests of the party that appointed them) and it is not
                           an effective regional voice as a result. Now, the senate is mostly made of
                           liberals (senates are to serve until the age of 75 pursuant to s. 29 of 1867
                           Act, so the senate will likely be comprised of liberals for a while). – see
                           Edwards case (women can now be appointed to senate – can be considered
                           “persons” under s. 24).

                  3) To be a sober second thought – upper house provides opportunity for further
                   reflection about a bill’s evaluation and policy matters (Ryder says senate has
                   performed this function well – given good constructive suggestions). – but could be
           compromised due to the fact that senate rarely disagrees with House of Commons
           (see directly above).

o * Ryder says bottom line is that it’s ridiculous that we have an equal partner in bicameral
  legislature that is appointed, instead of elected. So we either have to abolish the senate or
  change the constitution so that senators are elected. But hard to get enough agreement to
  meet the high threshold of the Constitutional amendment required to make this change (s.
  42 covers Senate selection process, so it would be subject to s. 38 procedure with the
  statutory overlay, which makes it 7/90 procedure) - Other procedures apply for different
  senate matters though.


o Is there a Legal or Conventional (political) requirement that people elected under
  Senatorial Selection Act in Alberta should be appointed by GG on advice of PM to senate?
  (no).
        Brown and Samson argued that there was a conventional and legal requirement for
          GG to only appoint senators who has been nominated pursuant to Alberta’s
          Senatorial Selection Act. Both cases have similar arguments, Samson applied for
          an interlocutory injunction to ban appointing senators who were not first elected
          under the Senatorial Selection Act, until the Brown decision had been made.
        Arguments rejected by court on similar grounds:
        1) Constitutional Conventional Requirement:
               GG appointed Stan Waters, who was elected under the Senatorial Selection
                  Act, as senator on the advice of PM. So Brown and Samson say this is now
                  a constitutional convention that needs to be followed. But court rejects this
                  because something happening only once does not constitute a convention
                  (need 3 requirements).
               But now, we have two (Stan Waters and Brown from Brown) senators who
                  were elected under Alberta’s Senatorial Selection Act before being
                  appointed by GG on the advice of PM. So if PM appointed senators who
                  had been elected pursuant to the act, due to feeling obligated by the
                  democratic principle (3 elements giving rise to a convention), so that such a
                  convention has arisen courts may recognize it. But courts could respond
                  with the Patriation Reference ruling that a convention is not legally
                  binding. To make this legally binding, would have to use Constitutional
                  Amendment Process or unwritten principles.
        2) Legal requirement:
               Brown (1999) and Samson tried to use Secession Reference argument
                  (Alberta population had clear vote on clear question of who they wanted to
                  be Senator pursuant to Alberta’s Senatorial Selection Act, so democracy
                  meant that government had a legal obligation to appoint one of these chosen
                  senators). But courts said ss. 24 and 32 of the Constitution deal with
                  Senatorial appointment and expressly confer on the GG the unfettered
                  discretion to appoint senators based on PM’s advice (text does not specify
                  any procedural limits). So there is no gap in the Constitutional text like
                  there was in the Secession Reference for an unwritten constitutional
                  principle to fill. Cannot use unwritten principles to go against this written
                  power or to rewrite this written power (written Constitution trumps
                  unwritten Constitutional principles).
                       o Court also says unwritten principle of democracy cannot be used to
                         fill in gaps about how to exercise this authority (said there was truly
                         a gap in Secession Reference as there was nothing in the
                         Constitution about the impact of a referendum vote or the process of
                         secession). Here the Constitution directly addresses the issue, so the
                         only way it can be changed is through the section V Amendment
                         Procedures.

o Was Court Ruling Persuasive?
o Ryder says if we say executive can only appoint senators that have been elected, we
  SHOULD do it through Constitutional Amendment – either the unanimity or 7/50 formula.
o Bill C-43 (different number in new session now): says there will be senate consultations
  (doesn’t say that PM will be bound to appoint only those who win the consultations). PM
  said he was committed to senator reform through what he could do on his own without
  formal 7/50 procedure, and introduced idea of senate consultations under Bill C43.
       Senate consultations look a lot like the Elections Act, but PM said it was not. Bill
          was introduced in the House of Commons in earlier Parliament session but
          Parliament was prorogued by GG on advice of PM and the bill died before it could
          get to the Senate. Reintroduced as Bill C-43 and again now (different number).
       Ryder says there’s a good chance this legislation will reemerge and pass. But some
          argue that federal Parliament can’t pass C-43 unilaterally with s. 44 because it
          affects senator appointment selection, which requires the 7/50 formula (but PM
          says it’s not changing the fact that senators are appointed by GG on advice of PM,
          but C-43 will allow PM to take into account what the people have to say about the
          senate process – could argue that this is supported by democracy principle).
o Legal implications if C-43 passes? The only difference between C-43 and the Alberta
  Senatorial Selection Act is that C-43 is federal, not provincial. Ryder says it won’t make
  any legal difference, but Federal Parliament having such elections would have more
  political effect than a province having them - harder for PM to ignore federal Parliament’s
  will. Overtime, this may result in a constitutional convention that PM should only appoint
  senators who first win consultation votes (but still wouldn’t be legally enforceable). Even
  with Bill C-43, and after Brown and Samson rulings senatorial selection could still be the
  same (Bill C-43 only says there will be elections, not that GG has to appoint winner on
  PM’s advice, and even if Brown and Walters and others who win elections are appointed,
  and this became a constitutional convention, conventions are not legally binding anyway).
       Provinces may challenge C43 and say it won’t be legally binding if the government
          tries to pass it unilaterally under s. 44 of the Constitution, saying that it falls under s
          42(1)(b) of the constitution because it affects the powers of senate and the method
          of selecting senators and thus can only be made under the s. 38 7/50 formula with
          the statutory overlay.
                Ryder says C43 has to be passed through s. 38 because it does fall under s.
                   42(1)(b). Government says, in form, C-43 would just broaden the things
                   PM can look at to suggest senators to PM, but the functional consequences
                   are like an elected senate. This would result in senate democratic
                   legitimacy and they would actually practice equal powers to the House of
                   Commons in the legislative process, so the regional representation of the
                   senate would be more important and it is thus a great concern to provinces
                   (affects federalism).
                         But the statutory overlay on s. 38 makes it too difficult to evoke 7/50
                          formula right now. If parliament were to open C-43 up to all those required
                          to consent under 7/50 (with the statutory overlay), they would have to
                          negotiate with the provinces too much. This is why government wants C-43
                          as a way to move forward with senate reform. It’s what the government
                          may be able to do on its own, as stated in the preamble of Bill C-43 (that
                          before we can have more comprehensible senate reform, Bill C43 is what
                          we can do now).
                 But the debate of whether Bill C-43 falls under s. 44 or s. 38 amending procedures
                  of the Constitution continues. Best for parliament to refer this question to SCC to
                  see which amending procedure Bill C-43 can fall under.


-   3) House of Commons (lower house of Parliament) – 308 members (more or less represented by
    populous).

       o Elections: October 10th Electoral Reform/Referendum (pg S14): Which electoral
         system should Ontario use to elect members to the provincial legislature?
              1) The existing electoral system (First-Past-the-Post):
                     One with the most votes wins
                     Elected through the FPTP on a constituency basis.
                     Ryder says it is impossible to make a case that FPTP truly represents all
                       individual rights to effectively participate in the electoral process.
                           o But, FPTP does gives expression to s. 3 rights, so courts unlikely,
                               legally and in principle to say that FPTP violates s. 3 based on
                               Figueroa v. Canada. And, not practical for courts to say this, as it
                               would be too radical to overturn the electoral system of Canada.
              2) The alternative electoral system proposed by the Citizens’ Assembly (Mixed
                Member Proportional)” – did not pass.
                     FPTP doesn’t reflect wishes of provinces as a whole, so wanted to increase
                       the number of legislature members. Will maintain FPTP for 90 members,
                       who win by vote, and 39 members will be elected from lists (to be complied
                       by parties before the election).
                     So there will be 2 ballots (one for a local candidate and one for a party). So
                       if party gets 25% of the vote, it wins about 25% of the seats in legislature –
                       in Ontario’s current Single Member Plurality system (a.k.a. FPTP), a party
                       can win many votes, but end up having only a few or no seats at all.


       o Constitution: election sections
             ss. 3-5 of the 1982 Constitution looks at voting/electoral process (i.e.: s. 4(1) says
                parliament can’t last for more than 5 years, s. 5 says there has to be a sitting of
                Parliament at least once a year.)
             s.3 of 1982 Constitution says “Every citizen of Canada has the right to vote in an
                election of members of the House of Commons or of a legislative assembly and to
                be qualified for membership therein.”
                     Unwritten principle of democracy means that s. 3 is more than just dropping
                        a ballot in the box – it’s a right for every citizen to meaningfully participate
                        in the electoral process – Figueroa v. Canada.
                 So SCC said ss. 24(2), 24(3) and 28(2) of the Federal Elections Act (which
                  state that only parties with at least 50 candidates riding nationally can issue
                  tax receipts for donations made to the party, transfer unspent money after
                  the campaign to their party, and have their party affiliation listed on the
                  ballot), violates s. 3 because it further tilts an already skewed political
                  marketplace (smaller parties already have trouble getting heard). Since
                  democracy is better when all voices are heard, the government has to be
                  neutral. SCC ruled ss. 24(2), 24(3) and 28(2) of the Elections Act
                  unconstitutional, because it allowed the government to intervene in the
                  political marketplace, which distorts s. 3 right to effectively participate in
                  the electoral process (Figueroa v. Canada).

          s. 3 is about i) the right to effectively and meaningfully participate in the electoral
           process (so government has to maintain a level playing field so the political
           marketplace can operate effectively and hear all voices), ii) the right to rough parity
           of voting power (which controls the governments power to set riding boundaries –
           we tolerate that urban ridings are typically bigger than rural ones, but there can’t be
           a huge disparity between the ridings – see Judicial independence for procedure on
           riding boundaries), iii) the right to a genuine opportunity to take part in the
           governance of the country. - Figueroa v. Canada.
                s. 3 doesn’t give non-citizens the right to vote (government can extend the
                    right, but not constitutionally required because s.3 only applies to citizens).
                    Some other Charter rights are not so restrictive and can apply to anyone on
                    Canadian soil (SCC looks at s. 3 in Figueroa v. Canada).
                Since s. 3 doesn’t say anything about age, denying people under 18 the right
                    to vote violates Charter, but so far, Charter challenges on this basis have
                    failed because the violation can be justified under s. 1 of the Charter. This
                    limit can be demonstrably justified in a free and democratic society because
                    people younger than 18 are not ready to vote due to their limited knowledge
                    etc. Ryder says this is highly debated and will likely change in the future
                    (SCC looks at s. 3 in Figueroa v. Canada).
                s. 3 isn’t about the right to elect your candidate, or to contribute to election
                    of government, it’s about the right to effectively participate in the electoral
                    process and this vote is meaningful regardless of the result due to the mere
                    fact of being able to express the vote (SCC looks at s. 3 in Figueroa v.
                    Canada).
          FPTP does gives expression to s. 3 rights, so courts unlikely, legally and in
           principle to say that FPTP violates s. 3 based on Figueroa v. Canada. And, not
           practical for courts to say this, as it would be too radical to overturn the electoral
           system of Canada. But Ryder says it is impossible to make a case that FPTP truly
           represents all individual rights to effectively participate in the electoral process.




o Fixed Election Dates - (S17)
      Election date reform, unlike MMP electoral report, has succeeded in many areas.
         Now, we have legislation that sets up fixed default election dates for Federal
         elections and Provincial elections (for 5 provinces, including Ontario).
o Every 5 years for federal elections (parliament has to be dissolved every 5 years).
o Fixed elections dates for federal and provincial elections are to be held in October in the
  fourth calendar year following polling day in the most recent general election.
       * Fixed election law still subject to the power of GG or lieutenant-governor.

o Purpose of passing fixed election dates: wanted to take power away from PM or premier to
  determine the timing of elections in a self-perpetuating way.
o But our parliamentary system can’t truly have “fixed” elections dates due to:
       1) Fundamental principle that government can rule so long as it has the confidence
         of the house. If it loses this confidence, it has to either resign and make way for
         someone else to try and do it, or ask GG to dissolve parliament and call another
         election (by constitutional convention) before the fixed election date.
       and 2) Nothing to stop PM going to GG or Premier going to Lieutenant-governor to
         ask for an earlier election date even if they still have the confidence of the house.

o BUT fixed election law still good to accomplish its purpose: No legal constraints on PM
  or premier asking GG or lieutenant-governor to dissolve parliament and have another
  election when the still have the confidence of the house but would result in a political
  outcry.

o The only way to have an election earlier than fixed date with legitimacy is to blame it on
  the opposition parties not supporting the ruling party program (to say that they don’t have
  the confidence of the house anymore):
       i.e.: What PM Harper was doing. Still had confidence of the house, so couldn’t go
         to GG to ask for an earlier election because there would be a political outcry
         (though legally he can). So he claimed that every piece of legislation would be a
         confidence vote (and if opposition did not vote for it, then Harper would be deemed
         to have lost the confidence of the house).
       McGrath Report 1985 studied the issue of what a “confidence vote” is: it changes
         over time, from parliament to parliament so there’s lots of debate. There are clear
         votes that are confidence votes, and clear votes that are not and a huge grey area in
         between.
              Clear Confidence Votes are: a vote on the speech from the Throne (where
                 government lays out major plans), budget and significant supply measure
                 votes (Parliament denying money/supply for government is a confidence
                 vote), votes on government’s major planks/pillars (i.e.: 5 pillars of
                 legislative program from earlier session of parliament, where accountability
                 wasn’t approved by opposition), and a motion that is explicitly phrased as a
                 confidence motion.
       Harper went further than these clearly established notions of a confidence vote. He
         wanted opposition to either agree with his legislation (which he knows they are
         already not happy about) or not vote for it, which would mean loss of confidence
         and thus dissolution of parliament and an election at a time that is not good for the
         opposition parties (Harper tried to engineer his own defeat).
              But he was taking a lot of risks:
                     o Opposition could come together and say that a certain legislation
                         they vote against isn’t a confidence matter and introduce a motion to
                         make it clear what a confidence matter is. It’s for the elected House
                                   that acts on behalf of the people to decide whether a vote is a loss of
                                   confidence or not.
                                 o GG could use reserve power to refuse his request for dissolution and
                                   embarrass him: Could say that we just had an election 2 years ago,
                                   and elections should only be called on serious conditions (where
                                   government has clearly lost confidence of the majority of the house,
                                   and where there are serious issues that the people need to have a say
                                   about). This reserve power is crucial in our parliamentary system
                                   (GG has to be able to act independently in the best interest of the
                                   country), GG. has to be able to discipline PM with these reserve
                                   powers or else PM could call elections at whim to perpetuates
                                   themselves in office.
                                 o Harper could lose popularity/be embarrassed among the voting
                                   public: Manipulation/engineering defeat of his own government
                                   could result in lost popularity among the people (and could make
                                   them question his legitimacy – as he would be acting in self-
                                   perpetuating way).




2) Executive Implements/enforces laws - consists of the queen as formal head of state (which is really
GG due to Letters Patent – see above), PM and cabinet, and all the various governmental
departments/ministries).

1) The Crown (pg 225) - includes queen as the formal head of state (but GG explicitly given powers
through our Constitution to exercise this formal executive power because the British Monarch delegated
its powers to our GG through Letters Patent ).

-   Conventions of responsible/parliamentary government: In exercising her powers as the de facto
    head of state, GG has to act under the advice (really under the direction) of PM.

-   GG Responsibilities:
      o 1) Most significant power of GG = Selecting/appointing PM - identifies leader of the party that
         has the most seats: the person who is most likely to govern with the majority support from the
         other parties. So PM isn’t elected.
      o 2) Dismissing PM
      o 3) Summoning , proroguing, and dissolving parliament.



2) The PM and Cabinet (pg 226)
- Once PM appointed, his responsibilities/prerogatives include:
       o 1) Selecting/appointing ministers (most significant power of PM)
       o 2) Shuffling cabinet (moving the ministers around)
       o 3) Dismissing ministers

Cabinet (made of PM and ministers)
- Most important point about executive is that by convention, cabinet members have to be drawn from
   and be accountable to the legislature (either the House of Commons or Senate) –idea of responsible
    government (see Hogg for more). Usually, but not by convention, members are drawn from the
    House of Commons and from the governing party – but this doesn’t always have to be the case.
-   The cabinet is in most regards the supreme executive authority that exercises most executive powers.
       o Cabinet formulates/carries out the executive branch of the government policies like the right to
           the throne speech, determines the legislature agenda of government, determines the
           timing/content of government bills to be introduced in the House of Commons or the Senate,
           and the ministers administer the different departments and ministries that form the
           government.

Cabinet composition changes depend on PM (cabinet lasts as long as PM keeps it there).
- 1) PM shuffles it (moves weak ministers out of cabinet/moves ministers to different positions within
   cabinet etc.).
- 2) Cabinet can change depending on election results (election can be called due to fixed election date
   or due to GG dissolving parliament at request of PM – but note GG has reserve power to not do it at
   PM’s request).
       o If government remains in power, PM can decide to appoint the same ministers at the beginning
           of Parliament, shuffle them around, or appoint some/all new ministers.
       o If government is defeated in the election, PM has to resign and make way for a new PM to be
           appointed by GG, who appoints new ministers for a new cabinet composition.
- 3) If GG dismisses PM due to thinking he/she doesn’t have the support of the house (then new PM
   will appoint new ministers).


Our Constitution doesn’t specifically refer to the PM or Cabinet:
- Ministers’ powers and the cabinet functioning as our supreme executive authority are due to
   conventional rules.
      o Constitution refers to the “privy council”, which includes a lot of people including all people
          who have been ministers. This body rarely meets. But part of the privy council that functions
          is the existing cabinet (i.e.: s. 13 of 1867 Act)
      o Our Constitution and Statutes only refer to “decisions made by GG in council”. But,
          references to “council” are really references to “cabinet”.
      o So “decisions made by GG in council” means the cabinet has the power to make the decision
          of the kind that is being referenced (i.e.: s. 13 of 1867 Act).
                GG doesn’t attend these deliberations. PM attends deliberations and
                  identifies/announces cabinet decisions (usually not taken by a vote, but rather a
                  consensus identified by PM, but PM can announce a decision even if the majority of
                  the cabinet opposes).
                So when “GG in Council” makes a decision, it’s really the PM making a decision
                  (deliberation results in formal order being drawn up and delivered to GG to sign). GG
                  will sign by convention.
      o Cabinet meetings/deliberations are secret (process of making these decisions isn’t open to
          public participation like legislature deliberations. All documents presented to the cabinet are
          protected by confidentiality).

       BUT REMEMBER: Aurthorson etc. cases show that there are no legal requirements regarding
       parliament’s procedures/procedural fairness though (strong political conventions support
       legislative process, but it’s not a legal requirement).


SO PM has enormous power in our parliamentary system due to:
-   1) Cabinet is the supreme executive authority with lots of legal powers but the PM presides and
    dominates the cabinet (partly because PM has power to decide who’s in the cabinet – can decide to get
    rid of you and appoint another minister who’ll be more cooperative).
-   2) Executive and Legislative government branches are fused in our system so the PM controls the
    legislative agenda as well (unlike U.S. republican system).


3) The public/civil service (pg 228) – (executive continued).
- Unlike PM and cabinet (who determine government policies in a highly partisan way),
    department/ministry employees are supposed to be politically neutral, impartial, and loyal to the
    government, but not necessarily to any particular party.
       o Their composition doesn’t necessarily change from election to election/party to party. Once a
           new party is in power, the civil service usually stays the same - common for deputy ministers
           (heads of departments) to serve a series of different governments led by different parties.

                  SCC upheld federal government dismissal of civil service employee (who publicly
                   opposed the federal government policies), as lawful even though this would normally
                   be considered a serious violation of freedom of expression to be fired for expressing an
                   opinion, because civil service employees haveto be politically neutral, impartial, and
                   loyal to the government. - Fraser v. Canada [1985] (pg 229)
                  Civil service employees can express opinions and have rights of equal participation and
                   political expression but can’t compromise their public service duty that is to be
                   politically neutral, impartial, and loyal to the government - Fraser v. Canada
                        Fraser v. Canada decision was written in 1985 but the facts occurred in the
                           1970’s before the Charter was enforced. Ryder says if the case happened now
                           with the Charter, the balance between the 2 important principles of civil servant
                           political neutrality and of freedom of political expression could shift because
                           we now have a constitutional commitment (Charter) that didn’t exist when the
                           facts in Fraser happened. Now our Constitution has the Charter that protects
                           freedom of expression and political expression, and the government would have
                           to show that any restrictions to this right can be justified under s. 1 of the
                           Charter to be valid.

       o Past Canadian governments had serious restrictions on when civil servants could actively
         participate in elections by running for office or campaigning to support those who are running
         in office due to the commitment to public service employees being committed to political
         neutrality, impartiality, and loyalty to the government. But S.C.C. struck down federal law
         provisions that put a blanket prohibition on Federal civil servants participating in elections
         Osborne v. Canada [1991] (pg 232).
              SCC said can have some restrictions on civil servant political participation to preserve
                 the 3 duties to be politically neutral, impartial, and loyal to the government, but this
                 law was too blunt/didn’t distinguish between the need for political neutrality within the
                 different levels of the civil service hierarchy. i.e.: deputy minister needs to have more
                 political neutrality/needs stricter restrictions than someone cutting the grass around the
                 Parliament building - Osborne v. Canada
                       S.C.C. recognizes that a reasonable balance must be drawn between the 2
                         important principles of civil servant political neutrality and of freedom of
                         political expression - Osborne v. Canada. So now our statutes regarding these
                          matters try to draw a distinction between the levels of the civil service
                          employee hierarchy, and restrict those higher in the hierarchy more.



4) Independent administrative agencies (pg 232) – operate at arm’s length from government
(Executive continued).
- Administrative law (a branch of public law) is a huge body of law that is mainly concerned with the
    legal principles that define/limit the powers of independent administrative agencies.
        o i.e.: Roncarelli is the leading decision in administrative law due to the principle that executive
            members (i.e.: liquor commission, which is an independent administrative agency established
            to administer the government’s liquor license policies) had to find a source of all their actions
            in a legal rule (rule of law).
- Established by parliament by legislation to carry out executive functions (administer/enforce the law),
    but these agencies are hybrids as they can also be given the power to make law (legislative-like
    function) (a.k.a. subordinate/delegated legislation), and sometimes consists of tribunals that adjudicate
    disputes too (judicial-like functions).

-   Especially over the past ½ century, the government has established many independent administrative
    agencies – this growth is a relatively new phenomenon.
       o Parliament established the two independent administrative agencies – the Human Rights
           Commission and the Human Rights Tribunal to administer the Canadian Human Rights Act
           statute (pg 232)
                i..e: a private actor will file federal jurisdiction discrimination complaints (like an
                   airline) with the Canadian Human Rights Commission, who will direct what they
                   deem to be well-founded complaints to the tribunal (not to court) – see Seneca College
                         The commission has the power to issue directives about the interpretation of the
                           Canada Human Rights Act, and has the power to make law in the form of
                           directives that are binding to the tribunal.
                         The tribunal adjudicates in a quasi-judicial manner (like a court), with panel
                           members (not official judges) who hear evidence and arguments. The tribunal
                           rules and issues written decisions, which can be subject to appeal to a court
                           (which is required by the Rule of Law).

NOTE: Legislature made Canadian Human Rights Commission and tribunal because courts at the time
weren’t responding sensitively to these issues. But the commission and tribunal have judicial oversight,
like all executive powers because these powers can only come from statutes (so always need judicial
oversight to make sure they are working within the bounds of their legal authority – this rule of law idea
was articulated in Roncarelli).

-   Other Examples of independent administrative agencies:
       o Telecommunications commission (regulates radio/television broadcasting, like who gets
           broadcasting licenses and what the conditions of the licenses are etc.).
       o Ontario Municipal Board
       o Worker’s Compensation Board (administers compensation funds for injured workers).
       o Immigration and Refugee Board
       o Child Protection Services
               Executive government branch independent administrative agencies include a lot of
                  different bodies (not necessarily crown corporations or government branches, but can
                often be private agencies that have government functions due to powers being
                delegated to them by provincial statutes). So it’s fair to say that in some regards that
                Child Protection Services is also an independent administrative agency even though
                it’s not solely a creation of legislation like other independent administrative agencies.
       o Ontario Securities Commission – Ontario legislature delegated power to commission so that it
         can make legally binding laws.
             i.e.: The legislature will pass legislation of security acts, for example (basic rules that
                govern trading of securities and the regulation of people in the business of trading
                securities).
                 But lots of issues can arise that require expertise to quickly pass new rules to
                     resolve the issues. SO the government establishes the Securities Commission
                     independent administrative agency to make these laws.

Rationale for legislature to establish independent administrative agencies with this range of powers (to
make law, enforce/administer law, and adjudicate disputes – have some of the functions of all 3 branches
of government):
    1) Specialization/Expertise: More equipped to make decisions regarding the area.

    2) Concern for economy and sufficiency of dispute adjudication (related to adjudication
       accessibility/informality): allows for complaints to be processed more efficiently/quickly than if
       the dispute went to court. The idea is that courts are already overwhelmed and have a more costly
       adjudication process due to more formalities. So instead of working to reform the judicial system,
       maybe a better strategy is to establish this new adjudicative body.


    Problem: how independent do members of independent adjudicative administrave tribunals
    have to be?
-   One main principle of the judicial branch of government is judicial independence from legislative and
    executive branches to give effect to the rule of law ideal that we live in a society governed by law
    rather than by particular individuals or partisan outlooks (so judges have security of tenure -appointed
    for life subject to good behaviour/can only be removed through an extraordinary process-, have
    financial security, and have institutional and administrative independence from other two government
    branches).
        o But in taking disputes away from the judiciary and assigning them to independent
             administrative agencies, it must be ensured, according to the Rule of Law, that tribunal
             members have enough independence to administer the law impartially/not just implementing
             the partisan desires of their political masters.

So Basic Principles/implications of the Rule of Law
- 1) Constitutional principle that independent administrative agencies tribunals are open to judicial
   review (a way to secure the rule of law/a necessary corollary of the rule of law)
- 2) Judicial independence is a necessary corollary of the rule of law (need independent, objective body
   to interpret/apply the law ultimately). Judicial independence is now constitutionally guaranteed (can’t
   be taken away by the other 2 government branches).
       o So government cannot just gut the core jurisdiction of courts/turn them into hollow shells by
           transferring all disputes to independent administrative agencies as this could threaten the rule
           of law.
- 3) Legislatures have to be limited in their ability to take jurisdiction away from the courts (when
   government wants to transfer matters that are historically part of courts’ core jurisdiction to
   independent administrative agencies, they face significant hurdles). Legislature has to show very
    good reasons to take jurisdiction away from courts for such legislation to be constitutionally valid.
    (like specialization/high volume of court disputes etc. listed above).
        o But will be declared unconstitutional if courts think government is just arbitrarily reducing the
            core jurisdiction of courts – (see question that have to be asked for taking superior court
            jurisdiction away and giving it to executive tribunals: “labour issues”/ given to tribunals for
            the same reason human rights issues were given to Human Rights Commission – courts were
            insensitive to the issues)

-   SCC says rule of law requires judicial independence, but doesn’t require that independent
    administrative agencies are independent from executive government since they are part of the
    executive government – Ocean Port Hotel Ltd. v. British Columbia [2001] (pg 236).
       o But constitutional guarantee of judicial review can ensure that independent administrative
           agencies are abiding by the law/acting within the scope of their jurisdiction/being impartial If
           government tries to insulate independent administrative agencies from judicial review (say
           there is no appeal right/that independent administrative agency decisions are final this is
           unconstitutional) - Ocean Port Hotel. This is a necessary corollary of the rule of law.


SO how independent do adjudicative administrative tribunal members have to be?
- Ocean Port claimant unsuccessful because SCC said independent administrative agency independence
   is determined by the legislation that gives the agency the power, and the legislature in this case
   decided that members of the liquor board hold their position at the pleasure of the executive (s.
   30(2)(a) of the Act), so there is no independence (doesn’t go against rule of law cause legislature is
   supreme).
       o This can only be challenged successfully if a constitutional principle guarantees the
           administration’s independence (but there isn’t one in Ocean Port circumstances). But
           sometimes there may be:
- Possible arguments that there is a constitutional guarantee of an administration’s independence:
       o 1) s. 7 of the Charter: “Everyone has the right to life, liberty and security of the person and the
           right not to be deprived thereof except in accordance with the principles of fundamental
           justice.” – can argue this to include right to have ones rights determined by a fair/impartial
           process and decision maker. But s. 7 doesn’t include all our rights (liberty has been
           interpreted only as protecting our liberty to make decisions of fundamental importance and
           protecting physical liberty against things like detention but doesn’t include economic rights/
           right to have a liquor licence). So Ocean Port situation can’t give rise to s. 7, so claimants
           didn’t’ even raise this.
       o 2) s. 11(d) of the Charter - Right when charged to have accusations dealt with impartially:
           “Any person charged with an offence has the right to be presumed innocent until proven guilty
           according to law in a fair and public hearing by an independent and impartial tribunal.” Ocean
           Port situation can’t give rise to s. 11(d), so claimants didn’t’ even raise this. Claimants were
           arguing about negative decisions regarding their liquor licence (they weren’t criminally
           charged).
       o 3) s. 2 (e) if the Canadian Bills of Rights: Provides the right to “a fair hearing in accordance
           to the principles of fundamental justice for the determination of his rights and obligations”. –
           might be able to use this (but remember the limits of the Canadian Bill of Rights – see below)
           – BUT not a constitutional guarantee.
       o 4) Judicial Independence is an unwritten constitutional principle that should also apply to
           independent administrative agencies: SCC rejected this in Ocean Port because independent
           administrative agencies are part of the executive government and the principle of judicial
           independence applies to courts/judges, not to independent administrative agencies even when
           they exercise adjudicative responsibilities.

SO don’t have to be independent = that’s why judicial review of their decisions is a necessary corollary to
the Rule of Law (see judicial review notes for more)

5) Crown Corporations (pg 240)
    - Government owned corporations that operate independent/at arm’s length from the government,
      which have autonomy due to the rationale behind making crown corporations that they should
      pursue long term considerations instead of shifting policy according to political whims.
         o i.e.: ViaRail, CBC, Bank of Canada etc.
    - What is/isn’t a crown corporation is always changing (i.e.: Petro Canada used to be a crown
      corporation but has been privatized)


6) Municipalities (pg 241) – provincial legislature can give municipalities powers to pass by-laws.
- Municipalities are under provincial jurisdiction under s. 92(8) of the 1867 Act (creatures of provincial
   legislation, and can be restructured and abolished by provincial legislature at any time).
- Municipality Power Limits/problems:
       o Municipal powers can only be exercised for municipal purposes.
       o Creatures of provincial statutes, so they only have powers that are clearly identified in the
            statute that makes them.
       o Their statutory powers have been interpreted restrictively, so if municipal regulation is
            required for new issues, and it’s not explicitly identified in the provincial statute,
            municipalities have to go to the province to make sure it can have this power = Paternalistic
            relationship (happened up until the mid-1990’s).
       o Unless explicitly identified as a power, municipalities can’t single out/discriminate particular
            actors/businesses when regulated businesses. Ryder gives the example of: can city prohibit
            McDonald’s drive thru lanes, or would this be discriminating fast food actors according to this
            limit.
- Municipalities are restricted/considered a junior level of government that is constitutionally insecure.
   But we’re in the midst of significant change:
       o 1) Wave of legislation over the past decade in various provinces seeking to expand municipal
            powers.
                 i.e.: the City of Toronto Act.
       o 2) SCC/other courts have indicated taking a more generous approach when interpreting
            municipal powers.
- Municipalities are a significant part of the government in our system, but its existence is not
   constitutionally guaranteed. Ryder says if we remade the Constitution, we would change this (country
   was 80% rural/ 20% in cities when 1867 Constitution enacted, but now it’s vice versa).
- Current movement across the country to get a new deal for cities, including establishing a more secure
   foundation for municipalities. For many years, cities have been fighting a restrictive and insecure
   legal situation.
- Dominant metaphor is that municipalities are going from adolescence to adulthood: growing up and
   not going to be treated like children by the provinces anymore. They are getting more
   powers/autonomy. But still creatures of provincial statute/don’t have secure constitutional status.

-   i.e.: Shell Canada 1994 SCC (pg 242)
       o 5-4 SCC decision rules that Vancouver municipality council’s decision to not do business with
         Shell (because Shell continued dealing with the South African racist Apartheid Regime) was
         illegal:
              Due to long standing principle that municipal powers can only be exercised for proper
                  local municipal purposes. SCC majority said Shell decision dealt with areas far away
                  from Canada, not with the local residence so it wasn’t a municipal purpose, and
              Due to the decision being discriminatory.
       o McLachlin J. dissent (which captures current SCC majority view on municipal powers).
              Said municipal governments have a lot of democratic legitimacy and so should
                  interfere only with great caution and interpret their powers broadly. Said Shell
                  decision was the municipal government’s ethical obligation and was a matter of local
                  concern, and thus a legitimate decision. City council shouldn’t be deprived of powers
                  to decide on an ethical basis who it wants to do business with (Ryder says “duh” –
                  bizarre if municipality can’t even decide who they can deal with.).
              * Since 1994, series of SCC decisions on municipal powers have quoted her opinion
                  with approval – (pg 242) there is “an emerging consensus that courts must respect the
                  responsibility of elected municipal bodies to serve the people who elected them and
                  exercise caution to avoid substituting their views of what is best for the citizens for
                  those municipal councils.”

-   Spraytech 2001 SCC (pg 245) one main sign of the court’s new approach - SCC upheld by-law
    regulating the use of pesticides in the municipality (even though federal and provincial law allowed
    the pesticides) - Ryder says it’s a duh proposition that they should be able to do this.
        o Similar to the Ontario Court of Appeal dealing with Crop Life – court upheld similar bylaw
            passed by city council.
-   SCC took a more expansive approach to interpreting municipal powers:
        o 1) SCC borrows the Principle of Subsidiarity from European jurisprudence that decisions
            should be made by the level of government that is closest to the people who are affected by the
            issue it concerns. So local concerns about health effects of pesticide use for aesthetic purposes
            on properties means that this is an issue that should be addressed by the municipal
            government.
                 Not sure where SCC will go with the Principle of Subsidiarity, but using it shows a
                     different attitude from the past.
        o 2) S.C.C. quotes McLachlin J.’s dissenting view in Shell Canada to enlist Principle of
            Democracy that greater life has to be given to the scope of municipal powers.
        o 3) Looks at environmental regulations – connects International Law to municipal law powers.
            Customary International Law has given rise to the Precautionary Principle (idea that caution
            should be exercised in relation to threats of environmental degradation so exercise
            environmental jurisdiction before negative consequences can happen). So SCC says Canadian
            statutes, including statutes giving municipal powers, should be interpreted in a manner that is
            consistent with Canada’s international law obligations.

-   If new deal for the New Cities Campaign continues strongly, maybe municipal powers will be
    constitutionally guaranteed, and then municipalities won’t be subject to the whim of provincial
    legislatures anymore.
        o * If cities were to have constitutionally entrenched powers, this would involve the creation of a
            new order of government and a corresponding diminution of the legislative powers of the other
            levels of government set out in ss 91 and 92 of the Constitution Act, 1867. Legislation passed
            by a provincial legislature pursuant to s.45 can also be repealed by a provincial legislature
            pursuant to s.45, so this would not be a way to create constitutionally entrenched powers for
    cities. Section 43 could be used if the change was desired in only one province - in the same
    way that s.93A , altering educational powers and rights in Quebec, was added to the CA1867
    through a bilateral amendment with Ottawa. If, however, we wanted to give cities
    constitutionally secure status throughout the country, the s.38, 7/50 procedure would have to
    be followed.

Questions from Ryder:

In what ways is the independence of the Canadian Human Rights Commission and Tribunal
secured by the provisions of the Canadian Human Rights Act? Why does the Canadian Bill of
Rights ensure that some aspects of the independence guarantees are not eroded by the passage of
legislation by Parliament?

Is the answer that s. 2(e) of the Canadian Bill of Rights provides the right to “a fair hearing in
accordance to the principles of fundamental justice for the determination of his rights and
obligations” and as a result, independent administrative decisions must be open to judicial review
(which is also supported by the      constitutional principle that courts must be able review the
decisions of independent administrative agencies as a necessary corollary to the rule of law)? So,
in addition to ss. 7 and 11(d) of the Charter, s. 2(e) of the Canadian Bill of Rights is a potential
argument that there is a guarantee of an administration’s
independence (but not constitutional argument).

Email response from Ryder: Your answer to the first question is absolutely right. My apologies
for neglecting to address this point in class on Friday. The Bell Canada case (referenced at p.235
of the casebook) dealt with an issue of administrative independence similar to the one raised in
Ocean Port. At issue was the independence of the members of the Canadian Human Rights
Tribunal. One argument made by Bell Canada was that s.2(e) of the Canadian Bill of Rights
required greater independence for Tribunal members. In that case, the Court
said that the content of the procedural rights protected by s.2(e) was the same as those rights
provided at common law. Since the Court concluded that the degree of independence possessed by
the Tribunal was consistent with common law principles, it also found no violation of the
Canadian Bill of Rights. However, if Parliament were to pass legislation reducing Tribunal
members' independence below common law standards (eg, if the statute stipulated that Tribunal
members could be removed from their positions "at the pleasure" of the federal executive), then
s.2(e) of the CBR would be violated. The conflict between the CBR and such a provision would
likely be resolved in favour of the CBR. The opening language of s.2 of the CBR says that "every
law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it
shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to
abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared...". There is judicial authority for the
proposition that the CBR can be used to declare other federal statutes inoperative to the extent they
conflict with the CBR. For example, in Singh (1985 SCC), Justice Beetz used s.2(e) to
conclude that refugees had a right to a hearing and inconsistent provisions of the Immigration Act
were inoperative.

…

Then why s. 2(e) of the Canadian Bill of Rights Act was not raised in Ocean Port. According to
your response below, s. 2(e) of the CBR would be violated and such a conflict would likely be
resolved in favour of s. 2(e). Did the court not consider it because it is not a constitutional reason
       to guarantee the independence of independent administrative tribunals? (as it seems the court was
       concentrating on such guarantees) Or does s. 2(e) not apply to Ocean Port?


       On what basis did the SCC conclude in Ocean Port (242) that the members of the B.C. Liquor
       Control Board did not have to have a higher degree of independence? Why did Ocean Port not rely
       on the Canadian Bill of Rights or the Charter of Rights and Freedoms? What constitutional
       argument did Ocean Port advance? Why did the Court reject it?

       In a 5-4 decision, the majority of the Supreme Court of Canada in Shell Canada (242) quashed the
       resolutions made by the Vancouver City Council on the grounds that they did not relate to
       municipal purposes but to matters external to the interests of the citizens of the municipality.
       McLachlin J., in dissent, took a broader view of the legitimate scope of municipal powers. Which
       position to you find more persuasive?

       On the basis of the discussion in Campbell (246) and the Ipperwash Report, how would you
       describe the balance between police independence and police accountability?



7) Police and Prosecutors (around pg 255) (part of executive, but needs some independence from
executive for certain decisions).
- Rule of law says that police decisions to investigate crime (who to investigate, whether they have
    enough evidence to prove convictions beyond a reasonable doubt etc.) and prosecutor decisions to
    prosecute crime (i.e.: whether to prosecute, who to prosecute, whether to drop charges etc. - crown
    can make these decisions anytime) have to be independent from the rest of the government (especially
    the rest of the executive). Political influence of these decisions would violate the rule of law.
        o Can’t be influenced by politicians etc., or could be used to persecute political opponents (like
            in Zimbabwe where rule of law isn’t strongly established like it is in Canada).


-   Police independence: Core idea of police independence is that they have to be independent when
    conducting criminal investigations. (Campbell 1999 SCC (pg 252))
       o i.e.: RCMP have to be separate from rest of government for investigatory decisions (especially
            the executive, which includes the crown). SCC would not allow crown’s immunity from
            Controlled Drugs and Substances Act to be transferred to RCMP to protect their investigatory
            decision to do a reverse sting operation (crown argued that the immunity should be transferred
            to the RCMP, saying the police made the investigatory decision on crown’s behalf to catch
            suspected drug traffickers). (Campbell)
                 So SCC sent case back to the trial judge to consider whether to stay the proceedings
                    due to police illegality – couldn’t have crown immunity because such an investigatory
                    decision should be made by police independently (Campbell).

       Note, Controlled Drugs and Substances Act gives police immunity from drug possession
       prosecution, but not for trafficking.

       Tort law exception: police investigatory actions can be assessed by judiciary to see if they lived up
       to their required standard of care/investigated negligently (ruled in Hill v. Hamilton-Wentworth).
-   Prosecutor independence: Crown prosecutors have to be independent when it comes to conducting
    criminal prosecutions (Krieger 2002 SCC (pg 255))
-   * But principle of prosecutorial independence only protects such prosecutorial decisions from review
    if they are good-faith prosecutorial decisions (Krieger).
         o Krieger went against professional ethical/legal obligations, and didn’t disclose materials to the
            defence, who has a constitutional right to full disclosure. SCC said this bad-faith prosecutorial
            decision could be investigated by Alberta Law Society (no protection from principle of
            prosecutorial independence).

       Tort Law: can’t sue prosecutors for negligent prosecution but can sue for malicious/bad-faith
       prosecution (i.e.: went against public interest). But high standard required to prove this bad-faith
       prosecution, so prosecution has more independence than police in tort law now.

-   But Justice Linden of the Ipperwash Inquiry (articulates same ideas as Justice O’Connor in the Arar
    Report) says it is misleading to say that Campbell and Krieger indicate police and prosecutor
    independence at large (Ryder agrees). Principle of police independence is restricted to investigatory
    acts (core of police independence is police operational responsibility), and principle of prosecutorial
    independence is restricted to prosecutorial acts. These principles of independence are crucial to the
    rule of law, but the principle of police/prosecutorial accountability to government is also crucial to the
    rule of law (government has to exercise ministerial policy responsibility for general
    policies/operations). Need accountability and free flow of information between police/prosecutor and
    other government branches and to the public too, so have to figure out the right balance. Having this
    problem now with RCMP and provincial police forces.

       o So in regards to aboriginal Dudley George being killed during the 1995 aboriginal protest, the
         Ipperwash inquiry due to some evidence that the executive, (premier and some cabinet
         ministers), directed OPP actions, found that the government acted in an improper way by
         directing police action with respect to a particular event (Ryder says government should not
         have done this).
              Police operations and policies generally have to be accountable to the government so
                 police can’t have independence on how to police aboriginal protests (with policing the
                 Caledonia Protests, the government has to help form a general approach to police
                 aboriginal protests) but cannot dictate police response to any particular event.
       o Hard to find the right balance though. Ipperwash doesn’t give us a clear line of when police
         independence stops and when police accountability to government begins. There are shades of
         grey.


Sources of Executive Power
- Roncarelli shows us the powerful principle in our government system that the executive has to find
   the source of its powers in statutes generally, or from common law Royal Prerogative powers (based
   on the Rule of Law).


1) Prerogative Powers (pg 258)
- Prerogative powers are decreasing because statutes made in the same area of law will trump the
    prerogative power. But some still exist: power to declare war, make military decisions, enter treaties,
    issue passports, and to confer honours (dealt with in Black v. Chretien) etc.
         o Common law prerogative powers are reviewable in court just like legislation is (it is not the
           source of power that determines whether court can review government decisions, but rather the
           nature of the decision). Court can review a decision (regardless of its source of power) if it
           goes against constitutional rights or an expectation that gives rise to rights - (Black v. Chretien
           2001 Ont CA (pg 252))
                Decision about whether to confer honours isn’t reviewable in court (doesn’t violate
                   rights or any legitimate expectation of rights). So court dismissed Black’s challenge
                   against Chretien’s refusal to confer honours so that he could be recommended to the
                   House of Lords. If decision violated constitutional rights or legitimate expectation of
                   rights, then Black might have been able to use a procedural rights argument) - Black v.
                   Chretien.

         o SCC confirmed that common law prerogative powers are reviewable in court (not the source of
           the decision that determines whether court can review it, but the nature of the decision) -
           (Operation Dismantle 1985 SCC (pg 373)). Here, court reviewed and concluded that military
           decision to test missiles in Canada did not violate s. 7 of the Charter as claimant argued.


2) Statutory Delegation (pg 258)
- Most of executive’s powers are delegated to them in statute by the legislature (can confer subordinate
    law/regulation-making powers to executive) (i.e.: independent administrative agencies don’t have any
    inherent powers, but legislative statute can give them powers – i.e.:Canadian Human Rights
    Commission). It is a legal requirement that legislature can make statutes that delegates can fill in with
    subordinate laws.

     -    Ordinarily parliament’s statutes prevail over executive’s regulations that are inconsistent with it,
          and regulations can’t overturn statutes unless Parliament expressly empowers the subordinate
          law maker to pass orders that can prevail over the statute, or due to emergency/war
          circumstances - (Re Gray 1918 SCC (pg 259)).
         o 1917 Military Services Act statute included express provision that cabinet could make changes
            pursuant to War Measures Act that would prevail over the statute (so Parliament anticipated
            the need for cabinet to pass orders pursuant to the War Measures Act that would alter the
            legislative exemption to conscription).
                 So can argue that there actually isn’t a conflict between the statute and the regulation
                    here.
         o Court also reads War Measures Act statute as empowering cabinet to make orders that could
            prevail over statutes due to extraordinary circumstances of war/emergency, even in the
            absence of this express provision.
                 Facts: Gray got statutory certificate of exemption pursuant to Military Services Act
                    statute, but cabinet order conscripting him prevailed.
                 In 1918, Borden Government needed more soldiers, and instead of going through
                    parliamentary process of amending the Military Service Act (would require 3 readings
                    in each house, some of which is open to the public, and GG royal assent), government
                    passed a cabinet order pursuant to the War Measures Act (cabinet orders happen
                    behind closed doors, PM defines consensus of decision = less democratic legitimacy) –
                 Government said it was a national emergency so had to use cabinet’s extraordinary
                    powers to change the law and conscript farmers who got statutory exemption in 1917
                    (Re Gray 1918 SCC (pg 259)).
-   Otherwise, court follows normal rule that regulations cannot counter legislation – (Canadian Wheat
    Board 2007 FCTD (pg S 36)).
       o Minority government here tried to make changes to legislation through cabinet because they
          did not control Parliament as a minority government (but court said they had to go through
          Parliamentary process to make any changes to the legislation) – (Canadian Wheat Board).


-   Another exception to the normal rule that legislation will trump inconsistent regulations: King Henry
    VIII Clause: Clause can be included in parliament’s statutes (that delegate subordinate law-making
    powers to delegates, like cabinet) which will allow regulations to be made to fill in the statute’s gaps
    and to prevail over the statute if inconsistent. – discussed in Ontario Public School Boards 1997 Ont
    Ct Gen Div. (pg S37) obiter.
-   Justice Campbell says the clause is constitutionally suspect, because it is arbitrary - executive doesn’t
    have to have a good reason to use it to override legislation, they can use it simply if they want to
    bypass the legislature while changing the law).
        o Justice Campbell in Ontario Public School Boards says the clause is constitutionally suspect
            because it is arbitrary. In our system, executive controls the legislature greatly, so it is the one
            making the laws and executive does not have to have a good reason to use it to override
            legislation (can add the clause as a backdoor to make legislative changes without going
            through the legislative process, which has more democratic legitimacy than going through
            cabinet.
        o We now have 10 King Henry 8th clauses in Ontario legislation, even though general sense over
            the years is that it should be avoided.
        o So what would the court say if in the future, King Henry Clause in a statute said its regulations
            could prevail over the statute, and the argument was raised that since the regulations conflict
            with the legislation, it should be of no force and effect, and if King Henry Clause allows this,
            then it too is unconstitutional?
                 Would be too much of a stretch to use principle of democracy as it was applied in the
                     Secession Reference, where it was used to say that on a clear vote on a clear question,
                     other provinces must negotiate in good faith.
                          Future court can say clause goes against democracy principle (important in our
                             constitution) if executive uses it just to bypass legislature. But unlikely that
                             courts will say clause is totally problematic, because it can be useful in some
                             situations to give executive power to override legislation (i.e.: in a situation like
                             in Re Gray, where there is an emergency).
                                  1. Most people are glad the Wars Measures Act has been repealed and
                                     replaced by Emergencies Act anyway. One of the good things about
                                     Emergencies Act is that it requires quick Parliamentary involvement
                                     (allows executive to take emergency actions, but executive still has to
                                     go to Parliament in doing so – so executive doesn’t have total control).
                 Court can reject argument that King Henry VIII clause goes against democracy
                     principle because the legislature itself, the primary law making body with democratic
                     legitimacy, passed the clause in a statute and is thus happy to be overridden by the
                     executive.
                          Counter argument to this: principle of democracy requires commitment to
                             certain democratic procedures (such as having the legislative process open to
                             public etc.) that even legislature cannot take away unless they have good reason
                             to do so.
                        BUT REMEMBER: Aurthorson etc. cases show that there are no legal
                         requirements regarding parliament’s procedures/procedural fairness though
                         (strong political conventions support legislative process, but it’s not a legal
                         requirement).
                 So Justice Campbell started an interesting debate, but courts haven’t addressed this
                  question yet.



       Questions from Ryder
       The Re Gray case, like the Canadian Wheat Board case, dealt with a conflict between a Cabinet
       order and a right conferred through a statutory procedure. How would you explain why the
       Cabinet order prevailed in Re Gray but not in Canadian Wheat Board? Do you think the majority
       in Re Gray might have reached a different result in a context other than the use of executive
       powers during a perceived national war emergency? (Chad Travis)

       What is a “King Henry VIII clause”? Why did Campbell J. consider a King Henry VIII clause to
       be “constitutionally suspect” in the Ontario Public School Bds case? Could the principle of
       democracy, as articulated in the Secession Reference, now be used to bolster the argument that
       King Henry VIII clauses are unconstitutional? (Anna Rolbin)



Nature and function of powers delegated to Executive (continued from “Statutory Delegation” –
under Executive Powers)

   -   1) Rule-making (delegated/subordinate legislation – most important aspect of delegated
       executive functions) (pgs 266-7):
   -   Legislature can delegate subordinate rule-making to executive (cabinet, individual ministers etc.)
           o But executive controls legislation in our government system anyway (especially in a
              majority government situation), and executive regulations, which already outweigh
              legislation in quantity are increasing. So there’s a danger that we are drifting into an all
              powerful executive situation, where the legislation is becoming less significant (so less
              royal prerogative powers due to legislation on those areas trumping them, not a big deal –
              in our system of government – see royal prerogative powers)

          o Reasons for growth of delegated law-making powers and democratic deficit (pgs 266-
            7)
                1) Benign or good practical reasons for this increase: legislature doesn’t have time
                  to enact laws with full details through the more cumbersome legislative process
                  (would be unrealistic with the volume of our society’s regulatory needs).
                2) But, troubling reason for this increase: Can be a reflection of the desire for the
                  consolidation and expansion of executive power. Some argue that this can result in
                  serious democratic deficit (Justice Campbell in Ontario Public Schools Board
                  draws on this in relation to the King Henry VIII Clause – see above).
                       Some ways to address this democratic deficit issue (can dress up
                          executive subordinate law making with democratic requirements etc):
                       1) Notice/Hearing requirement (most promising way to address
                          democratic deficit) where the executive body can only make legally binding
                              regulations, after it issues notice of it’s intentions to the public/gives public
                              the opportunity to make submissions at hearings, take different perspectives
                              of what the law should be into account etc., before passing the regulation.
                                  o This kind of hearing requirement is a good administrative practice
                                      that is increasingly becoming a popular legal requirement for
                                      delegated law making. But this won’t resolve democratic concerns
                                      (only interested people, not entire public, pay attention to them – but
                                      still better than nothing) - i.e.: Ontario Securities Act - a
                                      notice/hearing procedure must occur before a binding order,
                                      pursuant to the Act, is issued.
                             2) Parliamentary oversight to review passed regulations and ensure they
                              comply with the letter/spirit of the legislation (Canada has some oversight
                              committees, but Ryder says public doesn’t pay much attention to them =
                              don’t’ have much power in reality).
                             3) Judicial Review (not really democratic accountability, but it’s a form of
                              public scrutiny that can help) – i.e.: allows the regulation to be challenged/
                              can be argued that it is illegal/beyond jurisdictions of the acting body (a
                              Roncarelli/Rule of Law-like argument).

   -   2) Dispute resolution (pg 276)
           o Legislature can make independent administrative agencies, which include a tribunal that
              adjudicates disputes.

   -   3) Benefit or obligation determination (pg 277)
           o Legislature can also grant power to a body to make determinations about
              rights/obligations.

   -   4) Enforcement decisions (pg 278)


   Example of these delegated functions: Law Society of Upper Canada: if allegation of professional
   misconduct is brought to them, they have a screening committee that decides whether to authorize an
   investigation and require you to disclose records etc. (enforcement decision), has the power to
   forward the complaint to a tribunal/disciplinary committee (power to hold hearing/adjudicate), and
   the tribunal will decide whether the complaint is well founded (dispute resolution), and has power to
   make rules too.


Limits on the exercise of delegated authority

   -   Executive/Tribunal decisions usually not final due to Rule of Law as articulated in Roncarelli
       (statutes gives people right to 2 forms of scrutiny: appeal decision to court or right to judicial
       review):
           o Appeal to Court: Same as when trial decisions are appealed to appeal court: see if
               tribunal got the law right, and made a reasonable decision on the evidence that they had
               (usually won’t disturb findings of fact though).

          o Judicial Review: More complicated- doesn’t involve full reconsideration of the merits of
            the decision, but looks at procedural errors (duty to be fair), looks at substantive errors
            (ensures board was working within their jurisdiction and not acting patently unreasonable
            - so acting within the boundaries of the statutory grant, or else the decision will have been
            made without legal authority and thus be unlawful).
                 Judicial Review can be somewhat seemingly restrained depending on what is
                    written in the statute about the right to judicial review in the statute.
                 Statute can include a “privative clause” (i.e.: in Baker case), which can indicate
                    that the tribunal’s decision is final and thus not subject to judicial review (which
                    means no right to appeal either). Clause may be included to prevent the court from
                    meddling with the legislature’s choice to give this adjudicative function to an
                    expert body (a “keep out judges” red flag).
                         The privative clause can be drafted with varying degrees of impermeability.
                         But not always followed because judicial review of tribunal decisions by
                            superior courts is constitutionally necessary to ensure the rule of law, as
                            articulated in Roncarelli (independent administrative agencies are not
                            necessarily independent from the government/can be politically influenced,
                            so need independent/objective judicial oversight. So privative clauses do
                            not function literally, judicial review for these decisions will still ensure
                            patently unreasonable decisions aren’t being made, and that boards are
                            acting within their jurisdiction (so no substantive ultra vires), i.e.: ensure
                            Labour Board isn’t performing marriages. But privative clause means
                            judges give the tribunal more discretion in terms of how to interpret statutes
                            because they are experts in the area.
                         Privative clauses are common (most labour boards have these).
          o So Judicial review judges will be more deferential if the statute has a privative clause:
          o (Different Standards of Review to see whether there is substantive ultra-vires – see
            below):
                 More deferential = apply “Patent reasonableness” standard (lower review standard)
                    (court will only interfere if executive’s decision was a patently unreasonable
                    interpretation of the law – a.k.a. if the decision was outrageous).
                         i.e.: Court will use the lower review standard of patent reasonableness when
                            reviewing various Labour Boards’ decisions (both because most labour
                            boards are protected by privative clauses and because courts may not feel as
                            well-placed to make these decisions).
                 Less deferential = apply “Correctness standard” (will apply this high standard of
                    review if court feels the executive body does not have special expertise to make the
                    decisions delegated to them).
                         i.e.: Court will use higher review of correctness standard when reviewing
                            Human Rights Commission Tribunal Decisions because judges feel they
                            are just as well-placed to make decisions on these issues as the tribunal is.
                 Baker court used factors to determine where on the spectrum their review standard
                    should fall (see below).


1) Procedural errors (procedural ultra vires – about duty to be fair) “Ultra vires” means done outside
the boundaries of the statutory grant = without legal authority/unlawful (pg 279).
* s. 7 of Charter includes notions of procedural fairness/fundamental justice/due process.

   -   SCC shows that the common law notion of s. 7 procedural fairness includes: the right to a hearing
       before an independent decision-maker on the basis of the facts and the law, the right to be
       informed of the case against you, and the right to be heard (these were all articulated in Knight v.
       Indian Head School Division (see below), Baker v. Canada (see below), and Charkaoui v.
       Canada 2007.
           o S.C.C. in Charkaoui (pg S182 at para.29) ruled that a security certificate issued under the
               Immigration Act (indicating that a non-citizen is a security threat), violated s. 7 procedural
               fairness because of “secret” evidence the judge didn’t have, so the accused individuals
               (him and others) didn’t know the case against them and didn’t have opportunity to respond.
               So now, a bill before Parliament is seeking to address this procedural fairness problem by
               having a special advocate with access to this secret evidence who can make submissions
               regarding it.
   -   Sometimes statutes specify procedures to be followed, but common law procedural fairness can
       step in if there are gaps or if no procedures are specified – (Knight v. Indian Head School
       Division 1990 SCC (pg 288)) (see below) – Baker also looked at these common law procedural
       fairness rules.
           o Knight employed/fired at pleasure of school board (didn’t have adequate opportunity to
               know case against him and to make submissions). But statute was silent on whether he had
               procedural rights. But since school board is a public actor, he can make public law
               argument of procedural fairness obligations.
                     But would only be able to make argument for procedural rights/fairness based on
                        the employment contract and statute for a private law employer.
           o SCC ruled Knight had procedural fairness rights, but only at a very low level since he was
               employed at pleasure of employer = should’ve let him know why they were terminating
               him and let him respond, but that’s it. Court looked at what’s practical in the
               circumstances and looked at the statute as a whole etc. to determine what common law
               requires of the decision maker here.


2) Jurisdictional errors (substantive ultra vires – about scope of legal powers). “Ultra vires” means
done outside the boundaries of the statutory grant = without legal authority/unlawful (pg 279)

Baker case shows judicial review of procedural errors (if errors = procedural ultra vires) and
jurisdictional errors (if errors = substantive ultra vires).

Baker v. Canada 1999 SCC (pg 285) – good example of how to apply procedural fairness and
substantive judicial reviews of decision making (know about rules of procedural fairness and the different
standards of review, and the different factors that can push the court in either direction of high/low
standards).
    - Illegal in Canada but her kids are Canadian citizens, government wants to deport her so she brings
       application for humanitarian and compassionate exemption (that minister has the discretion to
       grant, but doesn’t have to), on the grounds that her deportation would negatively affect her 4
       children.
            o Note that executive powers must always be based in statute (Rule of Law), so if legislature
               delegates a decision making power to the executive, the executive cannot sub delegate it to
               a lower executive member unless the statute allows it to. This statute did, so it is fine that
               the minister delegated the decision to a lower member.


Result of Baker decision:
   - Minister’s denial of her request for exemption on humanitarian and compassionate grounds is of
       no force and effect due to 1) reasonable apprehension of bias (violated common law rules of
    procedural fairness = procedural ultra vires), and due to 2) minister’s interpretation of his own
    legal mandate being unreasonable and beyond jurisdiction (substantive ultra vires).
-   So Baker had the right to make a new “agency” application and have it heard by a different
    decision maker (who decided to let her remain in Canada with her kids).

1) Violation of the common law rules of procedural fairness (procedural ultra vires argument):
- If statute is silent on whether procedural fairness rules apply, common law can superimpose
   procedural fairness rules (Knight also showed this). Baker has procedural fairness rules of
   participatory rights (to hear case against her and to make written submissions regarding it), and to
   receive reasons for the decision. These were not violated (Baker wanted oral face-to-face hearing,
   but SCC said she only had procedural right to a meaningful opportunity to represent her case
   fairly, and her written hearing was enough for this). However, the reasons for the decision that
   were given to her, show reasonable apprehension of bias, which means that her procedural fairness
   right to have her decision made by an independent/impartial decision maker was violated =
   Procedural fairness ultra vires = decision to reject her request ruled to have no force and effect.
       o The notes were appalling and didn’t grapple with her claim regarding the negative
            consequences of her being deported on her children - just said that the case was a
            catastrophe, that Baker had mental illness etc., notes full of sexism, racism etc. = evidence
            of bias in notes.


-   Procedural fairness is a continuum, lowest level like what Knight got (right to be informed of case
    against you and to make some written submissions), and at the highest level, can have full judicial
    trial with all its protections – independent judge, lawyer representation, calling witnesses, oral
    submissions etc.
-   Baker court looked at 5 key factors to determine what level of procedural fairness on the
    continuum is required:
         o 1) Nature of the decision being made and the process followed to make it/How much
             it resembles a judicial or administrative decision. If case is more like an administrative
             decision (like Baker was) = lower level of procedural fairness required, or if a case is more
             like a judicial decision = higher level of procedural fairness required.
         o 2) Nature of Statutory Scheme and the terms of the statute which the body operates
             pursuant to. i.e.: if statute has an appeal right, then a lower standard of judicial review is
             required because it can be appealed to court later on anyway.
         o 3) The importance of the decision to the individual or the individuals affected.
         o 4) The legitimate expectations of the person challenging the decision.
                  i.e.: if in the past, the minister gave the opportunity to be heard, or held hearings on
                      this kind of decision, or one of the ministers told you would have this opportunity
                      etc., you would have a legitimate expectation of one yourself.
         o 5) Have to take into account and respect the choices of procedure made by the agency
             itself (especially when the statute allows the decision-maker to choose its own
             procedures and when the agency has expertise to determine appropriate procedures
             for the circumstances).
                  Agency itself is most familiar with the demands on its time/resources = can’t ignore
                      agency’s own choice of what’s practical.

-   5 factors led Baker court to conclude that low level of procedural fairness was required (no right
    to oral hearing, had opportunity to make submissions, knew case against her, right to reasons of
    decision also satisfied as she was given the notes made by subordinate official regarding the
    decision to reject her request).
       o So reasons for decision don’t have to be long/involved like judicial reasons, can be
         informally written/delivered.



2) Substantive review (substantive ultra vires argument): - Baker decision also ruled to be
   substantive ultra vires (did not make decision considering the best interest of the children).

-   (same as above notes explaining different Judicial Review standards) Judicial review judges will
    be more deferential if the statute has a privative clause (legislature’s clear signal that executive’s
    decision is final). But will still have judicial review, which is constitutionally required due to the
    rule of law.
-   More deferential = apply “Patent reasonableness” standard (lower review standard) (court will
    only interfere if executive’s decision was a patently unreasonable interpretation of the law – a.k.a.
    if the decision was outrageous).
         o i.e.: Court will use lower review standard of patent reasonableness when reviewing various
            Labour Boards’ decisions (both because most labour boards are protected by privative
            clauses and because courts may not feel as well-placed to make these decisions).
-   Less deferential = apply “Correctness standard” (will apply this high standard of review if court
    feels the executive body does not have special expertise to make the decisions delegated to them).
         o i.e.: Court will use higher review of correctness standard when reviewing Human Rights
            Tribunal Decisions because judges feel they are just as well-placed to make decisions on
            these issues as the tribunal is.

-   Judicial review will range from Correctness Standard (highest standard) to the Patent
    Reasonableness Standard (lowest standard). Baker court used factors to determine where on the
    spectrum their review standard should fall (page 298):
       o 1) Tribunal Degree of expertise (significant factor to look at) – i.e.: will usually be more
            deferential to Labour Board decisions than Humans Rights Tribunal decisions.

       o 2) The nature of the decision:
              i) What kind of decision is being made - more like judicial decision that deals
                with the rights of a particular individual based on specific facts/fact based
                adjudication, that doesn’t usually have huge policy implications = court more likely
                to intervene/less deferential/higher standard of review OR more like polycentric
                decision that impacts wide policy concerns, is more political, and affects many
                different individuals = court less likely to intervene/more deferential/lower standard
                of review, since it’s not in the court’s area of expertise.
                     i.e.: for Ontario Municipal Board decisions – deciding whether someone
                        can build something on a plot of land seems like a judicial decision, but it is
                        also a polycentric since it affects land use policy decisions, and impacts the
                        city and every one in the community. So have to see which one it is more
                        like.
                            o Baker decision was fact-specific/individual = not as deferential as
                                “patent unreasonableness”/higher standard of review/more likely to
                                intervene.
                            o But Baker decision was also a discretionary political decision
                                (asking to be exempted from the Act at the Minister’s discretion) =
                                lower standard of review/more deferential.
              and ii) the interest at stake:
                         Higher interest at stake = higher standard or review/more likely to intervene
                          and vice versa.
                             o Baker decision had significant interest at stake (may have negative
                                 impact on her kids etc.) So SCC says need something more than a
                                 minimum review.

       o 3) Language of the provision/what’s in the legislation (here, the decision is an exception
         = lower standard of review, but no privative clause = higher judicial review is available).

       o 4) Who the decision maker was (here it is the Minister = give considerable deference/less
         likely to intervene)

       o 5) Process taken to make the decision

-   Different factors point to different directions = middle of spectrum, something more than
    minimum Patent Reasonableness Standard level review but less than the highest Correctness
    Standard level review, so SCC chose “Reasonableness” standard. But Minister’s decision did
    not meet this standard because it didn’t consider the “best interests of the children.”
        o L’Heureux-Dube J. looks at three things to support the idea that the Minister should have
           looked at the “best interests of the children”
                 1) The objective of the act - includes reuniting families (if this is Parliament’s
                   objective, then have to keep family together).
                 2) International Law (the treaty: Convention of the Rights of Child) – ratified
                   (so binding at international law), but not implemented (so not binding at domestic
                   law) – but Convention places importance on protecting children etc. so we should
                   consider this.
                 3) Ministerial Guidelines – ministers are supposed to consider humanitarian
                   values like looking at hardships on the person and their family members.
                        Guidelines are not law themselves (statute does not give them binding
                           force). But can be used by courts to see if minister used reasonable
                           discretion.
                                o i.e.: Human Rights Act gives Human Rights Commission the
                                    power to make guidelines that are legally binding on tribunals (but
                                    not in this case).

       o Statute does not say that minister has to give significant weight to best interest of kids,
         when assessing an applicant under s. 114(2) (“best of sea …” issues), but it obvious that it
         should be one of the considerations due to common sense and the above 3 reasons.

-   Other judges (like Iacobucci J) did not like how L’Heureux-Dube J. used the unimplemented
    Convention of the Rights of Child to support idea that minister should look at best interest of the
    child:
        o Gave argument against her decision based on principle of democracy (treaty making and
           ratification is an executive responsibility, so allowing an unimplemented treaty, which
           means Parliament has not passed legislation to implement it, is allowing the executive to
           make laws through the treaty process. This is inappropriate in our parliamentary system.
        o BUT Ryder says what L’Heureux-Dube J. did was fine (just like other courts/judges, she
           used other sources to interpret legislation, she was not using it to override legislation).
           And in some sense, executive is more accountable to the people than scholars etc that
               courts use to interpret legislation. So fine to use international law to interpret our
               legislation.
                    NOTE L’Heureux-Dube J. also used international law to interpret municipal
                       powers in the Spraytech case. Sending messages that these treaties can be given
                       some weight. BUT other judges are against using unimplemented
                       treaties/international customary law to do this.


Does the decision in Baker mean that visitors who remain in Canada illegally for years, and have children
during their stay, will always be able to successfully fight deportation orders on humanitarian and
compassionate grounds?
- NO: this was a reasonableness standard of review, not a correctness standard. SCC simply saying that
the decision has to be made in an impartial way and the decision maker has to give significant weight to
the best interests of the kids (if the decision maker does this, he/she can still decide to deport the
individual if, for instance, the important interest to protect the Immigration and Refugee Act¸ from such
violations as what Baker committed outweigh interests of the kids). Courts usually will not overturn the
exercise of ministerial discretion pursuant to the Act like this (the reasonable standard applied is not hard
to meet – Baker was an extreme case where the Minister did not meet it).

NOTE: s. 6 of Charter gives all Canadian citizens right to remain in Canada. So Canadian government
cannot deport Canadian citizens.



               Friday, October 26th, 10:40-12:30, room 107: The executive – pp.265-7, 276-9,
               279-304, 296-302, S40-2 - the nature and function of delegated powers - limits on the
               exercise of delegated authority - controlling jurisdiction: substantive ultra vires – duty of
               fairness (procedural ultra vires) – Knight v. Indian Head School Division 1990 SCC (282)
               – Baker v. Canada 1999 SCC (285, re procedural fairness; 297 re reasonableness of
               exercise of discretion; S40 re relevance of unimplemented treaties to statutory
               interpretation)

               Procedural fairness in Baker (285): what factors did L’Heureux-Dubé J. consider in
               determining the content of the duty of procedural fairness in H&C decisions? How did she
               define the content of the duty of fairness in this context? Was an oral hearing necessary?
               Were the participatory rights of Ms Baker and her children violated? Was the duty to
               provide reasons violated? On what basis did Justice L’Heureux-Dubé conclude that a
               reasonable apprehension of bias existed? (Fiona Giffen)

               Substantive review of the exercise of the Minister’s discretion in Baker (297): what factors
               led L’Heureux-Dubé J. to adopt “reasonableness” as the standard of judicial review of the
               Minister’s decision? why would a more deferential standard of judicial review (such as
               “patent unreasonableness”) or a less deferential standard (such as “correctness”) be
               inappropriate in this context? on what basis did L’Heureux-Dubé J. conclude that the
               Minister’s decision was not reasonable? what sources did she rely on in her analysis?
               (Stephanie Jeronimo)
               On what basis did Iacobucci J. object to L’Heureux-Dubé J.’s use of international law in
               Baker? Do you agree with Iacobucci J. that L’Heureux-Dubé J.’s approach runs counter to
               democratic principles? (David Levine)

               What was the result of the Baker decision? Did the Court’s ruling give Mavis Baker a right
               to remain in Canada? Does the decision in Baker mean that visitors who remain in Canada
               illegally for years, and have children during their stay, will always be able to successfully
               fight deportation orders on humanitarian and compassionate grounds?




3) Judiciary - Interprets/applies laws (pg 123) Judges have guaranteed jurisdiction to enforce legal limits
on the powers of the other branches of government (see judicial review directly above)
           o ss.96-101 of 1867 Constitution contain provisions on Judicature:
                    s. 96 – Federal executive has to appoint justices for the country’s superior, county,
                       and district courts SO superior courts often referred to as “s. 96 courts”.
                    s. 92(14) - Provinces have authority over the “administration of justice” to establish
                       Provincial Civil and Criminal Courts, including the procedure in Civil matters in
                       these courts.
                    s. 101.
                            Parliament can create courts for the “better administration of the laws of
                               Canada” (a.k.a. laws passed by Parliament itself) = Parliament made the
                               Federal Court of Canada and the Federal Court of Appeal under the Federal
                               Courts Act. These courts only have statutory jurisdiction and power.
                            ALSO gives Parliament power to make general court of appeal for Canada
                               = made Supreme Court of Canada under the Supreme Court Act – also only
                               has statutory jurisdiction and power.


4 levels of courts) Which level of government is responsible for creation and organization?
    - Provincial courts: (a.k.a. “inferior courts”/ “provincial and territorial inferior courts”) - hear most
        criminal matters, a lot of family matters, and small civil matters - i.e.: Small Claims Court.
    - Created by provincial legislatures.
            o s.92 (14) of 1867 Constitution gives provinces jurisdiction over the administration of
               justice in the province (can pass legislation to make courts and administrative bodies that
               have jurisdiction over certain disputes).

   -   Superior courts: (also provincial and territorial superior courts) a.k.a. s. 96 courts – where most
       significant civil litigation and most serious crimes end up. (i.e.: Ontario Superior Court of
       Justice)
   -   Created, maintained, and organized by provinces.
           o Also administered by provinces according to s.92 (14) of 1867 Constitution gives
               provinces jurisdiction over administration of justice pursuant to s. 96 (“GG shall appoint
               the Judges of the Superior, District, and County Courts, in each province, except those of
               the Courts of Probate in Nova Scotia and New Brunswick.”). Note that District and
               County Courts do not exist anymore.
                    So superior courts are a hybrid of Federal (responsible for judge appointments and
                       salaries) and Provincial involvement (makes, creates and maintains them)).
          o Not made by statute, already existed in confederating provinces (follows British
            Constitution tradition that gives them inherent/general jurisdiction over all disputes in the
            province, except now some matters have been taken away and transferred to other bodies
            by statute) – but legislature has to have good reasons to do this.

   -   Federal courts a.k.a. s 101 courts (i.e.: Federal Court of Canada)
   -   Created and organized by Federal government pursuant to s. 101 (creatures of ordinary statutes) –
       but executive alone cannot repeal them (need parliament too)
           o Look at Federal Court Act for federal court’s jurisdiction. Deals with federal law areas
              (immigration, pensions, Maritime law, patents, tax courts for tax issues, military courts for
              military issues etc.)
           o s. 101 of 1867 Constitution gave parliament power to create federal courts for the better
              administration of the laws of Canada (a.k.a. the laws passed by federal parliament). Even
              though superior courts had inherent/general jurisdiction, confederation fathers thought
              specialized courts might be needed to deal with federal areas of law. So Parliament created
              the Exchequer Court in 1975 (which is the precursor to today’s Federal Court of
              Canada).
           o Judges appointed by federal government.

   -   SCC – created and organized by Federal government (creature of ordinary statute).
         o s. 101 of 1867 Constitution also gave parliament power to pass statute to create General
             Court of Appeal for Canada. 1867 Privy Council was the final court of appeal, but
             confederation fathers made Canada’s own court of appeal/SCC in 1875 with the Supreme
             Court Act.


       So the source of constitutional authority for federal government to create Federal courts and SCC
       is s 101 of 1867 Constitution Act (does not mention Federal, SCC, or specialized federal courts,
       like military or tax courts, but all made with s. 101).


Who pays/appoints etc. the judges?

       Info from Ryder: The federal executive does not set the pay of SCC, Federal Court or other
       federally-appointed judges: Parliament sets their salaries after receiving advice from a JCC in
       accordance with the Provincial Judges Reference. The salaries of SCC, Federal Court judges,
       other federally-appointed judges and superior court judge are all set out in the Judges Act. See:
       http://www.canlii.org///ca/sta/j-1/sec9.html

       The result of the Provincial Judges Reference is to interpose an independent JCC between the
       legislature and the judiciary when it comes to setting the judges' salaries.

       In response to the SCC's opinion in the Provincial Judges Reference, Parliament amended the
       Judges Act to put in effect a new process for setting salaries involving a Judicial Compensation
       and Benefits Commission. See, again, the Judges Act: http://www.canlii.org///ca/sta/j-
       1/sec26.html

       The process followed in the most recent setting of the salaries of federal judges is described at:
       http://www.justice.gc.ca/en/dept/pub/jcbc/p1.html
       See also the legislative summary (and other information available on Legisinfo) on Bill C-17
       (passed in the last session of Parliament) that amended the judicial salaries set by the Judges Act:
       http://www.parl.gc.ca/39/1/parlbus/chambus/house/bills/summaries/c17-e.pdf

       So sum-up of 4 levels of judges and courts.
       Provincial Judges and Courts - created, maintained, selected, and paid by Provincial Legislature.

       Superior Judges and Courts - Covered under ss. 96, 99-100 of the 1867 Constitution (Federal
       executive/GG appoints superior court judges pursuant to s. 96 of 1867 Constitution on the advice
       of the PM, even though s.92(14) of 1867 Constitution gives the provincial legislature jurisdiction
       to create and maintain these courts. Pursuant to s. 100 of the 1867 Act, the Federal Parliament
       pays these judges (s. 99 allows GG to remove these judges, but only on address of the Senate and
       House of Commons, which
       means the legislature has the power to remove these judges rather than the executive). – salary set
       out Judges Act.

       Federal Judges and Courts - Federal executive/GG appoints these judges pursuant to the
       Federal Court Act (or Tax Court Act etc., depending on which federal court it is), on the advice of
       federal cabinet. These courts are created by the Federal Parliament pursuant to s. 101 of the 1867
       Constitution. Parliament sets their salaries after receiving advice from JCC’s pursuant to
       Provincial Judges Reference

       SCC Judges and Court - The Federal executive/GG appoints these judges pursuant to the
       Supreme Court Act on advice of federal cabinet. But this court was created by the Federal
       Parliament pursuant to s. 101 of the 1867Constitution. Parliament sets their salaries after
       receiving advice from JCC’s pursuant to Provincial Judges Reference

       * The salaries of SCC, Federal Court judges, other federally-appointed judges and superior court
       judge are all set out in the Judges Act. See: http://www.canlii.org///ca/sta/j-1/sec9.html

   -   Provincial courts- provincial government
   -   Superior courts – Parliament pursuant to s. 100 of 1867 Constitution. (but s. 96 says they are
       appointed by federal executive).
   -   Federal courts- Parliament sets their salaries after receiving advice from JCC’s pursuant to
       Provincial Judges Reference SCC – Parliament sets their salaries after receiving advice from
       JCC’s pursuant to Provincial Judges Reference



Legal source and scope of jurisdiction
   - Provincial courts - jurisdiction determined by their statutes (i.e.: Small Claims Act tells you what
       Small Claims courts have jurisdiction over). Varies between provinces.

   -   Superior courts – have general/inherent jurisdiction over all provincial matters except what has
       been taken from them through statutes.

   -   Federal courts - jurisdiction listed in Federal Court Act (have exclusive jurisdiction over some
       federal law matters, but have concurrent jurisdiction with Superior Courts over some other
       matters).
   -   SCC - General court of appeal has jurisdiction over appeals on all matters of Canadian law (set
       out in Supreme Court Act).
           o Can control own docket (generally have to seek leave to appeal for SCC/no right to
               appeal). Supreme Court act says that SCC can decide whether to grant leave to appeal
               depending on whether the questions raised are ones of national importance. Just saying
               that the lower court decision was wrong won’t persuade SCC to grant leave: have to raise
               arguments that other appeal courts and other jurisdictions took a different approach so need
               uniformity in Canada on the issue, or that the issues are so important because they affect
               many people etc.
                    There are only a few circumstances where there is an automatic right to appeal to
                       SCC: When court of appeal overturns an acquittal and enters a conviction in
                       criminal case, or if court of appeal has dissent on how law should be interpreted in
                       a criminal law case.
           o But SCC cannot fully control its own docket: Supreme Court Act provides that SCC has
               an obligation to answer legal questions referred to them by the Federal government
               through the reference procedure. If they are legal questions, but are also political hot
               potatoes, they still have an obligation to answer them.
                    BUT SCC can refuse to answer reference questions due to: i) common reason is
                       that the question is political and not legal (only obligated to answer legal
                       questions), ii) the question is too vague so that SCC can’t provide a clear answer
                       iii) SCC thinks it won’t matter what they say so don’t bother giving an answer –
                       i.e.: SCC didn’t answer Federal government’s reference question of whether then-
                       current marriage definition violated the Charter’s equality rights, because they said
                       the government already passed a bill to make same-sex marriage lawful, so no
                       point for SCC to answer it.
                    So ultimately SCC decides if question is legal or not, or if they will answer it, but
                       they have to be careful in how they sidestep legal obligation to answer legal
                       reference questions cause it can call their legitimacy into question (see glossary
                       “reference” for more) – relates to judicial legitimacy just like constitutional
                       interpretation etc. does


Jurisdiction constitutionally guaranteed? (look at judicial independence constitutional guarantee for
more) – also look at unwritten principles of judicial independence and rule of law etc.
   - Provincial courts- no.

   -   Superior courts - constitutionally protected due to mentioned and entrenched in ss. 96-100
       “Judicature” sections of 1867 Constitution (section VII)
          o s. 96 says superior courts judges are appointed by federal executive.
          o ss. 97-98 look at superior court judge selection/appointment.
          o Security of superior courts:
                  s. 99 – provides tenure security for superior court judges: judges appointed to life,
                     only GG can remove them for seriously violating appropriate judicial conduct –
                     extraordinary process to remove judges – involves joint address of House of
                     Commons and Senate: senators and MP’s have to get together and approve removal
                     of a judge. No superior court judge has been removed through this.
                  s. 100 – provides financial security for superior court judges. Salaries are
                     determined by parliament (more public/open process), so the executive cannot
                     manipulate salaries to reward/punish judges for their decisions.
       o SO since superior courts and superior court judge independence is explicitly
         constitutionally guaranteed, government cannot turn these courts into empty shells by
         taking away their jurisdiction.
       o So superior court jurisdiction isn’t absolutely guaranteed but government has to have a
         very good reason for taking away their matters and transferring them to other bodies. So
         when the provincial legislature or federal parliament pass statutes that subtracts from
         superior courts’ jurisdiction, have to ask 3 things:
              i) Is the matter something superior courts have adjudicated historically? ii) If so, is
                 the matter one that is resolved through a judicial process? iii) If so, looking at the
                 institutional context as a whole, can we say that the subject matter has been
                 transformed in a significant way that justifies giving a part of superior court
                 jurisdiction to another body?
                      i.e.: Employment matters/Union rights etc. were under superior court
                          jurisdiction before, but mid-20th Century courts showed that they were
                          biased in class terms, insensitive to labour issues, and didn’t manage
                          industrial conflicts well (same reason why Human Rights Commission was
                          made – courts insensitive to the issue). So strong need to move this subject
                          matter to a specialized expert tribunal body that had powers similar to
                          judicial powers (like adjudication of disputes), and powers dissimilar to
                          judicial powers (could order investigations etc.). So courts looked at
                          whether provinces could take this matter away from superior court
                          jurisdiction and give it to tribunals: i) Is labour law something superior
                          courts have dealt with historically? – yes ii) are these judicial disputes? –
                          yes iii) is institutional context of how labour board operates different from
                          how courts operate? yes – so court said ok, provinces had a good reason for
                          taking this matter away from superior court jurisdiction and putting it into a
                          different institutional context = courts have upheld jurisdiction of labour
                          boards, other independent administrative agencies, and other specialized
                          courts with this process.
       o * Judicature provisions don’t expressly say anything about superior court jurisdiction, but
         these courts have used them in a self-serving manner to limit when the legislature can
         subtract from their jurisdiction – can only do it for a very good reason. So legislature
         cannot lightly take jurisdiction away from constitutionally protected superior courts (but
         federal courts don’t have this, and SCC is being debated – Hogg debate regarding SCC
         mention in Amending Procedures – see notes).

-   Federal courts - no: they are creatures of federal statutes made pursuant to s. 101 (no doubt that
    Parliament can legally decide to abolish them as they are not explicitly mentioned in 1867
    Constitution). Can send either jurisdiction that is exclusive to federal courts or shared with
    superior courts back to superior courts of the provinces who have inherent jurisdiction
-   SCC – SCC is creature of federal statute/not in 1867 Constitution just like Federal Courts. But,
    SCC does appear in 1982 Constitution Act in the Amending Procedures (refer to SCC
    composition in s. 41, and SCC issues other than composition in s. 42). NOTE that s. 42 matters
    can only be amended with s. 38(1) (the extraordinary 7/50, really the 7/90 procedure). So this
    suggests that SCC composition matters can only be amended through s. 41 “unanimity
    procedure” and that any other SCC matter, other than composition, can only be amended through
    s. 38(1).
        o But SCC constitutional status is not clear: Some say that it being mentioned in the
            amending procedures was meant to entrench SCC in Constitution. Others, like Hogg
            (Ryder agrees with him), say these amendment procedures on SCC will only be of force
              and effect when provisions relating to SCC are added to the Constitution (until then SCC
              only exists by virtue of federal statute, which can be repealed/amended in any way at any
              time – and will therefore exist only as long as Parliament continues to let it exist).
              Parliament could pass a statute to abolish the Supreme Court Act - would be wildly
              politically controversial to abolish SCC (SCC not legally secured against this, but
              ultimately SCC would have final word on whether such a statute would be constitutional or
              not) – just like superior courts can decide whether legislation that gives some of their
              jurisdiction to executive tribunals is valid (see above for 3 things to ask)
                   SCC could argue that drafters mentioned SCC in 1982 Constitutional Amending
                      Procedures to entrench is constitutionally and put it beyond reach of ordinary
                      Parliament majority tampering with it.

       NOTE: Oddity of our constitution: lower superior courts have constitutionally protected status (ss.
       96-100 “Judicature” sections of the 1867 Constitution act deal with/entrench superior courts in
       the Constitution).
               And Aboriginal governments - there has been significant evolution from a federal state
               based on two levels of government to one including this third level (changing mostly
               through treaties between the federal/provincial governments and the aboriginal nations).
               When these treaties are concluded, Aboriginal governments will be protected (provinces
               are changing too, but seems like Aboriginal governments have more equality to provinces
               and federal government than municipalities and territories) – this is not in Constitution
               though (this government level still exists due to statute like municipalities and territories).
       NOTE: if wanted to constitutionally entrench SCC, this would be under s. 42 (other SCC matters,
       other than composition), so it would have to follow s. 38(1) – 7/50, (7/90) procedure.




Who Appoints the Judges? (see above and below for more detail)
  - Provincial courts – Provincial executive branch (provincial cabinet)
  - Superior courts- Federal executive: GG appoints pursuant to s. 96 of 1867 Constitution on the
     advice of federal cabinet (which means PM) (even though s.92(14) of 1867 Constitution gives
     provinces jurisdiction over administration of justice).
        o So superior courts are a hybrid of Federal (responsible for judge appointments and salaries
            – Parliament pays them pursuant to s. 100 of 1867 Act) and Provincial involvement
            (makes, creates and maintains them)).
  - Federal courts – Federal executive: GG appoints pursuant to the Federal Court Act (or Tax
     Court Act etc., depending on which federal court it is), on advice of federal cabinet.
  - SCC- Federal executive: GG appoints pursuant to the Supreme Court Act on advice of federal
     cabinet.

       * Federal courts and SCC not mentioned in Constitution (federal executives’ (GG) power to
       appoint federal judges set out in Federal Court Act, and power to appoint SCC judges set out in
       Supreme Court Act). Parliament pays Superior, Federal, and SCC judges after receiving advice
       from JCC pursuant to the Provincial Judges Reference – salaries are listed in Judges Act (which
       was amended after Provincial Judges Reference to include new process for setting salaries to
       include the Judicial Compensation and Benefits Commission).

Judicial Appointments - important issue/obvious corollary of rule of law is that decisions about
law/dispute adjudication has to be done through an impartial/independent body. So important that judicial
appointment is insulated from partisan/political influences as much as possible. Judges should be
appointed due to merit/having judicial characteristics like being fair, independent, open-minded,
committed to law and the Constitution etc.
   - Judicial Appointment Processes have been heavily tainted by partisan influence – only recently
       moving away from this. Canadian situation now: provincial/inferior court judicial appointment
       process is more merit based than the superior and federal courts and SCC. But good improvement
       with SCC especially due to recent Justice Rothstein appointment (another oddity, but not really a
       Constitutional oddity).
   - Won’t be able to make judicial appointment process that removes all political considerations, but
       have to make process that insulates judicial appointment from partisan influence as much as
       possible.

Different Judicial Appointment Process models (not exclusive list/some are combined etc.):

   -   1) Pure executive appointment - We had this for many years due to the British tradition of pure
       executive appointment (behind closed doors, most open to partisan influence). So we have a long
       history of strong partisan influence. Fortunately, 1960’s reform moved us away from this.

   -   2) Confirmation hearings (US federal appointments) - Past U.S. problem of king
       appointing/dismissing judges at his whim was one of the grievances in the Declaration of
       Independence. So the current Federal U.S. judge appointments are done by the executive but only
       at the advice of the senate, who holds confirmation hearings before the judicial committee – so
       there is a legislative body that represents the people involved in the process. No elections here
       (see below at end of “different models” section)

   -   3) Advisory committees (Canadian federal appointments) - One way to control pure executive
       appointment is to have advisory committees (we have these in Canadian federal courts), who
       screen applications and advise executive (but executive can still legally do whatever they want,
       but hard politically to ignore advisory committee’s advice).
           o Can include public interviews of candidates (public or private) – listed below as no.5.

   -   4) Nominating committees (Canadian provincial appointments) - Screen candidates/make
       recommendations like advising committees, but executives have to choose a candidate from a
       short list provided by the nominating committee = stronger constraint on executive power (but
       executive having to bind itself to this list can still be voluntary or legally required, depending on
       the model adopted). – so as mentioned above, Canadian provincial appointments are more
       insulated than Canadian federal appointments (odd that lower court judicial appointments are more
       insulated from political influence that higher courts).
           o Can include (5) public interviews of candidates (public or private).

   -   5) Public interviews of candidates (South African Constitutional Court appointments) - Can
       be part of pure executive appointment, nominating, or advisory committees (models listed above).
       These interviews can be public or private. Inferior court judges are interviewed privately, but
       strong argument for public interviews for upper courts due to their huge law making responsibility
       (they interpret the Constitution and have final say on common law/statute interpretation (minus
       s.33 notwithstanding clause) (notwithstanding clause is a power that may be invoked by
       Parliament or any of the provincial legislatures). Public interviews used in South African
       Constitutional Court Appointments and used last year for SCC appointment of Justice Rothstein
       (was successful = likely that SCC will continue to have public interviews – see below for process
       used for Rothstein).
-   6) Direct elections (partisan or non-partisan) - In a democracy where judges have significant
    law making power (as they have to interpret the vague “supreme” constitution) in addition to
    adjudicating disputes, the populous cannot easily escape the consequences of their decisions since
    the Constitution can only be changed through extraordinary amending procedures or through use
    of the “notwithstanding clause”. So arguments made that judges should be elected.
        o This was an influential argument in U.S. in 19th Century. Note that U.S. states can adopt
            whatever judge appointment process they want – Georgia in 1812 first adopted direct
            elections (persuaded by populous/anti-elite opposed to judges who favoured the elite). So
            by the Civil war, 22/34 states had some form of direct election – remains the case for about
            30 states (can be partisan or not – state can chose to allow judge to run under party
            affiliations or not, so lawyers will then campaign against each other). * Direct elections
            (especially direct partisan elections) are bizarre according to the rule of law, because this
            means that judges can be politically influenced. Have to campaign/raise funds.
        o Strong populous support for direct elections in the mid-19th Century, but lots of criticism
            regarding it in the mid-20th Century. To repeal direct elections, have to change the
            Constitution (which requires a referendum or Constitutional reform), but most states that
            have tried to do this have been opposed by the populous who wants to hang on to right to
            vote for judges = persistence of direct elections even though most academics say it is
            questionable for the rule of law/judicial independence (retention elections below not as bad
            as direct elections) – so question of democracy vs. rule of law.

-   7) Retention elections: - Less troubling than direct elections (common in about 12 states). A.k.a.
    “Missouri Plan” in U.S. due to first being adopted by Missouri in 1940. Strong populous support
    for direct elections in the mid-19th Century, but lots of criticism regarding it in the mid-20th
    Century. To repeal direct elections, have to change the Constitution (which requires a referendum
    or Constitutional reform), but most states that have tried to do this have been opposed by populous
    who want to hang on to right to vote for judges = persistence of direct elections even though most
    academics say it is questionable for the rule of law/judicial independence. – so question of
    democracy vs. rule of law.
        o Retention elections aren’t so bad due to appointed through merit based processed
            (executive appointment based on nominating committee short list). Nominating committee
            screens/recommends applicants to Governor of State, who choose from their short list.
            Then after 1-2 years, when the appointee has a record, they stand for an election “Do you
            think Judge “X” should continue on the bench?” (need majority vote to stay on bench). If
            voted to stay, they won’t have to go through another vote for about 12 years.
                 But strong arguments against retention elections still: i) makes judge appointments
                     like a popularity contest (but still better than direct elections cause judges don’t
                     have to campaign/raise funds – they’re not up against other judges when they face
                     retention election). But they can campaign/raise funds if they want to though. ii)
                     low public voting/awareness = most judges are approved anyway. But some judges
                     are controversial (i.e.: one who wants to avoid imposing the death penalty can
                     result in populous revolting and not confirming judge in retention election if the
                     populous wants the death penalty = vacancy, and process will start all over again).

    NOTE: there are no judicial elections for U.S. Federal court (framers of U.S. Constitution thought
    it was important to move away from pure executive appointment where judges hold their position
    at the executive’s whim, so federal level judicial independence secured by president and senate
    having to agree on appointments, and judicial appointments are secured for life). But elections are
    common-place for most U.S. state courts (and about ½ of these are partisan elections).
Appointment of Provincial Court Judges in Canada (pg 314, S44) – nominating committees (see
directly above definition of procedures for more)
    - More than 1,000 judges
    - Canadian judges are selected by executive from a short list provided by an independent
        nominating committee. But varies in many provinces as set out in statutes.
    - Ontario appointment process is seen as best practice internationally (adopted in late 1980’s –
        established the independent Judicial Appointment Advisory Committee JAAC). JAAC was
        created by s. 43 of the Ontario Judges Act (S45). Process on pg 314-315 – see book for more
        detail on values they want etc. – different from federal and superior court appointment committees
        that do not have a statutory footing (see below).
            o JAAC: 13 members, most of whom are lay people (not legal professionals), so committee
                made of 2 judges, 3 lawyers, 1 member of the judicial council, and 7 lay persons chosen by
                Attorney-General. The 6 legal professionals are chosen by professional associations.
                     JAAC encourages applications especially from underrepresented constituencies due
                       to their mandate to promote diversity of the judiciary to reflect the population.
                     Have written criteria of assessment on their website:
                       (http://www.ontariocourts.on.ca/judicial_appointments/index.htm)
                     Mostly take applications and vet them according to their criteria of merit (see pg
                       314-315 in book for these – “Community Awareness” and “Demographics’ etc.)
                     Hold interviews with leading candidates and present a short list to AG of at least 2
                       names per vacancy.
                     Key element: is s. 43(11) of the Ontario Judges Act – AG (executive) legally has
                       to choose a candidate recommended by the independent JAAC (but s. 43(12)
                       provides that AG can ask JAAC to make new list if they want) = still good to
                       insulate process against partisan influence. Most AG’s haven’t asked for new lists,
                       but happened a few times with Harris government in mid-1990’s, when the
                       executive at the time wanted more “law and order” judges.

   -   Ontario process seen as a model, but how can it be changed to make it even better?
         o Instead of AG (executive) choosing the 7 lay people, Parliament could do it (has a more
             open process – see 1st reading etc. for more). Legislative members are elected and
             represent the populous (also good if opposition parties could choose some JAAC members
             too so that the committee would represent the populous even more).
         o No public hearing/interview process for Ontario (and other provincial, and
             inferior/provincial courts). But these lower courts have such a modest law making impact
             (compared to SCC) that it would be overkill to insist on this.

                      Tuesday, October 30th, 10:40-11:30, room 102: The Judiciary – pp.303-
                      311 - the Structure of the Canadian Court System – constitutional framework –
                      provincial courts – superior (s.96) courts – federal (s.101) courts – the Supreme
                      Court of Canada

                      For each of the provincial courts, the superior courts, the federal courts and the
                      Supreme Court of Canada, describe (citing any relevant statutory or constitutional
                      provisions):
                         i)      the legal source of their jurisdiction;
                          ii)     which level of government is responsible for their creation and
                                  organization;
                          iii)    the scope of their jurisdiction;
                          iv)     whether their existence or their jurisdiction is constitutionally
                                  guaranteed;
                          v)      who appoints the judges of the courts; and
                          vi)     who pays the judges’ salaries.

                      Friday, November 2nd, 10:40-12:30, room 107: Judicial Appointments –
                      pp.311-330, S43-52 – range of models (311) - provincial judicial appointment
                      process (314, S) – federal judicial appointment process (316) - recent changes to
                      the federal judicial appointment process (S43) – Supreme Court of Canada
                      appointment process (326) - recent changes to the SCC appointment process (S47)

                      Describe the process by which Ontario provincial court judges are appointed. Is this
                      judicial appointment process adequately insulated from partisan political
                      influences? How could it be improved?

                      Describe the process by which superior court and Federal Court judges are
                      appointed. Is this judicial appointment process adequately insulated from partisan
                      political influences? How could it be improved?

                      Describe the process by which the most recent Supreme Court of Canada judge was
                      appointed. Is this judicial appointment process adequately insulated from partisan
                      political influences? How could it be improved?



Appointment of Superior Court AND Federal Court Judges (pgs 316-326, S43-46) (Advisory
committees – see above. Done by federal executive).
   - Superior court judges (approximately 950) appointed by the GG pursuant to s.96 of the
      Constitution Act 1867
   - Federal court judges (approximately 50) appointed by GG pursuant to s.5.2 of the Federal
      Courts Act

   -   Superior and Federal court judges appointed by federal executives (The Minister of Justice
       appoints them on the advice of different judicial advisory committees (JAC) across the country –
       Ontario and Quebec have 3-4 each for instance).
   -   Each JAC now has 8 members (4 chosen by the Minister of Justice, 4 chosen by Chief of justice
       or an independent body) (318; S43):
           o Nominee of the provincial or territorial law society
           o Nominee of the provincial or territorial branch of the Canadian Bar Association
           o A Judge nominated by the Chief Justice or the senior judge of the province or territory –
               will only vote if there is a tie (but since there are 7 other voters, usually won’t be at tie
               unless someone is absent). So judge usually doesn’t vote.
           o Nominee of the provincial AG or territorial Minister of Justice
           o 3 nominees of the Federal Minister of Justice
           o Police representative (a new addition)
   -   JAC’s are different from Ontario JAAC:
         o JAC doesn’t have statutory/constitutional footing like Ontario JAAC does (constitution
             and statutes silent on this federal/superior court judge appointment process).
         o Not as proactive in seeking out candidates (JAC just waits for applications to come in,
             screens them like JAAC, but doesn’t do interviews like JAAC, so it only has a paper
             evaluation process).
         o JAC’s written criteria are now publicly available (similar criteria to JAAC).
         o JAC makes recommendations to the Minister of Justice based on all the lawyer
             applications they get (whereas Ontario JAAC just puts forward a short list for the AG to
             choose from).
                  JAC just stamps recommended or not recommended and the Minister of Justice can
                     choose from the entire pool.
                  The Minister of Justice (like Justice Rock did) can choose to commit to selecting
                     candidates that are only highly recommended or recommended but is under no
                     legal requirement to do this. But the Minister choosing from a huge pool of
                     candidates means more opportunity for partisan influences (not narrowed down to a
                     short list by an independent committee that the Minister has to choose from) (this is
                     bad when we want merit based process).
                  Scholars see that an inordinate number of federal judicial appointees have ties to
                     the governing party – Schmitz’s survey reveals that 60% of 93 lawyers who
                     received federal judicial appointments in Ontario, Alberta, and Saskatchewan since
                     2000 actually donated money to the governing liberal party before being appointed.
         o There is thus an argument that Ottawa is abusing federal judicial appointment and is
             simply appointing their supporters. But this has always been a process used for partisan
             purposes (see above for when process was highly influenced by political fray/that it has
             gotten better) the Conservative government is just continuing this and changed the process
             to make it more open to partisan influence.

Improvements in the federal process?
   - Everyone agrees that this process is an embarrassment, but hard to convince federal government to
      relinquish its control over the federal judicial appointment process. Ryder says federal process
      should adopt Ontario process (not perfect and can be improved itself, but a good model) (list out
      Ontario process in answer).
   - Need to have a committee that is truly independent so most members should not be appointed by
      executive, should have broad representation, should be grounded in statute, should look at what
      particular characteristics etc. are needed for a good judge instead of what political party they
      support.


Appointment of SCC Judges (pgs 326-330, S47-52) Appointed by the Governor in Council (which
means PM – see above for what “Governor in council” means) pursuant to s.4(2) of the Supreme Court
Act.
Constitution and statutes silent on the appointments process (just like federal and superior judicial
appointment process).
   - Right now, Supreme Court Act says SCC judges will be appointed by GG on advice of cabinet (so
       it’s really PM who decides – combination of the PM and Minister of Justice who control the
       process).
   - Process followed for Rothstein appointment in 2005-6 (S48): short list provided by advisory
       committee, nominee chosen by PM and Minister of Justice, hearing before Parliamentary
       committee to interview nominee prior to appointment.
       o General parliamentary satisfaction with how well the Rothstein appointment went, but
            general sense that the SCC judicial appointment process is still a work in progress. No
            imminent retirements now, so no sense of urgency regarding this yet (next scheduled
            retirement in 2012).
       o One thing is for sure though – SCC Judicial Appointment Process will continue to be open
            and not behind closed doors – good for judicial independence (and democracy too).
-   How Rothstein appointment process began: Former Justice Minister Irwin Cotler made a good
    contribution to improving the SCC and other courts’ judicial appointments process by opening it
    up. He started an individual advisory committee with the Rothstein appointment (the committee
    had to prepare a short list and submit it to the Minister of Justice).
       o Fortunately, when this liberal minority government was defeated in the House of
            Commons, and the Conservatives were elected, and there was an SCC vacancy, they
            followed the process that was already put in motion by the previous government. They
            took the shortlist provided and included a hearing before a parliamentary committee. SO
            these 2 federal governments made 2 ad hoc committees (liberals made advisory committee
            to give short list to Minister of Justice and conservatives made an ad hoc parliamentary
            committee to conduct a hearing/interview of the nominee chosen from the short list by the
            PM).
       o Hearing committee was only made of MPs (drawn from all the parties of the House of
            Commons). February 2006, Rothstein appeared before the committee (televised hearing),
            where the MPs were invited to ask him questions. Peter Hogg presided over the hearing
            and spoke to MPs before the hearing to address what inappropriate/appropriate questions
            were.
                  Questions about specific legal or political controversies inappropriate – judge has
                    to keep open-mind/cannot pre-judge on issues, has to decide based on facts of each
                    particular situation (shown in Patriation Reference dissent – that judges shouldn’t
                    answer political questions – brings their judicial independence into question).

-   Government very happy about this process, and legal commentator worries that this public
    interview process would make the process like a partisan circus like it sometimes does for the U.S.
    senate were overblown. Public interview was not a threat to the independence of the
    judiciary/judicial independence.

Improvements in the SCC appointments process?
- Entire Rothstein process was ad hoc, invented as they went along, but Ryder says it worked well.
      o Committee just gave advice to PM, so PM still has control. But process still improves
         accountability (due to more open process).
      o Good to have advisory committee, good that advisory committee made short list that PM
         had to draw a name from (constrains executive discretion) and good that nominee had to
         appear before committee in public (so we all have opportunity to learn about the
         nominee/look at their qualifications/whether they have good “judge” characteristics etc.).
              But, Rothstein screening committee was controlled by Minister of Justice, and
                 interviewing/hearing committee was made only of MP’s and their powers were not
                 clear. So need more independent committees with clearer powers.
                      Committee should not be a parliamentary advisory committee made only of
                         MPs (or else maybe only party supporters would be nominated = there
                         would be political influence). Should be independent committee with some
                         parliamentary representation (elected MP’s are in a good position to express
                         public concerns about judiciary) and this parliamentary representation
                         should reflect all House of Commons parties, but parliamentary
                              representation should only make up minority of the committee. Should be
                              made mostly of independent members (nominated by Bar Association etc.).
                             And should have provincial politician representation too since federal and
                              SCC court decisions affect provinces too – good for federalism
                             And should have significant number of lay people to represent diverse
                              population too – good for protection of minorities (but maybe not people
                              with extensive criminal records etc.).
                             And Supreme Court Act says need 3 judges from Quebec, and there is a
                              convention that requires a certain number of judges from other jurisdictions
                              too, so if there is a Quebec vacancy for example, there should be members
                              from Quebec on the screening and interviewing committee.
                             And, in the future, look at whether the interviewing committee should have
                              a veto so PM doesn’t control the process (either way though, if committee
                              were to tell PM that the nominee was not suitable to be appointed as an
                              SCC judge for life, PM would face serious political costs in overriding their
                              advice – but may want to make this a legal requirement in the future).

           o Everyone agrees that this was educative for the public (to hear judge’s life/thoughts) and it
             demystified the judicial appointment process = one powerful reason why we should
             continue it – good for democracy and judicial independence.
           o SCC judicial appointment studies show things are more open now/Rothstein process seen
             publicly as good, could still improve but not dire situation/no urgency. But we’ve made a
             lot of progress (largely due to pressure from public and legal scholars), and we have to
             continue to make progress as a matter of principle (even if it’s not urgent – no good to wait
             until it’s urgent to make last minute changes/progress etc.)


Can make an argument that this Provincial Judges Reference reasoning applies to the judicial
appointment process too: - we need judicial independence (tenure, financial, administrative and need
independence for judicial appointment process as a necessary corollary of the Rule of Law) – see Rule of
Law.
    - Provincial Judges Reference: Judicial independence is a necessary corollary of the rule of law.
       So have to depoliticize the relationship between the judiciary and the other two branches of
       government as much as possible.
    - The British had 1701 Act of Settlement which took executive’s power to set judicial salaries and
       to remove judges away, and gave this power to the legislature/parliament (so the process would be
       more open). We followed this Act of Settlement and it was important in our 1867 Constitution
       Act (1701 Act of Settlement essentially reproduced in our 1867 Constitution Judicature ss. 96,
       99-100).
           o But the court in 1997 Provincial Judges Reference SCC said this is still not good enough.
              Legislature could still use these powers for political manipulation/could pass legislation
              that sets judicial salaries and remove judges in a way that is politically manipulative
              (executive normally controls parliament on our system anyway, especially if we have a
              majority government). So SCC said need intermediate/independent/objective intermediary
              between the other two levels of government and the judiciary = made JCC’s (there is a
              constitutional requirement for this SCC says since judicial independence is a constitutional
              guarantee)
   -   *Can argue that judicial appointment process also affects judicial independence (so should insulate
       judiciary from partisan influences as much as possible too). So we should not allow executive
       control over judicial appointment process either. Should take the power from executive and give it
       to legislation (like the 1701 Act of Settlement that we followed for judicial salaries/tenure). And
       then we can try to argue that like Provincial Judges Reference, that this is still not enough (and
       say that judicial appointment process should be filtered through independent bodies too). Can
       argue that judicial independence is not just a crucial constitutional guarantee that applies after
       judges are appointed (tenure/salary security) but should also apply before they are appointed in the
       appointment process.
           o Argument to broaden our idea of judicial independence to include judicial appointment
               process too (may be presented to court one day/might be persuasive argument).
                     Now there are 3 elements of judicial independence: i) Security of tenure ii)
                        Financial security iii) Administrative independence.
           o Can back argument up with evidence of partisan influence in judicial appointment process
               (like 60% of federal appointees made donations to party in power etc.), that this interferes
               with judicial independence. – see judicial independence (constitutional principles) for
               more.


   -   Executive will try to hang onto the powers to control SCC judicial appointment process, but if the
       Ontario model influences the superior and federal judicial appointment processes, it may get to a
       point where executive solely controlling SCC judicial appointment process would look anomalous
       both internationally and within Canada (this would be an embarrassment – just like gap between
       ratified and implemented international laws is an embarrassment). Peter H. Russell says Canada is
       still one of the only democracies that leaves the judicial appointment process of a top court/SCC
       solely in the hands of the executive (PM) in a legally unconstrained way (cite lecture). No good,
       especially due to SCC’s important law making powers. But it is changing, even though it’s slow
       and out of sync with the other top courts of the world (have to change things as a matter of
       principle continually.

* See judicial independence (unwritten constitutional principles) for more.

                      Tuesday, November 6th, 10:40-11:30, room 102: No new readings. We
                      will discuss the appointment process for justices of the Supreme Court of Canada
                      and for other federally-appointed judges.

                      Describe the process by which superior court and Federal Court judges are
                      appointed. Is this judicial appointment process adequately insulated from partisan
                      political influences? How could it be improved?

                      Describe the process by which Justice Rothstein was appointed to the Supreme
                      Court of Canada. Is this judicial appointment process adequately insulated from
                      partisan political influences? The federal government has indicated that the process
                      followed for Justice Rothstein’s appointment is a work in progress. What changes
                      would you recommend? In an ideal world, would you maintain or change the
                      current law (s.4(2) of the Supreme Court Act) that provides for executive
                      appointment of Supreme Court judges? Assuming the GG (on the advice of the PM
                      and cabinet) continues to have the legal power of appointment, should an
                      independent nominating committee continue to compile a short list of candidates?
                       If so, how should such a committee be composed and who should select its
                       members? Should the PM be obliged to nominate or appoint a candidate from that
                       list? Should there be a public interview component to the appointment process? If
                       so, who should be on the interviewing committee, and what powers should the
                       interviewing committee have? Should the PM commit to recommending for
                       appointment only those candidates who have been approved by the interviewing
                       committee after a public interview? Should the appointments process be placed on
                       a legislative or a constitutional footing?


Pre-Charter Examples of Debates About the Respective Roles of Courts and Legislatures in
Developing the Law Relating to Human Rights
Rights, legislatures and courts
   - Have to look at the legitimacy of law-making by the judiciary
            o Prominent theme in debates about judicial decision making is what the appropriate division
                of responsibility between courts and legislatures is (i.e.: for issues such as protecting and
                recognizing minority rights). i.e.: for cases below, debate about the appropriate division of
                responsibility when developing rules about property in relation to issues such as racially
                restrictive covenants. Should judges have an important role to play like the majority ruling
                in Drummond did, or would this be considered an illegitimate use of judicial power (like
                Noble majority said it was)? Look at respective roles of executive, legislature and
                judiciary in development, interpretation and application of the law.
   - Implications of separation of powers for common law reasoning (Drummond and Noble look
       at this), statutory interpretation and its implication on common law (Bhadauria looks at this),
       and constitutional interpretation (Edwards – the “persons” case looks at this).
            o How we think about the appropriate division of responsibility between government
                branches when interpreting and making law changes from context to context (weight of
                such considerations as protection of minority rights or following the democracy principle
                are different when looking at different types of law).
   - Relationships between common law, statutes, the constitution and public policy
            o What do we mean by “policy”? Cases below show that sometimes “policy” refers to
                values, sometimes refers to “objectives” (especially “legislative objectives”), and
                sometimes people use it to speak more broadly about public good like MacKay J., and
                Schroeder J., in Drummond and Nobel. Either way, Ryder says law is hugely connected to
                policy.
            o Drummond and Noble look at what is meant by “policy”. While this word is used in much
                case law and conversations, while some people say they are different, Ryder says law and
                policy are hugely interconnected.
   - What do we mean by “judicial activism”?
            o Commonly used to refer to judicial decision making that is illegitimate (that judges are
                making too much law without a clear enough mandate from the people, which is
                inconsistent with democracy. This is used especially regarding judicial decision making
                when interpreting the Charter).
            o This criticism is also directed at judges when interpreting common law (like Drummond
                majority court was criticized).
            o What is considered judicial activism changes though – Drummond decision at the time
                was controversial. In hindsight we say it was progressive and it was the Noble decision
                that was reactionary, and that we ought to be proud of the progress that occurred in
                Drummond. But also have to look at the methodology the judges used to make these
                decisions (in terms of how they viewed the appropriate division of responsibility between
              courts and legislature when it comes to law reform), and have to realize that back then, the
              appropriate division of responsibility between the government branches were different than
              it is now.

Controversial exercises of judicial power: pre-Charter illustrations
Re Drummond Wren 1945 Ont H Ct (4) and Re Noble and Wolf 1948 Ont H Ct (8)
   - Validity of racially restrictive covenants: are they void at common law on public policy grounds?
   - What use did Mackay J. make of public policy in Drummond Wren?
   - What sources did he rely on to identify public policy?
   - What use did Schroeder J. make of public policy in Re Noble and Wolf?
   - What reasons did he give for disagreeing with Mackay J.?
   - What is the law in Ontario now on the validity of racially restrictive covenants?

   -   Re Drummond Wren 1945 Ont H Ct (4) – shows vigorous judicial advancement of the law.
          o Employee association wanted to raffle off residential property, but there was a racially
             restrictive covenant relating to the property that said it could not be sold to Jewish people
             and other people of (what was referred to as) objectionable nationalities. Majority
             invalidated the covenant. No neighbours etc. contested the courts’ decision, everyone was
             content with it and the house was raffled off.
          o s. 1 of the Racial Discrimination Act (limited piece of legislation passed in 1944 by
             Ontario legislature) prohibited public signs announcing an intent to discriminate on narrow
             grounds of basic race or creed (such signs were allowed before this act) = first baby step to
             establish such statutory prohibition against discrimination in the province. Then in early
             1960’s, template was put in place for today’s Ontario Human Rights Code that prohibits
             things like discrimination in employment etc.
                  The debate here was whether the racially restrictive covenant attached to a deed of
                      land (on paper) is the same as a public sign showing intent to discriminate.
                      Majority said it doesn’t matter, and instead used a method of using the policy
                      underlying the act, to say that the covenant could be held void on public policy
                      grounds (in doing MacKay J. was building a common law rule). Mackay J. also
                      used international law developments as evidence of changing norms, drew on
                      statements of world leaders, and used the Racial Discrimination Act as evidence of
                      new policy against discrimination to hold the covenant invalid = added to the body
                      of common law through a creative methodology (used a range of sources – while it
                      was already common to refer to statutes as a source of policy, it was relatively
                      unusual at the time to refer to international documents to develop common law – it
                      is more common now though, but still relatively rare – controversial like using
                      unwritten principles and living tree metaphor to interpret Constitution).
          o Was MacKay J.’s use of these sources to develop common law legitimate? Were all
             the sources reliable?
                  Court was motivated by events at the end of the war: it was horrified by the full
                      disclosure of the holocaust and tried to latch on to a normative commitment that
                      was growing internationally to try to take legal steps to prevent this from happening
                      again. But critics ask who gave MacKay the right to say what the norm is. Indeed
                      MacKay’s method was out of sync with what judges did at that time. He was
                      working within a conservative judicial tradition that was both hierarchical and
                      cautious (where courts followed whatever the House of Lords and Privy Council
                      said). So critics say MacKay should not have taken anything more than a small
                      incremental step in developing the common law: critics said it should be
                      legislature’s role to make bigger advancements in the law, not the judiciary.
                Criticism also that the court jumped the gun (Ontario government enacted the
                 Racial Discrimination Act as a limited measure to prohibit only public signs of
                 discrimination, and if government wanted to go further, they would’ve done so
                 instead of only enacting a limited act – so it may be inappropriate for judiciary to
                 use common law to take the next steps to broaden the act that legislature expressly
                 limited)
                      Ryder agrees that his relying on statements of world leaders was and still is
                          controversial. But drawing on underlying policy of Racial Discrimination
                          Act, and drawing on conventions that Canada had signed to point to changes
                          in normative shifts in legal and political commitments is sound
                          methodology.
                      On the other hand, argument can be that legislature has the primary law
                          making responsibility, and that if judiciary has a law making role, it should
                          be constrained as the primary judiciary responsibility is adjudicating
                          disputes (especially when legislature itself limited the statute).
                              o Can also argue that this would be a significant change that would
                                  impact the social landscape so it should be fully debated through the
                                  legislative process (problem with common law decisions is that it
                                  can change legal decisions retroactively: once courts discover a law,
                                  there is the notion that it has always been there, and things even
                                  from 10 years before that discovery will change, whereas statutes
                                  are prospective unless its text expressly says it is retroactive).
                      Also, here there was a mix of evolving public norms used to influence the
                          interpretation of private law, which may be controversial as well.
       o Drummond helped to inspire Shelley v. Kraemer in 1948, which also dealt with the issue
         of a racially restrictive covenant (prohibited sale of property to certain races). Here, SCC
         relied on Drummond and various other arguments to rule the covenant invalid. However,
         Kraemer was a constitutional decision, while Drummond was only a common law
         decision. Common law is judge made law at the bottom of the hierarchy of laws
         (legislature can overturn it at anytime), whereas constitutional decisions would likely have
         to be changed through constitutional amendment procedures.
       o MacKay J.’s decision represents the beginning of a new paradigm on these issues – it’s
         inspiring how he talks about Canada as being committed to protecting minorities – start of
         a new vision that we are still trying to accomplish (protection of minorities).

-   Re Noble and Wolf 1948 Ont H Ct (8) – shows judicial restraint.
       o But here, summer cottage development has racially restrictive covenant (prohibited land
          from being sold/transferred to certain races). Purchaser applied to have covenant rendered
          invalid, but neighbours made submission to uphold the covenant, which the majority here
          found convincing. Majority upheld the covenant.
       o Schroeder J. said MacKay J. in Drummond improperly found and used public policy as a
          source for his decision to invalidate the covenant in that case. Schroeder J. said judges
          should be restrained when using public policy. Criticizes MacKay J.’s methodology and
          finds his decision non-persuasive (which he is allowed to do as they are on equal levels of
          the judicial hierarchy).
               Schroeder J. thus said there is no common law rule prohibiting racially restrictive
                  covenants on public policy grounds and that such a change should be left to the
                  legislature.
               Disagrees with MacKay J. in 2 ways:
                         1) Different understanding of the judicial role: sees a more restrained role of
                          the judiciary – says judicial role should be strongly limited by precedent.
                          He also says that at most judges should take incremental steps in forming
                          common law (shouldn’t take sharp breaks from the past like MacKay did).
                          He is speaking from within in conservative judicial philosophy, which was
                          dominant in Canada until such things as the Charter changed this. Said
                          MacKay used public policy in the wrong manner. Said MacKay showed
                          illegitimate use of judicial power.
                         2) Disagrees with MacKay in a normative sense – MacKay believed
                          equality to own property should trump freedom of association (can
                          associate with whoever you want), Schroeder J., says in a close knit
                          residential community like the one at issue, it shouldn’t.
                              o NOTE: now with Charter, public norms of equality may weigh more
                                   heavily than freedom of association.

         o Defence of Schroeder J.’s point of view that rule prohibiting racially restrictive
             covenants should be left to the legislature: legislature did look at this issue afterwards
             with a full legislative process and came up with s. 22 of the Conveyancing and Law of
             Property Act (legislature came up with a compromise and said new racially restrictive
             covenants are not allowed, but those that already exist may remain).
                  Can either see this as legislation being able to protect minority rights (judges
                     don’t have to step in to try and do it), or see it as a half-assed move by
                     legislature which shows why we need stronger judicial position in law making
                     to act for such issues as the benefit and protection of the minorities. And can
                     argue that the legislature cannot look at all issues, so before judges like
                     Schroeder simply say that certain issues should be left to the legislature, have to
                     think about whether legislature will be able to look at the issue and whether
                     they really are better able to deal with it etc.
       o Regardless of whether we have vigorous judicial approach to advancing common law or
         judicial restraint, there will always be a partnership between judiciary and legislature, and
         executive does a lot of law making too.

-   Current law on racially restrictive covenants:
      o It was a big issue in late 1940’s, and 1950 it was the focus of legislative attention. Now
          have s. 22 of the Constitution that basically reads more or less same as s. 22 of the
          Conveyancing and Law of Property Act (not much change).
      o But Constitution only attaches to government actors anyway, and racially restrictive
          covenants are provisions of private contracts = hard to use Constitution to attack them,
          especially since our freedom of association is very important.
               But can use the Human Rights Code (prohibits discrimination in housing, so can
                  use this for property that has a house on it, discrimination in employment, in access
                  to contracts, so can argue that this is like a contract, and discrimination to public
                  services, which is anything open to the public, so can argue that public services
                  includes property). So Human Rights Codes would attach somewhere. And
                  Human Rights Code provision says if there is a conflict between this statute and
                  any other, the Human Rights Code statute will prevail. So Human Rights Code is
                  a formally a normal statute, but has a special place between Constitutional and
                  statute status, which is why court refers to is as “quasi-constitutional”
                   Can also use Charter to say racially restrictive covenants are illegal (if it is set for
                    government/public actor).
                  And, what MacKay J. did in Drummond would no longer be controversial today
                    (except to put a lot of weight on the statements of world leaders, or to put a lot of
                    weigh on inchoate/unratified international agreements – done in Spraytech and
                    Baker – but controversial). But ok now for sure to use general approach of looking
                    at fundamental norms evolving in international sphere and among nations, and
                    using the basic normative commitments under our legal system as a source of law
                    to develop the common law.
                  Now, when judges simply say that something should be left to the legislature, we
                    see this as a lack of self-evaluation and critical awareness (simply that they are
                    saying they don’t have to get into any profound public policy debate when they say
                    this) – or could be that legislative process is more open (see legislative process).
          o i.e.: Canada Trust v. Ontario Human Rights 1990 – Ontario Court of Appeal used Charter
            and Human Rights Code to say that racist provisions in the Leonard scholarship had to be
            removed. So method in Drummond of relying on fundamental constitutional principle of
            protection of minorities and commitment to overcoming discrimination as a way to
            advance common law is not so controversial anymore (even though MacKay doesn’t
            explicitly say he is drawing on this as an unwritten constitutional principle, this is what he
            did).

Edwards v. Canada 1930 PC (13) (the “Persons Case) – foundational case in the method court used to
interpret Constitution.
    - Whether women were “persons” eligible for appointment to the Senate pursuant to s.24 of the CA,
        1867
    - What principles of interpretation did Lord Sankey rely on? – privy council
    - What weight did he accord to social context? social policy?

          o Case about whether women could be appointed to the senate in the late 1920’s. Again,
            have to look at method court used to make the decision.
          o Court interpreted 1867 Constitution as a living tree (pg 15 –most quoted passage in
            Constitutional Law) – object of 1867 Constitution was to grant constitution to Canada. Sir
            Robert Borden says it is subject to development through usage and convention. Court says
            there is a living tree notion, and the Constitution must be given a large and liberal
            interpretation. Court said these principles allow changing social and legal values to be
            taken into account when reading the Constitutional text.
          o SCC said women could not be appointed to the Senate or recommended to GG to be
            appointed to the senate because “persons” when the Constitution was drafted meant “men”
            (so if Constitution is to be interpreted in accordance with the framers of the Constitution,
            “persons” means “men” - in the 1860’s women did not have political citizenship and the
            fathers of confederation drafted the Constitution to hold the political culture together).
          o But Privy Council here allows appeal. Interpreting the constitution within its historical
            understanding is good for principle of democracy (that judges are empowered by what
            people intended to give them the power to decide). If we take Constitutional interpretation
            away from historical understanding (which is what Edwards did), and make it into a living
            tree, since the text has few words that are ambiguous and vague, critics may wonder where
            the source of interpretation can come from (this creates a lot of uncertainty, and can bring
            judicial legitimacy into question). i.e.: words like “freedom” not defined in Constitution,
            so then critics can say judges may not be neutral/relying on valid sources etc. to interpret
            these words.
                     But once we have this living tree notion, can bring in policy arguments about
                      underlying values that guide the constitution and look at more sources to interpret
                      the test (look at advances in common law, changes in social understanding etc.) –
                      not limited to interpretation thinking only about what the framers of the
                      Constitution wanted.

   -   So Privy Council ruling consolidated move towards women’s equal citizenship in our
       Constitutional jurisprudence and established a principle of dynamic interpretation of the
       constitution (a.k.a. progressive interpretation), embodied in the living tree metaphor (constitution
       is a living tree and can grow and adapt to changing social conditions).
            o So interpretation of the Constitutional text not tied to historical understanding (what the
                text meant when it was drafted/adopted by our elected representatives).
            o This method of interpretation still applies – used to interpret Charter (1982 Act), and 1867
                Act.
   -   Different from other Constitutions where historical meanings of the text are given more weight
       (i.e.: big debate in U.S. about how much history should be determinative of Constitutional
       interpretation).
   -   Privy Council’s methodology was radical, but has allowed for many more recent
       changes/progressive (just like decision in Drummond has been):
   -   Big significance of the living tree principle is that it removes some of the pressure that would
       otherwise exist from the amending procedures – living tree metaphor allows judges to change the
       meaning of the Constitution over time = can respond to changing social value and conditions
       without having to always turn to evoke the amending procedures:
            o i.e: adjusted meaning of constitutional text: “persons”, “unemployment insurance”
                (unemployment insurance power given to Parliament in 1940 and Quebec argued that in
                1940 it did not mean Parliament could include maternity and paternal benefits,
                unemployment meant losing jobs involuntarily, but court said constitution is a living tree =
                “unemployment” meaning could change over time to include these things), and also
                changed definition for “marriage”.
   -   Seems obvious that this sparse document that is supposed to last for generations that is difficult to
       amend should be seen as a living tree – part of the Rule of Law too then (just like adjudication is).
   -   But raises issue of judicial legitimacy – idea that the courts are defining new social conditions etc.



Bhadauria v. Seneca College Ont CA 1979 (38, 73) and SCC 1981 (41, 75)
   - Whether B could bring a common law action in superior court based on the tort of discrimination
   - On what basis did Wilson J. find that public policy favoured the recognition of a tort of
     discrimination?
   - On what basis did Laskin CJC disagree?
   - Do you think the courts might now overrule Bhadauria and recognize a common law tort of
     discrimination?

   -   Not a Constitutional case, but raises issues about common law, statute and constitution.
   -   25 years ago, disagreement between Wilson of lower court and Laskin of SCC (even though
       Laskin was involved in racially restrictive covenants etc., and struggled for equal rights, and
       human rights, and legal prohibitions against discrimination, he said Wilson was wrong in saying
       there is a common law tort of discrimination).
-   Bhadauria didn’t want to file discrimination complaint with Human Rights Commission (maybe
    didn’t trust them to handle it, or because people lose control over their cases when they go through
    the Human Rights Commission process) so wanted to go directly to court.
        o Pre-Charter, maybe if case happened now and Seneca (who discrimination claim was
            against) might be part of government = subject to Charter (could challenge based on s. 15
            of Charter).
        o No common law tort of discrimination, so Bhadauria goes to court to say it’s time to
            recognize one because common law is judge made law and should evolve just like
            Constitutional interpretation under the living tree metaphor.
                 Wilson relies on Drummond partly and accepts Bhadauria’s argument that
                    common law should change and reflect the changes in social values and cites the
                    preamble to the Human Rights Codes (which says equality and non-discrimination
                    are fundamental principles in Ontario) = Wilson agrees that it should be recognized
                    in tort so people can either go to court or file discrimination complaints with
                    Human Rights Commission.
        o SCC disagrees, Laskin said Wilson was wrong – have to look at Noble case too, not just
            one part of common law (says this even though he was against the decision in Noble).
                 Says Human Rights Code statute suggests a legislative preference to have
                    discrimination claims managed by Human Rights Commission (expert
                    administrative body), so bringing claim directly to court would undermine this
                    preference and would undermine the development of the Human Rights
                    Commission – relates to idea about judicial and legislative division of
                    responsibility (see directly above).
                 May have different decision now, due to Charter, and because the Human Rights
                    Commission is having problems with dealing effectively with complaints, they are
                    understaffed/under funded etc. (and Canadian courts can deal with these issues
                    much better, after having ¼ of a century of experience in dealing with the Charter –
                    so initially given to Human Rights Commission cause courts were insensitive to
                    these issues etc (see above), but not the case anymore).
                Tuesday, November 20th, 10:40-11:30, room 102: Rights, Legislatures and
                Courts – pre-Charter examples – pp.4-11, 13-16, 38-43, 73-76 – Re Drummond Wren
                1945 Ont HC (4) – Re Noble and Wolf 1948 Ont HC (8) – Edwards v. AG Canada
                1930 PC (13) – Bhadauria v. Board of Governors of Seneca College 1979 Ont CA (38,
                73), 1981 SCC (41, 75)

               Judicial Review: Pre-Charter Examples of Debates About the Respective Roles of
               Courts and Legislatures in Developing the Law Relating to Human Rights

               What sources did Mackay J. rely upon in concluding that the restrictive covenant at
               issue in Re Drummond Wren was contrary to public policy and therefore of no legal
               effect? Do you agree that public policy should influence the development of the
               common law? Is the judiciary well-placed to make determinations of public policy?
               (Treasa O’Loghlin)

               On what basis did Schroeder J. conclude that public policy could not be relied upon to
               invalidate the restrictive covenant in Re Noble and Wolf? Does he rely upon public
               policy in affirming the validity of the restrictive covenant? Is it possible for judges to
               make decisions without considering public policy? (Matthew Way)
                   In Edwards, on what basis did Lord Sankey conclude that women were “persons”
                   eligible for appointment to the Senate pursuant to s.24 of the BNA Act, 1867? What
                   legal sources and principles of interpretation did he rely on? Did he undertake a
                   consideration of social context or social policy? (Claudia Schmeing)

                   In Bhadauria at the Ontario Court of Appeal (38, 73), why did Wilson J.A. conclude
                   that public policy in Ontario favoured the recognition of a common law tort of
                   discrimination? What lessons did she draw from the legislature’s passage of the
                   Ontario Human Rights Code? Does it make sense to give people a choice of seeking a
                   remedy before an administrative body (the Human Rights Commission and Tribunal)
                   or a court (pursuant to the common law)?

                   On what basis did Laskin CJC (41, 75) disagree with Wilson J.’s conclusion in
                   Bhadauria? What lessons did he draw from the passage of the Ontario Human Rights
                   Code? Does it make sense to require persons to file a claim with the Human Rights
                   Commission, and deny them the choice of a common law action, when they are
                   seeking to challenge private discrimination?

                   The Bhadauria case arose prior to the coming into force of the Charter of Rights and
                   Freedoms. Do you think the issue would be decided differently now, after the coming
                   into force of the Charter?



Separation of Powers Doctrine in Canada (page 113)
   - Is there a separation of powers between the legislative and executive branches of government
      in Canada?
   - NO - We have a parliamentary supremacy system, so the legislative and executive branches are
      fused even though they have separate functions (not strong separation like in U.S.):
          o Executive is subordinate to Legislative branch – apart from Royal Prerogative power, all
              executive legal authority must be found in a legislative statute (i.e.: prime minister/premier
              only has powers given to it by legislature – Roncarelli)
          o Executive members are drawn from the legislature and need legislature confidence to
              govern (This is constitutional convention that executive members also have to be
              legislature members – so mostly only House of Common members are appointed to
              executive, but if they aren’t already House of Commons members, they have to become
              one soon).
          o BUT executive also controls legislative agenda.
          o Government in Wells tried to defend wrongful dismissal with “doctrine of frustration”.
              SCC rejected this as disingenuous because court recognized that legislature and executive
              branches are fused in our system (executive usually controls the legislature), so
              government could not claim that they had nothing to do with the job cut - Wells 1999 SCC
              (pg 192)

   -   Is there a separation of powers between the judiciary and the other two branches of
       government?
   -   YES - Need judicial independence due to constitutional supremacy (rule of law)
           o Judges are appointed by legislative/executive branches but are not drawn from them.
           o Still have to work on judicial independence though (lots of ways where it is imperfect in
              protecting judicial independence) – i.e.: judicial appointment process.
Constitutional Ammendment
       Prior to 1982
   - 1867 Constitution Act was a UK statute (didn’t have any amendment provisions as we were
       controlled by UK Parliament because Canada was seen as a colony of the United Kingdom).
   - Colonial Laws Validity Act 1865 - Protected imperial statutes from being altered. Important
       constitutional documents were supreme imperial (UK) statutes, which prevailed over inconsistent
       colonial laws.
   - Statute of Westminster 1931 - Enacted to limit Imperial Parliament’s power over the dominions.
       But, statute did not destroy Imperial Parliament’s power to enact statutes applying to the
       dominions, it recognizes/preserves that power and only defines how the power is to be exercised –
       Professor Hogg.
           o s. 7(1) of the Westminster Statute ensured that Canadian Parliament and Legislatures
               would not be able to alter the B.N.A. act/1867 Constitution by ordinary statute.
   - Canada Act 1982 (last imperial statute):
           o We weren’t independent so had to patriate the Constitution in 1982 (Canada Act 1982) to
               take over our constitutional amendment.
           o Patriation brought Constitution home to Canada (1867 Constitution was not a Canadian
               act).
                    But we still recognize Queen as the ceremonial head of state (and we still have to
                       follow the same rules of succession as the British Monarch – O’Donohue, which
                       means we haven’t completely patriated – if we were, we would have our rules
                       about head of state to patriate – O’Donohue.)
                    Included the Constitution act, 1982
                    Repealed s. 7(1) of the Statute of Westminster. But s. 52(1) enacts a similar
                       doctrine of repugnancy that was in the Colonial Laws Validity Act – idea that
                       Canadian Constitution is superior to all other laws and any laws inconsistent with it
                       will be considered of no force and effect.
           o But 1982 Constitution Act still has problems (i.e.: no rule for referendum, which would
               allow Canadian’s to have a more direct say) – relates to democracy
           o Now have section V Amending Procedures for Constitutional Amendments.



       After to 1982

Part V, Constitution Act Amending Procedures: - see Constitution for matters covered in each section.
New amendment procedures turn largely on federalism (see Constitutional Supremacy, and Federalism
sections).
    - Whoever has control over amending procedures has final sovereign control of constitution.
    - Difficult amending procedures protect the federal nature of our state and our rights. But this
       makes it difficult to amend the Constitution to keep up with changing social realities. Though out
       courts insist on interpreting the Constitution as a “living tree” (changes/adapts over time), there
       are still limits to what this interpretation can accomplish due to difficult to evoke amending
       procedures.
    - s. 46(1): Either house of parliament (Senate or House of Commons) or the provincial legislatures
       can initiate procedures for amendment under ss. 38, 41, 42, and 43.

Courts decide when each procedure should apply (pg 131). – Look at 4 procedures other than s.38
first, if issue doesn’t fit into any procedure, then use s. 38 default procedure.
-   1) General 7/50 procedure (s.38) – covers all Charter changes among other things.
        o “Default/Residual Procedure” applies to any amendments not covered by other 4
          procedures = most significant.
        o Also applies to matters listed in s.42 even though these deal with Federal Institutions.
        o Need approval from both houses of parliament and at least 7 provincial legislatures (at
          least 50% of the provinces)
               Theoretically, no province has a veto (as long as 7 provinces agree, no other
                  province can veto the amendment). But, Federal Parliament felt pressure to meet
                  Quebec’s demands for a veto (they didn’t change the Constitution to deliver a veto
                  or “distinct society clause” but passed Constitutional Amendments Act instead
                  (which is a statutory overlay that parliament can repeal at any time – not
                  constitutionally binding to Federal government though). The act affects the general
                  procedure (which is already hard to meet) and makes it a 7/90 requirement (need
                  both houses of parliament and need approval of B.C., Ontario, Quebec, and 2
                  prairie provinces that make up 50% of the prairie population, which means
                  Alberta’s approval is required – so in practice they all have statutory vetoes for s.
                  38 procedure).
               Ryder says this is ridiculous = high level of consent needed so governments are
                  wary of amending the Charter or making other changes that fall under s. 38 (will
                  have to negotiate with the provinces that are part of the 7/90 requirement) – perhaps
                  why government wants to use s. 44 for senate consultations instead of s. 38.


-   2) Unanimity: s.41 - Need unanimous consent for matters that are fundamental to our
    Constitution (Need approval from both house of parliament and all 10 provinces):
        o Applies only to five matters:
                1) Monarchy
                2) Minimum # of seats per province in House of Commons (“Senate floor”) Ryder
                   says this is imp. - # of seats in House of Commons can never fall below the # of
                   seats in the Senate (would especially be an important change for smaller
                   provinces).
                3) Use of English and French (bilingualism important part of our history).
                        ie: 1867 act, s. 133 guarantees bilingualism (can’t be changed without
                           unanimous consent).
                        Also guaranteed in ss. 16- 23 “Official Languages of Canada” and
                           “Minority Language Education Rights” of the Charter, but use of English or
                           the French language issues only fall under s. 41 subject to s. 43, so only
                           follows s. 41 if it is not applicable to s. 43.
                4) Composition of SCC
                5) Changes to Part V (amending procedures).

           The unanimity procedure applies to the five matters listed in s.41 only. The requirement of
           unanimity has its exclusive origins in the text of s.41and is thus confined to the matters
           listed in the section. The "affects the entire country" possibility you've mentioned is an
           invention of your mind; it has no legal basis. The courts are very unlikely to add matters to
           s.41 that are not explicitly listed there. To do so would be to create new and very high
           barriers to future constitutional change. Section 38 is the general procedure. Everything,
           including many amendments that affect the entire country, falls within the s.38 7/50
           procedure unless it is explicitly subtracted from s.38 by one of the other procedures.
   -   3) “Some-but-not-all provinces”(s.43)/a.k.a. “bilateral formula” if it only affects one province)
       – applies if amendment relates to one/some but not all provinces.
           o Need approval from both houses of parliament and legislatures of the provinces that the
              provision applies to.
           o More flexible than the other procedures (especially ss.38 and 41 procedures).
                    Our constitution is hard to change, but s. 43 has successfully been used to make a
                      lot of changes (successfully invoked 7 times - ie: no more denominational school
                      rights in some provinces).
                    This is likely where significant Constitutional change will happen in the short term
                      future.


   -   4) Federal Unilateral: s.44 - only applies if amendment only affects federal institutions (don’t
       need provinces’ consent).
            o Gives federal legislatures power to make amendments unilaterally through ordinary
               legislative process.
       Section 42 is necessary because s.44 gives to Parliament the power to amend the constitution on
       its own (i.e., unilaterally, by passing legislation through the usual process) "in relation to the
       executive government of Canada or the Senate and House of Commons". Some aspects of the
       federal executive and federal legislative branch are of concern not just to the country as a whole
       (represented by the federal Parliament), but have special importance to the provinces (and thus, the
       drafters decided, provincial consent should be required before they are changed). Therefore, these
       matters were removed from the ambit of s.44 by s.42, and made subject to the s.38 general
       procedure.


   -   5) Provincial Unilateral: s.45 - only applies if amendment only affects that province’s
       institutions (don’t need federal government or other provinces’ consent)
   -   Gives provincial legislatures power to amend unilaterally through ordinary legislative process.
           o i.e.: If Ontario government wants to change the # of seats in the Ontario legislature, it
                would be ridiculous to require the Federal government and other provinces to approve of it.


Part of the Constitution subject to ss.44 and 45 are not “entrenched” supreme parts of Constitution since
they can be changed with ordinary legislation. But Ryder says there is not much jurisprudence on these
two procedures yet.


Which amending procedure in Part V of the Constitution Act, 1982 needs to be followed? (have to
look at actual act to see which matters are covered) - Answer really depends on our interpretation of
the sections – argue for which procedure you think it falls into.

Some of these questions have obviously correct answers, others are arguable of course since we do not
have SCC or other authoritative court rulings addressing the questions (if two sided/answer not clear, say
question of which procedure to use should be referred to SCC by Federal Parliament etc.).

To enact eight year term limits for Senators, as proposed by Bill S-4 in the last session of
Parliament (see supp. p.10, note 1)?
-   Can argue that this would go under s. 44 (if senate tenure were to fall under ss. 41 or 42, then why
    would constitution has senate issue in s. 44?).

             Most constitutional experts believe that this change can be made unilaterally by Parliament
    pursuant to s.44 and the government, of course, by introducing Bill S-4 in the last session of
    Parliament, and reintroducing it a couple of days ago as Bill C-19 (see
    www.parl.gc.ca/legisinfo), shares this view. If you go to Legisinfo, and click on Bill C-19, you'll
    find under "departmental information", "background information", a defence of the view that this
    is a matter that falls under s.44 for the reason you've stated. The contrary argument is that reducing
    Senators' terms from the current lifetime appointments (to age 75) to 8 years will have a
    significant indirect impact on "the powers of the Senate" thus bringing the change within
    s.42(1)(b) and requiring compliance with the s.38 formula. The argument in favour of this position
    is that Senators' life appointments secure their ability to act independently from the government
    (and thus from the House of Commons, since the House is normally controlled by the government
    in power). Term limits decreases the likelihood that Senators will exercise their powers
    independently of the views of the PM and the government that appoints them. Bill C-19 responds
    to this concern by removing the possibility of Senators being appointed for renewable 8 year terms
    (this was a possibility not explicitly ruled out by Bill S-4 last session; Senators would be even
    more likely to curry favour with the government of the day if the government had the power to
    reappoint them or not). Thus, the argument that Bill C-19 indirectly affects the powers of the
    Senate is weaker than it was for Bill S-4.

           Info from Legisinfo: Term Limits for Senators
           Currently, under section 23 of the Constitution Act, 1867, Senators “shall be of the full age
           of Thirty Years”, and according to section 29 (2), a Senator shall “hold his place in the
           Senate until he attains the age of seventy-five years”. Thus, a Senator could serve a term
           as long as 45 years.

           Originally Senators were appointed to the Senate “for Life”. In 1965, that was changed
           when the Pearson government introduced an amendment to section 29 of the Constitution
           Act, 1867 to create the mandatory retirement age of 75 years for Senators. This
           amendment was unilaterally (s.41) passed by Parliament as it did not require the consent of
           the provinces.

           Pursuant to section 44 of the Constitution Act, 1982, Parliament alone may make laws
           amending the Constitution of Canada in relation to the executive government of Canada, or
           the Senate and the House of Commons. The Senate tenure bill uses section 44 to amend
           section 29 to provide that, “… a person summoned to the Senate shall hold a place in that
           House for one term of eight years.” This new eight year term would only apply to new
           Senators appointed after the bill becomes law and therefore all current Senators’ terms
           would continue until they reach the age of 75 years. – shows that it’s prospective.

           Section 42 of the Constitution Act, 1867 sets out the amendments to the Senate which
           require provincial consent. They are amendments which change:

           the powers of the Senate;
           the method of selecting Senators;
           the number of members by which a province is entitled to be represented in the Senate; and
           the residence qualifications of Senators.
              These amendments are subject to the general amending formula, which requires the
              consent of Parliament and the legislative assemblies of seven provinces having 50 per cent
              of the population (but really 7/90 with statutory overlay). Since the terms of Senators is
              not one of the amendments specified in section 42, which would require provincial
              consent, it can therefore be accomplished by Parliament acting alone, as was the case with
              the 1965 amendment which also limited (albeit modestly) Senate terms.



To enact Senate consultations, as proposed by Bill C-43 (now reintroduced as Bill C-20) (see supp.
p.11, note 3)?
   - Would be like an election, but just calling it a “consultation” and saying that the governor general
       would still appoint senate members on advice or prime minister.
   - BUT this is changing the method of selecting senators = s. 42 procedure.

      Provinces may challenge C43 and say it won’t be legally binding if the government tries to pass it
       unilaterally under s. 44 of the Constitution, saying that it falls under s 42(1)(b) of the constitution
       because it affects the powers of senate and the method of selecting senators and thus can only be
       made under the s. 38 7/50 formula with the statutory overlay.
            Ryder says C43 has to be passed through s. 38 because it does fall under s. 42(1)(b).
               Government says, in form, C-43 would just broaden the things PM can look at to suggest
               senators to PM, but the functional consequences are like an elected senate. This would
               result in senate democratic legitimacy and they would actually practice equal powers to the
               House of Commons in the legislative process, so the regional representation of the senate
               would be more important and it is thus a great concern to provinces (affects federalism).
            But the statutory overlay on s. 38 makes it too difficult to evoke 7/50 formula right now. If
               parliament were to open C-43 up to all those required to consent under 7/50 (with the
               statutory overlay), they would have to negotiate with the provinces too much. This is why
               government wants C-43 as a way to move forward with senate reform. It’s what the
               government may be able to do on its own, as stated in the preamble of Bill C-43 (that
               before we can have more comprehensible senate reform, Bill C43 is what we can do now).
      But the debate of whether Bill C-43 falls under s. 44 or s. 38 amending procedures of the
       Constitution continues. Best for parliament to refer this question to SCC to see which amending
       procedure Bill C-43 can fall under.


           RYDER: I think the argument about Bill C-43 (now reintroduced as Bill C-20 - see the
       description and background info on legisinfo) is straightforward. The key question, as you've
       indicated is whether it affects "the method of selecting Senators". I would expect you to engage
       with this question by considering the arguments that can be made on each side. You've articulated
       above why the government sees it as a matter that does not affect the method of selecting Senators
       and thus the Bill can be validly enacted by Parliament alone pursuant to s.44. You have not
       articulated the contrary argument that sees the Bill as being in relation to the method of selecting
       Senators, thus within s.42(1)(b) and capable of being validly enacted only if the requirements of
       the s.38 amending procedure are followed. Constitutional experts are divided on this question. It
       ought to be resolved by sending the question to the SCC on a reference. See last year's Public Law
       exam and answer outline where this question was raised.
               At the moment, Senators are appointed by GG (s. 24 of 1867 Constitution Act), on advice
       of PM. If elections were to replace PM’s appointment power, a constitutional amendment would
be required. This can only be done pursuant to s. 44 of the matter falls within the section (so that
Federal Parliament could do it themselves). But “the method of selecting senators” is withdrawn
from s. 44 by s. 42(1)(b). If this is considered a change to the method of selecting senators, then it
would require s. 38 (with statutory overlay) amending procedure.
         But Federal government believes it can make the change without s. 38 by introducing the
bill for non-binding “advisory” elections (now reintroduced as Bill C-20 – the Senate
Appointments Consultation Act), which they say will thus not alter the current practice of GG
appointing Senators pursuant to PM’s advice (so it wouldn’t be a change to the method of
selecting senators). It would just help PM and give him/her more to work with when advising GG.
But democratically/politically this would change the method of selecting senators (not legally
though), because PM would find it difficult to override will of the people that would be expressed
through a voting process/election (this could even bring PM’s legitimacy into question – notion
that he/she might have such motives as self-perpetuating etc. motives in choosing senators, i.e.:
choose ones that will support the bills he passes). In this sense, it might change the method and
could thus be subject to s. 38 procedure. But only a reference to SCC can settle this question.

       LegisInfo: Senate Appointment Consultations Act
       In the October 2007 Speech from the Throne, the Government committed to reintroduce its
       Senate reform bills from the previous session. Accordingly, the Government has
       reintroduced the Senate Appointment Consultations Act in the House of Commons. The
       Act would establish a national process through which Canadians could be consulted on
       their choice of candidates for appointment to the Senate.

       General framework
       The Senate Appointment Consultations Act would permit the federal Cabinet to provide
       that the electors of a province or territory be consulted about potential Senate appointments
       for that province or territory. For reasons of efficiency and convenience, consultations will
       coincide with a federal or provincial general election thereby allowing electors to vote for
       nominees for Senate appointment from their province at the same time they vote to elect
       Members for the House of Commons (or provincial legislature) – good for democracy and
       maybe protection of minorities (to have their voices heard as well as majority views).

       The choices expressed by voters would inform the Prime Minister in recommending
       appointments to the Senate. The federal Cabinet would determine in which provinces or
       territories a consultation would be held, and how many places in the Senate would be
       subject to consultation (which could be more than the number of vacant Senate seats at the
       time at provide for future vacancies).

       The bill proposes no constitutional changes and does not provide for the direct election of
       senators. The appointment process and method of selection established in the Constitution
       Act, 1867 are unchanged by this legislation. Appointments would continue to be made by
       the Governor General, on the recommendation of the Prime Minister, and the
       constitutionally-defined qualifications for senators would continue to apply at the time of
       appointment, as they do now.

       In addition to creating the consultation mechanism, the bill proposes strict rules of
       accountability for Senate nominees, creates a framework for the actions of political parties
       and spending by third parties, establishes rules for voting and counting votes using the
       single transferable vote, and defines the roles and responsibilities of the Chief Electoral
       Officer of Canada, who will be responsible for administering the consultation.
               Nominees
               Nominees would have to be Canadian citizens and be 30 years of age, consistent with
               constitutional qualifications for Senators. A successful nominee would still need to meet
               all other requirements set out in the Constitution (e.g., residence and property
               qualifications) before being summoned to the Senate by the Governor General.

               Prospective nominees would register with the Chief Electoral Officer. They would need to
               submit nomination papers, including 100 signatures of electors resident in the province for
               which the person is submitting a nomination, a deposit of $1000, and the endorsement of
               their party, if they wish to participate as a party-endorsed nominee.

               Campaign financing
               Once a nomination is confirmed by the Chief Electoral Officer, nominees would be able to
               accept contributions and incur expenses related to their campaign, within the accountability
               rules established under the Act, which are consistent with the new accountability regime
               established by the Federal Accountability Act.

               Only individuals would be able to make contributions to Senate nominees, and there would
               be a maximum of $1000 per year (indexed for inflation); this limit will apply to both party-
               endorsed and independent nominees. Unions and corporations would not be eligible as
               contributors. Because nominees will need to finance province-wide campaigns, no overall
               spending limit would apply to campaigns. There would be no per-vote allowance or
               reimbursement of campaign expenses from public funds. The same reporting rules would
               apply to Senate nominees as those that apply to candidates for election to the House of
               Commons under the Canada Elections Act.

               In accordance with the traditional independent nature of the Senate, political parties would
               have a limited role in financing Senate nominees. Parties would not be allowed to transfer
               funds to their endorsed candidates, although they would be permitted to share some goods
               and services, such as common office space or membership lists. To conduct advertising in
               relation to a Senate consultation, a party would have to register as a third party would be
               subject to province-wide limits similar to those that exist for third parties in a House of
               Commons election.

               The Act would not create a new party regime for the Senate. Only registered parties under
               the Canada Elections Act would be able to endorse nominees, that is, parties who contest
               seats for the House of Commons. A person could be a nominee in only one province or
               territory at a time.


If the federal government were to seek to change the powers of the Senate, or to create a Senate
with more equal representation from the provinces?
        - These are matters that fall within s.42 and are thus subject to the s.38 procedure (s.42 is not a
           separate procedure). In your legal analyses, you should always refer to the relevant provisions
           and the key words in them. The powers of the Senate and the number of Senators to which
           each Senate is entitled are matters listed in s.42(1)(b) and (c), and therefore changes to them
           "may be made only in accordance with subsection 38(1)".
If Canada were to abolish the monarchy and become a republic, with an appointed rather than a
hereditary head of state?
       - s 41 - the "office of the Queen" is one of the matters listed in s.41(a) and thus can be changed
          only with the consent of both Houses of Parliament and all ten provincial legislative
          assemblies.

If Ontario were to become officially bilingual in the constitutional sense (by entrenching the rights
of English and French speakers in the constitution, as is the case in Quebec, Manitoba and New
Brunswick)?
       - Constitutional requirement to operate bilingually = use s. 43 (NOT s. 41 cause doesn’t apply to
           all provinces). This would happen easily – Federal government would allow any province to
           become officially bilingual.

If Ontario were to repeal the rights of Catholic denominational schools, currently guaranteed by
s.93 of the Constitution Act, 1867? – but this has been done through s. 38 for some provinces (see s. 38
successfully evoked 7 times)
        - s. 43 (only affects Ontario) = do it through bilateral procedure.
        - * s. 93 of Constitution says provinces have jurisdiction over provinces SO check Constitution
            sections to see which procedures should apply. But s. 93 doesn’t apply in Quebec anymore.

If Canadian governments were to repeal the "notwithstanding clause" in s.33 of the Charter of
Rights and Freedoms?
       - s. 38, 7/50 (7/90)
       - MOST of the Charter falls under s. 38 (7/50), BUT not all of the Charter (i.e.: some parts only
          pertain to New Brunswick, so such changes would be bilateral changes).

               * GOOD REASONING: The Charter is not explicitly mentioned in any of the amending
       procedures. That rules out the unanimity procedure in s.41 since that procedure only applies to the
       5 matters listed in s.41. The Charter is not a subject matter of concern only to the federal
       government, or only to the provincial governments, and therefore the unilateral procedures in
       sections 44 and 45 are ruled out. That leaves two possibilities: the general s.38 procedure and the
       some-but-not-all provinces procedure in s.43. Since the s.33 notwithstanding clause is a power
       that may be invoked by Parliament or any of the provincial legislatures (i.e. it applies to all of the
       provinces, not just some), it cannot be repealed using s.43. The general amending procedure
       applies. If, however, one province, say Ontario, wanted to amend s.33 to provide that it could not
       be invoked by the Ontario legislature, that is a change that could be enacted through the s.43
       procedure.


If new deal for the New Cities Campaign continues strongly, maybe municipal powers will be
Constitutionally Guaranteed, and then municipalities won’t be subject to the whim of provincial
legislatures anymore.
- * If cities were to have constitutionally entrenched powers, this would involve the creation of a new
    order of government and a corresponding diminution of the legislative powers of the other levels of
    government set out in ss 91 and 92 of the Constitution Act, 1867. Legislation passed by a provincial
    legislature pursuant to s.45 can also be repealed by a provincial legislature pursuant to s.45, so this
    would not be a way to create constitutionally entrenched powers for cities. Section 43 could be used
    if the change was desired in only one province - in the same way that s.93A , altering educational
    powers and rights in Quebec, was added to the CA1867 through a bilateral amendment with Ottawa.
   If, however, we wanted to give cities constitutionally secure status throughout the country, the s.38,
   7/50 procedure would have to be followed.


If Canadian governments wanted to change the division of legislative powers in the Constitution Act,
1867, which amending procedure would have to be followed?
        s. 38, 7/50 (7/90)

What if we want to give government power to make changes to post-secondary education?
- s. 93 of 1867 Constitution says provinces have jurisdiction over education, so would be s. 43 for each
  province to change their own education.
- But to give federal government power to do this would be making a change to the division of powers,
  would likely be s. 38 (7/50) (7/90) procedure.

To abolish the federal senate:- would affect federalism.
       Would at the very least require s. 38 amending procedure (power of senate/method to select
          senators mentioned in s. 42 “subject to s. 38”). But this is debatable. Can argue abolishing the
          senate will affect the senate floor provision under s. 41 (provinces’ # of seats in House of
          Commons can’t be less than the # of seats in the senate).


If wanted to constitutionally entrench SCC, this would be under s. 42 (other SCC matters, other than
composition), so it would have to follow s. 38(1) – 7/50, (7/90) procedure.


Bill C22: Controversy in Ontario (about changing the number of seats each province will have in
House of Commons, if passed, then all provinces will have at least enough seats in House of
Commons to correspond to their share of the population, except for Ontario (will have a lot less).
    - Doesn’t have to be passed through 7/50 formula even though changing seats in House of
       Commons applies to all provinces, because it falls within s. 44 (it is a change that has routinely
       been made by Parliament alone under s. 44).
    - s. 51 of 1867 Constitution Act, tried to give expression to the idea of representation by proportion.
       Parliament could change the formula anytime alone. But 1982 Constitution amending procedures
       put issue of proportion under s. 42(a) (and thus under the general 7/50 formula with the statutory
       overlay). Bu tin 1985, Parliament changed the formula again without obtaining prior agreement of
       the required provinces (as would be through the s. 38 procedure). A modification was put in place
       that implemented a floor that the number of seats could not go under. In 1988, B.C. court of
       appeal majority said Parliament was allowed to due this alone. Dissent (2 to 1 ruling) said
       Parliament could not make such changes alone due to such issues being under s. 42(a) of the
       Amending Procedures in the 1982 Constitution Act. Dissent is a strong argument. So now,
       conservative government has the precedent saying what happened in 1985 was all right, and wants
       to follow this so that it may enact Bill C22 alone without going through s. 38. Saying also that as
       long as they don’t change the proportionality principle or go against it in any major way, then
       Parliament should be able to make this decision alone (saying that bill C22 would just be
       reinforcing the principle of proportionality so is it something they can do alone). But Liberal
       government insists that this issue is under s. 42(1)(a) and thus must fall under s. 38 procedure as
       opposed to s. 44. S.C.C. has power to overrule B.C. court of appeal’s decision in 1988 saying
       Parliament could do this alone. So best to refer the question of which procedure this change
       should fall under to S.C.C. (federal government should), but if S.C.C. said 1988 ruling was
       invalid, then that means that over 20 years of parliament was invalid and S.C.C. may indeed shy
       away from agreeing with the Campbell dissent for this very reason. Or may do what they did in
       the Manitoba Reference and give parliament time to adjust to what remedy they will propose if
       they decide to agree with Campbell dissenting judgment (common for courts to issue suspended
       declaration of invalidity now).

GLOSSARY

The Constitution of Canada includes:
   - a) The 1982 Constitution Act (Charter is part 1 of this)
         o Also includes Aboriginal Rights Act, Procedure of Amending Constitution of Canada
             (Part 5 of act).
   - b) The acts and orders referred to in the schedule under s. 52(2):
         o Lists the 1867 Constitution Act (a.k.a. BNA – British North American Act in Pre-1982
             decisions).
   - c) any amendment to any Act or order referred to in (a) or (b).

   -   Note, s. 52(2) says Constitution “includes” these things (not an exhaustive list). But no court
       rulings has thus far added to this list of documents yet. But courts have added some unwritten
       constitutional principles that can have a binding force in some circumstances (i.e.: rule of law)
           o So Constitution includes written texts specific specified in s. 52(2) and unwritten
               fundamental principles.


Reference Decisions
   - In theory, references are not law, only an opinion/advice but in practice, they are treated like law
      and are just as authoritative as binding precedents. i.e.: Secession Reference, Patriation
      Reference etc.
   - Supreme Court Act (statute) gives Federal executive the power to refer questions to SCC for their
      opinion (usually asking for their opinion about the constitutionality of a bill they are considering).
      Mostly for constitutional issues, but can refer questions about other issues too. Federal
      government can also initiate a reference procedure to SCC to find out whether a constitutional
      change is legally or conventionally unconstitutionally before seeing which amending procedure it
      can fall under.
   - Reference Procedure is distinct to the Canadian Constitution.
   - BUT Reference Procedure is an oddity: it is almost like the Federal government is enlisting SCC
      to give legal advice.
          o But this isn’t seen as a violation of the separation of powers, so it is not unconstitutional,
              like it would be in U.S. In Canada, each government branch has a distinct role –
              legislature makes laws, executive implements/enforces laws, and judiciary adjudicates and
              interprets laws when there is a dispute over a law, but for reference procedures, the
              judiciary is doing the executive function of giving legal advice to the government..

   -   Only federal government can initiate reference procedure and refer questions to the SCC
       Provincial legislatures can refer questions to their own courts of appeal:
          o i.e.: Patriation Reference started when provincial legislatures of such provinces as
              Manitoba, Quebec, and Newfoundland initiated references to their own provincial courts of
              appeal about whether it was legal for the Federal government to try and change the
              Constitution unilaterally/without their consent.
See Lecture 4 for listed differences between Constitutional Conventions and Unwritten
Constitutional Principles.
Constitutional Conventions – Powerful political traditions:
    Like underlying constitutional principles (are another kind of unwritten norm) BUT are
       different in their:
    Origin:
           o Constitutional Principles: Comes from judicial interpretation of our constitutional
              structure and documents at large to identify underlying constitutional principles, NOT
              necessarily looking at political practice.
           o Constitutional Conventions: Comes from what political practice (what elected politicians
              have consistently done in the past).
    Legal status:
           o Constitutional Principles: LAW = can be legally binding.
           o Constitutional Conventions: NOT LAW.
    Enforcement?
           o Constitutional Principles (Legally binding): Can give rise to legal obligations that can
              be enforced against governments.
                   i.e.: Succession Reference court looked at 4 such underlying constitutional
                      principles that can rise to legal obligation.
                   i.e.: Unwritten constitutional principle of Protection of Minorities made closure of
                      French service hospital unconstitutional (EVEN though nothing in Constitution
                      speaks directly to say that health services have to be provided in French) - Lalonde
                      v. Ontario 2001 Ont CA (re Montfort Hospital)
           o Constitutional Conventions (Politically binding): NO LEGAL REMEDY/ court cannot
             order government to follow them BUT POLITICAL REMEDY = will be a political crisis
             if conventions are not followed.
                  i.e.: Can’t take governor general to court to force her to give royal assent to bills
                    passed by two houses of Parliament, but if she withheld her assent, this would
                    create a political crisis.
                  Conventions essential for smooth Parliamentary government operation:
                         1) NO mention of prime minister in the BNA act (a.k.a the 1867
                            Constitution), BUT it is constitutional convention that the governor general
                            should summon a leader of the party to be prime minister to command the
                            government = CAN’T be legally enforced if this doesn’t happen.
                         2) If part doesn’t get support of at least one opposition party after throne
                            speech (= loss of confidence vote), then by convention Prime Minister has
                            to either resigned and ask someone else in House of Commons to command
                            government support OR ask Governor General to dissolve Parliament to
                            call another election = CAN’T be legally enforced if this doesn’t happen
                            BUT violating this convention would result in the gravest political crisis.
                         Federal Disallowance power should never be exercised (our Constitution
                            says that Ottawa can disallow any provincial law within a year of it being
                            passed, but this hasn’t been exercised since WW2)
                                o Wrong for Federal government to disallow provincial laws because
                                    provinces are considered sovereign and of equal status (though they
                                    are subordinate legally), BUT over time, the underlying principle of
                                    Federalism has also made the Federal Disallowance power legally
                                    unconstitutional (says both government levels had coordinate status
                                     and occupy horizontal spheres NOT hierarchical). SO there are both
                                     legal and political binding forces against its use).


Canadian Bill of Rights:
   - Charter is a Bill of Rights, but was preceded by the Canadian Bill of Rights.
   - 1867 Constitution didn’t have a Bill of Rights. So PC government secured enactment of the
      Canadian Bill of Rights in 1960.
         o But it was only enacted as an ordinary statute of the federal parliament so it wasn’t
             constitutionally valid. So it only applied to federal laws and could be repealed by the
             federal Parliament at any time. Provincial violations of civil liberties weren’t covered by
             it.
   - Canadian Bill of Rights lost most of its importance in 1982 when the Charter of Rights was
      enacted. Most of the rights/freedoms guaranteed by the bill are now guaranteed by the Charter.
      But the Charter IS constitutionally valid = can only be amended through constitutional amendment
      procedures and applies to federal and provincial government.
   - But Charter didn’t repeal the Canadian Bill of Rights, so it’s still in force.

2 Provisions of the Canadian Bill of Rights not duplicated by the Charter:
    - 1) The Bill’s “due process clause (s. 1(a)), which extends to the protection if property.
    - 2) The Bill’s guarantee of a fair hearing whenever a person’s rights and obligations are to be
       determined (s. 2(e)). Both these provisions go beyond Charter guarantees, so they’re still
       operative restraints on federal (but not provincial) activity – Peter Hogg.

								
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