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CANADIAN PUBLIC LAW


Theories of law...............................................................................................................................................1
Impact of Charter on race...............................................................................................................................7
Civil law and common law (bijurialism).......................................................................................................8
Common law and equity..............................................................................................................................10
International convention..............................................................................................................................11
Statute (to displace the common law...........................................................................................................13
The Rule of Law..........................................................................................................................................14
Constitutional convention and the Patriation Reference.............................................................................16
Parliamentary sovereignty vs. Constitutional supremacy............................................................................17
Separation of powers....................................................................................................................................20
Parliament and legislative process...............................................................................................................23
The executive branch (Crown, PM and cabinet, public service, ADM‘s, CC, municipalities, police).......28
Sources of executive power (prerogative power, statutory powers, regulations)........................................32
The courts and the Judiciary........................................................................................................................37
Judicial Independence..................................................................................................................................39
Statutory interpretation................................................................................................................................42
Constraints on legislative and executive action...........................................................................................48
     Limitations of JR (justiceability, enforceability, and legitimacy)
Judicial review of administrative action (Baker).........................................................................................52
Standard of review (Dunsmuir)....................................................................................................................55
Aboriginal Peoples (rights, title, and treaties).............................................................................................60


INTRODUCTION
Public law is a theory of law that governs the relationship between the state and the individual, who is
considered to be either a company or a citizen. Public law covers three sub-divisions: Constitutional,
administrative and criminal law.
    Constitutional law covers the different branches of the state: Executive, legislative and judiciary.
    Administrative law regulates international trade, manufacturing, pollution, taxation, and the like.
    Criminal law involves state imposed sanctions for individuals or companies in order to achieve
        justice and social order.


Basic legal theories

Positivism and natural law
     Legal positivism reflects the belief that law is nothing more than the rules and principles that
         actually govern or regulate a society. Positivism insists on the separation of law and morality and
         focuses on describing laws without reference to justness or legitimacy.
     Natural law states that laws aren‘t simply rules and principles that govern us, but only those that
         adhere to certain moral truths, most often of a universal and immutable nature. Many criminal
         laws, for example, are definitely based on Judeo-Christian conceptions of morality. But law and
         morality can part ways in contract law, for example. Laws are thought of as certain whereas
         morality can be contingent and relative. Moral disagreements have taken place for centuries, but
         legal disputes should be capable of resolution by lawyers and judges. Natural law therefore needs
         positive law.

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Re Drummond Wren, [1945]
     Natural law
     Morality considered
MacKay J appeals to our moral conscious. Worker‘s Educational Association (WEA) wanted to buy land,
build house, and sell off for fundraising. Land was restricted by covenant not to be sold to Jews or person
of objectionable nationality. Argued this was against public policy and contravened provisions of the
Racial Discrimination Act. ―Nothing could be more calculated to create or deepen divisions between
existing religious and ethnic ground...‖ It appeals to me to be a moral duty...to lend aid...to
repel...tendencies which would imperil national unity. I do not conceive that I would be breaking new
ground were I to hold the restrictive covenant impugned to be void as against public policy. Judge goes
on to quote Churchill and Charles de Gaulle and didn‘t even feel the need to discuss the Racial
Discrimination Act.

Re Noble and Wolf, [1948]
     Positivism
     Laws are nothing more than rules that govern our siciety
Same sort of restrictive covenant for individual cottage lots (land can‘t go to the Jewish, Hebrew, Semitic,
Negro or coloured race or blood). Plaintiff relied on precedent established in Drummond Wren. The
covenant had backers since there was a congenial summer community among its members and cottage
value would be lost if any change to its character occurred. Schroeder J disagrees with MacKay J. He
warns making decisions based on public policy (quotes HL judge Lord Atkin). To allow public policy to
be the basis of decisions would lead to the greatest uncertainty and confusion. Law is based on statute,
common law, authoritative texts, and not from what is best based on opinion for the advantage of the
community. We are not authorized to establish as law everything which we may think for the public
good, and prohibit everything which we think otherwise. Contracts can‘t be void due to public policy
(PP) as MacKay renders. One cannot interfere with the freedom to contract based on PP. Whatever view I
may entertain, based upon my conception of justice, morality or convenience, I must always have present
to my mind the proper conception of the judicial function, namely, to expound and interpret the law and
not to create the law based on my individual notion or opinion of what the law ought to be. It is within the
province of the competent legislative bodies to discuss and determine what is best for the public good.
SCC overturned this decision later on based on well established technical common law rules. Ontario
legislature corrected this deficiency after the CA appeal was dismissed but before the SCC decision.

How assertive should judges be in applying ―PP‖ or other grounds to graft new moral positions onto the
law? Courts now respond to the ―supremacy‖ of Parliament or provincial legislature in law making. But
what if the law in question is not a statute but common law doctrine? Will this make any difference?
Natural law and positivism are concerned with identifying what law is oppose to what it ought to be
(yes, even natural law notwithstanding it being based on normative criteria). The remaining approaches
seek to describe how existing laws fail to achieve an external objective. Thus, feminism, critical legal
studies, and law and economics are often oriented toward reform.

Feminist perspectives on law

This began in the late 19th century, particularly based on voting rights and marriage reform law. Once this
was successful, it involved attacks on discriminatory employment practices and criminal laws. Not until
the 1960s that this movement matured and developed widespread currency. Most feminist legal
philosophy critiques liberalism as a political ideology. Laws that existed from the 17th century, even those

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based on liberal ideals such as individualism and liberty, did not typically respond to the needs of woman
and more often than not aided their oppression. Early formalist feminism’s goal was to replace laws that
favoured men with more neutral laws. Prior to 1916, laws related to elections did not allow women to
vote (later that year they could in Manitoba, Saskatchewan, and Alberta). Following 1918, Parliament
passed the Women‘s Suffrage Act that gave all women over 21 the right to vote. Frustrated by
government inaction, 5 woman petitioned to have the government direct the SCC to rule on the
constitutional question whether, based on s. 24 (BNA Act 1867 now the Constitutional Act 1867 which
stated that only ―qualified persons‖ were eligible to be appointed to the Senate), women could be
considered candidates for the Senate. SCC held that ―qualified persons‖ did not include women. Appeal
was launched to the Judicial Committee of the Privy Council:

Edwards v AG Canada, [1930] (PC)
      Does ―persons‖ in s. 24 CA 1867 include women?
Their Lordships are of the opinion that the word ―persons‖ in s. 24 does include women, and that
women are eligible to be summoned to and become members of the Senate of Canada. Customs are apt
to develop into traditions which are stronger than law and remain unchallenged long after the reason for
them has disappeared. However, appeals to Roman Law and early English decisions is not of itself a
secure foundation on which to build the interpretation of the BNA Act, 1867 (this made up external
evidence). Secondly, the internal evidence related to the Act itself. The object of the BNA was to grant a
Constitution to Canada and plant a living three capable of growth. This is to be interpreted widely so the
Dominion may be a mistress in her own house, as the provinces are mistresses in theirs. The Counsel here
is interpreting an imperial act which creates a constitution for a new country. If Parliament had intended
to limit the word ―persons‖ in s. 24 to male persons, it would have expressly done so (as it did in s. 41 and
84). The qualifications in s. 23 do not specify sex. A heavy burden lies on an appellant who seeks to set
aside a unanimous judgement of the Supreme Court of Canada, however, the Act‘s object is to provide a
constitution for Canada, the word ―person‖ is ambiguous, in some sections ―male person‖ is specifically
used, therefore the appeal is allowed and the word ―persons‖ in s. 24 includes both males and females.

Contemporary feminism
      Whether liberal or radical, one theme is that woman, given the ability to reconstruct society,
         could do better.
As feminism become more sophisticated through the 20th century, feminism and feminist legal theory
evolved. Some strains become radicalized, others remained more conservative. There are tons of different
feminists. Liberal feminists argue it is possible to have gender equality within a liberal conceptual
framework. Radical feminists are not so sure since divisions between men and women are seen as
attributable to the very notion of a liberal society. Some argue western law is partial to men and is
paternalistic. Some argue the idea of a dispassionate judge handing down decisions is also male-centric.
An abortion rights are a good forum to examine how feminist theory may translate this into practice.
Abortion was criminalized in most countries 30 years ago, and Canada was no different. In 1988, the SCC
was asked to determine whether s. 251 CC, criminalizing abortion unless authorized by a physician, was
contrary to s. 7 of the Charter (right to life, liberty and security of the person). In this case, three doctors
were charged with the offence of procuring a miscarriage contrary to 251(1) and the majority of the court
found the provision to offend the Charter. Bertha Wilson, who agreed, gave a separate opinion, which is
an example of modern feminist approach to a public law concern.

R v Morgentaler, [1988] – s. 251(4) required a woman to obtain a certificate from a therapeutic abortion
committee. There were heavy delays encountered by women attempting to comply with the committee
procedure and access to abortion services in many parts of Canada was limited. If a woman cannot, as a
constitutional matter, be compelled by law to carry the foetus to term against her will, a review of the
procedural requirements by which she may be compelled to do so seems pointless. The main issue to be
address is ―the right of access to abortion.‖ Does s. 251, which limits access to abortion, violate her right

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to life, liberty and security of the person within the meaning of s. 7? The basic theory underlying the
Charter is that the state will respect choices made by individuals and, to the greatest extent possible, will
avoid subordinating these choices to any one conception of the good life. Thus, an aspect of the respect
for human dignity on which the Charter is founded is the right to make fundamental personal decisions
without interference from the state. Abortion is a decision that deeply reflects the way a woman thinks
about herself and her relationship to others and to society at large. The right to reproduce or not to
reproduce which is in issue in this case is one such right and is properly perceived as an integral part
of modern woman’s struggle to assert her dignity and worth as a human being. S. 7 give a woman the
right to decide for herself, and s. 251 violates this right. The purpose of the section is to take the decision
away from the woman and give it to a committee. The law assets that the woman‘s capacity to reproduce
is not to be subject to her own control, it is to be subject to the control of the state. S. 251 also deprive the
woman of her right to security of the person as well as her right to liberty. It cannot meet the
proportionality test in Oaks. It cannot be saved under section 1.Wilson was the first woman appointed to
the SCC.

Critical legal studies (CLS)
      No natural legal order discoverable by objective means
      Law is another form of politics that isn‘t independent
A school of legal theory developed largely during the 1980s in the US. Adherents reject that there is any
kind of ―natural legal order‖ discoverable by objective means. CLS is a direct attack on traditional legal
theory, scholarship and education. The rule of law is full of subjective interpretation and a large degree
of incoherency. Post Marxist and usually associated with the left. 1) Hegemonic consciousness – while
many see western laws as natural and commonsensical, in fact they reflect arbitrary interest of a
dominant class. 2) At the reification stage, these beliefs are reified into a material thing: they are
presented as essential, necessary and objective. 3) At the final stage, denial, law and legal thinking aid in
the denial of real truths. For a CLS scholar, the denial occurs between the promise of a certain state of
law (such as equality) and the reality (such as vast amounts of discrimination or racism that can be
found so readily in society if only we look). The liberal belief that law should be certain and neutral is,
for CLS scholars, illusory. Lawyers and judges shouldn’t be given a monopoly over justice since they
are neither exceptional nor privileged. This is not mainstream, is more radical and avant-garde.

R v R.D.S, [1997] 3 SCR – a white police officer arrested a black 15-year old who had allegedly interfered
with the arrest of another young. The police officer and accused were the only witnesses and their
accounts differed widely. Youth court judge ordered an acquittal, stating that police misled the court in
the past and were known to overreact with non-white groups. The Crown challenged these comments as
raising a reasonable apprehension of bias. Appeal was allowed by the NS Supreme Court and a new trial
was ordered on basis of judge‘s bias. That was upheld by the NS CA. Which approach, if any, reflects
CLS scholarship regarding the impossibility of objectivity and the law’s lack of autonomy from the
social and political context in which law operates? Also compare judges‘ approach to questions of race
and quality with that of the judges in Re Drummond Wren and Re Noble and Wolf (above).
      Cory J – Was there a reasonable apprehension of bias from the comments made by the trail judge
         in providing reasons for acquittal? The trial judges, according to the Crown, reached her
         determination on the basis of factors which were not in evidence. All judges are subject to the
         same fundamental duties to be and to appear to be impartial. Whether or not the use of references
         to social context is appropriate in the circumstances and whether a reasonable apprehension of
         bias arises from particular statements will depend on the facts of the case. In some circumstances,
         those references are necessary so that the law may evolve in a manner which reflects social
         reality. On the one hand, the judge uses common sense and experience to judge the
         trustworthiness of a witness, on the other, the judge must avoid judging the credibility of the
         witness on the basis of generalizations or upon matters that were not in evidence. Police cannot
         always be favoured, for example, or a black accused, this would lead to bias. If there is no

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        evidence linking the generalization to the particular witness, these situations might leave the
        judge open to allegations of bias. However, racial tension does exist in NS between visible
        minorities and police based on Royal Commission report. The acquittal of the trail judge is
        restored. The general position that judges should avoid making comments based on
        generalizations when assessing credibility does not automatically lead to a conclusion that a
        reasonable apprehension of bias exists. In some limited circumstances, the comments may be
        appropriate. L‘Heureux-Dube and McLachlin‘s conclusion is same but reasoning VERY
        different.
       L’Heureux-Dube and McLachlin – while judges can never be neutral in the sense of purely
        objective, they can and must strive for impartiality. Judges take with them differing experiences
        that assist their decision-making; this is inevitable and appropriate (so long as the experiences are
        relevant to the case and not based on inappropriate stereotypes). Based on these principles, there
        is no reasonable apprehension of bias. They, too, overturn the NS SC and CA decision that bias
        existed and restore the acquittal. They disagree with Cory J that the comments made by the trial
        judge were unfortunate or unnecessary. The comments reflect the facts and context of the case,
        a context known to the judge and the community. The reasonable person does not demand that
        judges achieve impartiality in their judging. There is more to a crime than who did what to whom,
        therefore judges must be aware of the context in which the alleged crime occurred. ―The more
        views we are able to take into account, the less likely we are to be locked into one perspective....It
        is the capacity for ―enlargement of mind‖ that makes autonomous, impartial judgement possible‖
        (Jennifer Nedelsky). It was open to the trial judge to take into account the well-known presence
        of racism in that community and to evaluate the evidence as to what occurred against that
        background.
       Major J (dissenting) – this appeal should not be decided on questions of racism but instead on
        how courts should decide cases. A fair trial is based on the law, the outcome of which is
        determined by the evidence, free of bias. Did the trial judge here reach her decision on the
        evidence presented at the trial or did she rely on something else? In effect, the judge said
        ―sometimes police lie and overreact in dealing with non-whites; therefore I have a suspicion that
        this police officer may have lied and overreacted in dealing with this non-white accused.‖ This is
        stereotyping all police officers as liars and racists. Whether racism exists in our society is not the
        issue. The issue is whether there was evidence before the court upon which to base a finding that
        this particular police officer‘s actions were motivated by racism. There was no evidence of this
        presented at trial. The trial judge erred in law by failing to base her conclusions on evidence.

Law and economics (LE)

Both positivism and natural law are concerned with concepts of law and justice, even if they diverge as to
how the two relate to one another. Both are based largely on western, liberal ideas about law and society.
In contrast, feminism and CLS take issue with the liberal bias of law and its relationship with justice.
Both attempts to provide alternatives of what justice might be. Law and economics is different, grounded
less in moral theory and more in ideas about efficiency. LE scholars have applied economic analysis to
explain contract law, crime, torts, family law, property, legislation, abortion, and more. A traditional law
and economics approach applies economics methodology to legal rules in order to assess whether the
rules will result in outcomes that are efficient. Efficiency tends to be defined in terms of an ideal where
the welfare of each of the relevant parties can no longer be maximized except at the expense of the
other parties, referred to as a state of ―Pareto optimality.‖ An assumption is that human beings are
rational actors (rational maximizers of their welfare). This form of analysis was first applied on comm.
Law rules developed in private law areas such as torts and contracts.

Public law and economic theory - Justice and efficiency are interrelated. Governments have to consider
the costs of providing and maintaining the institutions of justice. But more broadly, to the extent that

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justice involves considerations of utility, efficiency, it has been argued, can be seen as a concept
concerned with maximizing justice. Law and economics (also known as the economic analysis of law) is
an approach to legal theory that applies methods of economics to law. It includes the use of economic
concepts to explain the effects of laws, to assess which legal rules are economically efficient, and to
predict which legal rules will be promulgated

Note the economic theory of regulation (public choice theory). In particular, it studies the behaviour of
politicians and government officials as mostly self-interested agents and their interactions in the social
system either as such or under alternative constitutional rules. It attempts to explain government
intervention as a ―corrective‖ to market failure. The theory seeks to understand why some government
programs seem to run counter to the public good. Policy makers are assumed to act in order to maximize
political support. They are not necessarily attempting to maximize social welfare, therefore, but are
motivated largely by self-interest. A basic proposition of public choice theory is that diffuse and
fragmented groups are less effective than more focused and concentrated groups in achieving success
in the political arena and in influencing legislators and regulators. One then might expect legislation to
favour the self-interest of legislators and/or the interest of powerful social groups. One of the themes in
public law is to show how common law has been displaced by policy formulation (in the form of
legislation) as the primary means of social regulation. What, then, in economic terms, is the problem that
a legal rule of structure is attempting to resolve? What effect does this rule have on society?

Duncan Estate v Baddeley (1997) (Alta. CA)
      Does a claim in tort for loss of future earnings survive the death of the victim?
      Lots of social policies open to the legislature, but it doesn‘t mean they are law
There is some logic in the statutory denial of an award in a case where the victim cannot enjoy that
consolation or sense of justice. The ―windfall‖ reasoning would lead to the conclusion that there should
be no survivorship for torts at all (money that goes to the estate after the Plaintiff dies). As a result, my
first response to this argument is that one should not, when seeking to interpret a statute, invoke
arguments for its repeal. Those arguments were lost when the legislature enacted this statute. There are
lots of social policies open to the legislature, but it doesn‘t mean they are the law (for example, the notion
of rational maximization of low-risk costs as suggested by the economic theory of law). I see no justice in
a rule whereby the respondent need not offer compensation because Dencan can no longer enjoy it. In my
view, what shall happen to the award after it is made is essentially irrelevant in a tort suit. There was a big
discussion of the loss of future earnings and whether that was a legitimate head of damages. Kerans JA
held that it was and that survivorship does exist. Cote JA agrees, but adds to the previous judgement. Why
should the tortfeasor escape scot-free if the plaintiff dies the day before judgement is pronounced? Worse
yet, why should the tortfeasor who has made death imminent escape scot free if he manages to drag out
the litigation long enough that he produces the very death in question, before judgement?

Hill v Church of Scientology of Toronto, [1995] 2 SCR – the appellant M, held a press conference and
accused a Crown attorney of contempt. At the contempt proceedings, the allegations against the
respondent were found to be untrue and without foundation. He thereupon commenced an action for
damages in libel against the appellants. Both appellants were found jointly liable for general damages in
the amount of $300,000 and Scientology alone was found liable for aggravated damages of $500,000 and
punitive damages of $800,000. This judgment was affirmed by the Court of Appeal. The major issues
raised in this appeal are whether the common law of defamation is consistent with the Canadian Charter
of Rights and Freedoms and whether the jury's award of damages can stand. The common law strikes an
appropriate balance between the twin values of reputation and freedom of expression. Aggravated
damages may be awarded in circumstances where the defendant's conduct has been particularly
high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the
libellous statement. Punitive damages may be awarded in situations where the defendant's misconduct is
so malicious, oppressive and high-handed that it offends the court's sense of decency. Further, the

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circumstances presented in this exceptional case demonstrate that there was such insidious, pernicious and
persistent malice that the award for punitive damages cannot be said to be excessive. Privacy, including
informational privacy, is "[g]rounded in man's physical and moral autonomy" and "is essential for the
well-being of the individual". The publication of defamatory comments constitutes an invasion of the
individual's personal privacy and is an affront to that person's dignity.

―The Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian
Criminal Justice System” (2008) (David Tanovich)
    It is fair to say that some groups such as women and gays and lesbians can point to a number of
      significant victories ranging from the right of reproductive choice to the right to same-sex
      marriage. Can the same be said of racial injustice in the criminal justice system? The
      manifestations of this injustice include over- and under-policing, discriminatory bail, trial and
      sentencing outcomes, and mass incarceration.
    This paper’s thesis is that while there is reason to be optimistic about the possibilities for future
      reform, the Charter has, to date, had very little impact on racial injustice in Canada.
    We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling
      at our borders and in our streets continues to flourish, and the federal government continues to
      propose legislation that will further entrench the problem
    Racial justice has not had a chance to grow over the last 25 years because there has been a
      significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of
      the judiciary to adopt appropriate critical race standards when invited to do so.
    The paper is also, in many respects, a response to Justice Michael Moldaver‘s state of the
      criminal union and, in particular, his belief that ―[m]any of the Charter issues that you are likely
      to encounter on a day-to- day basis have been thoroughly litigated, all the way to the Supreme
      Court of Canada. By and large, the governing principles are now firmly established.‖ Nothing
      could be further from the truth when it comes to race-based Charter litigation.
    R. v. Hall — The Criminal Lawyers‘ Association of Ontario (―CLA‖), relying on the empirical
      work of the Ontario Systemic Racism Commission, made substantial submissions on the impact
      of race on bail decisions in a Charter section 11(f) constitutional challenge to section 515(10)(c)
      of the Criminal Code. White accused were more likely to be released by the police or not
      detained following a bail hearing than Black accused. White accused were treated more
      favourably even though they were more likely than Black accused to have a criminal record
      and to have a more serious record. In drug cases, White accused were twice as likely to be
      released by the police as Black accused. Black accused were three times more likely to be
      denied bail than White accused.
    With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once
      critical race standards have been established by the courts. The most cogent evidence of this is the
      small number of racial profiling cases that have been litigated following the decision of the
      Ontario Court of Appeal in R. v. Brown despite the fact that there are likely hundreds of such
      cases each year. There are other examples as well. No one has, since racial profiling emerged as a
      live issue in Charter jurisprudence, challenged the legitimacy of R. v. Ladouceur, the case that has
      provided the police with a racial profiling writ of assistance
    This refusal of judges to act and lack of race consciousness by lawyers are having a direct
      impact on the ability of the Charter to remedy racial injustice.




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Sources of law

     Much of our current legal regime depends on the common law and a series of British imperial
      statutes, which were received into Canada upon its acquisition as a territorial possession of the
      British Crown. Quebec, given its French history and civil law origins, is different. Quebec
      remains a civil law jurisdiction, albeit heavily influenced by the common law tradition. Canada
      was populated by aboriginal First Nations prior to its colonization by the European empires.

Reception of European law (Canada’s common and civil law traditions) – Canadian law remains a
largely European inheritance. The PC decision in Cooper v Stuart provides a general overview of how
British colonies adopted English law. Lord Watson also highlights the basic principles surrounding the
rules of reception:

Cooper v Stuart, (1889) (PC) – There is a great difference between a colony acquired by conquest or
cession (surrender or give up), in which there is an established system of law and that of a colony which
consisted of a tract or territory practically unoccupied, without settled inhabitants or settled law at the
time when it was annexed to the British dominions. In the latter case (New South Wales), the imperial
Parliament may by statute declare what parts of the common and statute law of England shall have effect
within its limits. The law of England must prevail until it is abrogated or modified, either by ordinance or
statute. All laws of England must apply to an infant colony of that kind. The conclusion appears to their
Lordships to be inevitable that, as soon as colonial land became the subject of settlement and commerce,
all transaction in relation to it were governed by English law, in so far as that law could be justly and
conveniently applied to them. In a later case (McKinney and Others), the case differed from the present
in the respect that in colonial circumstances, the law of England was introduced into the Colony by
statute, and not by the silent operation of constitutional principles.

French civil law and Bijuralism – the common law is an English invention. It is judge made law,
developed through the common law courts. In the beginning, the common law contained no written
laws, but court decisions.

    1. Judges don‘t make the law but merely declare it, and
    2. Past decisions are considered evidence of the law, and judges infer from these precedents what is
       the true law in a given instance.

Cases remain a key source of law, while statutes are (at least traditionally) seen as incursions into the
common law. On the other hand, Quebec inherited the civil law (civilian tradition). This arises out of
the Roman law. It is based not on cases but established laws, generally written as broad legal
principles. This contrasts with the common law‘s judge-centred application of facts to uncover legal
rules. The difference lies more in their different methodological approaches as opposed to codifications,
per se. In civil law jurisdictions, legislation is seen as the primary source of law. Judicial reasoning is
based extensively on the general principles of the rule of code. Common law methodology, even where
statutory sources of law are present, employs analogical reasoning from statutory provisions to fill gaps.
This ―bijuralism‖ remains largely intact today. As a result, Canada is a mixed law jurisdiction. But
even Quebec’s legal system has many aspects of a common law jurisdiction. It relies on civil law
jurisdictions such as France and Germany, marries that with common law rules to ensure better
harmonization with the rest of Canada and the US. For example, Quebec‘s legislative, judicial, and
administrative institutions and processes belong to the English tradition, while the content of many of its
private laws are civilian based. Judicial decisions in Quebec are reported in the English rather than the

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French mode. Dissenting opinions are not only permitted but frequent. This is inconsistent with the civil
law theory that there can only be one answer to a legal question as the logical outcome of deductive
reasoning. Although stare decisis is not part of Quebec law, court decisions are given considerable
weights in judicial analysis.
     NOTE: Under the Canadian constitution, legislation must be enacted in both French and English
        by Parliament and by the legislatures of Manitoba, NB, and Quebec. There is sometimes a
        discrepancy (although both are meant to say the same thing).

Operation of common law and precedent – the genius of the common law is that it makes adherence to
legal principles established on past cases a foundational principle that inevitably leads to a more or less
stable and certain legal structure. Reliance on past cases is called the principle of stare decisis (let the
decision stand). Precedent aids in the stability and coherence of the law, making it more predictable.
But not everything a judge says is binding. It is only the ratio decidendi (reason of deciding) that is said to
constitute the binding rule for purposes of precedent. Everything else is obiter dicta (things said by the
way). But ratio‘s and precedent isn‘t always clear. For example, Canada Trust Co. v Ontario Human
Rights Commission distinguished Bhadauria, constraining it to its facts. In the latter, on a wide reading of
Laskin CJ‘s reasoning, no claim based on a breach of the Ontario Human Rights Code or the public
policy found within it is available to any future litigant (unless the SCC decides to overrules it).
Tarnopolsky JA in Canada Trust takes a much narrower reading of it. In that case, the judge invoked the
cy-pres doctrine to bring the trust into accord with public policy by removing all offensive restrictions,
thus permitting it to remain a scholarship.

“Bijuralism and Harmonization: Genesis” (The Honourable Mr. Justice Michel Bastarache, SCC)
(2000) Bijuralism or "bijuridisme" in Canada signifies the co-existence of the English common law and
the French civil law traditions, within a country organized along federal lines. In my opinion, there is one
legal family in Canada which contains the common law systems and another legal family which contains
the civil law systems. To practitioners, the common law means that they have access to a fragmented law
that they will discover incrementally as needed. This leads to the legal fiction that a judge does not make
the law but discovers it, as a legal vacuum is impossible. Thus, there is also intellectual uncertainty, as the
law is in constant evolution. According to Oliver Wendell Holmes, the law is only what the judges say it
is. Everyone is familiar with his famous assertion that: "The life of the law has not been logic: it has been
experience". Rather than proceeding from the ratio decidendi of previous judicial decisions, the emphasis
in the civil law tradition is on the written, or codified law, which is the primary source of law.
      The civil law is therefore not "judge-made law" but codified law. The theory in civil law drafting
         is therefore to enunciate general principles. Judges therefore proceed from the general to the
         specific, deriving conclusions through interpreting the rules set out.

To attain a high level of interaction between Canada's two legal systems, a high degree of individual
bilingualism must be attained within the legal profession. Indeed, the history of Canadian bijuralism
supposes an ability to function in the two languages. At present, there is still reason to fear that we are
less than well equipped to meet this challenge. There is also a perception that while Ontario courts often
serve as persuasive authority in other Canadian provinces, decisions of Quebec courts that are rendered in
French are not fully heeded in other jurisdictions, undoubtedly due to the language barrier. The faculties
of Ottawa University and McGill University offer both civil and common law degrees. The faculties of
Moncton and Ottawa offer common law programmes in French and McGill University offers the civil law
programme in English. Canada is blessed with four different legal languages and federal legislation
must not only be bilingual but bijural. Indeed, federal legislation must simultaneously address four
different groups of persons: 1) Anglophone common law lawyers; 2) francophone common law lawyers;
3) Anglophone Quebec civilian lawyers; and 4) francophone Quebec civilian lawyers.



                                                       9
Certain problems arise where federal legislation is drafted on the basis of the common law system alone,
or based on rules or institutions that exist only in the common law. The requirement in Canada that
legislation be enacted in both English and French has important implications. It means that both
language versions of a bilingual statute are original, official and authoritative expressions of the law
—and neither has paramountcy over the other. To properly interpret bilingual legislation of Canada, the
English and French versions must be read in light of each other, taking into account the context of such
legislation, including the intent of the legislature that each provision of the act be read consistently with
the others and that the act as a whole be read in light of the legal family or system of law applicable in the
particular jurisdiction.

On harmonization - While civil law and common law complement the private law provisions of federal
legislation, at the same time, federal legislation should not be applied uniformly throughout the country in
every respect. Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly
across Canada; this requires respect for the character and uniqueness of the concepts and principles of
each legal system. The fact that provincial legislatures may pursue distinctive legal policies which might
each be different as well as different from those of Parliament, is a principal justification for federalism.
If uniformity was our goal, what would be the purpose of our federal system and bijural culture? The
need to recognize diversity should not, however, inhibit the need for coherence and the need to reduce
conceptual and linguistic incongruence.

There is evidence of a certain convergence between the civil law and common law traditions in Canada.
This move may also result from the commercial activity of Quebec enterprises outside of Quebec coupled
with the desire to attract foreign investment into Quebec. Such activity creates pressures to adopt
commercial law devices from Anglo-American jurisdictions. Throughout its history, the Supreme Court
of Canada has been preoccupied with the reciprocal influences of the civil and common law traditions and
has demonstrated its willingness to contribute to a process of "cross-fertilization". In a recent tort
decision of the Supreme Court from British Columbia, in Canadian National Railway Co. v. Norsk
Pacific Steamship Co. Ltd., the Court made extensive reference and resorted to civilian authority for
resolution of a common law tort case. Chief Justice McLachlin stated that looking to how other courts in
different jurisdictions deal with this issue provides perspective both on the nature of the problem and
possible solutions. Bijuralism in Canada is more than the mere "co-existence" of the two legal
traditions. It involves the sharing of values and traditions.

St-Hilaire v Canada (AG), [2001] (Federal CA) – respondent killed her husband. The respondent asked
the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's
succession, the allowances prescribed in the Act. The Federal Court of Appeal has on many occasions
recognized the complementarity of the Quebec civil law with federal law where the latter is silent.
Necessary to refer to Civil Code of Québec where Act silent on meaning of words "surviving spouse.‖


Common law and equity
   Common law also has a variety of other ―internal‖ meanings according to context. For instance,
     common law must sometimes be distinguished from the body of law produced from the Chancery
     court known as equity. Equity is formally defined as the body of law developed by the court of
     chancery prior to that court’s dismantling (shortly after 1873). Equity developed in tandem
     with the common law.

Its original function was to provide a corrective to the perceived harshness of the common law. Cases
were decided according to the rules of equity and good conscience; there was no abstract, formal
methodology and no strict doctrine of precedent. Its principles are more clearly tied to considerations of
conscience and morality than those of law. In 1873, administration of the equitable and common law

                                                     10
systems was fused through the adoption of the judicature acts. Since then, there is no Chancery Court, but
equitable principles continued to develop alongside common law principles. The rules of common law
and equity are now applied concurrently in all superior courts, with equity prevailing in cases of conflict.
It is now simply part of our law. Equitable doctrines continue to exist. These doctrines are important
components of Canadian law in the 21st century and reflect a continuing commitment to conscience
and moral-based decision making. Although it‘s mostly present in private law, equitable principles are
slowly making its way into public law (see KLB v BC).

Re DeLaurier, [1934] SCR – This was a dispute over custody of a child. Appellants (parents) were
Roman Catholic and respondents were Protestants (child in respondents‘ care for 10 years). The rules of
equity prevail in Ontario as they do in England, and recognize the welfare of the child as the predominant
consideration. If the general welfare of the child requires that the father‘s rights in respect of the religious
faith in which his offspring is to be reared, should be suspended or superseded, the courts in the exercise
of their equitable jurisdiction have undoubted power to override them (like all other paternal rights, but
courts must act cautiously). Thus, equitable doctrine of fiduciary was invoked to protect the religious
upbringing of a child.

Guerin v Canada, [1984] 2 SCR – The Crown may be under a fiduciary obligation to particular
individuals or groups. Appellants (Indian band) sued the federal Crown for leasing to a golf club land on
an Indian Reserve. S. 18(1) of the Indian Act provides that reserves shall be held by Her Majesty for the
use of the respective Indian Bands for which they were set apart. Generally, lands in a reserve shall not be
sold, alienated, leased of otherwise disposed of until they have been surrendered to Her Majesty by the
Band for whose use and benefit in common the reserve was set apart (s.37).
     The nature of Indian title and the framework of the statutory scheme established for disposing of
         Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with
         the land for the benefit of the Indians. The fiduciary relationship between the Crown and the
         Indians has its roots in the concept of aboriginal, native, or Indian title. The Crown is under an
         obligation to deal with the land on the Indians‘ behalf when the interest is surrendered. When a
         fiduciary relationship exists, equity will then supervise the relationship by holding him to the
         fiduciary‘s strict standard of conduct.

KLB v BC, [2003] 2 SCR – appellants suffered abuse in two successive foster homes. The trial judge
found that the government had failed to exercise reasonable care in arranging suitable placements for the
children and in monitoring and supervising these placements. On what grounds can the government be
liable for the tortious conduct of foster parents toward children whom the government has placed under
their care? The relationship between the government and foster children is fiduciary in nature. The
government, through the Superintendent of Child Welfare, is the legal guardian of children in foster care,
with the power to direct and supervise their placement. Disagreement lies over the content of the duty that
this fiduciary relationship imposes on the government. Children are meant to be nurtured in a private
home environment, which eliminates the government’s capacity to exercise close supervision in
relationship to the foster parents’ day-to-day conduct.

Convention (international)

International law shouldn‘t be ignored in Canada as it shapes Canadian domestic law. See ―Crossing
Borders: Law in a Globalized world‖ by the Law Commission of Canada (2006).

     Domestic law consists of legislation, common law, constitutional law, etc. The two most
      significant sources of international law are treaties and ―customary international law.‖



                                                       11
Treaties - law-making contracts between states (‗bilateral treaty‖ is between two states and ―multilateral‖
when it is with more than two). Treaty also goes by convention, covenant, protocol, agreements, charter,
and statute. There are thousands of treaties, webbing the world together in a complicated pattern of
bilateral and multilateral international legal obligations. They affect a state‘s foreign policy without
necessitating changes to domestic law. Others require states to change their internal policies, practices and
often laws in order to meet obligations set out in the treaty.

Customary international law
      very different from treaties
      When state practice and universal state practice become widespread among the states of the
         world, the practice in question is said to become legally binding as customary international law
         (universal declaration of human rights, for example).
These laws bind all states, excepting only those that have been sufficiently persistent in rejecting it prior
to its emergence as a binding norm. These are formed by general and universal state practice.

Canada is traditionally a ―dualist‖ jurisdiction (domestic law and treaty law are two distinct universes).
In the dualist tradition, an international treaty has no effect on domestic law. Without dualism, the
executive would short-circuit Parliament‘s supremacy in law-making. Also, if treaties had immediate
effect as laws, the federal executive could dance around the division of powers in the Constitution Act,
1867 by employing its treaty-signing powers to legislate in provincial areas. Dualism thus responds to
concerns about the democratic legitimacy of the treaty-making process by factoring elected legislatures
back into the equation (after a treaty, there needs/should be an act of Parliament). But when Parliament
fails to implement treaty law into domestic law the result is a real problem: Canada is bound by the
treaty as a matter of international law, and yet its policy-makers need not abide by the treaty under the
terms of domestic law. Ratification may be delayed until legislatures are in line with the treaty, but this
may not always be the case.

What about when Canada signs a treaty, but the treaty‘s aim is already apparent in Canadian law, just
with no reference to the treaty? For i.e., Article 3 of the Convention on the Rights of the Child states that
the best interests of the child shall be a primary consideration. Canadian law has LOTS of references to
―best interests of the child‖ in legislation, there are just no specific references to the convention, yet in
Baker v Canada, the SCC concluded that the treaty had never been implemented. Does this mean ALL
Canadian statues will have to change whenever it signs a treaty?
       Note the decision in Suresh v Canada, [2002] 1 SCR which can create awkward law....
The court used an unimplemented treaty (UN convention against torture) to inspire Charter right to permit
deportation (even in the face of torture) but only in exceptional circumstances. The result is a Canadian
rule that, while motivated by an unimplemented international treaty, is not compliant with it. So, because
the treaty isn‘t law, courts may ignore actual requirements of these treaties and devise some hybrid
standard of their own (worst of both worlds). That is, the partial application of treaties never concretely
implemented by the legislature, but in a manner that does not actually comply with Canada’s
international obligations. However, once a rule becomes recognized as a customary law, it is
automatically part of the Canadian common law. In that sense, Canada is a monist jurisdiction with
regards to customary international law. But it can always be displaced by a statute that is inconsistent with
it. Is Canada in violation of its international obligations if such legislation displaces customary
international law? If it is incorporated directly by the courts, there may never be any clear and direct input
by political branches of government into the rules by which law in Canada is made binding. Also, since
customary law is sometimes uncertain, courts asked to apply it as domestic law of Canada rely on expert
testimony (academics and international lawyers). This raises questions legitimacy and offends the
common law since judges are relying on outside experts to guide their deliberations.



                                                      12
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR – A woman was deported
whose children were born in Canada. ―Given that the Immigration Act does not expressly incorporate the
language of Canada‘s international obligations with respect to the International Convention on the Rights
of the Child; must federal immigration authorities treat the best interests of the Canadian child as a
primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?‖ A reasonable
exercise of the power conferred by the section requires close attention to the interests and needs of
children since children‘s rights, and attention to their interests, are central humanitarian and
compassionate values in Canadian society. Indications of these values may be found in the purposes of
the Act, in international instruments, and in the Minister‘s guidelines for making humanitarian and
compassionate decisions. Because the reasons for this decision did not indicate that it was made in a
manner which was alive, attentive, or sensitive to the interests of the appellant‘s children, and did not
consider them as an important factor in making the decision, it was an unreasonable exercise of the power
conferred by the legislation (international convention still used despite not being incorporated in
domestic law). Another indicator of the importance of considering the interests of children when making a
compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of
the Child, and the recognition of the importance of children‘s rights and the best interests of children in
other international instruments ratified by Canada. International treaties and conventions are not part of
Canadian law unless they have been implemented by statute: Nevertheless, the values reflected in
international human rights law may help inform the contextual approach to statutory interpretation
and judicial review. The principles of the Convention and other international instruments place special
importance on protections for children and childhood, and on particular consideration of their interests,
needs, and rights. They help show the values that are central in determining whether this decision was a
reasonable exercise of the H & C power.

De Guzman v Canada (Minister of Citizenship and Immigration), 2005 FCA - International human rights
instruments do not prevail over conflicting IRPA provisions. This was an appeal from a Federal Court
decision dismissing the appellant‘s application for judicial review to set aside a decision of the
Immigration Appeal Division of the Immigration and Refugee Board (Board) dismissing the appellant‘s
appeal from a visa officer‘s refusal to issue visas to her sons as members of the family class. When the
appellant tried to sponsor her sons, her application was refused under paragraph 117(9)(d) of the
Immigration and Refugee Protection Regulations on the ground that they were not members of the family
class because they had not been examined for immigration purposes when the appellant applied to come
to Canada. The issues were whether paragraph 117(9)(d) is invalid under section 7 of the Charter; and
whether it is invalid because it renders the IRPA non-compliant with ―international human rights
instruments to which Canada is signatory‖? Paragraph 3(3)(f) does not incorporate into Canadian law
―international human rights instruments to which Canada is signatory‖ but merely directs that the
IRPA must be construed and applied in a manner that complies with them. The IRPA must be
interpreted and applied in a manner that complies with the international human rights instruments that are
binding on Canada. It was not necessary in the case at bar to decide the effect of paragraph 3(3)(f) with
respect to non-binding international instruments to which Canada is signatory because only the binding
instruments were relevant to this case. Moreover, paragraph 3(3)(f) of the IRPA does not require that each
and every provision of the IRPA and the Regulations comply with international human rights instruments.
Rather, the question is whether an impugned statutory provision, when considered together with others,
renders the IRPA non-compliant with an international human rights instrument to which Canada is
signatory. IRPA is NOT inconsistent with international human rights instrument to which Canada
signatory when considering context of IRPA’s legislative scheme as whole. International instruments
are not legally binding on signatory States until ratification thereof unless the instrument provides for
binding nature when signed.

Statute – the common law developed through the accumulation of case law and the interpretation of
judges, as opposed to being set out in legislation. Torts, contracts, and property have largely developed

                                                    13
from common law rules. Parliament and provincial legislatures, however, are free to enact new statutes
to displace the common law. Statutory rule will supersede a judge-made rule. The interplay among the
common law, statutory law, and constitutional law can be complex. Consider same sex marriage.
Reference re Same-sex Marriage Act, [2004] 3 SCR and the ensuing legislation, the Civil Marriage Act,
2005, state that it is now legal everywhere in Canada for persons to marry someone of the same sex. The
common law definition of marriage was as one man and one woman, and this applied to all the common
law provinces. This arose in a piecemeal way through a serious of constitutional cases that began by
establishing equal benefits for homosexual couples. Then, in the 2000s, a trilogy of cases in BC, Ontario,
and Quebec challenged the heterosexual definition of marriage itself as a breach of the Charter.

Halpern v Canada (AG) (Ont. CA) – the central question in this appeal is whether the exclusion of same-
sex couples from this common law definition or marriage breaches ss. 2(a) or 15(1) of the Charter in a
manner that is not justified in a free and democratic society under s. 1 of the Charter. Sexual orientation is
an analogous ground that comes under the umbrella of protections in s. 15(1) of the Charter. The
definition of marriage comes from the common law (Hyde v Hyde). The definition of marriage is subject
to Charter scrutiny. The Association for Marriage and the Family in Ontario argued that ―marriage,‖ as
used in the Constitution Act 1867, is a constitutionally entrenched term that refers to the legal definition
of marriage that existed at confederation. However, to freeze the definition of marriage to whatever
meaning it had in 1867 is contrary to this country‘s jurisprudence of progressive constitutional
interpretation. A constitution ―must be capable of growth and development over time to meet new
social, political and historical realities often unimagined by its framers. The judiciary is the guardian
of the constitution and must, in interpreting its provisions, bear these considerations in mind‖ (Hunter
v Southam Inc.). The Court found that the common law definition of ―marriage‖ infringed the
claimants’ rights under s. 15(1) of the Charter and this definition was not saved by s. 1 of the Charter.
Thus, the Court reformulated the common law definition to ―two persons.‖ There was no leave sought
to the SCC by the referral government. Before proceeding with the introduction of the Bill in Parliament,
the government decided to refer 4 questions regarding its validity to the SCC in Reference re Same-sex
Marriage Act, [2004]. The Court upheld the bill and effectively allowed same-sex marriage in all
provinces (Civil Marriage Act, 2005).


Fundamental Principles of the Canadian Legal system
    Rule of law
    Parliamentary sovereignty and constitutional supremacy
    Separation of powers
    Judicial independence

Public law concerns the relationship between the state and civil society. Private persons may only create
legal rights and duties between each other, and only on the basis of consent. In comparison, the state
holds all authoritative power. In a society governed by the rule of law, the state may not act arbitrarily.
The starting point is the constitution. It establishes WHO can make ordinary law of the land and spells out
any LIMITS on the content of this ordinary law. That is, a rule of recognition (constitution allows us to
recognize ordinary law and determine whether it is proper). A constitution also establishes relationships
between the institutions or braches of the state that perform the functions necessary to make law effective.
For example, the legislature makes law, the judiciary interprets law, and the executive implements those
laws. However, there is some overlap in Canada.

Rule of law
Even the most powerful state organs and officials are subordinate to the law. However, the extent that law
is made by men and women, the ―rule of law‖ poses a paradox. How do you make law the governing
principle in society when that law is made by human beings, and must remain sufficiently pliable

                                                     14
(easily influenced, bent or shaped) to respond to their democratically expressed wishes to change it?
The SCC in Secession Reference, [1998] stated that ―...the constitutionalism principle requires that all
government action comply with the Constitution. The rule of law principle requires that all government
action must comply with the law, including the Constitution.‖ In this sense, the ―rule of law‖ is broader
than constitutionalism, and indeed its necessary prerequisite.

Roncarelli v Duplessis, [1959] SCR – Director of the province‘s liquor commission (acting under the
express director of Premier Maurice Duplessis) revoked the licence of a Montreal restaurateur who had
posted bail for several hundred Jehovah‘s Witnesses, a group who the Premier disliked. The director
purported to be acting under the commission‘s unqualified statutory power to cancel permits ―at its
discretion.‖ The court rejected the idea that any statute could delegate such untrammelled power to a
government official, or that the premier could manipulate his own powers to pursue a personal vendetta.
Statutory powers must be limited to the express or implied purposes for which they were granted, a
principle enforceable by the judiciary. ―Discretion‖ necessarily implied good faith in discharging public
duty. To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant
to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred. Exercising
such power indiscriminately is contrary to the rule of law as a fundamental postulate of our
constitutional structure.

What comprises the constitution of Canada? – We commonly think of Canada having a written
constitution, embodied in two documents produced at distinct historical moments: the Constitution Act
1867 and the Constitution Act 1982. The former‘s achievement is federalism; the division of legislative
powers between a national Parliament and the legislatures of the provinces. This lists federal and
provincial areas of jurisdiction in ss. 91 and 92. The 1982 Act is primarily known for the Charter. But it
also contains other things in s. 52(2), and uses the word ―includes,‖ which suggests the Constitution
means more than was is in the section. In the Secession Reference, the SCC confirmed that the
Constitution also contains unwritten ―principles.‖ These unwritten principles are important to
undertaking the legal constraints under which public power is exercised by the Canadian state. In its most
striking statement, the court describes unwritten principles as having the force of law and imposing
substantive limits on the powers of government.

Reference re Secession of Quebec, [1998] 2 SCR – The constitution (aside from s. 52(2)) embraces
unwritten as well as written rules. Constitutional conventions and the workings of Parliament are
included. Although these underlying principles are not explicitly made part of the Constitution by any
written provision, it would be impossible to conceive of our constitutional structure without them.
Underlying constitutional principles may in certain circumstances give rise to substantive legal
obligations (i.e. having full legal force). Note that the unwritten rules cannot be viewed as overriding the
text. Their substantive role, at least to date, has been limited to supplementing or ―filling gaps‖ in the text.
In the ―rule of law‖ front, ordinary law must contain qualitative standards, including not being
retrospective and not being directed at a small class of persons. This idea was examined in Imperial
Tobacco.

BC v Imperial Tobacco Canada Ltd., [2005] 2 SCR – BC legislation created a cause of action aimed
against tobacco manufacturers with respect to health care costs incurred by the government. ―The
government has a direct and distinct action against a manufacturer to recover the cost of health care
benefits caused or contributed to by a tobacco related wrong...‖ Manufacturers argued that legislation
breached the unwritten constitutional principles of judicial independence and the rule of law. They
argued that several features of the statute (retrospective effect, presumptions favouring the Plaintiff,
creating cause of action against a Plaintiff and a small group of defendants) violated substantive norms of
the rule of law principle. There was a reversed burden of proof stating that it falls on the defendant
manufacturer to show that its breach of duty did not give rise to exposure, or exposure resulting from

                                                      15
breach did not give rise to the disease. Is the Act constitutionally invalid, in whole or in part, as
offending the rule of law? The SCC has described the rule of law as embracing three principles: 1)
legislation be applied to everyone including government officials; 2) legislation must exist to provide
normative order; and 3) the state official’s actions be legally founded (overlap of 3 with 1 and 2).
Actions of legislative breach are constrained too, but only in the sense that they must comply with
legislated requirements as to manner and form (i.e. procedures by which legislation is to be enacted,
amended and repealed). But there nonetheless might be additional principles embraced by the rule of law.
The appellants‘ arguments fail to recognize that in a constitutional democracy such as ours, protection
from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying
principles of our Constitution, but in its text and the ballot box. The rule of law is not a tool by which to
avoid legislative initiatives to which one is not in favour. Thus, the appellants‘ proposed requirements of
the rule of law have no constitutional protection under the ―rule of law‖ argument. Retroactive legislation
is NOT unconstitutional (it is in fact common). The rule of law does NOT require general legislation,
devoid of special advantages for the government. The fact that the defendants regard the Act as unjust or
procedural rules it prescribes unprecedented does NOT render their trial unfair (they will receive a fair
civil trial, in the sense that the concept is traditionally understood). The act is NOT unconstitutional.

       See also Manitoba Language Reference, [1985] 1 SCR (below) – page 50 below

Constitutional conventions
Are another specifies of unwritten constitutional norms. Because the Constitution Act 1867 sought to
effect ―a Constitution similar in Principle to that of the UK,‖ Canada inherited these conventions.
Conventions represent accepted understandings of how organs of government operate. See Patriation
Reference where the 8 opposing provinces sought a court ruling that this ―unilateral‖ proposal to amend
the constitution breached a convention of the Constitution. The court agreed, holding that a convention
was 1) a practice or agreement developed by political actors, 2) a recognition by political actors that
they are bound to follow the convention, and 3) the existence of a normative reason – that is, a purpose
– for the convention. They also held that conventions are NOT law and as such cannot be enforced by the
court.

The Patriation Reference, [1981] 1 SCR – A fundamental requirement of the constitution is that if the
opposition obtains the majority at the polls, the government must tender its resignation forthwith. This
requirement of the constitution, however, does not form part of the law of the constitution. It is also a
constitutional requirement that the prime minister is the effective head of the government and should
have the support of the elected branch of the legislature. This is also not the law of the constitution.
The main purpose of constitutional conventions is to ensure that the legal framework of the constitution
will be operated in accordance with the prevailing constitutional values or principles of the period. Being
based on custom and precedent, constitutional conventions are usually unwritten rules. In
contradistinction to the laws of the constitution, conventional rules of the constitution are NOT enforced
by the courts – they are not judge-made rules (unlike common law rules). Not judicial precedents but
precedents established by the institutions of government themselves. The legal system does not
contemplate formal sanctions for their breach. Is there a constitutional convention that the HC and senate
of Canada will not amend the Constitution of Canada affecting federal-provincial relationships without
first obtaining the agreement of the provinces? YES. Note that the government of Canada and the
governments of the provinces have attempted to reach a consensus on a constitutional amending formula
in the course of 10 federal-provincial conferences! No consensus was ever reached. The SCC wasn‘t
prepared to draft such a procedure in the decision. Conventions by their nature develop in the political
field and it will be for the political actors, not this court, to determine the degree of provincial consent
required (although the SCC held that SOME consent seems to be required). Thus, the passing of the
Resolution without any agreement from the provinces would be unconstitutional in the conventional
sense.

                                                     16
Court affirmed the existence of an unwritten dimension to the Constitution and the majority held that by
constitutional convention, amendments to the Constitution require a substantial degree of provincial
consent. However, a differently-constituted majority of the court held that there was no legal barrier to
the federal government seeking a constitutional amendment without any provincial consent. No
instance of an explicit recognition of a convention as having matured into a rule of law was produced.
Under Pierre Elliot Trudeau, the federal government of Canada sought to patriate the Constitution.
Specifically, the aim of the government was to make a request to the United Kingdom Parliament --
then the only body with the appropriate legal authority -- to amend the British North America Act,
adding to it a domestic amendment formula (permitting Canada to henceforth modify the Constitution
itself) and entrenching the Charter of Rights and Freedoms. "Canada would have its own constitution,
with a procedure for making future amendments to it, and with a Charter of Rights.‖ Eight Canadian
provinces eventually came to oppose the government's plan. Three provincial governments --
Newfoundland, Quebec, and Manitoba -- "asked for rulings from their provincial Courts of Appeal on the
constitutionality of the federal government's proposed plan."Among their other reasons for opposing the
plan to patriate the Constitution, these three provinces argued that the federal government did not have the
authority to ask the UK Parliament to change the B.N.A Act without the consent of some or all of the
provinces. On the federal side, in order to gain support for their plan from the opposition, Trudeau's
Liberals agreed to refer all questions on the constitutionality of their proposal to the Supreme Court of
Canada. Seven judges, a majority, found that the federal government had the legal authority to
unilaterally seek the amendment of the Constitution. As to the second matter, the judges unanimously
agreed that constitutional conventions exist in Canada, and a majority found that the federal government's
plan to seek the amendment of the Constitution without provincial consent did indeed violate such a
convention. However, that majority also argued that it was not the role of the courts to enforce
constitutional conventions. The decision has a broader significance to all common law jurisdictions as
it is authority for the proposition that a convention cannot, even through long and rigorous usage,
"crystallize" into law.

The very nature of a convention, as political in inception and as depending on a consistent course of
political recognition by those for whose benefit and to whose detriment (if any) the convention developed.
There is nothing in the other judgments delivered in the Labour Conventions case, either in the Supreme
Court or in the Privy Council that takes the matter there beyond its international law setting or lends
credence to the crystallization proposition urged by counsel for the Attorney General of Manitoba (p. 779)
(there has never been evidence of convention crystallizing into law). The court cited Munro in ―Laws
and Conventions Distinguished‖ where he stated that ―the validity of conventions cannot be the subject
of proceedings in a court of law. Reparation for breach of such rules will not be affected by any legal
sanction. There are no cases which contradict these propositions. In fact, the idea of a court enforcing a
mere convention is so strange that the question hardly arises.‖

Parliamentary sovereignty and Constitutional supremacy

       In the Secession Reference, the SCC set out its understanding of the principle of ―constitutional
        supremacy.‖ The Court described the 1982 constitutional arrangements as completing a
        transformation over time from a system based on the principle of Parliamentary sovereignty to
        one of constitutional supremacy.
       Also note s. 33 CA 1982 – Notwithstanding clause (definitely an argument for Parliamentary
        sovereignty)

Reference re Secession of Quebec, [1998] 2 SCR – begins by discussing the three elements of the rule of
law (above) as principles of profound constitutional and political significance. Constitutionalism is
similar to the rule of law but different and is found in s. 52(1) of the Charter (constitution is supreme

                                                    17
law of Canada). All government action MUST comply with the constitution. The rule of law requires that
all government action must comply with the law, including the Constitution. Shift from Parliamentary
sovereignty to constitutional supremacy. The constitution binds all governments, both federal and
provincial. A constitution may provide an added safeguard for fundamental human rights and individual
freedoms which might otherwise be susceptible to government interference (especially if the majority are
tempted to abuse their power). Constitutions protect minority rights. It also provides for a division of
powers that allocates power amongst different levels of government. Constitutionalism and the rule of
law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the
political will upon which democratic decisions are taken would itself be undermined. Canadians have
never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in
conjunction with the other constitutional principles discussed here, is richer.

To say that the Constitution is Canada‘s ―supreme law‖ implies a hierarchy of law. Ordinary law contains
its own hierarchy between statute law (written laws enacted by legislation) and common law (private law
principles developed over time by judicial precedent). The doctrine of parliamentary supremacy stands
for the proposition that a rule of the common law can be overridden or amended by express statement
of the legislature in the form of a statute. The relationship between the constitution and common law is
more difficult, although more recent statements have expanded the reach of Charter law to influence the
development of the common law rules. Constitutional supremacy requires a mechanism for adjudicating
alleged inconsistencies between the constitution and ordinary law. Our system requires that the
legislature will be checked by a judiciary with the authority to interpret and apply the constitution (so
the legislature can’t produce unconstitutional texts indiscriminately). This is even more evidence for
the need of judicial independence, preserving the interpreters of the Constitution from political
interference in their decision making. A system of constitutional supremacy requires an independent body
with interpretive power. A debate in Canada surrounds whether administrative tribunals should be
entitled to interpret and apply the Charter to invalidate legislation. Although the notion that potentially
non-independent, executive bodies may be empowered to apply the Charter seems inconsistent with the
notion of constitutional interpretation by an independent body, note judicial review – that is, the courts
will ultimately have the last word anyway.

Counter-majoritarianism – constitutional supremacy represents a check on majoritarian democracy. It
place limits on, or obstacles in the way of, majority preferences. There is no need for a supreme
constitution other than to place checks on legislative majorities. Although not all statutes will run with
the majority and not all statutes will represent the views of the majority, the power to interpret and
enforce the Constitution against majority preferences must be present nonetheless. The framers of a
constitution anticipate for the future what values deserve protection from majority preferences. Present
majorities may well find themselves subject to constitutional limits created by people with very different
views, in a very different society. For this reason, the need for ways to amend a constitution is
recognized in all known political communities. Constitutional supremacy implies that a constitution
cannot be amended in the same way that ordinary legislation is enacted. If the same Parliament that
passes ordinary legislation is also able to amend the constitution itself, it is not bound by the constitution.
It can merely alter its terms whenever it encounters a constitutional difficulty. Therefore, the process to
amend the constitution must involve a ―super-majority.‖It requires majorities of federal and provincial
legislatures to agree on proposed changes. The SCC has described human rights legislation as ―quasi-
constitutional‖ in nature. These are obviously closely related to other civil liberties protected in the
Constitution. Nonetheless it has ―ordinary‖ status and is subject to the constitution. See Vriend v
Alberta, [1998] 1 SCR where an employee lost his job because he identified himself as gay. The Alberta
legislation left out sexual orientation as a ground protected under discrimination law. This human rights
legislation was subject to the Charter when the SCC ruled that the provision violated s. 15(1) of the
Charter since sexual orientation, since 1995, is analogous to the grounds enumerated in s. 15 (Egan
and Nesbitt, 1995 SCC).

                                                      18
Parliamentary law making (Parliamentary sovereignty)
Substantively, what is the scope of Parliament‘s law-making jurisdiction? Procedurally, what process
does Parliament follow? Parliamentary supremacy means that Parliament and its provincial counterparts
are the only truly sovereign body in Canadian constitutional law. It has the power to make and unmake
any law whatever. In Canada, of course, there is no full federal parliamentary supremacy. It is
constrained by things in the constitution, such as the division of powers between the federal and
provincial governments in the Constitution act 1867 (s. 91 and 92), and constitutionally protected
individual rights found in the Charter. But so long as it falls within these constitutional bounds,
Parliament may make any law on any topic it wishes, as an exercise of its parliamentary supremacy (see
Babcock, supra). This also means that Parliament can pass careless shitty laws so long as they do not
constitute constitutional violations. See Bacon:

Bacon v Saskatchewan Crop Insurance Corp. (1999) (Sask. CA) – Appellants (who represented 386
farmers) didn‘t like amendments to legislation that affected the Gross Revenue Insurance Program. They
argued that according to the rule of law, governments are affected by the law just as much at citizens.
They claim the government had no legal authority to pass legislation imposing a new contract and
extinguishing the right to sue for the breach of the earlier contract. The government contends the role of
Parliament as supreme when acting within its constitutional limits. The public’s protection from the
arbitrary use of power by officials is provided by the Courts...but the public’s protection from the
arbitrary use of power by the elected legislators is the ballot box. These are separate and distinct threats
to our freedom and have separate and distinct protections.

Tuner v Canada, [1992] (FCA) – (per Mahoney JA) even when it is alleged that an ill-intentioned
ministry tricked Parliament into enacting legislation, the courts will not probe that statute‘s
promulgations. Plaintiff was involved in a lawsuit and his damages were cut off due to new legislation
passed. It was alleged that Parliament was tortiously misled to enact the retroactive amendment.
Parliamentary sovereignty was brought squarely into issue. Part of Parliamentary sovereignty is that
Parliament enjoys certain privileges, namely, the exclusive right to determine the regularity of their
own internal proceedings (Pickin v British Railways Board). Thus, allegations that Parliament has
been induced to enact legislation by the tortious acts and omissions of Ministers of the Crown are not
justiciable.

Wells v Newfoundland, [1999] 2 SCR – (per Major J) this appeal dealt with civil servants who held
tenured appointments subject to good behaviour. Are such office holders owed compensation in the event
that their positions are eliminated by legislation? The Newfoundland government restricted the Public
Utilities Board, which reduced commissioners and abolished Mr Wells‘ position. The appellant Crown
asserts that even if it breached the respondent’s contract of employment by eliminating his position, it
was entitled to do so as an exercise of its unfettered sovereign power. While the legislature may have the
extraordinary power of passing a law to specifically deny compensation to an aggrieved individual with
whom it has broken an agreement, clear and explicit statutory language would be required to extinguish
existing rights previously conferred on that party. The repeal did not, of itself, strip him of the rights
obtained through the Public Utilities Act. The government would have been entitled to expressly deny
the respondent of compensation, but since no express language was in the repeal, the respondent’s
basic contractual rights to severance pay remain. The court should not be blind to the reality of
Canadian governance that, except in certain rare cases, the executive frequently and de facto controls the
legislature. In this case, the same ―directing minds,‖ namely the executive, were responsible for both the
respondent‘s appointment and his termination. Legislatures are subject to constitutional requirements
for valid law-making, but within their constitutional boundaries, they can do as they see fit.



                                                     19
NOTE: any effort by courts to scrutinize the procedure by which laws are passed by Parliament would
quickly trench on Parliamentary privilege. Does this mean that Parliament would be free to act unfairly –
perhaps by passing a law without any notice to those implicated by it? The answer is likely ―yes.‖
Canadians are not entitled to any sort of due process or procedural fairness in the law-making process.
See Reference re Amendment of Constitution of Canada where it was stated that ―courts come into the
picture when legislation is enacted and not before.‖

Authorson v Canada (AG), [2003] 2 SCR – (per Major J) disabled veterans sued the federal government
for payment of interest on pension monies held and managed by the government on their behalf over
many years, alleging this to constitute breach of fiduciary duty. They cited s. 1(a) of the Canadian Bill of
Rights. There was no disagreement between parties that the veterans were owned money (interest), but
the appellant argues that Parliament has, by enacting legislation, made the debt unenforceable.
Governmental expropriation of property without compensation is discouraged by our common law
tradition, but it is allowed when Parliament uses clear and unambiguous language to do so. The
Department of Veterans Affairs Act takes a property claim from a vulnerable group, in disregard of the
Crown‘s fiduciary duty to disabled veterans. However, that taking is within the power of Parliament. Due
process protections (Bill of Rights s. 1(a)) cannot interfere with the right of the legislative branch to
determine its own procedure. According to the Bill of Rights, ―Acts of Parliament‖ are to be interpreted.
The due process protections of property in the Bill of Rights do not grant procedural rights in the
process of legislative enactment.


Separation of powers

The separation of powers doctrine refers to the division of governmental functions between the
legislative, executive and judicial branches of the states. Canada does not rely on this strict separation
like the US model. It gives pre-eminence to the legislative branch, to which the executive is made
subordinate. There is also an overlapping between the legislature and the executive. The Prime minister
and members of his cabinet, who comprise the executive council ―advising‖ the head of state, are
elected members of the legislature. This is different from the US where the president who is chief
executive is elected separately from congress and appoints cabinet ministers from outside congress. It is
nevertheless important to know these three branches as an important part of public law. It identifies the
institutional homes, and provides general boundaries for the operation of each institution.

             Legislative power – divided between the federal government and the provinces. Other law-
              making bodies in Canada, including elected municipal councils and school boards, receive
              their powers by delegation from the legislatures and do not otherwise have sovereign status
              under the constitution. Canada was founded on the basis of dividing legislative power
              between a national legislature, Parliament, and regional or provincial legislatures.
              Canada’s federal and provincial legislatures were understood to be the sole sovereign
              holders of state authority, subject to authority being divided between them along the lines
              largely set out in ss. 91 and 92 of the Constitution Act 1867. When the Constitution Act
              1982 was passed which incorporated the Charter, new limits were imposed on the
              substantive laws that could be passed by either level of legislature. The limits placed on
              substantive law making by the Charter, together with the existing limits on who can pass
              which laws set out in ss. 91 and 92 of the 1867 Act, virtually required a recognition of the
              written Constitution as being the supreme source of law-making authority in Canada.
              Hence a shift from parliamentary sovereignty to constitutional supremacy. Federal
              government and provinces reached a compromise by agreeing to an overriding provision (s.
              33 notwithstanding clause). This allows either Parliament or a provincial legislature to
              enact legislation in contravention of certain Charter rights if the legislation contains an

                                                     20
              explicit declaration pursuant to s. 33. This was to reassert parliamentary sovereignty.
              Babcock provides a recent example of how the court has approached parliamentary
              sovereignty as a principle in Canadian constitutional law.

Babcock v Canada (AG), [2002] 3 SCR – government of Canada sought to rely on a statutory right of
non-disclosure of Cabinet documents. The applicants sought to invoke unwritten principles such as the
rule of law to support an argument that disclosure should be required despite clear statutory statement to
the contrary. Court held that parliamentary sovereignty decided the issue. S 39 of the Canada Evidence
Act provides a mechanism for cabinet confidentiality. The respondents challenge the constitutionality of
s. 39 and argue it is ultra vires Parliament because of the unwritten principles of the Canadian
Constitution: the rule of law, the independence of the judiciary, and the separation of powers. Although
they can limit government action, they do NOT do so in this case. The unwritten principles must be
balanced against the principles of Parliamentary sovereignty. It is well within the power of the
legislature to enact laws, even laws which some would consider draconian, as long as it does not
fundamentally alter or interfere with the relationship between the courts and the other branches of
government.

Principles of federalism – basis for confederation in 1867 was agreement by the political leaders of NB
and NS to divide sovereign legislative power between a federal government and regional or provincial
governments, and to separate Canada into the provinces of Ontario and Quebec. The SCC in Secession of
Quebec recognized federalism as an unwritten principle of the Canadian constitution, describing it as
the means of recognizing regional cultural diversity at the founding of Canada, particularly with
respect to the distinct nature of Quebec as a predominantly French-speaking society.

Reference re Secession of Quebec, [1998] 2 SCR – In a federal system of government such as ours,
political power is shared by two orders of government: the federal government on the one hand and the
provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867.
Federalism is a political and legal response to underlying social and political realities. The principle of
federalism recognizes the diversity of the component parts of confederation, and the autonomy of
provincial governments to develop their societies within their respective spheres of jurisdiction.
Federalism was also welcomed in NS and NB, both of which also affirmed their will to protect their
individual cultures and their autonomy over local matters. The other provinces pursued similar objectives.

Section 91 and 92 set out ―subject matters‖ or areas of regulatory or legislative concern that fall within the
exclusive jurisdiction of the respective legislative bodies. Provinces are responsible for hospital, property
and civil rights, education. A significant part of the judicial discussion concerned the understanding of the
relationship between the POGG (peace, order, and good governance, which fell within federal
jurisdiction) power and the enumerated heads of power in s. 92.Until 1949, the final court of appeal for
Canadian law was the JCPC. They played a major role in the evolution of Canadian federalism.
Specifically, they limited POGG as a source of federal jurisdiction to circumstances of national crisis and
emergency, such as occurred in wartime. However, since the SCC in 1949, they have incrementally
expanded the scope for federal authority and overlapping powers between the two heads of government.
This has pissed the provinces off; leading to a call for a constitutional amendment to the appointment
process for SCC judges (the federal government currently appoints them).

             Executive – The executive includes all ministries of government and their employees (the
              civil service). It also includes the armed forces and Crown corporations. Institutions that
              lie at the margins may include universities, hospitals, and professional regulatory bodies
              (bodies that are derived more from private sources, which are not part of the executive but
              of civil society). Some argue Canada is dominated by the executive branch since the PM
              and premiers exercise an authority over parties and over the legislatures. In law, however,

                                                     21
              the executive is subordinate to the legislature. The executive branch derives any power it
              has solely from the laws or statutes passed by the legislature. So, the executive branch in
              Canada is dependent on and subordinate to the legislative branch for its authority to act
              (only statute gives powers and delegates powers to particular people, groups, tribunals,
              etc.). Note that by convention, the executive is responsible to the legislature (responsible
              government). Convention requires the PM and his ministry to command the support (or
              confidence) of a majority of elected legislators.

             Judicial power – the federal government appoints superior, county, and district courts (s. 96
              of the Constitution Act, 1867). S. 101 authorize Parliament to create a general court of
              appeal for Canada. In 1875, Parliament enacted the Supreme Court Act. The court has both
              constitutional and administrative jurisdiction (that is, the jurisdiction to rule on the
              constitutional validity of ordinary laws in Canada and ability to supervise activities of
              executive government and other statutorily delegated actors to ensure they act within their
              statutory powers).This administrative law or judicial review jurisdiction is understood as
              common law development. Judicial review of executive action has constitutional status
              (Crevier v Quebec, [1981] 2 SCR). It is a ―hallmark‖ of s. 96 jurisdiction. Since 1970
              when Parliament created the federal courts (pursuant to their power to create s. 101 courts),
              administrative law jurisdiction in Canada has been divided between the federal courts and
              provincial superior courts, on the basis of whether the delegate in question is empowered
              under a federal or provincial statute.


Reference re Secession of Quebec, [1998] 2 SCR - The court addressed the three questions in order. First,
they stated that under the Canadian Constitution (and with Quebec being a party to it since its
inception), unilateral secession was not legal. However, should a referendum decide in favour of
independence, the rest of Canada "would have no basis to deny the right of the government of Quebec
to pursue secession." Negotiations would have to follow to define the terms under which Quebec would
gain independence, should it maintain that goal. In this section of the judgement they identified four
fundamental tenets of the Canadian constitution: Democracy, Constitutionalism and The Rule of Law,
Federalism, and Protection for Minorities. They held that these pieces cannot be viewed independently
but all interact as part of the Constitutional framework of Canada. The court stated in its decision that
under international law, the right to secede was meant for peoples under a colonial rule or foreign
occupation. Otherwise, so long as a people have the meaningful exercise of its right to self-
determination within an existing nation state, there is no right to secede unilaterally. The Supreme
Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of
self-determination to dictate the terms of a proposed secession to the other parties to the federation. The
democratic vote, by however strong a majority, would have no legal effect on its own and could not
push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or
the operation of democracy in the other provinces or in Canada as a whole

        Basic architecture and workings of the Canadian legal system

This is an introduction to the nature and function of judicial review, basic approaches to statutory
interpretation, and the Canadian governmental and constitutional system.
     The nature and function of JR
     The basic approaches to statutory interpretation
     Relationship between branches of government: JR; constraints on power of each branch
             o Executive branch: structure; powers (i.e. delegated legislation); introduction to nature and
                 role of administrative tribunals


                                                    22
            o   Legislative branch: structure and operation of Parliament; legislative process; formation
                of statute versus regulations; ethics and accountability
            o   Judicial branch: Canadian court system; appointment of judges; judicial independence


Chapter 4 – Parliament and the Legislative Process

Now it is time to examine the key public law actors in greater details (legislature, executive and the
judiciary). Our focus here is on Parliament. Section 17 of the Constitution Act, 1867 creates a
―Parliament of Canada,‖ consisting of the Queen; an upper house styled the Senate, and the HOC.
The Queen is Canada‘s official head of state. In practice, however, many of the Queen‘s powers are to be
exercised by the GG. The way in which the Monarch is selected has been challenged pursuant to the
Charter since you can‘t be a Roman Catholic and it prevents the monarch from marrying a Roman
Catholic (Act of Settlement 1701).

Monarch
O’Donohue v The Queen, [2003] (Ont. SC) – this case provides important insight into the constitutional
status of the monarchy in Canada. Mr D, a roman catholic, believes certain provisions of the Act of
Settlement are clearly discriminatory against Catholics. The provision provides that Catholics cannot
accede to the Crown of England, nor be married to someone who holds the Crown. Are those provisions
in breach of 15(1) of the Charter? The constitutional scheme of our democratic government consists of
four branches: the crown, the legislature, the executive and the courts. Each are to play their proper
role and no one of them can overstep its bounds, that each show deference for the legitimate sphere of
activity of the other. If the Act of Settlement has constitution status then the matter is not justiciable –
the Charter cannot be used to amend or trump another part of our constitution. The office of the Queen
is such a fundamental part of our constitutional structure that amendments to the Constitution in respect
of that office require the unanimous consent of the federal and provincial governments (role of the Queen
is provided for in s. 9 of the Constitution Act 1867). Unilateral changes by Canada to the rules of
succession, whether imposed by court or otherwise, would be contrary to the commitment given in the
Statute of Westminster, would break symmetry and breach the principle of union under the British Crown
set out in the preamble to the Constitution Act 1867. These rules of succession and the requirement that
they be the same as those of GB are necessary to the proper functioning of our constitutional
monarchy and, therefore, the rules are not subject to Charter scrutiny.

Senate
The GG is selected closer to home. In practice, the monarch appoints the GG. However, by Canadian
convention, the Queen follows the Canadian PM‘s recommendation in appointing the GG. Usually
represents Canada‘s multicultural fabric. Canada has an unelected upper chamber of the federal
legislature (the senate). S. 24 of the Constitution Act 1868 expressly anticipates the appointment of
senators by the GG. The GG follows the advice of the PM as required by constitutional convention. PM
Chretien declined to appoint the two so-called senators-in-waiting elected in 1999 (under new Alberta
legislation to elect senators). Mr Brown sued in the Alberta courts seeking a declaration that the senatorial
appointment provisions of the 1867 Act were contrary to democratic principles as set out in the SCC in
Reference re Secession of Quebec:

Brown v Alberta, [1999] (Alta. CA) – to conform to democratic principles, senators must be appointed in
a manner consistent with the provisions of an Alberta statute (the Senatorial Selection Act). The appellant
wants the court to look at the appointment process and to make a statement on whether or not the process
is democratic. In order for the court to be able to make such a statement, it must have jurisdiction to do so.
It will have jurisdiction only where there is a legal issue.


                                                     23
Samson v AG of Canada, [1998] (FC) - The reform party of Canada sought an interlocutory injunction to
restrain the GG from appointing a senator from Alberta, unless that person has been elected pursuant to
the provision of the Senatorial Selection Act. Section 24 and 32 of the Constitution Act 1867 expressly
confer on the GG the unfettered discretion to appoint qualified persons to the senate. A limitation
could only be imposed on that power by means of a constitutional amendment to section 24 and 32
affected in accordance with Part V of the Constitution Act 1982. If a governor in council ignores the
pending election to be held in Alberta, they do so at their own peril. That is a political decision, without
the interference or intervention of the Court. There is no serious legal issue to be tired, it is a political
matter.

House of Commons
Members of the HOC are elected (see s. 37 on the Constitution Act 1867). See Elections Canada,
Canada‘s Electoral System (2001) – representations in the HOC is based on geographical divisions
known as electoral districts, constituencies or ridings. Each riding elects one member to the HOC, and
the number of ridings is established through a formula set out in the Constitution. The current number
of districts and thus members of Parliament is 308. Our electoral system is referred to as ―single-
member plurality‖ or first-past-the-post. The candidate with the most votes wins a seat in the HOC and
represents that riding as its MP. Each party may endorse only one candidate per riding. All elected
candidates have a seat in the HOC where they vote on draft legislation (bills) and thus have an
influence on government policy. Until recently, the Canada Elections Act required a registered party to
run candidates in at least 50 electoral districts. This rule was struck down by the SCC in Figueroa,
[2003]. Consider its vision of electoral democracy and the role of political parties in it.

Figueroa v Canada, [2003] 1 SCR – (per Iacobucci J) this concerns s. 3 of the Charter. The issue is
whether federal legislation that restricts access to certain benefits to political parties that have
nominated candidates in at least 50 electoral districts violates s. 3. It does! Note: the effect of the
threshold is to extend the benefits of registration only to those parties that have nominated candidates in
50 electoral districts. So, the legislation required a 50 candidate threshold per political party to run is
50 different districts. The purpose of s. 3 includes not only the right of each citizen to have and to vote
for an elected representative in Parliament or a legislative assembly, but also to the right of each citizen
to play a meaningful role in the electoral process. The rights of s. 3 are participatory in nature. In our
system of democracy, each citizen must have a genuine opportunity to take part in the governance of
the country through participation in the selection of elected representatives. So, does the 50 candidate
threshold interfere with the capacity of individual citizens to play a meaningful role in the electoral
process? Political parties act as both a vehicle and outlet for the meaningful participation of individual
citizens in the electoral process. Large or small, all political parties are capable of introducing unique
interests and concerns into the political discourse. There is no reason to think that political parties that
have not satisfied the 50-candidate threshold do not act as an effective outlet for the meaningful
participation of individual citizens in the electoral process. Does withholding those benefits from
candidates of parties who have not met the threshold undermine the right of each citizen to meaningful
participate in the electoral process? It does! Therefore it violates s. 3 because s. 3 is about the
preservation of the right of each citizen to play a meaningful role in the electoral process. In order to
justify the infringement of a Charter right under s. 1, the government must demonstrate that the limitation
is reasonable and demonstrably justifiable in a free and democratic society (Oakes 2 step test). The
majority held that the threshold was NOT saved by s. 1. I conclude both that the 50-candidate threshold
is inconsistent with the right of each citizen to play a meaningful role in the electoral process, and that
the government has failed to justify this violation.

Dissolution, summoning, prorogation, and no confidence:
Elections to the HOC take place in the period after the dissolution of the old Parliament and the
summoning of a new Parliament. Section 38 on the Constitution Act 1867 empowers a GG to summon

                                                     24
and call together the HOC. By constitutional convention, the GG calls Parliament to session on the
advice of the PM. See ―HOC, Precis of Procedure‖ (2003) – Following the claim to privileges and the
reply, the GG reads the Speech from the Throne. This formally opens the first session and any subsequent
sessions of a Parliament and marks the first occasion of ―Parliament Assembled‖ in its three constitutional
parts: the sovereign or sovereign‘s representative, the senate, and the HOC. Once summoned, a given
Parliament is generally divided into several sessions, separated by a prorogation. A prorogation is the
prerogative of the governor general, acting on the advice of the PM. Prorogation ends a session, but does
not dissolve Parliament; the speaker is still in office for all purposes during a period of prorogation. It,
like dissolution, abolishes all pending legislation and quashes further committee activity. Between a
prorogation and the next session of the same Parliament, the House is said to be in recess. The
Constitution act 1867 (s. 5) and the Charter (s. 4) limit the duration of the HOC to 5 years (except in times
of war or insurrection). Parliament must therefore be dissolved and elections must happen at least every 5
years. But the GG usually dissolves the House before that time period. It prompts a new electoral cycle,
governed by the Canada Elections Act. Constitutional convention requires a PM to resign his or her
government or seek parliamentary dissolution after a “no confidence‖ vote by the House.

―Special Committee on the Reform of the HOC, Report‖ (1985) – There are three parts to ministerial
responsibility. First, there is responsibility to the Queen or GG. Second, there is the individual
responsibility of a minister to the House (resignation?). The third responsibility is that of the ministry
collectively to the House. If the confidence of the House is lost, it spells the end for the ministry unless
the government is granted a dissolution and is sustained by the electorate. A lost vote in itself does NOT
involved resignation or dissolution. A government that has lost a vote in the House on a matter of
confidence faces the choice of resigning or asking for dissolution. A government that has lost a vote on
some other matter may remain in office and may choose to ask for a vote of confidence. Three kinds of
votes can be of confidence: 1) explicitly worded votes of confidence. These state expressly that the House
has or has not confidence in the government; 2) the government may declare that if defeated on a
particular motion before the House, it will resign or seek dissolution; 3) implicit votes of confidence. Note
that a GG may refuse dissolution in certain situations.

Political Parties
Decision making in Parliament depends on swaying a majority of votes in each chamber. The success of a
motion is determined by whether it attracts a majority of votes. The idea of ―majority of voices‖ and
votes on Questions in the House arise from s. 36 and s. 49 of the Constitution Act 1867. These rules
encourage parliamentarians to organize as political parties. This is a constitutional motivation for
political parties. A second motivation stems from the confidence convention – by convention, the
individual commanding the confidence of the Commons (majority) is appointed PM. Thus, party
control of a majority of the House brings with it executive power. Note backbenchers who ―toe the party
line‖ to maintain party discipline who must vote in accordance with their governing party. In Commons
proceedings, once the 12-MP threshold is reached party members are then entitled to sit together, have
their party affiliation noted with their name in the official records and on television broadcasts of
proceedings, and are allowed a larger number of questions during question period.

The speaker
The speaker in the Commons is a MP elected to the Speaker‘s position by other MPs. The selection is
governed by the ―standing orders‖ of the HOC. The speaker acts as the spokesperson of the House in its
relations with the Crown, the senate and authorities outside Parliament. The speaker also enforces the
observance of all rules for the preservation of order and the conduct of business. Third, they have
extensive responsibilities relating to the administration of the HOC. A speaker is assured not only by
tradition and convention, but also by constitution (s. 44 Constitution Act 1867).

Parliamentary Committees

                                                     25
The HOC delegates most of the detailed study of proposed legislation and the scrutiny of government
policy and programs to its committees. There are various types of committees. Standing Committees, for
example, are appointed for the life of a Parliament to deal with subjects of continuing concern to the
House. There are currently 18 standing committees as established by the Standing Orders. There are also
Legislation committees, and joint committees (comprised of both the HOC and senate). Committees are
given different kinds of powers by the HOC in relation to their specific tasks.

Sources of Parliamentary Law
These are the rules determining parliamentary procedure and it flows from an array of sources: The
constitution; assorted statutes such as the Parliament of Canada Act; the standing orders; customs and
precedents, etc. This can be defined broadly as parliamentary law. The starting point is the
constitution. The Canadian constitution incorporates British parliamentary traditions via the preamble
to the Constitution Act 1867. This Act endows Canada with ―a constitution similar in Principle to that
of the UK.‖ The 1867 Act also speaks of Parliament possessing parliamentary ―privileges.” Privilege
refers to rights necessary to ensure that legislatures can perform their functions, free from interference by
the Crown and the Courts. Privilege, in this context, often means the legal exemption from some duty,
burden, attendance or liability to which others are subject.

Canada (HOC) v Vaid, [2005] 1 SCR – The purpose of privilege is to recognize Parliament’s exclusive
jurisdiction to deal with complaints within its privileged sphere of activity. The speaker, who fired his
chauffeur based on discrimination at the workplace (Canadian Human Rights Act), claims the hiring and
firing of House employees are ―internal affairs.‖ The respondents argue that the duties of the speaker‘s
chauffeur appear too remote from the legislative function of the House and that the chauffeur is too
remote from legislative function of the House. The courts, for their part, are careful not to interfere with
the workings of Parliament. Parliamentary privilege is one of the ways in which the fundamental
constitutional separation of powers is respected (external interference of the House would create delays
and costs which would hold up the nation’s business). Parliamentary privilege in the Canadian context is
the sum of the privileges immunities and powers enjoyed by the Senate, the HOC, and provincial
legislative assemblies, and by each member individually, without which they could not discharge their
functions (NB Broadcasting, 1 SCR). However, particular words or acts may be entirely unrelated to
any business being transacted or ordered to come before the House in due course. In order to sustain a
claim for parliamentary privilege, the assembly or member seeking its immunity must show that the
sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment
by the assembly or its members of their functions as a legislative and deliberative body, that outside
interference would undermine the level of autonomy required to enable the assembly and its members
to do their work with dignity and efficiency. The appellants have insisted on the broadest possible
coverage without leading any evidence to justify such a sweeping immunity.

Standing orders – Courts have specifically held that Canada‘s legislatures has the power to administer
that part of the statute law relating to its internal procedure, as well as to determine the content of such
things as standing orders on procedure, without any intervention from the courts. The standing orders are
rules of procedure adopted by at least a simple majority vote of the members of the Commons. They do
not anticipate every circumstance and their meaning often requires interpretation.

Ethics in Law Making
Up to this point it is suggested that no prudential constraints exist on Parliament other than those found in
the Constitution. But note, Parliament may be sovereign, but individual parliamentarians are NOT.
Ethics rules exist both in statutory law and in the internal procedural rules governing each house of
Parliament. See “Conflict of Interest Rule for Federal Legislators,” by Margaret Young (2003).
Those in positions of public trust should not act in their public capacity on matters in which they have (or
could have) a personal economic interest. A potential conflict becomes a real conflict where the Minister

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does not dispose of relevant assets or withdraw from certain public duties or decisions. A decision maker
cannot be perceived as being impartial and acting with integrity if he or she could derive personal
benefit from a decision. Inherent conflicts are unavoidable (parliamentarian is a homeowner, a parent,
consumer, etc). As the Parliamentarian is affected like other citizens, there is a low risk of an adverse
consequence. The more common interests that can put a legislator in conflict of interest are: investments,
debts, corporate positions, outside employment, lobbying, government contracts, gifts, inside information,
etc. The conflict of interest rules for federal legislatures are found in the Criminal Code, the
Parliament of Canada Act, and the Canada Elections Act (and also in the Standing Order of the HOC
and Rules of the Senate). Bribery is a criminal offence and can lead to 14 years imprisonment to people
who accept or attempts to accept any form of valuable consideration for doing or omitting to do anything
in his or her official capacity. Also see the Public Office Holders‘ Code which requires that office holders
arrange their private affairs so as to prevent real, potential, or apparent conflicts from arising. They are
also required, once they leave public office, to not act so as to take improper advantage of having held
that office. Harper government has introduced a Federal Accountability Act that will have the effect of
legislating many of the ethics rules found in the Code. SEE CONFLICT OF INTEREST CODE
SECTIONS (pp. 209 – 215).

Legislative process (HOC, Precis of Procedure – 2003)
There are two main types of bills: public and private. Public bills usually concern matters of public
policy while private relates to matters of a particular interest or benefit to a person or persons,
including corporations. We will first deal with public bills. The two kinds of public bills are government
public bills introduced and sponsored by a minister and private members‘ public bills sponsored by a
private member. Government bills are numbered from C-1 to C-200 (these may be considered each day
during government orders). Private Members‘ public bills may be considered only during private
members‘ hour (1 hour per day 5 days a week). These are numbered from C-201 to C-1000. Before a bill
becomes law it goes through the following stages:

Introduction – to introduce a public bill, a Member must give 48 hours‘ written notice and then obtain
leave to introduce the bill (via a motion). Ministers are able to give a brief explanation of a bill in the
House following its introduction. This applies for a private bill as well.

First reading – this follows immediately and is also automatically adopted without debate. The order for
the printing of the bill is included in the motion. Specific bill number is signed and it is stated that the
second reading will take place at the next sitting of the House. This allows time for the bill to be placed
on the Order Paper for second reading.

Second reading – this is the most important stage in the passage of a bill. The principle and object of the
bill are debated and either accepted or rejected. Amendments may be proposed to the motion for second
reading: 1) 6 months‘ hoist, if adopted, requires the bill to be withdrawn for the remainder of the current
session; 2) reasoned amendment expresses specific reasons for opposing second reading; and 3)
amendment may be introduced to refer the subject matter to a committee before the principle of the bill is
approved.

Committee stage – The standing orders provide that a bill be read twice and then referred to a committee.
Bills are generally referred to a standing, special, or legislative committee specified in the motion for
second reading. The committee then considers the bill clause-by-clause. Amendments to the text of the
bill are considered at this stage. Amendments in committee must be in keeping with the principle of the
bill as agreed to at second reading in the House. After a committee has completed its consideration of a
bill, it orders that the bill be reported to the House.



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Report stage – After the committee stage, members (particularly those who were not on the committee),
may propose amendments to the text of the bill. Unlike committee stage where the bill is considered
clause-by-clause, there is no debate at report stage unless notices of amendment are given, and debate is
to be relevant to these amendments. When deliberations at report stage are concluded, a motion is moved
that the bill be concurred in. If no amendments are put down for consideration at report stage, this stage
becomes more of a formality, and report and third reading stages may then occur on the same day.

Third reading – The same type of amendments that may be proposed at second reading may also be
proposed at third reading: that is, the six months‘ hoist and the reasoned amendment. An amendment may
also be proposed to refer the bill back to committee to be further amended in a specific area or to
reconsider a certain clause or clauses.

Passage by the Senate – in order for a bill to receive Royal Assent and become law, it must be passed in
identical form by both Houses. After a bill is passed in the Commons, a message is sent to the Senate
requesting that the bill be passed by the Upper Chamber. If no amendments are made, such a message is
sent to the Commons (no need to return to the House). If amendments are made, the Senate communicates
this to the House. If the House wishes to agree to the Senate amendments, a motion is read for the bill to
be concurred in. If this motion is adopted, a message is sent informing the Senate and the bill is returned
to the Senate for Royal Assent. If the House does not wish to agree, it adopts a motion stating the reasons
for disagreement, which it communicates to the Senate. If it is impossible for an agreement to be reached
by exchanging messages, the House that has possession of the bill may ask that a conference be held (this
practice has fallen into disuse).

Royal Assent – this is set out in the Constitution Act 1867. The Crown (represented by the GG), Senate,
and HOC come together. Royal Assent can now take place by written procedure as well as by traditional
ceremony now. It is at this stage that the bill becomes law. Ceremony takes place at the bar of the Senate
chamber.

Chapter 5 – The exercise of Executive authority

The executive branch refers to those institutions in government that are responsible for implementing
and enforcing laws (whether by legislature or common law). It is not uncommon for legal
commentators to draw a distinction between the executive branch, consisting of those officials with a
direct connection to the government (political executive) and the wider constellation of administrative
institutions and officials. Executive is used in the broad sense and is interchangeable with administration.
The legal principles establishing the boundaries of executive powers and the manner by which executive
power is to be exercised is called administrative law. At the heart of administrative law is a requirement
that government officials exercise their powers in furtherance of public, not private interests. This
chapter identifies and describes the various institutions and officials that make up the executive branch of
government and the roles that administrative institutions play in the implementation and development of
public policy in Canada.

The Rise of administrative agencies
As the role of government expanded, so did the need for more decentralized, expert-driven
bureaucracy. See “Law Reform Commission of Canada, Independent Administrative Agencies”
(1980). Government in a general sense includes two functions: law making and administration.
     Today, it is impossible for elected representatives effectively to supervise all aspects of the public
        business. Given the scope of current governmental operations and the degree of discretionary
        power exercised by administrative authorities, additional sources of law have to be depended on
        to ensure this expanded government action is carried out fairly.


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The Railway Act of 1903 opted for a new administrative agency, the Board of Railway Commissioners,
which appears to have served as a model for later legislative initiatives vesting all kinds of governmental
functions in independent agencies. Within 6 years, Canada used a regulatory commission model to
establish the international Joint Commission to replace the international Waterways Commission. The
practice of appointing experts to decide rather than merely to advise was becoming firmly established.
Approach was followed in 1912 with the Canada Grain Act, which appointed Board of Grain
Commissioners. During this time (1900s) there was intense economic development, stimulated by waves
of immigration, integration with the American economy, etc. With the arrival of WWI there was marked
intervention in the economy by the federal government. This led to the creation of many administrative
agencies such as Food Control Boards, the Wage Trade Board, The Canadian Wheat Board, etc.
Government also took initiatives in health and welfare fields for the first time (department of Health
1919). The war time experience with the regulation and direction of enterprise was an important factor in
bringing on the wide extension of government control which economic and social chaos seemed to make
desirable (Great Depression in the 1930s). WWII saw the federal government, again, adopting close and
detailed control over the economy. During the economic booms of 1946-49 and the Korean War, a
network of marketing boards spread across the country. And in 1952 the SCC decided in PEI Potato
Marketing Board that regulatory power within the jurisdiction of the federal government could validly be
delegated to boards created and operated by a provincial government and vice versa (this encouraged the
creation of yet more independent administrative agencies, in the interests of cooperative federalism). In
1867 less than one out of every hundred of the working population was employed by all governments
(federal, provincial and municipal). Today at least one in every eight is on a government payroll (vast
expansion of the public service). Since this report was published, the trend has continued.

The Executive Branch defined:

The Crown
As a formal matter, the entire authority of the executive branch is vested in the monarchy (s. 9
Constitution Act 1867). The Crown is the formal legal entity of the government (therefore it can sue
and be sued, own property, enter into contracts, etc.). But the Crown is divisible since the Federal
government and the provinces are distinct legal entities. The GG exercises all powers and authorities on
behalf of the Queen. The GG and the lieutenant governors for each province are bound by
constitutional convention to exercise their powers with the advice of the cabinet of their respective
government. The 1867 Act never mentions ―cabinet‖ but instead refers to the Queen‘s Privy Council.
Under s. 11 of the 1867 Act the PC is a body to ―aid and advise in the Government of Canada.‖ Where
powers in the 1867 Act are exercisable by the Governor General in Council or Lieutenant Governor in
Council, they are in effect exercised by federal and provincial cabinets. All Cabinet ministers are privy
councillors, but not all of privy councillors are sitting Cabinet ministers. The GG often swears in other
―distinguished‖ Canadians to the PC (including, in the past, provincial premiers).

The PM and cabinet
Together they comprise the ministry, also known as the government. The terms ministry and Cabinet are
usually used interchangeably. A minister is not automatically a cabinet member; this is a political
matter for the PM to decide. The PM presides over Cabinet and is the sole authority to determine who
the GG swears in as a minister, who sits in cabinet, and what portfolio within cabinet that person
holds. The PM also advises the GG as to the dissolution of Parliament and thus controls the timing of
elections. In a system of responsible government, Cabinet members are drawn from the legislative branch
(almost always the HOC for the federal cabinet). Second, the ministry is accountable to the legislative
branch both collectively and individually (responsible government). Collective responsibility requires
that the ministry maintain the confidence of Parliament and individual ministerial responsibility
requires that each minister be answerable in Parliament for the activities of his or her department. In


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addition to their cabinet responsibilities, Cabinet ministers have administrative responsibility for
departments under their charge.

The public service
The employees of the various ministries of the government, often referred to as civil servants, are also
part of the executive branch.
     Civil servants are politically neutral and as such continue their employment with the government
         regardless of the political fortunes of the government of the day.
Kenneth Kernaghan identifies three principles that structure the relationship between the civil service and
the political officials within the government:
    (1) ministerial responsibility,
    (2) political neutrality, and
    (3) public service anonymity.
Ministerial responsibility requires that the presiding minister be held politically accountable for all
matters arising within the department, including policy decisions by civil servants. Secondly, they have to
carry out their duties with loyalty to the government without regard for their own political views.
Anonymity provides that bureaucrats should be held accountable to their political overseers but are NOT
answerable to Parliament. Loyalty owed by civil service requires them to refrain from public criticism of
government policies. In Fraser v Canada the appellant, who was an employee of Revenue Canada, was
discharged after repeatedly criticizing the government‘s policies regarding metrification. They argued the
duty to refrain only extends to areas related to the civil servants‘ direct responsibilities.

Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR – (per Dickson CJ) they upheld
the board‘s decision to fire Fraser. The public service has two dimensions:
     (1) relating to the employee’s tasks and how he or she performs them; and
     (2) relating to the perception of a job held by the public. The judge stressed the need of an impartial
         and effective public service.
The federal public service in Canada is part of the executive branch of government. As such, its
fundamental task is to administer and implement policy. In order to do this well, the public service must
employ people with certain important characteristics:
     (a) Knowledge is one,
     (b) fairness another, and
     (c) integrity a third.
     (d) A further characteristic is loyalty.
Civil servants cannot engage in attacks on major Government policies (as the appellant did). In doing
this, the appellant displayed a lack of loyalty to the government that was inconsistent with his duties as
an employee of the Government. Loyalty is for the public interest in the actual, apparent, and impartiality
of the public service. Employment in the public service involves acceptance of certain restraints,
namely, exercising caution when it comes to making criticisms of the government. Note, since Osborne
(SCC), the restrictions on political activities now apply only to senior members of the bureaucracy (earlier
restrictions were inconsistent with the Charter).

Independent Administrative Agencies
As a matter of constitutional convention, the formal executive bodies are limited to the GG and
lieutenant governors, the federal and provincial cabinets, and the system of governmental departments
and ministries that are overseen by individual ministers, including civil servants.
     In certain cases, the government may create a specialized tribunal to adjudicate individual cases
        free from direct government oversight. The administrative body approaches that of a judiciary,
        but the scope of cases heard is limited to a defined subject area.
For example, the Immigration and Refugee Board of Canada hears only matters relating to
immigration admissibility and refugee claims. Independent administrative bodies appear in a broad range

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of forms depending on their function. An administrative body is the product of the legislative instrument
that creates it. For example, see the Canadian Human Rights Act 1985 which creates a Commission in
s. 26(1) (the enabling legislation). The commission is a creation of the federal Parliament. The
commission has the authority to investigate human rights complaints against the federal government,
making independence from the government critical to the legitimacy of the commission. The Act also
creates a tribunal, which holds, at the request of the Commission, inquiries into human rights
complaints filed with the commission. The tribunal acts in a quasi-judicial capacity inquiring into human
rights complaints. Safeguards are section 7 of the Charter (bars deprivation of life, liberty, or security of
the person in the absence of fundamental justice) and s. 2(e) of the Canadian Bill of Rights 1960 that
states that no law may deprive a person of the right to a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and obligations (purports to trump all inconsistent
federal laws).

Ocean Port Hotel Ltd. v BC (General Manager, Liquor control and Licensing Branch), [2001] 2 SCR –
(per McLachlin CJ) draws a sharp distinction between administrative tribunals and decision makers.
      What is the degree of independence required of administrative tribunals? This appeal concerns
         the independence of the Liquor Appeal Board.
The Act states that the board members are ―appointed at the pleasure‖ of the executive. It is the legislature
or Parliament that determines the degree of independence required of tribunal members. Like all
principles of natural justice, the degree of independence required of tribunal members may be ousted
by express statutory language. Courts engaged in judicial review of administrative decisions must defer
to the legislator‘s intention in assessing the degree of independence required of the tribunal in question.
The sharp independence of the judiciary is NOT shared with administrative tribunals. They lack the
constitutional distinction from the executive like the courts. The classic division between court and state
does not, however, compel the same conclusion in relation to the independence of administrative
tribunals. While they may possess adjudicative functions, they ultimately operate as part of the executive
branch of government, under the mandate of the legislation. They are NOT courts, and do not occupy the
same constitutional role as courts.

Crown Corporations
It is not uncommon for administrative bodies to be created that have a legal personality separate from the
government. The principle justification for the creation of Crown corporations is that where there is a
strong commercial aspect to the government service, it may require that decisions be made free from
political influences that may unduly interfere with commercial objectives. Crown corporations will have
public objectives. Maybe even express regulatory mandate (like the Bank of Canada). They may also
deliver services that are considered to be of public importance (Canada post, VIA rail, for example).

Municipalities
Municipalities, which are created under provincial legislation, deliver a wide range of public services,
such as the provision of road, sewer, and water services. They also are responsible for policy that affects
local residents (municipal by-laws). Because municipal councils are elected, their democratic legitimacy
is independent from that of the provincial legislature. However, like other independent administrative
bodies, municipal powers are subject to the regulatory qualifications superior levels of government
place on them, including the radical restructuring or even elimination of municipalities (see East York
(Borough) v Ontario (Ont. CA) where a number of municipalities were amalgamated. The court was
unequivocal about the inferior status of municipal governments). Municipalities are unlike administrative
bodies since they are governed by elected officials, oppose to admin bodies where officials are appointed
by senior levels of government.

Shell Canada Products Ltd. Vancouver (City), [1994] 1 SCR – (per McLachlin J - dissenting) concerns
the legal authority of a municipality to refuse to do business with companies that had business ties to

                                                     31
South Africa during the apartheid era. The majority held the resolution to not do business with Shell was
improper. However, McLachlin J considered the question of permissible municipal purposes in light of
the democratic nature of municipal government. Recent commentary suggests an emerging consensus that
courts must respect the responsibility of elected municipal bodies to serve the people who elected them. It
adheres to the fundamental axiom that courts must accord proper respect to the democratic responsibilities
of elected municipal officials and the rights of those who elect them. This is important to the continued
healthy functioning of democracy at the municipal level. If municipalities are to be able to respond to
the needs and wishes of their citizens, they must be given broad jurisdiction to make local decisions
reflecting local values. If the courts take upon themselves the judgement of the rightness or wrongness of
councel‘s decisions in these matters, they, as a body having no connection with local inhabitants, usurp
the choice which the inhabitants conferred, by democratic process, on the council (MacDonald). The
Vancouver Charter empowers the council to ―provide for the good rule and government of the city.‖ This
includes psychological welfare of citizens as well. This includes community identity and pride. The
majority felt this only refers to basic services to the inhabitants of the city, and nothing more. She, unlike
the majority, was willing to see municipalities as a distinct form of administrative decision maker in
light of its democratic structure.

Enforcement Bodies: Police and prosecution
The executive branch of the government, in addition to being responsible for the implementation of
government policy, is required to enforce those policies that have the force of law. Policing functions are
the responsibility of both the provincial and federal governments. Provincial police, including those
employed by municipal police forces, have the authority to investigate matters in relation to both
provincial and federal criminal laws. The federal police force (RCMP) has the authority to police federal
statutes, police the federal territories and, in much of Canada, to provide police services in provinces
under contract. Both the federal government and the provinces have prosecutorial power, exercised by
their respective attorneys general. While enforcement agencies in Canada derive their authority from
legislation, they hold a unique legal position with the broader executive framework (not subject to
political oversight). Note the tension between accountability and independence in the context of
enforcement:

R v Campbell, [1999] 1 SCR – (per Binnie J) commented on the relationship between the police and the
political executive. The police are independent of the control of the executive government. Like every
other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience. He is
not the servant of anyone, save the law itself. He is independent of the executive.

Krieger v Law Society (Alberta) – (per Iacobucci and Major JJ) K was a Crown prosecutor who was
subject to a complaint to the law society. He sought to prevent the law society from reviewing the matter
on the basis that to do so would interfere with the exercise of prosecutorial discretion. Ultimately the law
society retains jurisdiction over the alleged misconduct, but the court did acknowledge the role of the AG
and his agents as distinct from private lawyers. The AG is the official legal advisor of the Crown. The
AG is also the Minister of Justice and is generally responsible for drafting the legislation tabled by the
government of the day. It is a constitutional principle in this country that the AG must act independently
of partisan concerns when supervising prosecutorial decisions.

Sources of Executive Power

Prerogative Powers
These are powers exercisable by the Crown that do not arise from a statutory grant of power to the
Crown. These are powers that pre-existed that of the legislature and as a result prerogative powers are
those powers that have remained with the Crown. Where the legislature enacts a statute in relation to a
matter previously exercised through prerogative powers, the statute has the effect of superseding the

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prerogative power. This derives from Parliamentary sovereignty. These powers include many of the
Crown‘s power of appointment, and powers relating to foreign affairs, such as declarations of war, the
appointment of ambassadors, and the issuing of passports. Some debate is around who in the executive
can exercise prerogative powers and whether those powers are subject to judicial oversight.

Black v Chretien, [2001] (Ont. CA) – (per Laskin JA) the PM recommended against the conferral of a
foreign honour on a Canadian citizen (Conrad Black) which was an exercise of the prerogative power to
grant honours and conduct foreign affairs. Black argued that only the GG can exercise the Crown
prerogative. The prerogative consists of the powers and privileges accorded by the common law to the
Crown. Legislation has severely curtailed the scope of the Crown prerogative (in both Canada and
England). By convention the GG exercises power on the advice of the PM, therefore to say the PM
can’t exercise the prerogative is unfounded. As members of the PC, the PM and other Ministers of the
Crown may also exercise the Crown prerogative. Is the prerogative power exercised by the PM
reviewable in the courts? This is the main question of the appeal. Is the complaint about the PM
justiciable? It is not. Once a court established the existence and scope of a prerogative power, it could not
review how the power was exercised. The court can only decide the claim if the prerogative power
violates that individual’s Charter rights, which was not the case here. It would also be justiciable if the
prerogative affected a right or legitimate expectation enjoyed by the applicant (Mr. Black). Issuing or
withholding a passport would be an example (passport is property of the government of Canada and no
person, strictly speaking, had a legal right to one). On the other hand, it would not be justiciable in cases
of public policy or public interest since those interests far outweigh rights of individuals (dissolving
Parliament, mobilizing forces, etc). In this case, the granting of an honour is far removed from the former
category – no rights were adversely affected. Also, no citizen can have a LE of receiving an honour. Thus,
the PM‘s advice to the Queen about Mr. Black‘s peerage is not justiciable and therefore NOT judicially
reviewable. The PM’s advice cannot be questioned, even if it is negligent, wrong, or careless.

Statutory powers
Majority of executive powers originate from a delegation of authority by the legislature by statute. For
example, see the Canadian Human Rights Act (above). The statute creates the administrative body (HR
Commission), and gives it specific powers to be exercised. The authority of the commission is determined
solely by the statutory grant because as an administrative body the commission has no inherent powers.
There is no restriction on delegated powers. It is therefore common for the legislature to delegate
extensive legislative and adjudicatory functions to administrative bodies. But no delegated power is
above the Charter (see s. 32). This is a limit on executive power. Also, no delegate can be authorized to
exercise an absolute discretion. Where s. 7 of the Charter applies, the doctrine of ―unconstitutional
vagueness‖ may invalidate a statutory provision (and statutory delegation). Delegation must also not
amount to a complete ban on legislative authority:

Re Gray (1918) SCR – (per Anglin CJ) dispute over whether Governor in Council‘s delegated power
amounted to an unconstitutional abdication of legislative powers to the executive. No one from one of the
fundamental branches of government can constitutionally either delegate or accept the functions of any
other branch. Parliament can delegate its powers to the executive government, but such powers must be
subject to determination at any time by Parliament. The section in question deals with the delegation of
unlimited powers. The delegation in this case, however, was NOT an abdication. Parliament was the
delegating authority, and it was for that body to put any limitations on the power conferred upon the
executive. A complete abdication by Parliament of its legislative functions is something so
inconceivable that the constitutionality of an attempt to do anything of the kind need not be considered.
This case implied WIDE scope of delegation. To offend this principle, Parliament would have to probably
delegate in a permanent nature. Keep in mind, what constrains the legislature?



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AG NS v AG Can. (Nova Scotia Inter-delegation), [1951] SCR – (per Rand J) neither the federal
Parliament nor the provincial legislatures may delegate legislative power to the other. The inter-
delegation would upset the constitutional division of powers in s. 91 and 92 on the Constitution Act 1867.
These bodies were created solely for the purposes of the constitution by which each, in the traditions and
conventions of the English Parliamentary system, was to legislate, in accordance with its debate and
judgement, on the matters assigned to it and on no other. To imply a power to shift this debate and this
judgement of either to the other is to permit the substance of transfer to take place, a dealing with and in
jurisdiction utterly foreign to the conception of a federal organization. Note, inter-delegation from
Parliament to a provincially created administrative body does NOT seem to be objectionable (see PEI
Potato Marketing Board, 1952 SCR). This is different than delegation from one legislature to another.
This distinction relates to the democratic expectations of the legislature, which must be seen to be acting
free of allegiance to other bodies, as opposed to those of an admin body, where the recipient of authority
is expected to exercise that power in accordance with the requirements of the delegating body. Another
way delegated power is constrained is when power is given to a tribunal, which CANNOT interfere with
the jurisdiction of the superior courts as defined by s. 96-100 of the Constitution Act 1867.

Rule making (Regulations)
The legal effect of delegated legislation is determined by the parent legislation. In the case of regulations
and municipal bylaws, these instruments are as effective as legislation in the sense that they give rise to
legally enforceable obligations. Conflict between statutes and delegated legislation is always resolved in
favour of the statutory provision. Regulations are delegated legislation, so they must always fall within
the scope of the power delegated to the executive by the legislature. See again, the Canadian HR Act.
The HR Commission is granted the authority to issue binding guidelines. This power allows the
commission, the body that is most familiar with the application of the Act, to create more specific rules
respecting the application of the Act in order to better guide the commission‘s decision-making process.
Regulations can be enacted by Cabinet without prior notice or consultation. See ―Government of Canada,
Guide to Making Federal Acts and Regulations.‖ Regulations are a form of law (often called delegated or
subordinate legislation). Regulations are not made by Parliament; rather, they are made by persons or
bodies to whom Parliament has delegated the authority to make them (such as the Governor in
Council, a Minister, or Admin agency). Authority to make regulations must be expressly delegated by
an Act. Acts sometimes authorize the making of documents that have the same legislative effect, but
which are called by another name (bylaws, rules, tariffs, ordinances, or orders for example). The Statutory
Instruments Act (statutory instruments regulations made under it) constrains regulations. The basic legal
requirements for making regulations are legal examination, registration, and publication in the Canada
Gazette. Regulations, must also, of course, stay within the scope of the authority that the enabling Act
grants and must not conflict with it or restrict or extend the scope of its application. For regulations that
have to be made or approved by the Governor in Council, a communications plan is required and, if
needed, a supplementary note. The communications plans covers, among other things, the strategy to be
used by the department or agency to bring the regulatory measures to the attention of the groups affected
once they are made. A regulation is made when it is officially established by the regulation-making
authority. Note, the governor in council is the GG or Lieutenant Governor acting on the advice of the PC
(cabinet) (this advisory role is usually exercised by the Special Committee of Council). Note that the
authority that ―makes‖ or ―approves‖ the regulation is usually the Governor in Council, but also
sometimes another Cabinet committee (such as the Treasury Board) or a particular cabinet minister, and
sometimes an administrative agency, such as the Canadian Radio-television and Telecommunications
Commission or other body.

Dispute resolution, benefit or obligation determination, and enforcement decisions
Admin tribunals are very similar to courts in some cases. They adjudicate claims between competing
parties strictly on the basis of existing law, and they have similar powers of courts, such as the power to
compel witnesses and award costs. Distinct tribunals may be created to hear appeals by parties

                                                     34
dissatisfied with a decision from an admin decision maker of first instance. Admin tribunals, oppose to
courts, are more open to public participation. Decision maker doesn‘t have to always be a lawyer either
(could be an expert). Courts are restricted to resolving disputes in accordance with the rules of law and
equity, but are not to engage in policy making. Admin tribunals, on the other hand, can be designed as
such that tribunal members have broad discretion to determine and apply public policy. The most
prevalent group of admin decision makers are those empowered to determine whether a person will be
granted a particular public benefit (welfare entitlement, licence, tax obligation, etc.). Obligation
determinations, on the other hand, are usually initiated by the imposing agency. Note that the desire for
fairness in individual cases is often in conflict with the need for admin efficiency. A final area of
delegated authority is those decisions and activities that are required to promote compliance with legal
obligations, including criminal and quasi-criminal enforcement proceedings. Executive branches of
government use police and prosecutors to investigate and prosecute violations of statutory and regulatory
requirements, most commonly through the courts. Statutes can also confer investigatory powers on other
admin officials (i.e. NS Securities Commission). A statute may also provide that a penalty be imposed
directly by the investigating agency or by an admin tribunal after hearing evidence.

Limits on the exercise of delegated authority
While the constraints on the ability of the legislative branch to delegate authority are minimal, once
authority is delegated to an admin actor the law imposes a rigorous set of limitations on the exercise of
power by the recipient of delegated authority. Any action outside the boundaries of the statutory grant is
without legal authority and unlawful (ultra vires). This relates to WHAT powers are exercised. There is
also a set of rules that dictate HOW delegated power must be exercised. Thus, an admin agency may
embark on an inquiry properly within its statutory mandate, but in carrying out the inquiry, the agency
may nevertheless act without proper legal basis due to a failure to abide by the requirements of procedural
fairness or abuses of discretion. This raises issues of when the courts should interfere with decisions taken
by the executive branch. The rest of the discussion focuses on the main constraints on ADMs.

Controlling jurisdiction: substantive Ultra Vires
Delegated authority can only exercise those powers that are granted to it (usually a matter of
interpreting the legislation). For example, in Shell v Vancouver (above), there was no dispute on the
general rule that admin bodies ―must stay within the powers conferred on them by provincial statutes.‖
However, there was disagreement on the interpretation of the statutory provision (one view was more
expansive than the other). Is the decision clothed with jurisdiction? A related jurisdictional rule requires
that delegated authority must be exercised by the specific delegate to whom the authority is granted
(Reference re Regulations in Relation to Chemicals, [1943] SCR). That is, one agent cannot lawfully
appoint another to perform the duties of his agency. This is the rule against sub-delegation. If the
statute superficially provides, sub-delegation, than that is fine. Also, ―merely admin‖ matters can be sub-
delegated. That is, matters that do not involve the exercise of substantial amounts of discretion. However,
the general rule is that where the legislature entrusted decision-making powers to a certain official or
body, then those powers should be exercised specifically by that delegate.

Controlling Procedures: the duty to be Fair
ADMs are generally required by the common law to act fairly toward those persons affected by their
decisions. The duty to be fair refers to the procedures adopted by the decision maker, as opposed to
imposing a substantive obligation of a fair outcome. Historically, requirements of procedural fairness
(rules of natural justice) only applied to decision makers carrying out judicial or quasi-judicial functions.
Common law courts, however, developed a more flexible approach to the procedural obligations of
decision makers under the rubric of the duty to be fair. The essence of natural justice is that a person
has
    (1) the right to know and answer the case against him and
    (2) the right to not have a biased judge.

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Knight v Indian Head School Division No. 19, [1990] 1 SCR – (per L‘Heureux-Dube J) respondent was
dismissed when the appellant (employer) would not agree to a longer term for the renewal of the contract.
Respondent argued that he was owed a duty of fairness prior to being dismissed. The existence of a
general duty to act fairly will depend on the consideration of three factors:
     (1) the nature of the decision to be made by the admin body;
     (2) the relationship existing between that body and the individual; and
     (3) the effect of that decision on the individual‘s rights.
There is no longer a need to distinguish between judicial, quasi-judicial and administrative decisions since
Nicholson v Haldimand-Norfolk Police Commr Bd., [1979] 1 SCR - the duty to act fairly and judicially
have their roots in the same general principles of natural justice. A preliminary decision will normally not
trigger a duty to act fairly. This case dealt with a decision by a board which was final and specific in
nature (terminating his employment), therefore the decision to dismiss could possibly entail the existence
of a duty to act fairly on the part of the appellant board. There is a right to procedural fairness only if the
decision is a significant one and has an important impact on the individual. In view of this clear
recognition of the importance of the right to retain one‘s employment...there is no need to labour the point
further (but now note Dunsmir which states that there may not necessarily be a duty when one is
dismissed). The concept of procedural fairness is eminently variable, and its contents are to be decided
in the specific context of each case.

Baker v Canada (Minister of Citizenship & Immigration), [1999] 2 SCR – (same judge as Knight) (see
below)

Bad faith, improper purposes, and irrelevant considerations
The benefit of conferring broad discretion on ADM is that discretion allows the decision maker to fully
account for the particular facts and context of the question before it. The only problem is that it is open
for ADM to exercise that discretion in ways that were not contemplated by the legislature and for
purposes that do not reflect the public interest. Concerns over discretion are different from procedural
fairness. Note that bad faith goes beyond unreasonableness and amounts to a jurisdictional error since it
is implied that the legislature would not have intended for a delegated authority to act for some improper
and ulterior purpose (discretion sometimes includes the discretion to make unreasonable decisions).

Equity Waste Management of Canada Corp. v Halton Hills (Town), [1997] (CA) – Bad faith by a
municipality connotes a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct
and the exercise of power to serve private purposes at the expense of the public interest. It was held that
evidence that a minority of councils had their re-election prospects in mind when they voted on a bylaw
falls short of showing bad faith. They have not shown that most, if not all, of the councillors acted other
than in the public interest in voting for the bylaw.

Note that the rule against bad faith puts control on the exercise of discretion. The nature of the
considerations that an ADM takes into account is arriving at its decision is a further control on discretion
of the ADM. Mandatory considerations are those that the ADM MUST take into account and a failure to
do so will be a reviewable error. Relevant considerations, in contrast, are those that MAY properly be
considered by the decision maker, but a failure to do so is not fatal to the decision. Thirdly, when the
ADM takes irrelevant considerations into account, the decision maker commits a reviewable error
(considerations that are extraneous to the exercise of discretion). Part of proper use of discretion is the
amount of deference given to the ADM. Baker, aside from showing problems with procedural fairness,
also went on to consider improperly made decisions (as a substantive matter).

Baker v Canada (Supra) (see below)


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Chapter 6 – The Courts and the Judiciary

Constitutional framework of the judiciary
Starting point is s. 92(14) Constitution Act 1867 which gives exclusive power to the provincial
legislatures with respect to the Admin of justice in the province (including organization of provincial
courts). Section 96 states that fed government is responsible for appointing provincial superior courts
judges and (s. 100) paying their salaries. So, provincial governments create s. 96 courts but the fed
appoints them and pays their salaries. The feds, through s. 101 Constitution Act 1867, created the
Supreme Court, Federal Court, FCA, and the Tax Court of Canada. All s. 101 courts are created by statute
(Supreme Court Act, Federal Courts Act, and the Tax Court of Canada Act). Provinces appoint and pay
salaries of provincial court judges. Section 96, thus, has come to be regarded as limiting provincial
competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as
implicitly limiting provincial competence to endow a provincial tribunal with such powers (Re
Residential Tenancies Act, [1981] 1 SCR). Superior courts are a fundamental institution protected by our
Constitution through the interpretation of s. 96. The provinces cannot enact legislation to encroach on
their core jurisdiction, nor may the federal Parliament.

See ―Dept. Of Justice of Canada, Canadian Court System‖ (2005) – there are four levels of courts in
Canada: 1) provincial/territorial courts handle the great majority of cases that come into the system; 2)
provincial/territorial Superior courts deal with more serious crimes and also take appeals from
provincial/territorial court judgements, Federal Courts (at the same level but responsible for different
issues); 3) provincial/territorial courts of appeal and the Federal Court of appeal; 4) Supreme court of
Canada. For overview of all Canadian courts see pp. 312-317.

Provincial Judicial appointments
Judicial selection processes vary internationally: 1) confirmation hearings, 2) nominating committees; 3)
direct elections. Canadian judges are selected by the executive branch, often following a short-listing
process involving an advisory committee. For provincial/territorially appointed judges, the process of
choosing varies depending on the province/territory. The basic model is built on an advisory committee
composed of a mixture of members from the legal community and laypersons. The committee accepts
applications and interviews candidates before submitting a list of recommendations to the provincial AG.
For example, in Ontario the Judicial Appointments Advisory Committee is diverse, including racial and
cultural minorities.

Federal judicial appointments
The process by which the federal government appoints superior court judges varies. Section 96 court,
Federal Court, and Tax Court judges are appointed by the governor in council (effectively, the cabinet)
usually following review of candidates by an advisory committee. For SCC appointments, no advisory
committee usually meets; Justices from the SC have traditionally been simply appointed by the governor
in council.

Non-supreme Court of Canada appointments – the office of the Commissioner for Federal Judicial
Affairs oversees the federal judicial appointment process for s. 96 courts, federal courts, and the tax court
(see its 2005 report for Candidates). This policy applies to the appointment of judges of the superior
courts of every province and territory, the federal court of appeal, the federal court and the tax court of
Canada. Qualified lawyers applying for positions in these courts must apply to the Commissioner for
Federal Judicial Affairs. People can also be nominated. Statutory qualifications for appointment are set
out in the Judges Act, the Federal Courts Act, and Tax Court of Canada Act. Usually it requires 10 years
experience at the bar of a province or territory. Appointment to a s. 96 court can only be given to
members of the bar of that province (Constitution Act 1867). Independent judicial advisory committees
constitute the heart of the appointments process. The committees assess the qualifications for appointment

                                                     37
of the applicants. Each committee in each region consists of seven representing the bench, the bar and the
general public. For candidates, professional competence and overall merit are the primary qualifications.
The committees set their own agenda as required, depending on the number of applications received and
the judicial vacancies to be filled by the Minister of Justice. For federal appointments, see the assessment
criteria list (p. 325). Assessments of all judges are valid for 2 years, during that time a ―recommended‖ or
―highly recommended‖ candidate remains on the list of those available for judicial appointment by the
Minister of Justice.

The Commissioner for Federal Judicial Affairs has the overall responsibility for the administration of the
appointments process on behalf of the Minister of Justice. The Commissioner‘s responsibility is exercised
directly or by his delegate, the Executive Director, Judicial Appointments. Federal judicial appointments
are made by the GG acting on the advice of the Federal Cabinet. A recommendation for appointment is
made to Cabinet by the Minister of Justice with respect to the appointment of puisne judges, and by the
PM with respect to the appointment of Chief Justices. The recommendation to cabinet is made from
amongst the names which have been previously reported by the committees to the Ministers. Note that the
range of activities that are available to a practising lawyer is severely curtailed upon appointment to the
bench.


Criticisms of the non-supreme court federal appointment process
Not until the 1960s that any process at all was established to assist the minister of justice in deciding upon
what recommendations to make to the Cabinet. Main criticisms are that too much discretion is in the
hands of the government (i.e. the minister has the power to appoint from the ―recommended‖ list as well
as the ―highly recommended‖ list). No transparency or accountability (i.e. candidates face no formal
scrutiny and no information is made public to support the choice of appointee). Patronage appointments
(i.e. allegations have been made that appointments are tainted by political considerations and that
candidates who contribute to political parties are appointed). With regards to the recommended and
highly recommended pool, it has been argued that the minister of justice needs flexibility in making
recommendations in order to bring greater diversity to the courts. Note that there is no requirement in law
for the government to follow the recommendations of any advisory committee (in fact s. 96 could be said
to enable this prohibition). Provided that the layers meets the ―recommended‖ criterion, the minister of
justice may, say, allow a Cabinet Minister from NS to pressure the minister of justice to recommend a
lawyer from that province simply because the layer is a loyal political supporter of the Cabinet minister.
See ―Standing Committee on Justice, HR, Public Safety, and Emergency Preparedness – Study on the
Process for Appointment to the Federal Judiciary‖ (2005). The members of the sub-committee agreed
upon the need to limit the recommendations for judicial postings possibly to a short list of three to give
candidates. This is in contrast to the government now selecting from a large pool of candidates. This
would limit the discretion currently exercised by the Minister of Justice and thereby reduce any
impression that judicial appointments were influenced by political considerations. Also a consensus that
interviews need to start being conducted!

Supreme Court Appointments
None of the above processes apply to SCC appointments. It is argued that because the SC is, in effect,
―legislating,‖ it should be more accountable to the public through the appointment process. Some authors
feel that the court must be ―democratized‖ by requiring public scrutiny of potential appointees. This might
include the questioning of potential appointees before a parliamentary committee (see Ted Morton). But,
note that CBA who is strongly opposed to any system which would expose judges to Parliamentary
criticism of their judgements, or cross-examination on their beliefs or preferences or judicial opinion, or
any measure which would give to Canadians the mistaken impression that the judicial branch answers to
the legislative branch (March, 2004). In response to demands for a more transparent process, the minister
of justice launched a proposal to reform the Supreme Court of Canada appointments process, which

                                                     38
would be used in filling the vacancy created by the retirement of Mr. Justice John C. Major (see Minister
of Justice, ―Proposal to Reform the SCC Appointments Process‖ (April, 2005)). Always note, the
appointment of SC judges is within the constitutional authority of the Governor in Council. This ensures
that the executive branch of government remains responsible and accountable for the exercise of this
important power. Judicial independence ensures that legal claims are adjudicated by fair, impartial, and
open-minded judges who are not beholden to any group, interest, or stated public position. There is also a
need for transparency and parliamentary and provincial input. The government‘s proposals consists of a 4
stage process:
      The minister would conduct consultations, as it already does and come up with 5-8 names,
          depending on the size of the region;
      An advisory committee would be established as each vacancy arises to reflect the regional nature
          of the appointments. The committee would provide an unranked short list of three candidates
          with an assessment of their merit and a full record of the consultations conducted (MP from each
          party, retired judge from where the vacancy arises, a nominee of the provincial AG, etc – a new
          advisory committee will be formed each time a SC vacancy occurs);
      The minister would complete further consultations if needed and provide his advice to the PM.
          The PM would make his recommendations to Cabinet and, in all but the most exceptional
          circumstances, the appointment would be made from the short list;
      Minister would appear before the Justice Committee after the appointment to explain the
          appointment process and the professional and personal qualities of the appointee.

In early 2006, Harper announced a hybrid selection process, incorporating elements of the Liberal plan
plus pseudo-parliamentary questioning of the nominee. So, Mr Justice Rothstein was selected based on
the above formula and was also questioned by the minister of justice in a public and televised hearing.
The CBA opposed this questioning, noting that open questioning of judicial nominees would ultimately
impair judicial independence by forcing candidates to take position on exactly these sorts of issues.
Whether this will be followed in the future is up in the air.

Judicial independence

     Put simply, judicial independence is the notion that judges are at arm‘s length from the other
      branches of government. It requires that the judiciary be left free to act without improper
      interference from any other entity, i.e., that the executive and legislative branches of government
      not impinge on the essential authority and functions of the court (MacKeigan v Hickman, [1989]).
     This is closely tied to the separation of powers (it is an elemental and constitutional doctrine). It is
      the ―lifeblood‖ of constitutionalism in democratic societies (SCC in Beauregard v Canada,
      [1986]).
     Neither the legislature nor the executive can exert political pressure on the judiciary, and the
      judiciary should exercise reserve in speaking out publicly on issues of general public policy that
      have the potential to be before the courts (Re Remuneration of Judges, [1997] 3 SCR).
     The three requirements identified by the court are: 1) security of tenure; 2) financial security and;
      3) administrative control or independence with respect to the management of court business.
     The unwritten norm is said to be implied by the preamble to the Constitution Act, 1867. The
      implication of the importance of judicial independence came from the preamble's statement that
      Canada's constitution should be similar to the UK, and the UK has a tradition of judicial
      independence (Judges’ Reference).

It is a richly constitutional concept. Note that federally appointed superior court judges are removable
only for breach of ―good behaviour‖ (s. 99 Constitution Act 1867). Section 100 fixes the salaries,
allowances and pensions. Note that although this applies for superior courts, judicial independence is


                                                     39
maintained in provincial courts via s. 11(d) of the Charter. The SC developed the concept of
―institutional independence‖ referring to those requirements that must be in place in order for the
judiciary to be sufficiently independent of pressures from the other branches of the state. Judges must
be at complete liberty to decide individual cases on their merits without interference. Courts act as a
shield against unwarranted deprivations by the state of the rights and freedoms of individuals. It also
preserves the separation of powers by ―depoliticizing‖ the relationship between the judiciary and the
other two branches.

Reference re Remuneration of Judges of the Provincial court of PEI et al (the “provincial judges
reference”), [1997] 3 SCR – (per Lamer CJ)
     The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada
        in the Provincial Judges Reference found an unwritten constitutional norm guaranteeing judicial
        independence to all judges, including civil law inferior court judges. The unwritten norm is said
        to be implied by the preamble to the Constitution Act, 1867.
Several provincial governments imposed salary freezes or rollbacks, including the provincial court
judiciary. Criminal accused, in several provinces, made claims that these moves by executive
governments with respect to judicial salaries violated the parameters of ―financial security‖ of judges, and
denied them trials before independent tribunals (11(d)). The court majority recognized an unwritten
principle of judicial independence in the Constitution. Judicial independence serves important social
goals. One of these goals is the maintenance of public confidence in the impartiality of the judiciary,
which is essential to the effectiveness of the court system. Another social goal served by judicial
independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that
the exercise of all public power must find its ultimate source in a legal rule.
     One problem identified was that the independence of provincial judges was not protected as
        extensively as the federal judges were under sections 96 to 100 of the Constitution Act, 1867. The
        majority read section 11(d) as only protecting independence in the exercise of jurisdiction in
        relation to offence (i.e., it would protect judges concerned with criminal law, but not civil law).
        However, section 11(d) is not a broad or exhaustive code. Instead, the Court looked to
        constitutional norms and found that judicial independence was one such norm implied by the
        preamble to the Constitution.
     Section 96-100 of the Constitution Act 1867 separately and in combination have protected and
        continue to protect the independence of provincial superior court judges (100 = financial security,
        99 = security of tenure, 96 = guarantees core jurisdiction of superior, district, and county courts
        against legislative encroachment).

But note that these sections don‘t apply to provincial courts and 11(d) only applies to ―offences,‖ thus not
to civil matters. Section 96 – 100 has come a long way from what those provisions actually say - another
argument in favour of the fact that the constitutional text is not comprehensive and definitive in its
protection of judicial independence. The preamble of the Constitution Act 1867 is not only a key to
construing the express provisions of the Act but also invites the use of those organizing principles to fill
out gaps in the express terms of the constitutional scheme.
      In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an
         exhaustive written code of the protection of judicial independence in Canada. Judicial
         independence is an unwritten norm, recognized and affirmed by the preamble to the
         Constitution Act, 1867. This preamble, which serves as the grand entrance hall to the castle of
         the Constitution, is the true source of our commitment to this foundational principle.

Assessing independence
The test: for the SC, the general test for the presence or absence of independence consists in asking
whether a reasonable person who is fully informed of all the circumstances would consider that a
particular court enjoyed the necessary independent status (Mackin v NB (Minister of Finance), [2002] 1

                                                     40
SCR). In this case a meeting between a senior Dept. Of Justice Official and the chief Justice of the FC
was held to cause damage to the appearance of judicial independence. Although there was no evidence
that they remained independent, the appearance of judicial independence suffered significantly. The test
for appearance is whether a well-informed and reasonable observer would perceive that judicial
independence has been compromised. The ―overall objective of guaranteeing judicial independence is to
ensure a reasonable perception of impartiality‖ (R v Lippe per Lamer CJ).

Dimensions and Core characteristics
What does judicial independence require? The three core elements are: 1) Security of tenure, 2) financial
security, and 3) administrative independence (Provincial Judges’ Reference). There are also two
dimensions of judicial independence: i) individual independence of a judge and ii) institutional or
collective independence of the court or tribunal of which that judge is a member. Security of tenure,
financial security, and admin independence come together to constitute judicial independence. By
contrast, the dimensions of judicial independence indicate which entity – the individual judge or the court
or tribunal to which he or she belongs – is protected by a particular core characteristic.

    1. Security of tenure – this has an individual and institutional dimension. Individual tenure means
       that judges may not be dismissed by the executive before the age of retirement except for
       misconduct or disability. Arbitrary removal is prohibited (Mackin, [2002]). Institutionally, before
       a judge may be removed for cause, there must be a judicial inquiry to establish that such cause
       exists, at which the judge affected must be afforded an opportunity to be heard (Re Therrien,
       [2001]). Authority to recommend removal of a judge from office is found in s. 69(3) of the
       Judges Act. This Act, amended in 1971, established the Canadian Judicial Council (CJC) as
       the body responsible for investigating complaints about the conduct of federally appointed
       judges. The main objective of the council is to promote efficiency and uniformity, and to improve
       the quality of judicial service in superior courts and in the Tax Courts of Canada. Remember,
       provincial court judges aren’t included in this discussion. Over 66% of complaints are
       concluded within 3 months and 94% concluded within 6 months. An inquiry committee of the
       council conducts a formal public hearing into the allegations of misconduct and reports to the full
       council. The council, in turn, may then make a report to the Minister of Justice.

Report of the CJC – Mr. Justice Jean Bienvenue (Superior Court of Quebec, Oct 1996)
Majority view: Mr. Justice Bienvenue has become incapacitated or disabled from the due execution of the
office of judge (65(2)(b), (c), and (d) of the Judges Act). We are of the view that he breached his duty of
good behaviour under section 99 of the Constitution Act 1867 and has become incapacitated or disabled.
The most troubling remarks concerned woman in general (and men).

Dissenting view (Bayda CJ): our form of democratic society envisages a judiciary unfettered in its ability
to think and unhobbled in its capacity to hold views that do not accord with those of the mainstream. To
be removed from office for merely ―having‖ a predilection or predisposition or bias flies in the face of the
legitimacy of that unfettered and unhobbled judiciary. Did he put this predilection to work before this
case? No. Also, not shredding this predilection does not put the analysis past the ―having‖ stage. The
threshold stage is putting the predilection to work to the detriment of litigants. This one instance is hardly
a matter of the CJC to use as a spearhead for a recommendation consisting of the draconian step of an
irrevocable removal of the judge from office. There is no evidence that he would put this predilection to
use in the future. The majority made two critical errors: first, it did not make the crucial distinction
between ―having‖ a predilection and ―putting it to work to the detriment of litigants.‖ Second, the
majority found that having a predilection and being unable or disinclined to shed it is the same as
putting the predilection to work.



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    2. Financial security – financial security relates to the pay judges receive for performing their job. It
       protects against an ―unscrupulous government‖ that could utilize its authority to set judges‘
       salaries as a vehicle to influence the course and outcome of adjudication. Remuneration (in
       Provincial Judges Reference) for provincially appointed judges was high compared to the average
       citizen, but low compared to federally appointed judges and successful practicing lawyers; this
       made them a politically vulnerable target.

Provincial Judges Reference, [1997] 3 SCR – (per Lamer CJ) financial security has both an individual
and an institutional or collective dimension. With regard to the individual, salaries must be established by
law and not allow for executive interference in a manner which could affect the independence of the
individual judge. Independence of the judiciary implies not only that a judge should be free from
executive or legislative encroachment and from political pressures and entanglements but also that he
should be removed from financial or business entanglement likely to affect or rather to seem to affect him
in the exercise of his judicial functions. Financial security for the courts as an institution has three
components:
     (a) any changes to or freezes in judicial remuneration require prior recourse to a special process,
         which is independent, effective, and objective, for determining judicial remuneration, to avoid
         the possibility of, or the appearance of, political interference through economic manipulations.
         When governments propose to single out judges as a class for a pay reduction, the burden of
         justification will be heavy;
     (b) Under no circumstances is it permissible for the judiciary to engage in negotiations over
         remuneration with the executive (through representatives or not). Negotiations would undermine
         judicial independence;
     (c) Any reductions to judicial remuneration (including by inflation) cannot take those salaries below
         a basic minimum level or remuneration which is required for the office of a judge. Judges cannot
         be susceptible to political manipulation, as you see in other countries. Although provincial
         executives and legislatures are constitutionally permitted to change or freeze judicial
         remuneration, those decisions have the potential to jeopardize judicial independence. A judicial
         compensation committee must be put between the judiciary and executive (this is to depoliticize
         the process). The committee must be independent, objective, and effective. By laying down a set
         of guidelines to assist provincial legislatures in designing judicial compensation commissions, I
         do not intend to lay down a particular institutional framework in constitutional stone. As long as
         those institutions are independent, effective, and objective, s. 11(d) will be complied with.

Provincial Court Judges’ Assn. Of NB v NB et al., [2005] 2 SCR – this court held that independent
commissions were required to improve the process designed to ensure judicial independence but that the
commissions‘ recommendations need not be binding. A commission‘s report is consultative. The
government may turn it into something more. Unless the legislature provides that the report is binding,
the government retains the power to depart from the commission‘s recommendations as long as it justifies
its decisions with rational reasons. Good reasons must be needed to depart from their recommendations.
The reasons must reflect the underlying public interest in having a commission process. These reasons
have to be rational (which must be included in the government‘s response).

    3. Administrative independence – this requires that courts themselves have control over the admin
       decisions that bear directly and immediately on the exercise of the judicial function, such as
       assignment of judges, sittings of the court, and court lists (and admin staff). Judges are assigned
       these admin rules through statute (see SC Act s. 97 for example).

Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR – this case (above) dealt with
the private meeting between a senior Department of justice official and the CJ of the Federal Court. What
the respondent‘s submission overlooks is that the CJ was not able to exercise his admin function entirely

                                                     42
free from outside interference. Mr. Thompson approached the CJ and told him that if the Associate CJ did
not pick up the pace, the Federal Court would face embarrassment of having the government go ―over its
head‖ to this Court. The CJ‘s letter to Mr. Thompson suggests that this ―threat‖ carried some weight with
him and with the Associate CJ as well. As senior counsel in the Department of Justice, he arranged to
speak privately (without opposing counsel present) to the CJ concerning cases which were pending. This
he should not have done. Thus, the appearance of judicial independence suffered a serious affront as a
result of the meeting.

Chapter 7 – Statutory interpretation

This deals with how the legislature, executive, and judicial branches interact with one another. Focus is
on the relationship between the courts and the other branches of government. Given the courts‘
constitutional judicial review functions, it is arguable that Canadian democracy rests on a de facto system
of judicial supremacy. Like the legislature, the executive is constrained by the Constitution, and policed
by the courts accordingly. Also note the executive only have limited legal powers, primarily those
delegated to it by the legislature by statute.

Overview of statutory interpretation – sources of interpretation law
There are literally thousands of federal and provincial statutes governing virtually every aspect of human
lift. Interpreting the language of the text is a necessary skill to resolve interpretation disputes. There are
three main sources of interpretation law: 1) interpretation acts; 2) interpretation rules in individual statutes
and regulations; 3) and the common law.

Interpretation acts – although the courts‘ role is the interpret law made by the legislature; it is open to a
sovereign legislature to issue instructions on how particular legislation or legislation in general is to be
interpreted. Every Canadian jurisdiction has an Interpretation Act that contains various rules applicable to
statutes in general. The Federal Act applies only to federal legislation and provincial or territorial
legislation is governed by the relevant local Act.

Interpretation Rules in Acts and Regulations – individual acts and regulation often contain definitions,
application provisions, purpose statements, and the like. See for example the Canadian Human Rights Act
(ss. 2, 25, 62(1), (66(1), etc.).

Common law rules – aside from the above, statutory interpretation is rooted in the common law, in a body
of principles, presumptions, and conventions known as the ―rules of statutory interpretation.‖ These rules
act as guidelines, and aren‘t binding like the rules in the CC for example. See Ruth Sullivan in Sullivan
and Driedger on the Construction of Statutes (2002). Historically, the courts recognized and practised 4
distinct approaches to statutory interpretation: 1) the equitable construction (subsequently turned into the
―mischief‖ rule). The words of the legislative text are less important than achieving Parliament‘s actual
intentions. This was appropriate in an era when judges were active participants in law-making and texts
were not expected to dictate outcomes because they were both inaccessible and unreliable (for centuries,
legislation was recorded by hand on a Parliamentary scroll); 2) under the ―plain meaning rule‖ a court is
obliged to stick to the literal meaning of the legislative text in so far as that meaning is clear. If the words
of a legislative text are clear and unambiguous, the court must apply them as written despite any contrary
evidence of legislative intent and regardless of consequences. Achieves certainty and predictability; 3) the
golden rule permits courts to depart from the ordinary meaning of a text to avoid absurd consequences.
The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some
absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and
inconsistency, but no further (Grey v Pearson per Lord Wensleydale). Although the inconsistency
between the plain meaning rule and golden rule is evident, there are few judges who do not rely on both

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as need arises. Although the legislature is sovereign, it is not omniscient; it cannot envisage and provide
for (or against) every possible application of its general rules. In practice, nearly all judges are pragmatists
– that is, when confronted with an interpretation problem, they form impressions of what the statute says,
what the legislature intended and what would be a good result having regard to relevant legal norms.

Range of interpretation issues
Sometimes the meaning is clear but there is a gap in the legislative scheme and the question is whether
the court can do anything about it. Sometimes there is overlap between a clear provision and the common
law and the issue is whether both apply. Disputed meaning argument means the interpreter claims that,
properly interpreted, the provision in question has a particular preferred meaning. Static versus dynamic
interpretation argument means the interpreter claims the text should be interpreted as it would have been
when the text was first enacted (static) or interpreted in light of current understanding of language and
social conditions (dynamic). In a non-application argument, the interpreter identifies a reason not to apply
a provision to the acts even though, given its ordinary meaning, it would otherwise apply (provision may
be ―read down‖ for a number of reasons). In an incorrigible gap argument, the interpreter reluctantly
applies the legislation, although, given its purpose, it probably shouldn‘t apply. In a supplementation
argument, the interpreter concedes that the legislation, as drafted, does not apply, but claims that the
common law does apply so as to supplement the underinclusive legislation. In a corrigible mistake
argument, the interpreter claims that a provision is question contains a drafting mistake, which must be
corrected before determining whether the provision applies to the facts (this happens quite frequently in
bilingual legislation). The presumption of overlap stipulates that at law, whether common law or
legislation, which could apply is presumed to apply in the absence of evidence to the contrary. In an
exhaustive code argument, the interpreter concedes that the overlap between legislative provisions or
between legislation and the common law does not create a conflict, but claims that a particular Act or
provision was meant to apply exhaustively, to the exclusion of the other. In a paramountcy argument the
interpreter claims that there is a conflict between two provisions or between a provision and common law
and that one take precedence over the other on the basis of some principles reason (i.e. statute prevails
over common law) (for examples of all see p. 387).

Rules about meaning
       Ordinary meaning rule – meaning that spontaneously comes to the mind of a competent reader
         (presumed to be the meaning intended by parliament). This presumption can be rebutted by
         evidence suggesting some other meaning was intended
       Technical meaning rule – presumed legislatures use words in their popular, non-technical
         sense. Unless, of course, the legislation deals with a specialized subject.
       Shared meaning ruled – in bilingual texts, if one version leads to only one shared version while
         another version leads to two interpretations, the shared interpretation prevails.
       Original meaning rule – language that is technical, concrete and specific tends to attract a static
         interpretation while language that is general or abstract attracts a dynamic interpretation (see
         above).
       Plausible meaning rule – if ordinary meaning of text is rejected to give effect to the actual or
         presumed intentions of the legislature, the meaning adopted must be one that the text is capable
         of bearing.

Re Witts and AG for BC, (1982) (BCSC) – This illustrates the application of technical meaning rule.
Claimant tried to rescind purchase because the horse was held out to be a colt but was in fact a gelding
(not good for breeding). What is the appropriate construction to be placed on the word ―sex‖ referring to
horses in the Regulations? The technical meaning was applied, that is, ―sex‖ didn‘t refer to ―male‖ or
―female‖ with regards to horses, but to a stallion, colt, gelding, ridgling, mare, or filly. Thus, a person
who claims that a legislative text has a technical meaning different from its popular meaning has the


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burden of establishing 1) the technical meaning and 2) the technical meaning was intended in this context.
Here the petitioner appealed (unsuccessfully) to the implied exclusion rule. Argued that when the
legislature wished to depart from the ordinary meaning of a word, it did so expressly by setting out
preferred definition (as it did for ―age‖ in the regulation). Since ―sex‖ was not defined, it should be given
its ordinary meaning.

Presumptions relied on to analyze the meaning of a text
Courts make a number of assumptions about the way legislation is drafted: 1) straightforward expression
– the legislature chooses the clearest, simplest, and most direct way of stating its meaning; 2) uniform
expression – the legislature uses the same words and techniques to express the name meaning and
different words and techniques to express different meanings; 3) no tautology/no redundancy (―the
legislature does not legislate in vein‖) – there are no superfluous words in legislation; every word plays a
role; 4) internal coherence – all provisions of a legislative text fit together logically and work together
coherently to achieve the purpose of the legislation; 5) implied exclusion – if something is not mentioned
in circumstances where one would expect it to be mentioned, it is impliedly excluded; 6) associated words
– the meaning of a word or phrase is affected by the other words or phrases with which it is linked in a
sentence; 7) limited class – a word may be read down as referring only to a specified class. For example,
in the phrase ―hockey, skiing, and other sports,‖ ―sports‖ may be read down to include only sports played
in the winter; 8) the legislature would have said ―x‖ – a legitimate basis for rejecting a proposed
interpretation is to point out that had the legislature intended the proposed interpretation, it would have
framed the legislation in a different way, as it did elsewhere in the act or regulation.

R v Daoust, [2004] 1 SCR – illustrates reliance on the ordinary meaning rule, the associated words rule,
and the no tautology rule. In this case ―transfer,‖ was given its ordinary meaning. The ordinary is not the
dictionary meaning, rather it is the meaning that spontaneously comes to mind when the word or phrase is
read in its immediate context.

Purpose and scheme analysis
All legislation is enacted for a purpose. Legislative purpose – interpreters must try to determine what the
purpose of the legislation is. The more vague legislation is, the more discretion is conferred on the
tribunal or court that applies it (even more important that the correct purpose of the text in adopted).
Interpretation act – every act in every jurisdiction ensures an interpretation that promotes the purpose of
the legislation over strict construction. Legislative scheme – provisions of an act are presumed to work
together as parts of a coherent scheme designed to implement the legislature‘s goals (why was such and
such a provision created? What does it add? What is the underlying rationale?).

R v Chartrand, [1994] 2 SCR – accused was charged with abducting a person under 14 (took him in his
car to take pictures of him). What does an ―unlawful‖ taking mean in s. 281 of the Code? Unlawfully
means ―without lawful justification, authority, or excuse.‖ This interpretation is in accord with the
purpose of the section which is to prevent and punish strangers intending to deprive a parent of his or her
child.

Mistakes and gaps in the legislation scheme
Corrigible mistakes – legislature is presumed not to make mistakes, but the presumption is rebutted when
the text does not accurately reflect the rule the legislation intended to enact. The courts have jurisdiction
to correct such mistakes, unless the mistake amounts to a gap in the legislation scheme.
Incorrigible gaps – courts almost always deny jurisdiction to cure a gap in a legislative scheme or to
otherwise cure underinclusive provisions by making them apply to facts outside the ambit of the language
of the text. This would be ―reading in,‖ which is generally considered a form of judicial legislation as
opposed to ―reading down‖ which is not.


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Supplementing legislation by reliance on common law (or the civil code) – courts can rely on
supplemental sources of law to complement what the legislative scheme provides.

Presumptions on legislative intent
These are evolving common law norms. Legislation that interferes with individual rights or freedoms is
considered ―penal‖ and attracts a ―strict‖ construction. Legislation that cures mischief or confers benefits
is considered ―remedial‖ and attracts a ―liberal‖ construction. When legislation is strictly construed, the
emphasis is on the wording of the text, general terms are read down, and ambiguities are resolved in
favour of non-application. When it is liberally construed, the focus is on achieving the benevolent purpose
of the legislation. If doubts or ambiguities arise, they are resolved in favour of the person seeking the
benefit of the statute.

Avoiding absurdity
It is presumed that the legislature does not intend its legislation to produce absurd consequences. The
clearer and more precise a text seems to be, the greater the absurdity required to depart from its ordinary
meaning. The greater the absurdity that flows from a particular interpretation, the more justified an
interpreter is in rejecting it.

Relation to other legislation and other sources of law
Constitutional law – interpretation that renders legislation valid is preferred over one that does not.
Legislatures sometimes do intend to restrict a Charter right or freedom in order to achieve an important
goal, and they are entitled to do so if the restriction can be justified under s. 1.
Regulations – regulations must be read in light of their enabling provision and their enabling legislation
as a whole. The regulations and enabling legislation are presumed to constitute an integrated scheme.
Related legislation (statutes in pari material) – statutes dealing with the same subject matter must be read
together and are presumed to offer a coherent and consistent treatment of the subject.
The statute book – even if statutes do not relate to the same subject, it is often useful to compare
provisions in different enactments that deal with a particular matter.
Common law – in some cases, resort to common law (or civil law) sources is appropriate to determine the
meaning of the concept or term. However, sometimes legislation aims to displace the common law to
preclude further resort to the common law (a complete code).
International law – it is presumed that legislatures (provincial and federal) intend to comply with
international law. This strongly applies when the law has been implemented domestically, but it has also
applied to help resolve ambiguities in non-implementing legislation.

Extrinsic aids
Legislative history (ministerial statements, committee reports, recorded debates, background material),
legislative evolution (amendments, re-enactments, that is, changes a provision has undergone from its
initial enactment to the time of application), and expert opinion (precedent, admin opinion, scholarly legal
publications, as well as expert testimony).

R v McIntosh, [1995] 1 SCR – (per Lamer CJ) I take as my starting point the proposition that where no
ambiguity arises on the face of a statutory provision, then it‘s clear words should be given effect. Issue is
whether s. 34(2) of the CC applies to people who were the initial aggressor. The Crown argued that since
the words ―without having provoked the assault‖ was in 34(1), the legislature made a mistake by not
including it in 34(2). The Crown is asking this Court to read words into s. 34(2) which are simply not
there. In my view, to do so would be tantamount to amending s. 34(2) which is a legislative and not
judicial function. A principle of statutory interpretation is that where two interpretations affect the liberty
of a subject are available, the one which is more favourable to an accused should be adopted. Crown says
it would be absurd to make 34(2) available to initial aggressors when s. 35 so clearly applies. However,
where by clear and unequivocal language capable of only one meaning, anything is enacted by the

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legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be.
Parliament has the right to legislate illogically...and if parliament is not satisfied with the judicial
application of its illogical enactments, then Parliament may amend them accordingly.

NOTE: the strong dissent by McLachlin J. Goes over history of self defences and relies on policy
considerations. If s. 34(2) is available to an initial aggressor who has killed or committed GBH, then that
accused may be in a better position to raise self-defence than an initial aggressor whose assault was less
serious; since s. 34(2) is only available to an aggressor who ―causes death or GBH,‖ the less serious
aggressor would not fall under its ambit. The less serious aggressor, forced to rely on s. 35, would have
no defence in the absence of retreat. Lamer CJ see the interpretation problem arising as one of disputed
meaning, while McLachlin J sees it as a corrigible mistake. Lamer CJ insists that courts must give effect
to the ―plain meaning‖ of legislative text, even if this leads to absurdity. McLachlin J (SHE) believes that
the judicial mandate is to give effect to Parliament‘s intent, as inferred not only from the language of the
text but also from aids such as the evolution of the legislation from common law to its current
formulation.

Re Rizzo and Rizzo Shoes Ltd., [1998] 1 SCR – (per Iacobucci J) this is the leading case on statutory
interpretation. It also sets out the preferred approach of the SCC. Rizzo Shoes Ltd went bankrupt and
employees lost their jobs. One claimed severance pay but it was not allowed by the trustee in bankruptcy
as an employer‘s bankruptcy does not constitute dismissal. Employees appealed to the SCC. This is an
issue of statutory interpretation, that is, under the relevant legislation in effect at the time of the
bankruptcy, are employees entitled to claim termination and severance payments where their employment
has been terminated by reason of their employer‘s bankruptcy? Elmer Driedger in Construction of
Statutes (1983) best encapsulates the approach upon which I prefer. He recognizes that statutory
interpretation cannot be founded on the wording of the legislation alone: ―today there is only one
principle or approach, namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament.‖ The objects of the termination and severance pay provisions themselves are also
broadly premised upon the need to protect employees. If the Employment Standards Act termination and
severance pay provisions do not apply in circumstances of bankruptcy, those employees ―fortunate‖
enough to have been dismissed the day before a bankruptcy would be entitled to such payments, but those
terminated on the day the bankrupt becomes final would not be so entitled. This is an unreasonable result.
Since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of
employees, it can be characterized as benefits-conferring legislation. As such, it ought to be interpreted in
a board and generous manner. Any doubt arising from difficulties of language should be resolved in
favour of the claimant. When the express words of ss. 40 and 40a of the ESA are examined in their entire
context, there is ample support for the conclusion that the words “terminated by the employer” must be
interpreted to include termination resulting from the bankruptcy of the employer. Using the broad and
generous approach to interpretation appropriate for benefits-conferring legislation, I believe that these
words can reasonably bear that construction.

NOTE: distinguish between ―reading down‖ and ―reading in‖ to a statute. Reading down refers to
accepting an interpretation of a provision that is narrower in scope than the ordinary meaning of the text
would support. The additional words narrow rather than enlarge the scope of the provision and are meant
to reflect the legislature‘s intent. When a court reads in, it expands the scope of a legislative provision or
fills a gap in a legislative scheme, thus making the legislation apply to facts that it would not otherwise
encompass given the limits of the language used in the provision or scheme. Words of expansion could be
added. Did Iacobucci J ―read in‖ in Rizzo? Also note that in Rizzo and McIntosh the French version of the
text was not examined. Current feelings on bilingual interpretation are set out in Medovarski.



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Medovarski v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR – Deals with the right to
appeal an order for removal to the Immigration Appeal Division and whether such a right exists for
people deemed inadmissible for serious criminality (sentenced to 6 months or more). What is the purpose
of the Immigration and Refugee Protection Act (IRPA)? The purpose was to efficiently remove criminals
sentenced to prison terms over six months from the country. In interpreting bilingual statutes, the
statutory interpretation should begin with a search for the shared meaning between the two versions. 1) If
there are differences between the texts, is there a shared common meaning? The common meaning
favours the limited and restricted meaning. The common meaning is the version that is plain and not
ambiguous. If neither version is ambiguous, or if they both are, the common meaning is normally the
narrower version. 2) is the common meaning consistent with Parliament‘s intent? In this case, for
example, s. 196 in English version applies ONLY to actively granted stays, and the French refers to ALL
stays. Thus, English version prevails according to rule 1.

Canada (AG) v Mossop, [1993] 1 SCR – (per Lamer CJ) case involving two men in a homosexual
relationship. Article 19.02 of the Canadian Union of Professional and Technical Employees (CUPTE)
provide up to 4 days‘ leave upon the death of a member of an employee‘s ―immediate family.‖ One of the
men‘s father died. Mossop applied for breacement leave pursuant to Art 19.02, but was denied. After the
denial, he went to the Appellant (Canadian HR Commission). There he laid complaints. The tribunal
concluded that the Treasury Board and SUPTE had infringed s. 10(b) by entering into a collective
agreement that reserved certain benefits to common law couples of the opposite sex, thereby excluding
same-sex couples. FCA disagreed and stated that ―family status‖ couldn‘t have included same-sex
couples.

See L‘Heureux-Dube‘s Dissenting judgement. HR legislation has a unique quasi-constitutional nature,
and that it is to be given a large, purposive and liberal interpretation. Though traditional interpretational
tools ought not be ignored, they must be applied in the context of a broad and purposive approach (for
quasi-constitutional statutes like HR legislation). It was argued that the coupling of the terms ―family‖
and ―status‖ in s. 3 of the Act required the Tribunal to construe ―family status‖ as including only those
families who have recognizable status at law....the broad and purposive approach, which, in my view,
should guide the interpretation of HR legislation. NOTE: It is an established principle of interpretation in
Canada that French and English texts of legislation are deemed to be equally authoritative, and where
there is a discrepancy between the two, it is the meaning which furthers the purpose of the legislation
which must prevail. In this case, given that the purpose of the Act is to prevent discrimination and provide
an equal opportunity to make the type of life one wishes, the broader of the two meanings should prevail
(this is different than approach in Medovarski). The decision to leave the term ―family status‖ undefined
suggests that such definitions are to be left to the Commission and its tribunals. Because legislation can
be amended more readily than a Constitution, legislation which find the interpretations given by admin
tribunals inconsistent with legislative intent can always amend the legislation, or pass new legislation in
order to modify that interpretation. The multiplicity of definitions and approaches to the family illustrates
clearly that there is no consensus as to the boundaries of family, and that ―family status‖ may not have a
sole meaning.

Chapter 8 - Constraints on Legislative and Administrative Action

This part explores the role the judiciary plays in constraining legislative and admin or executive action.

Marbury v Madison (US) (1803) – historic illustration of the role the judiciary plays in ensuring that the
written constitution prevails over ordinary legislation. It also gives a compelling speech on constitutional
supremacy. This is the justification of constitutional judicial review. ―An act of the legislature repugnant
to the constitution is void.


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Because the BNA Act 1867 (now the Constitution Act 1878) was an Act of the Imperial Parliament that
was binding upon the colonial legislatures of Canada and its provinces, federal or provincial legislation
that was found to be inconsistent with the BNA Act was therefore void for repugnancy with an imperial
statute. The Statute of Westminster 1931 made Canada and its provinces free from Imperial legislation,
but s. 7 of the Act expressly exempted the BNA Act and its amendments from this freedom in order to
preserve the principle of constitutional supremacy. With the patriation of the Canadian Constitution in
1982, the principle of constitutional supremacy was expressly enshrined in s. 52(1) of the Constitution
Act, 1982 which read, ―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.‖

The limitations of Judicial Review
   1. The issue of justiciability – are all actions by the political branches of government ―justiciable‖ –
       that is, amenable to resolution by the courts?

Operation Dismantle v The Queen, [1985] 1 SCR – (per Dickson J) here the appellants made a challenge
under s. 7 of the Charter to the decision of the Federal Cabinet to permit the testing of the cruise missile
by the US in Canadian territory. The appellants want a declaration that the testing of a cruise missile is
unconstitutional, they want an injection to prohibit testing, and they also want damages. Although
decisions of the Federal Cabinet are reviewable by the courts under the Charter, and the government bears
a general duty to act in accordance with the Charter‘s dictates, no duty is imposed on the Canadian
Government by s. 7 of the Charter to refrain from permitting the resting of the cruise missile. He based
his decision not on justiciability, but on the fact that it is impossible to find, on the basis of evidence, the
connection between the government‘s duty to act in accordance with the Charter and the violation of the
appellants‘ s. 7 Charter right.

See Wilson J (concurring in result only) – The question before us is not whether the government‘s
defence policy is sound but whether or not it violates the appellants‘ rights under s. 7 of the Charter. This
is a totally different question. If we are to look at the constitution for the answer to the question whether it
is appropriate for the courts to ―second guess‖ the executive on matters of defence, we would conclude
that it is not appropriate. However, if what we are being asked to do is to decide whether any particular
act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the
question; it is our obligation under the Charter to do so. He agreed that the government policy did not
violate the appellants‘ s. 7 rights.

    2. The issue of enforcement – although the courts accept that the constitution is supreme and it is
       their duty to interpret it and invalidate any legislation that is inconsistent with the constitution, the
       practical reality is that courts normally have to rely on the executive and legislative branches of
       government for the enforcement of their decisions. Canadian courts are usually able to rely on the
       other branches of government for this support, but it is not inevitable that this will always be the
       case. In these circumstances, how aggressive may the courts be in usurping (to seize or hold
       without legal right) the executive or legislative function and imposing solutions?

Doucet-Boudreau v NS (Minister of Education), [2003] 3 SCR – (per Iacobucci and Arbour JJ)
     Progress report remedy was upheld
This appeal involves the nature of remedies available under s. 24(1) of the Charter for the realization of
the minority language education rights protected by s. 23 of the Charter. The appellants are Francophone
parents from various districts and the respondent is the AG of NS. After the trial judge made its ruling,
he added a requirement that the government provide him with periodic reports on its progress in this
regard. Although the majority felt this came within his jurisdiction under s. 23 of the Charter, there were
strong dissents. The main issue in the appeal is simply this: having found a s. 23 Charter violation and

                                                      49
having ordered the Province to make its best efforts to provide homogeneous French-language
facilities and programs by particular dates, did the NS SC have the authority to retain jurisdiction to
hear reports from the Province on the status of those efforts as part of its remedy under s. 24(1) of the
Charter? The rule of law can be shallow without proper mechanisms for its enforcement. In this respect,
courts play an essential role since they are the central institutions to deal with legal disputes through the
rendering of judgements and decisions. BUT, courts have no physical or economic means to enforce
their judgements. Ultimately, courts depend on both the executive and the citizenry to recognize and
abide by their judgements.
     In the context of constitutional remedies, courts must be sensitive to their role as judicial arbiters
         and not fashion remedies which usurp the role of the other branches of governance by taking on
         tasks to which other persons or bodies are better suited.
A superior court may craft any remedy that it considers appropriate and just in the circumstances (under s.
24(1) of the Charter). In doing so, courts should be mindful of their roles as constitutional arbiters and the
limits of their institutional capacities.
     Reviewing courts, for their part, must show deference to trial judges‘ choice of remedy, and
         should only interfere where the trail judge has committed an error of law or principle. Thus, the
         CA erred in wrongfully interfering with and striking down the portion of Leblanc J‘s order in
         which he retained jurisdiction to hear progress reports on the status of the Province‘s efforts in
         providing school facilities by the required dates.

Note LeBel and Deschamps JJ dissenting speech.
    A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final
       order has been issued, will likely be acting inappropriately.
    By attempting to extend the court‘s jurisdiction beyond its proper role, it will breach the
       separation of powers principle, and two, by acting after exhausting its jurisdiction; it will breach
       the functus officio doctrine (lack authority to re-hear a judgement after its already been given).
    Aside from their duties to supervise admin tribunals created by the executive and to act as vigilant
       guardians of constitutional rights and the rule of law, courts should, as a general rule, avoid
       interfering in the management of public administration. More specifically, once they have
       rendered judgement, courts should resist the temptation to directly oversee or supervise the
       administration of their orders. To do otherwise could upset the balance that has been struck
       between our three branches of government.

Manitoba Language Reference, [1985] 1 SCR – illustrates the difficulty Canadian courts face in finding a
principled (and constitutionally sensible) way to address the consequences of a sweeping legislative
disregard of constitutional rules. The implications of this court‘s holdings in Blaikie No. 1 and Forest was
that provincial legislation passed in accordance with the ultra vires statutes, i.e., enacted in one language
only, was itself in derogation of the constitutionality entrenched language provision on the Constitution
Act 1867 and the Manitoba Act 1870 and therefore invalid. Section 23 of the Manitoba Act 1870
entrenches a mandatory requirement to enact, print, and publish all Acts of the legislature in both official
languages.
      In the present case the unilingual enactments of the Manitoba legislature are inconsistent with s.
         23 of the Manitoba Act 1870 since the constitutionally required manner and form for their
         enactment has not been followed. Thus they are invalid and of no force or effect.
But if this were to be applied, all laws created in English only would be of no effect, which is an
unworkable concept! Thus, in the present case, declaring the Acts of the legislature of Manitoba invalid
and of no force or effect would, without more, undermine the principle of the rule of law. So, on the
one hand the unilingual laws should be declared invalid with no force and effect, but to do so would
violate the rule of law. The only appropriate solution for preserving the rights, obligations and other
effects is to declare that these rights, obligations and other effect have, and will continue to have, the
same force and effect they would have had if they had arisen under valid enactments, for that period of

                                                     50
time during which it would be impossible for Manitoba to comply with its constitutional duty under s. 23
of the Manitoba Act 1870. Any other solution would lead to anarchy. Because of the Manitoba
legislature‘s persistent violation of the constitutional dictates of the Manitoba Act 1870, the Province of
Manitoba is in a state of emergency. The constitution requires that temporary validity and force and effect
be given to the current Acts of the Manitoba Legislature from the date of this judgement...

    3. The issue of legitimacy – because courts now regularly strike down (and reinterpret by ―reading
       in‖) parliamentary statutes, they have sparked a wave of academic and political critiques that
       question, and sometimes denounce, their performance. Most criticisms of constitutional judicial
       review can be reduced to two core complaints.
       (i)      The first is that under the banner of constitutional supremacy, courts have usurped power
                that is properly the domain of Parliament and the provincial legislatures. The argument is
                that this shrinks the zone of parliamentary supremacy.
       (ii)     The second line of criticism is sparked by the substantive approach taken by the courts to
                particular rights, rights that may protect unpopular elements of society. In rendering their
                constitutional decisions, how much deference should courts show elected officials?

Vriend v Alberta, [1998] 1 SCR – SC concludes that the Alberta legislature‘s failure to include ―sexual
orientation‖ as a prohibited ground of discrimination in the Alberta Individual Rights Protection Act
violated the appellants‘ right to equality as protected by s. 15 of the Charter and that this action was not
justified under s. 1. Majority also concluded that the appropriate remedy for this violation was to ―read
in‖ sexual orientation as a prohibited ground of discrimination for purposes of the Act. When the Charter
was introduced, Canada went from a system of Parliamentary supremacy to constitutional supremacy. It
was the deliberate choice of our provincial and federal legislatures in adopting the Charter to assign an
interpretive role to the courts and to command them under s 52 to declare unconstitutional legislation
invalid. Judicial review, it is alleged, is illegitimate because it is anti-democratic in that unelected officials
(judges) are overruling elected representatives (legislatures) (with Charter violations, that is). The courts
are trustees of these Charter rights. In reviewing the legislative enactments and executive decisions to
ensure constitutional validity, the courts speak to the legislature and executive branches. The work of the
legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the
legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This
dialogue enhances the democratic process, not denies it! Judges are not acting undemocratically by
intervening when there are indications that a legislative or executive decision was not reached in
accordance with the democratic principles mandated by the Charter.

NOTE: Charter rights are not absolute (so long as the violation is justified under section 1). Second, s. 33,
the ―notwithstanding clause,‖ states that Parliament can expressly declare in an Act of Parliament that the
Act or a provision thereof shall operate notwithstanding these Charter rights. The Act can go through the
regular enactment process. Thus, this preserves a large about of parliamentary supremacy (but by using
this section there is a high political price, of course). This all refers to built in deference. Also note the
―dialogue model‖ as described in Vriend. First, the legislature enacts laws that they feel are Charter
compliant. If they are, that is it. If not, the courts can strike the law down, but in so doing, the courts are
clear as to what needs to be changed by the legislature. Thus, the courts‘ assessment of the legislation‘s
constitutionality is not the last word, it is merely one step in the process. However, note commentators
like Morton who call this more of a monologue than dialogue, and states that ―the Canadian tradition of
responsible government is in for a rough ride in our brave new world of Charter democracy.‖

See ―Remarks of the Right Honourable Beverly McLachlin PC Respecting Democratic Roles‖ (2004) –
the judicial role is to resolve disputes and decide legal questions which others bring before the courts. It is
not for judges to set the agendas for social change, or to impose their personal views on society. Have
judges become political actors? There are some arguments for this proposition, but she shoots them all

                                                       51
down. First, some say judges should never go against the will of elected representatives. Our Constitution
Acts call on judges to be the arbiters of constitutional validity, both in terms of division of powers, and in
terms of respect for fundamental rights. In performing that duty, judges must inevitably strike down
legislation, and go against the will of elected representatives, whenever it fails to meet our constitutional
standards. Second, should judges err and impose their personal views instead of the law; they are likely to
be overturned on appeal. Deference does not mean simply rubber stamping laws. If a law is
unconstitutional, it is the duty of the courts to say so. When we examine what is really being said, the
claim fails that judges are overstepping the proper constitutional boundaries of their role.

Different sorts of judicial review of legislative action
The following decisions illustrate the types of arguments that have been made in court to impose limits on
Parliament‘s authority to protect Canadians from discrimination through the Canadian Human Rights Act.
They show the types of approaches courts use to address different types of constitutional challenges to
legislation.

Bell Canada v Canadian Telephone Employees Association, [2003] 1 SCR – issue is whether the
Canadian HR Tribunal lacks independence and impartiality because of the power of the Commission to
issue guidelines binding on the tribunal. The case dealt with gender discrimination in the payment of
wages contrary to section 11 of the Human Rights Act. The appeal is dismissed and the complaints can
finally (after 10 years) proceed before the Tribunal. Bell argues that the power of the Commission to issue
guidelines being on the Tribunal compromises the Tribunal‘s independence because it places limits upon
how the Tribunal can interpret the Act and undermines the Tribunal‘s impartiality. The Tribunal is like a
court, and it does not undertake its own independent investigations of complaints. The investigation and
policy-making functions have deliberately been assigned by the legislature to a different body, the
Commission. If it functions like a court, some might expect the members to have a high degree of
independence from the executive branch. Bell argues the Tribunal is bound by the unwritten
constitutional principle of judicial independence. As an admin tribunal subject to the supervisory powers
of s. 96 courts, the Tribunal does not have to replicate all features of a court. The overlapping of powers
of the Commission (in formulating guidelines, investigating complaints, and acting as prosecutor) is not
unusual for an admin agency. This doesn‘t mean there is bias. By issuing guidelines, it was the
legislature‘s way of ensuring the Act would be interpreted in a manner that was sensitive to the needs of
the public and to developments across the country. Given the many constraints on the Commission‘s
guideline power, and the many ways in which the Tribunal is empowered to question or set aside
guidelines that are in violation of the law, it does not seem likely that the Commission‘s guidelines could
improperly influence the Tribunal.

The Constitution Act 1867
The Act establishes institutional structure of the federal and provincial levels of government. Sections 91
to 95 are important in that legislative power is distributed between the federal and provincial
governments. Division of power litigation often involves arguments that a piece of legislation (or some
aspect of it) falls outside of the jurisdiction of the legislature that enacted it. Other times, the issue is not
the validity of a particular piece of legislation, but whether a particular situation falls within the federal or
provincial sphere of authority and therefore is governed by the relevant federal or provincial law.

Qu’Appelle Indian Residential School Council v Canada (Canadian HR Tribunal), [1988] (FC) – if the
employment that gave rise to the complaint fell within the sphere of federal regulatory authority, then the
dispute fell to be resolved under the Canadian HR Act. If employment fell within provincial legislation,
the HR Act would NOT apply and the Canadian HR Tribunal would have no jurisdiction to adjudicate the
complaint. Any remedy for the complainant would therefore have to be based on the relevant provincial
human rights agency. The Plaintiff has sought a declaration that the Tribunal has no authority to inquire
into the complaint by the defendant Public Service Alliance of Canada, and an order prohibiting the

                                                       52
Tribunal from conducting such an inquiry. The case deals with gender discrimination of wages. The
matter of labour relations is usually considered to fall within the provincial realm of legislative
competence as being in relation to property and civil rights, pursuant to 92(13) of the Constitution Act
1982. However, there are generally 4 exceptions to this rule. The functional test states that exclusive
federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an
integral part of primary federal jurisdiction over some other federal object. Thus, at issue is the character
or nature of the activity concerned. In this case, I consider that the nature of the functions of the Council
can and should be characterized as forming an integral part of the primary federal jurisdiction over
Indians and Indian Lands. It should be characterized as coming within federal jurisdiction by virtue of
subsection 91(24) of the Constitution Act 1867. The council‘s employees here are so directly involved in
activities relating to Indian status rights and privileges that their labour relations with the Council should
be characterized as forming an integral part of the primary federal jurisdiction over Indians and Indian
lands, under 91(24) of the Constitution Act 1867.

The Charter
The final type of constitutional litigation considered is litigation involving the Charter.

Canada (HR Commission) v Taylor, [1990] 3 SCR – (per Dickson CJ) does s. 13(1) of the Canadian HR
Act, which makes it a discriminatory practice for a person to distribute hate messages, violate freedom of
expression protected by the Charter (2(b))? Note the process of defining the substantive right protected by
the Charter AND balancing act of section 1. An activity which conveys or attempts to convey a meaning
is generally considered to have expressive content within the meaning of s. 2(b). So, activity affected by
s. 13(1) constitutes ―expression‖ as the term is envisioned by s. 2(b). Having determined that s. 13(1)
infringes s. 2(b), the question becomes whether the provision can be justified under s. 1 of the Charter.
According to Oaks, there are two aspects: 1) is the objective of the challenged measure sufficiently
important to warrant limiting a Charter right? 2) If yes, is the limitation proportionate? Note that the
Canadian HR Act is different from the Criminal Code (goes more towards compensating the victim).
Note, there are three subgroups to proportionality: i) rational connection test, ii) minimal impairment test,
and iii) are the effect unduly harsh?. With regards to i), s. 13(1) operates to suppress hate propaganda and
its harmful consequences, and hence is rationally connected to furthering the object sought by Parliament.
As for ii), does 13(1) minimally impair freedom of express? It does. As for iii) the degree of limitation
imposed upon the freedom of expression by s.13(1) is not unduly harsh, and the third requirement of the
Oaks proportionality approach is satisfied.

Judicial Review of Administrative action
JR of executive or administrative action raises somewhat different questions about institutional
relationships than does JR of legislative actions. Judicial invalidation of particular admin act on non-
constitutional grounds often does not prevent the decision maker from repeating his or her actions, this
time in compliance with standards set out in the statute delegating power or common law procedural
fairness. And even if the courts decide that the ADM can‘t comply with existing statutory authority, it
remains open to the legislature to modify the law in ways that validate the same action. So, constitutional
review of legislative action constrains democratically elected legislatures in a way that JR of admin action
using ordinary legal principles does not. So, the democratic legitimacy with regards to non-constitutional
review by judges doesn‘t receive the same kind of criticisms. The basic question addressed by the
standard of review analysis is really this: how deferential should the courts be to executive branch
interpretations of the mandate accorded them by statutes? The courts‘ approach to admin JR has involved
a growing recognition on the part of courts that they may simply not be as well equipped as admin
tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies
exercising delegated power. Note, the courts chief function in admin JR is to police the executive and
ensure that it does not act without lawful authority from the legislature.


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Baker v Canada (Minister of Citizenship & Immigration), [1999] 2 SCR (per L’Heureux-Dube J)
Ratio: The duty of procedural fairness lies in every public authority making an administrative decision
which is not of a legislative nature and which affects the rights, privileges and interests of an individual.
(There was a right of appeal pursuant to s. 82.1(1) of the Immigration Act 1985) Appellant was being
deported and was not a legal citizen, but she did have 4 children in Canada. There was an exception to
applying for permanent residency status from outside Canada on ―humanitarian and compassionate‖
considerations. She also claimed a deportation would not be in the best interests of her children. Her
application was denied without reasons, but notes were given to her, which displayed lack of
consideration of her children and mental health. She argued for procedural fairness, and claimed bias. She
also claimed the interests of the child should be a primary concern under the Convention of the Rights of
the Child, an international treaty which Canada was a party (but had not implemented in Canadian
domestic law). The first ground upon which the appellant challenges the decision made by Officer Caden
is the allegation that she was not accorded procedural fairness. Although the duty of fairness is flexible
and variable, and depends on an appreciation of the context of the particular statute and the rights
affected, it is helpful to review the criteria that should be used in determining what procedural rights the
duty of fairness requires in a given set of circumstances:

    1. Procedural fairness

Various factors determine the nature and extend of the common law duty of procedural fairness owed: 1)
importance of the decision to the individual affected (the greater the impact on the individual, the more
stringent procedural protections will be mandated – a high standard of justice is required when the right to
continue in one‘s profession or employment is at stake [Kane v Board of Governors of UBC 1980]); 2)
nature of the decision being made (Knight); 3) nature of the statutory scheme (greater procedural
protections will be required when no appeal procedure is provided within the statute, for example); 4)
legitimate expectations of the person challenging the decision (if the claimant has a LE that a certain
procedure will be followed, this procedure will be required by the duty of fairness – does not lead to
substantive rights – if claimant has a LE that a certain result will be reached, fairness may require more
extensive rights than would otherwise be accorded); 5) important weight and respect should be given to
the choice of procedures made by the agency itself (especially when statute gives the ADM the ability to
choose its own procedures). These principles (which are not exhaustive) help a court determine whether
the procedures that were followed respected the duty of fairness. The values underlying the duty of
procedural fairness relate to the principle that the individual affected should have the opportunity to
present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made
using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of
the decision.

Was the failure to accord an oral hearing and give notice to Ms B or her children inconsistent with the
participatory rights required by the duty of fairness in these circumstances? Were those whose interests
were affected given a meaningful opportunity to present their case fully and fairly? Several factors
described above enter into the determination of the type of participatory rights the duty of procedural
fairness requires in the circumstances.
     The articles of the Convention (on the rights of the Child) and their wording did not give rise to a
         LE on the part of Ms B that when the decision on her H & C application was made, specific
         procedural rights above what would normally be required under the duty of fairness would be
         accorded.
     With regards to the statutory scheme, H & C decision‘s role was an exception to the general
         principles of Canadian Immigration law (more relaxed requirements under duty of fairness).
         However, no appeal procedure (more strict requirements). However, JR may be applied for with
         leave of the Federal Court.


                                                     54
       The decision has exceptional importance to the lives of those with an interest in the result (this
        leads to the content of the duty of fairness being more extensive).
       The statute accords considerable flexibility to the Minister to decide on the proper procedure, and
        officers do not usually conduct interviews. The institutional practices and choices made by the
        Minister are significant, though of course not determinative factors in the analysis.

Oral hearing - On balance, this case required more than minimal standard of a duty of fairness. The
claimant, whose interests were affected in a fundamental way, must have a meaningful opportunity to
present the various types of evidence relevant to their case and have it fully and fairly considered. But
note, an oral hearing isn‘t always required, and it is not a requirement in H & C decisions. Interviews are
not necessary either. Mr B, in her application, put forward her situation (written by a lawyer) regarding
her kids and their emotional dependence, and documentation in support of her application from a social
worker and from a psychiatrist. Thus, the lack of an oral hearing or notice of such a hearing did not
constitute a violation of the requirements of procedural fairness. The opportunity to put all the paperwork
together satisfied the requirements of the participatory rights required by the duty of fairness.

Reasons - the traditional position at common law has been that the duty of fairness does NOT require, as
a general rule, that reasons be provided for admin decisions (Northwestern Utilities Ltd. v Edmonton,
[1979] 1 SCR) (lead to increased cost and delay of ADM – see Osmond per Gibbs CJ). However, it is
now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require
the provision of a written explanation for a decision, especially decisions that have significance for the
individual. This matter is one of those decisions. The notes by the officer, however, will constitute the
reasons nonetheless. Accepting documents such as these (the officer‘s hand written notes) as sufficient
reasons is part of the flexibility that is necessary when courts evaluate the requirements of the duty of
fairness with recognition of the day-to-day realities of admin agencies. People are entitled to fair
procedures and open decision-making, but it must be recognized that in the admin context, this
transparency may take place in various ways.

Bias - Procedural fairness also requires that decisions be made free from reasonable apprehension of bias,
by an impartial decision-maker (TEST: what would an informed person, viewing the matter realistically
and practically – and having thought the matter through – conclude? Would he think that it is more
likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly
(Committee for Justice & Liberty v Canada, [1978] 1 SCR)? On the facts, the officer‘s notes did NOT
indicate impartiality, and thus demonstrated a reasonable apprehension of bias. Note, that here the duty
applies to all immigration officers, whether they are subordinate reviewing officers of those who make the
final decision! Here, the subordinate officer plays an important part in the process, and if a person with
such a central role does not act impartially, the decision itself cannot be said to have been made in an
impartial manner. ―In my opinion, the well-informed member of the community would perceive bias
when reading Officer Lorenz‘s comments.‖ On the facts, the notes give the impression that the officer
was drawing conclusions based not on the evidence before him, but on the fact that Ms B was a single
mother with several children, and had been diagnosed with a psychiatric illness.

    2. Substantive review

Now then, what is the appropriate standard of review for decisions made under s. 114(2) and Regulation
2.1? The following 4 factors come from Pushpanathan:

Privative clause – s. 83(1) requires the certification of a ―serious question of general importance‖ by the
Federal Court, Trial Division before that decision may be appealed to the Court of Appeal. Pushpanathan
shows that the existence of this provision means there should be a lower level of deference on issues
related to the certified question.

                                                    55
Expertise of the decision-maker – here it is the Minister of Citizenship and Immigration or his or her
delegate. The fact that the formal decision-maker is the Minister is a factor militating in favour of
deference. The Minister has some expertise relative to courts in Immigration matters, particularly with
respect to when exemptions should be given from the requirements that normally apply.

Purpose of the provision and Act as a whole – the decision involves considerable choice on the part of
the Minister in determining when H & C considerations warrant an exemption from the requirements of
the Act. The purpose of the provision is to exempt applicants from requirements of the Act or Regulation.
This signals, too, greater deference. However, the decision relates directly to the rights and interests of an
individual in relation to the government, rather than balancing the interests of various constituencies or
mediating between them (this favours a stricter standard).

The nature of problem in question (relates to determination of law or facts?) – the decision about
whether to grant an H & C exemption involves a considerable appreciation of the facts of that person‘s
case, and is not one which involves the application or interpretation of definitive legal rules. Given the
highly discretionary and fact-based nature of this decision, this is a factor militating in favour of
deference.

These factors must be balanced to arrive at the appropriate standard of review. I conclude that
considerable deference should be accorded to immigration officers exercising the powers conferred by the
legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, the fact that the decision-maker is a Minister, and the considerable discretion evidenced by the
statutory language. Yet the absence of a privative clause, the explicit contemplation of JR by the Federal
Court, Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should not be as deferential as
―patent unreasonableness.‖ I conclude, weighting all these factors, that the appropriate standard of review
is reasonableness simpliciter.

Remedy – The appeal is allowed and the decision of Officer Caden is set aside, with party-and-party costs
throughout. The matter will be returned to the Minister for redetermination by a different immigration
officer.

Standard of review
Dunsmuir v NB, [2008] – (per Bastarache and LeBell JJ) (para 1-16) D held a position under the Civil
Service act and was an office holder ―at pleasure‖ (Dept of Justice). D was terminated after several
reprimands and cause for termination was not alleged. D commenced the grievance process under s. 100.1
of the Public Service Labour Relations Act (―PSLRA‖), alleging that the reasons for the employer‘s
dissatisfaction were not made known, that he did not receive a reasonable opportunity to respond to the
concerns, that the employer‘s actions in terminating him were without notice, due process or procedural
fairness, and that the length of the notice period was inadequate. The adjudicator‘s decision relied on
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R, for the relevant legal principles regarding
the right of ―at pleasure‖ office holders to procedural fairness. He declared that the termination was void
ab initio and ordered the appellant reinstated as of August 19, 2004, the date of dismissal. The Province
of New Brunswick applied for judicial review of the adjudicator‘s decision on numerous grounds. In
particular, it argued that the adjudicator had exceeded his jurisdiction in his preliminary ruling by holding
that he was authorized to determine whether the termination was in fact for cause. The Province further
argued that the adjudicator had acted incorrectly or unreasonably in deciding the procedural fairness
issue. In the view of the reviewing judge, the adjudicator did not have jurisdiction to inquire into the
reasons for the termination. His authority was limited to determining whether the notice period was
reasonable. Having found that the adjudicator had exceeded his jurisdiction, the reviewing judge quashed

                                                     56
his preliminary ruling. The appellant appealed the decision of the reviewing judge. The Court of Appeal,
Robertson J.A. writing, held that the proper standard with respect to the interpretation of the adjudicator‘s
authority under the PSLRA was reasonableness simpliciter and that the reviewing judge had erred in
adopting the correctness standard.

         Judicial Review and the lead up to Dunsmuir
Judicial review seeks to address an underlying tension between the rule of law and the foundational
democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create
various administrative bodies and endow them with broad powers. Courts, while exercising their
constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of
law, but also to the necessity of avoiding undue interference with the discharge of administrative
functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.
Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure
that they do not overstep their legal authority. The function of judicial review is therefore to ensure the
legality, the reasonableness and the fairness of the administrative process and its outcomes. Thus, when a
reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute,
the standard of review analysis strives to determine what authority was intended to be given to the body in
relation to the subject matter. This is done within the context of the courts‘ constitutional duty to ensure
that public authorities do not overreach their lawful powers: In essence, the rule of law is maintained
because the courts have the last word on jurisdiction, and legislative supremacy is assured because
determining the applicable standard of review is accomplished by establishing legislative intent.

The legislative branch of government cannot remove the judiciary‘s power to review actions and
decisions of administrative bodies for compliance with the constitutional capacities of the government.
Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative
in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972). The current approach to
judicial review involves three standards of review, which range from correctness, where no deference is
shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of
reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider
both the number and definitions of the various standards of review, and the analytical process employed
to determine which standard applies in a given situation. We conclude that there ought to be two
standards of review — correctness and reasonableness (para 34). The existing system of judicial review
has its roots in several landmark decisions beginning in the late 1970s in which this Court developed the
theory of substantive review to be applied to determinations of law, and determinations of fact and of
mixed law and fact made by administrative tribunals. In CUPE, Local 963 v. New Brunswick Liquor
Corp, [1979] 2 S.C.R. Dickson J. introduced the idea that, depending on the legal and administrative
contexts, a specialized administrative tribunal with particular expertise, which has been given the
protection of a privative clause, if acting within its jurisdiction, could provide an interpretation of its
enabling legislation that would be allowed to stand unless ―so patently unreasonable that its construction
cannot be rationally supported by the relevant legislation and demands intervention by the court upon
review‖ (p. 237).

        The abolishment of the third standard of review
In Southam Inc., [1997] 1 S.C.R, a third standard of review was introduced into Canadian administrative
law. The legislative context of that case, which provided a statutory right of appeal from the decision of a
specialized tribunal, suggested that none of the existing standards was entirely satisfactory. As a result,
the reasonableness simpliciter standard was introduced. It asks whether the tribunal‘s decision was
reasonable. If so, the decision should stand; if not, it must fall. In Southam, Iacobucci J. described an
unreasonable decision as one that ―is not supported by any reasons that can stand up to a somewhat
probing examination‖ (para. 56) and explained that the difference between patent unreasonableness and
reasonableness simpliciter is the ―immediacy‖ or ―obviousness‖ of the defect in the tribunal‘s decision

                                                     57
(para. 57). The defect will appear on the face of a patently unreasonable decision, but where the decision
is merely unreasonable, it will take a searching review to find the defect. The three standards of review
have since remained in Canadian administrative law, the approach to determining the appropriate standard
of review having been refined in Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. Canada needs a simpler test!

         Reasonableness and Correctness defined/deference
We therefore conclude that the two variants of reasonableness review should be collapsed into a single
form of ―reasonableness‖ review. The result is a system of judicial review comprising two standards —
correctness and reasonableness. But the revised system cannot be expected to be simpler and more
workable unless the concepts it employs are clearly defined. certain questions that come before
administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring both to the process of articulating the reasons and
to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law. Deference is both an attitude of the court and a requirement of the law of judicial
review. It does not mean that courts are subservient to the determinations of decision makers, or that
courts must show blind reverence to their interpretations, or that they may be content to pay lip service to
the concept of reasonableness review while in fact imposing their own view. Rather, deference imports
respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.
The notion of deference ―is rooted in part in a respect for governmental decisions to create administrative
bodies with delegated powers‖ (Canada (Attorney General) v. Mossop. In short, deference requires
respect for the legislative choices to leave some matters in the hands of administrative decision makers,
for the processes and determinations that draw on particular expertise and experiences, and for the
different roles of the courts and administrative bodies within the Canadian constitutional system. When
applying the correctness standard, a reviewing court will not show deference to the decision maker‘s
reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the
court to decide whether it agrees with the determination of the decision maker; if not, the court will
substitute its own view and provide the correct answer. From the outset, the court must ask whether the
tribunal‘s decision was correct.

         Determining the appropriate standard of review
What is the method for determining these standards of review? The existence of a privative or preclusive
clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion
is appropriate because a privative clause is evidence of Parliament or a legislature‘s intent that an
administrative decision maker be given greater deference and that interference by reviewing courts be
minimized. This does not mean, however, that the presence of a privative clause is determinative. The
rule of law requires that the constitutional role of superior courts be preserved and, as indicated above,
neither Parliament nor any legislature can completely remove the courts‘ power to review the actions and
decisions of administrative bodies. This power is constitutionally protected. Judicial review is necessary
to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies
do not exceed their jurisdiction. Where the question is one of fact, discretion or policy, deference will
usually apply automatically (Suresh para 29-30). Deference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function, with which it will have particular
familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R (para 48).
Deference may also be warranted where an administrative tribunal has developed particular expertise in
the application of a general common law or civil law rule in relation to a specific statutory context:


                                                      58
Toronto (City) v. C.U.P.E (para 72). Adjudication in labour law remains a good example of the relevance
of this approach.

A consideration of the following factors will lead to the conclusion that the decision maker should be
given deference and a reasonableness test applied:
     A privative clause: this is a statutory direction from Parliament or a legislature indicating the
        need for deference.
     A discrete and special administrative regime in which the decision maker has special expertise
        (labour relations for instance).
     The nature of the question of law. A question of law that is of ―central importance to the legal
        system . . . and outside the . . . specialized area of expertise‖ of the administrative decision maker
        will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other
        hand, a question of law that does not rise to this level may be compatible with a reasonableness
        standard where the two above factors so indicate.

If these factors, considered together, point to a standard of reasonableness, the decision maker‘s decision
must be approached with deference in the sense of respect discussed earlier in these reasons. correctness
review has been found to apply to constitutional questions regarding the division of powers between
Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National
Energy Board), [1998] 1 S.C.R. Such questions, as well as other constitutional issues, are necessarily
subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution:
Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC, [2003] 2 S.C.R. As mentioned
earlier, courts must also continue to substitute their own view of the correct answer where the question at
issue is one of general law ―that is both of central importance to the legal system as a whole and outside
the adjudicator‘s specialized area of expertise‖ (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.).
Because of their impact on the administration of justice as a whole, such questions require uniform and
consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common
law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process — issues that
are at the heart of the administration of justice (see para. 15, per Arbour J.). In summary, the process of
judicial review involves two steps:
     1) First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner
         the degree of deference to be accorded with regard to a particular category of question
     2) Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors
         making it possible to identify the proper standard of review.

We prefer to refer simply to the ―standard of review analysis‖ in the future (not pragmatic and functional
like in the past). The analysis must be contextual. As mentioned above, it is dependent on the application
of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the
purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the
question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider
all of the factors, as some of them may be determinative in the application of the reasonableness standard
in a specific case.

             What is the Standard of Review?
The specific question on this front is whether the combined effect of s. 97(2.1) and s. 100.1 of the PSLRA
permits the adjudicator to inquire into the employer‘s reason for dismissing an employee with notice or
pay in lieu of notice. This is a question of law. The question to be answered is therefore whether in light
of the privative clause, the regime under which the adjudicator acted, and the nature of the question of law
involved, a standard of correctness should apply.



                                                     59
    1. The inclusion of a full privative clause in the PSLRA gives rise to a strong indication that the
       reasonableness standard of review will apply (s. 101(1) PLSRA).
    2. The nature of the regime also favours the standard of reasonableness. This Court has often
       recognized the relative expertise of labour arbitrators in the interpretation of collective
       agreements, and counselled that the review of their decisions should be approached with
       deference: CUPE (pp. 235-36). The adjudicator in this case was, in fact, interpreting his enabling
       statute. Although the adjudicator was appointed on an ad hoc basis, he was selected by the
       mutual agreement of the parties and, at an institutional level, adjudicators acting under the PSLRA
       can be presumed to hold relative expertise in the interpretation of the legislation that gives them
       their mandate, as well as related legislation that they might often encounter in the course of their
       functions. The legislative purpose confirms this view of the regime. The PSLRA establishes a
       time- and cost-effective method of resolving employment disputes. It provides an alternative to
       judicial determination. Section 100.1 of the PSLRA defines the adjudicator‘s powers in deciding
       a dispute, but it also provides remedial protection for employees who are not unionized. The
       remedial nature of s. 100.1 and its provision for timely and binding settlements of disputes also
       imply that a reasonableness review is appropriate.
    3. Finally, the nature of the legal question at issue is not one that is of central importance to the
       legal system and outside the specialized expertise of the adjudicator. This also suggests that the
       standard of reasonableness should apply.

Considering the privative clause, the nature of the regime, and the nature of the question of law here at
issue, we conclude that the appropriate standard is reasonableness.

         Applying the Standard of Review
We must now apply that standard to the issue considered by the adjudicator in his preliminary ruling.
While we are required to give deference to the determination of the adjudicator, considering the decision
in the preliminary ruling as a whole, we are unable to accept that it reaches the standard of
reasonableness. The reasoning process of the adjudicator was deeply flawed. It relied on and led to a
construction of the statute that fell outside the range of admissible statutory interpretations. The
adjudicator was required to take into account the legal context in which he was to apply the law. The
employment relationship between the parties in this case was governed by private law. The contractual
terms of employment could not reasonably be ignored. Where the employer chooses to exercise its right
to discharge with reasonable notice or pay in lieu thereof, the employer is not required to assert cause for
discharge. By giving the PSLRA an interpretation that allowed him to inquire into the reasons for
discharge where the employer had the right not to provide — or even have — such reasons, the
adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment
contract and, thus, fatally flawed. For this reason, the decision does not fall within the range of
acceptable outcomes that are defensible in respect of the facts and the law. Therefore, the combined effect
of s. 97(2.1) and s. 100.1 cannot, on any reasonable interpretation, remove the employer‘s right under
contract law to discharge an employee with reasonable notice or pay in lieu of notice. The interpretation
of the adjudicator was simply unreasonable in the context of the legislative wording and the larger labour
context in which it is embedded. It must be set aside.

Relationship of Aboriginal Peoples to the Canadian State

Law and aboriginal peoples:
This refers to three major groups of indigenous people in Canada (Indians, inuit, and Metis). Aboriginal
people were inhabitants of what is today Canada long before the French and English colonizers. For
years, there has been little or no place in our legal system for the original inhabitants. Our laws, legal
institutions, and constitutional arrangements come from Europe. See s. 91(24) of the Constitution Act
1867 which states that the federal Parliament has power over ―Indians‖ and ―lands reserved for the

                                                     60
Indians.‖ In 1982, with the patriation of the constitution, aboriginal rights were constitutionally
entrenched in s. 35 of the Constitution Act 1982. This provision protects ―existing aboriginal and treaty
rights of the aboriginal peoples of Canada.‖ The constitutionalization of aboriginal rights has restored at
least some recognition of the aboriginal interests in Canadian law (despite the paternalistic Indian Act and
the fact they are still worse off than other Canadians). Consider Mitchell...
Mitchell v Canada (Minister of National Revenue), [2001] 1 SCR
     European settlement did not terminate the interests of aboriginal people. Their interests were
         presumed to survive the assertion of sovereignty, and were absorbed in common law as rights
         unless:
    (1) they were incompatible with the Crown‘s assertion of sovereignty,
    (2) they were surrendered voluntarily via the treaty process, or
    (3) the government extinguished them.
Thus, they were dependent on the good will of the sovereign. This situation changed in 1982 when
Canada‘s constitution was amended to entrench existing aboriginal and treaty rights. Thus, aboriginal
rights falling within the constitutional protection of s. 35(1) could not be unilaterally abrogated by the
government. However, the government retained the jurisdiction to limit aboriginal rights for justifiable
reasons, in the pursuit of substantial and compelling public objectives (per McLachlin CJ).

                Aboriginal rights and title
                Aboriginal self-government aspirations
                The modern Treaty making process

Section 91(24) Constitution Act 1867 - ...it is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the
Classes of Subjects next hereinafter enumerated; that is to say – (24) Indians, and Lands reserved for the
Indians.

Section 35 Constitution Act 1982 – Part II – Rights of the Aboriginal Peoples of Canada
      (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
         recognized and affirmed.
      (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of
         Canada.
      (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of
         land claims agreements or may be so acquired.
      (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in
         subsection (1) are guaranteed equally to male and female persons.

“The Crown’s Fiduciary Relationship with Aboriginal Peoples” (Mary Hurley, 2002) - Emphasizing the
Crown‘s concern with the ―great Frauds and Abuses‖ committed by purchasers of Aboriginal lands,
     the Royal Proclamation of 1763 reserved to the Crown the exclusive right to negotiate cessions
       (giving up) of Aboriginal title.
     A century later, subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament
       legislative authority over ―Indians, and Lands Reserved for the Indians.‖
     Finally, section 35 of the Constitution Act, 1982 recognizes and affirms ―existing aboriginal and
       treaty rights‖ of Canada‘s Aboriginal peoples.

A ―fiduciary relationship‖ is one in which someone in a position of trust has ―rights and powers which he
is bound to exercise for the benefit‖ of another. The Supreme Court of Canada has adapted these largely
private law concepts to the context of Crown-Aboriginal relations. In the unique Crown-Aboriginal
relationship, the fiduciary obligation owed by the Crown is sui generis, or one of a kind. ―Because of this

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relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and
as guarantor of their Aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of
the constitution of Canada‖ (1996 Royal Commission Report on Aboriginal Peoples). The foregoing
overview suggests that the Crown‘s fiduciary relationship with and ensuing obligations toward Aboriginal
peoples have implications for the development and conduct of government policy in matters that engage
Aboriginal interests. Aboriginal groups and government are frequently at odds in litigation, negotiation,
and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship.
Aboriginal parties generally support a broader view of Crown obligations than the government appears
prepared to endorse. Supreme Court of Canada decisions confirm that the fiduciary relationship does
have legal and constitutional scope. The concept itself and obligations arising from it are still being
developed.

“Highlights from the Report of the RCAP: People to People, Nation to Nation” (1996) - The relationship
between Aboriginal and non-Aboriginal people in Canada has long been troubled and recently has shown
signs of slipping into more serious trouble. The relationship can most certainly be mended - indeed,
turned from a problem into an asset and one of the country's greatest strengths.
     Houses occupied by Aboriginal people are twice as likely to be in need of major repairs as those
         of other Canadians. On reserves, 13,400 homes need such repairs, and 6,000 need outright
         replacement.
     Aboriginal homes are generally smaller than those of other Canadians, but more people live in
         them.
     Aboriginal homes are 90 times more likely than those of other Canadians to be without piped
         water. On reserves, more than 10,000 homes have no indoor plumbing. About one reserve
         community in four has a substandard water or sewage system.
     The rate of many illnesses, and the risk of future illness and premature death, is significantly
         higher among Aboriginal people than among other Canadians. Registered Indians (for whom we
         have the best data) can expect to die 7 to 8 years younger than other Canadians.
     Residential schools did the greatest damage. Children as young as 6 years old were removed from
         their families for 10 months of the year or longer. They were forbidden to speak the only
         languages they knew and taught to reject their homes, their heritage and, by extension,
         themselves. Most were subjected to physical deprivation, and some experienced abuse. We heard
         from a few people who are grateful for what they learned at these schools, but we heard from
         more who described deep scars.
     In 1991, 54 per cent of Aboriginal people had annual incomes of less than $10,000, as compared
         to 34 per cent of Canadians generally. Unemployment is high, and it has risen noticeably in the
         last decade as the size of the youth population has swelled.

Aboriginal Rights

R v Sparrow, [1990] 1 SCR
Facts: Appellant was charged in 1984 under the Fisheries Act with fishing with a drift net longer than that
permitted by the terms of his Band's Indian food fishing licence. He admitted that the facts alleged constitute
the offence, but defended the charge on the basis that he was exercising an existing aboriginal right to fish
and that the net length restriction contained in the Band's licence was invalid in that it was inconsistent with
s. 35(1) of the Constitution Act, 1982. The trial judge found that an aboriginal right could not be claimed
unless it was supported by a special treaty and that s. 35(1) of the Constitution Act, 1982 accordingly had no
application.
      Section 35(1) applies to rights in existence when the Constitution Act, 1982 came into effect; it does
         not revive extinguished rights.
      The Crown failed to discharge its burden of proving extinguishment. An aboriginal right is not
         extinguished merely by its being controlled in great detail by the regulations under the Fisheries Act.

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         Nothing in the Fisheries Act or its detailed regulations demonstrated a clear and plain intention to
         extinguish the Indian aboriginal right to fish.
The test for justification: The test for justification requires that a legislative objective must be attained in
such a way as to uphold the honour of the Crown and be in keeping with the unique contemporary
relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent
of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure
recognition and affirmation. Section 35(1) does not promise immunity from government regulation in
contemporary society but it does hold the Crown to a substantive promise. The government is required to
bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected
under s. 35(1).
     (1) The first question to be asked is whether the legislation in question has the effect of interfering with
         an existing aboriginal right.
     (2) To determine whether the fishing rights have been interfered with such as to constitute a prima facie
         infringement of s. 35(1), certain questions must be asked. Is the limitation unreasonable? Does the
         regulation impose undue hardship? Does the regulation deny to the holders of the right their
         preferred means of exercising that right? The onus of proving a prima facie infringement lies on the
         individual or group challenging the legislation (in this case, the test involves asking whether either
         the purpose or the effect of the restriction on net length unnecessarily infringes the interests protected
         by the fishing right).
     (3) If a prima facie interference is found, the analysis moves to the issue of justification. This test
         involves two steps.
              (i)      Is there a valid legislative objective? (The justification of conservation and resource
                       management, however, is uncontroversial).
              (ii)     If a valid legislative objective is found, the analysis proceeds to the second part of the
                       justification issue: the honour of the Crown in dealings with aboriginal peoples.

Within the analysis of justification, there are further questions to be addressed, depending on the
circumstances of the inquiry. These include: whether there has been as little infringement as possible in order
to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and
whether the aboriginal group in question has been consulted with respect to the conservation measures being
implemented. This list is not exhaustive.

R v Van der Peet, [1996] 2 SCR
      note, there was a ―Van der Peet aboriginal entitlement test‖ established here)
      The constitutional question before this Court queried whether s. 27(5) of the Regulations was of
         no force or effect in the circumstances by reason of the aboriginal rights within the meaning of
         s. 35 of the Constitution Act, 1982.
The appellant, a native, was charged with selling 10 salmon caught under the authority of an Indian food
fish licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, which prohibited
the sale or barter of fish caught under such a licence. The restrictions imposed by s. 27(5) were alleged to
infringe the appellant's aboriginal right to sell fish and accordingly were invalid because they violated
s. 35(1) of the Constitution Act, 1982. Judgement, again, discusses the fiduciary relationship between the
Crown the Aboriginal Peoples (35(1) is to be interpreted liberally to the benefit of aboriginals).
      Aboriginal rights were not created by s. 35(1) but subsequent to s. 35(1) they cannot be
         extinguished.
      They can, however, be regulated or infringed consistent with the justificatory test laid out in R. v.
         Sparrow.
      To be an aboriginal right an activity must be an element of a practice, custom or tradition integral
         to the distinctive culture of the aboriginal group claiming the right. There must be evidence that
         the right existed prior to communication with Europeans (―contact‖ – note this pre-contact test is
         adjusted in Powley).

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         Incidental practices, customs and traditions cannot qualify as aboriginal rights through a process
         of piggybacking on integral practices, customs and traditions.
      The aboriginal claimants must simply demonstrate that the custom or tradition is a defining
         characteristic of their culture (the right need not be distinct).
The appellant failed to demonstrate that the exchange of fish for money or other goods was an integral
part of the distinctive Sto:lo culture which existed prior to contact and was therefore protected by s. 35(1)
of the Constitution Act, 1982.

R v Sappier; R v Gray, [2006] 2 SCR
Facts: The respondents, S and P who are Maliseet and G who is Mi‘kmaq, were charged under
New Brunswick‘s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber
from Crown lands. Their defence was that they possessed an aboriginal and treaty right to harvest timber
for personal use. Aboriginal rights are founded upon practices, customs, or traditions which were integral
to the distinctive pre-contact culture of an aboriginal people. The relevant practice in the present cases,
therefore, must be characterized as a right to harvest wood for domestic uses as a member of the
aboriginal community. This right so characterized has no commercial dimension and the harvested wood
cannot be sold, traded or bartered to produce assets or raise money, even if the object of such trade or
barter is to finance the building of a dwelling. Lastly, the right is site-specific, such that its exercise is
necessarily limited to Crown lands traditionally harvested by members‘ respective First Nations (there
was little evidence in this case, but courts have to be flexible).
      A practice of harvesting wood for domestic uses undertaken in order to survive is directly related
         to the pre-contact way of life and meets the ―integral to a distinctive culture‖ threshold.‖ The
         Crown did not discharge its burden of proving that the aboriginal right had been extinguished by
         pre-Confederation statutes.
      The regulation of Crown timber through a licensing scheme does not meet the high standard of
         demonstrating a clear intent to extinguish the aboriginal right to harvest wood for domestic
         uses.

R v Powley, [2003] SCC (rejected that a right, for Metis, needed to be established ―pre-contact‖) The
respondents, who are members of a Métis community near Sault Ste. Marie, were acquitted of unlawfully
hunting a moose without a hunting licence and with knowingly possessing game hunted in contravention
of ss. 46 and 47(1) of Ontario‘s Game and Fish Act. The trial judge found that the members of the Métis
community in and around Sault Ste. Marie have, under s. 35(1) of the Constitution Act, 1982, an
aboriginal right to hunt for food that is infringed without justification by the Ontario hunting legislation.
The Superior Court of Justice and the Court of Appeal upheld the acquittals.
     A Métis community is a group of Métis with a distinctive collective identity, living together in
         the same geographical area and sharing a common way of life. The purpose of s. 35 is to protect
         practices that were historically important features of these distinctive communities and that
         persist in the present day as integral elements of their Métis culture.
     The pre-contact aspect of the test in Van der Peet must be adjusted to take into account the post
         contact ethnogenesis and evolution of the Métis. The aboriginal right claimed in this case is the
         right to hunt for food in the environs of Sault Ste. Marie. To support a site-specific aboriginal
         rights claim, an identifiable Métis community with some degree of continuity and stability must
         be established through evidence of shared customs, traditions, and collective identity, as well as
         demographic evidence. The trial judge‘s findings of a historic Métis community and of a
         contemporary Métis community in and around Sault Ste. Marie are supported by the record and
         must be upheld.
     The view that Métis rights must find their origin in the pre-contact practices of their aboriginal
         ancestors must be rejected (rejecting Van der Peet on this point). Even if the moose population
         in that part of Ontario were under threat, the Métis would still be entitled to a priority allocation
         to satisfy their subsistence needs.

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Haida Nation v British Columbia (Minister of Frests), [2004] 3 SCR
     Consultations may be necessary when issues of rights or title is at issue
For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the
waters surrounding it, but that title has not yet been legally recognized. The Province of British Columbia
issued a ―Tree Farm License‖ to a large forestry firm in 1961, permitting it to harvest trees in an area of
Haida Gwaii. This tree farm licence was transferred to a company and the Indians objected since their
consent of transfer was never given. The government‘s duty to consult with Aboriginal peoples and
accommodate their interests is grounded in the principle of the honour of the Crown, which must be
understood generously.
     Consultation and accommodation before final claims resolution preserve the Aboriginal interest
        and are an essential corollary to the honourable process of reconciliation that s. 35 of the
        Constitution Act, 1982, demands.
     The scope of the duty is proportionate to a preliminary assessment of the strength of the case
        supporting the existence of the right or title, and to the seriousness of the potentially adverse
        effect upon the right or title claimed.
     The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful
        process of consultation in good faith. The content of the duty varies with the circumstances and
        each case must be approached individually and flexibly.
     Third parties cannot be held liable for failing to discharge the Crown‘s duty to consult and
        accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for
        consultation and accommodation rests with the Crown. Finally, the duty to consult and
        accommodate applies to the provincial government.

Taku River Tingit First Nation v BS (Project Assessment Director), [2004] SCC
     Case seems to suggest that although a duty to consult may exist, this does NOT include a duty to
         reach an agreement or decide in favour of Aboriginal interests.
Since 1994, a mining company has sought permission from the British Columbia government to re-open
an old mine. The Taku River Tlingit First Nation (―TRTFN‖), objected to the company‘s plan to build a
road through a portion of the TRTFN‘s traditional territory. The majority of the Court of Appeal upheld
the decision to block the road project finding that the Province had failed to meet its duty to consult with
and accommodate the TRTFN. The SCC allowed the appeal.
     The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge,
         real or constructive, of the potential existence of the Aboriginal right or title and contemplates
         conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal
         concerns.
     Responsiveness is a key requirement of both consultation and accommodation. The scope of the
         duty to consult is proportionate to a preliminary assessment of the strength of the case supporting
         the existence of the right or title, and to the seriousness of the potentially adverse effect upon the
         right or title claimed.
In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled
the requirements of its duty to consult and accommodate. The TRTFN was part of the Project
Committee, participating fully in the environmental review process. The Province was not under a duty to
reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that
it owed the TRTFN.

Aboriginal Title

Delgamuukw v BC, [1997] 3 SCR*
    Ratio: Section 35(1) does not create aboriginal rights; rather, it constitutionalizes those ―existing‖
      rights. The group asserting aboriginal title must satisfy the following criteria:

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        (i)        the land must have been occupied prior to sovereignty,
        (ii)       if present occupation is relied on as proof of occupation pre-sovereignty, there must be a
                   continuity between present and pre-sovereignty occupation and;
         (iii)     At sovereignty, that occupation must have been exclusive (per Lamer CJ).
Facts: The appellants, all Gitksan or Wet‘suwet‘en hereditary chiefs, both individually and on behalf of
their ―Houses‖, claimed separate portions of 58,000 square kilometres in British Columbia. British
Columbia counterclaimed for a declaration that the appellants have no right or interest in and to the
territory. At trial, the appellants‘ claim was based on their historical use and ―ownership‖ of one or more
of the territories (songs were admitted as evidence that the group had ties to their land). The Indians were
seeking jurisdiction and ownership over the lands, later seeking the land based on aboriginal title and self-
government.
      What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act,
         1982, and what is required for its proof?
      Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant
         to that title for a variety of purposes. Aboriginal title is sui generis, and so distinguished from
         other proprietary interests, and characterized by several dimensions.
      It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown.
         This suggests the land is more than a fungible commodity. There is an important non-economic
         component. There is a unique value, which the community cannot destroy. However, this does
         not eliminate the possibility of surrender to the Crown for value consideration
      The common law recognizes occupation as proof of possession and systems of aboriginal law
         pre-existing assertion of British sovereignty.
      Finally, aboriginal title is held communally.

The exclusive right to use the land is not restricted to the right to engage in activities which are aspects of
aboriginal practices, customs and traditions integral to the claimant group‘s distinctive aboriginal culture.
The nature of the Indian interest in reserve land is very broad and incorporates present-day needs.
     However, the content of aboriginal title contains an inherent limit in that lands so held cannot be
        used in a manner that is irreconcilable with the nature of the claimants‘ attachment to those lands
        (i.e. no parking lot?).
     Occupancy is determined by reference to the activities that have taken place on the land and
        the uses to which the land has been put by the particular group. If lands are so occupied, there
        will exist a special bond between the group and the land in question such that the land will be
        part of the definition of the group’s distinctive culture. If aboriginal peoples wish to use their
        lands in a way that aboriginal title does not permit, then they must surrender those lands and
        convert them into non-title lands to do so.

Aboriginal title is now protected by s. 35(1) Constitution Act 1982. Note that site-specific rights can be
made out even if title cannot (rights as discussed above). Aboriginal title is a right to the land itself. In
order to establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that:
     It occupied the lands in question at the time at which the Crown asserted sovereignty over the
         land subject to the title. Aboriginal title crystallized at the time sovereignty was asserted.

         Possession as proof of title:
            o Note: Under common law, the act of occupation or possession is sufficient to ground
                 aboriginal title and it is not necessary to prove that the land was a distinctive or integral
                 part of the aboriginal society before the arrival of Europeans.
            o In considering whether occupation sufficient to ground title is established, the group‘s
                 size, manner of life, material resources, and technological abilities, and the character
                 of the lands claimed must be taken into account.


                                                      66
             o   If present occupation is relied on as proof of occupation pre-sovereignty, there must be a
                 continuity between present and pre-sovereignty occupation. The fact that the nature of
                 occupation has changed would not ordinarily preclude a claim for aboriginal title, as long
                 as a substantial connection between the people and the land is maintained.
             o   The only limitation on this principle might be that the land not be used in ways which are
                 inconsistent with continued use by future generations of aboriginals.
             o   At sovereignty, occupation must have been exclusive.

Tsilhqot’in Nation v BC, [2007] (BCCA)
This section relates to justifications for infringement of aboriginal title. The infringement must:
     (1) be in furtherance of a compelling and substantial legislative objective and
     (2) The infringement must also be consistent with the fiduciary relationship that exists between the
         Crown and Aboriginal peoples (Delgamuukw).
In this case, British Columbia bears the burden of justifying infringements caused by provincially
authorized forestry activities. There is a range of legislative objectives that may justify infringement of
Aboriginal title. These objectives arise from the need to reconcile the fact that Aboriginal societies exist
within and are part of a broader social, political and economic community. The kinds of objectives that
may justify an infringement of aboriginal title are:
      The development of agriculture, forestry, mining and hydro-electric power,
      the general economic development of the interior of British Columbia,
      protection of the environment or endangered species,
      the building of infrastructure and
      the settlement of foreign populations to support these aims
There can be no doubt that forestry falls within the range of government activities that might justify
infringement of Aboriginal title. Generally speaking, the development of forest resources, and the
protection of the environment and wildlife are all valid government objectives that may justify
infringement of Aboriginal title and other Aboriginal rights. HOWEVER, in this case the government
could not make out the high burden of proving this justification (court not concerned with the general
but the specific). There may well be merit in the existence of such a forestry scheme. However, the
inquiry here must focus on the application of that scheme to the circumstances of this case. British
Columbia has failed to establish that it has a compelling and substantial legislative objective for
forestry activities in the Claim Area:
     (a) the impact of forestry activities (logging) on the plaintiff‘s Aboriginal title is disproportionate to
         the economic benefits that would accrue to British Columbia or Canadian society generally and
     (b) there is no evidence that logging will prevent spread of the mountain pine beetle outbreak (nor
         that the purpose of logging was to prevent such an outbreak).


Aboriginal Treaties

R v Marshall; R v Bernard, [2005] 2 SCR
      The question is whether the modern trading activity in question represents a logical evolution
         from the traditional trading activity at the time the treaty was made.
Facts: In Marshall, 35 Mi‘kmaq Indians were charged with cutting timber on Crown lands in
Nova Scotia without authorization. In Bernard, a Mi‘kmaq Indian was charged with unlawful possession
of spruce logs he was hauling from the cutting site to the local saw mill. In both cases, the accused argued
that as Mi‘kmaq Indians, they were not required to obtain provincial authorization to log because they
have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title.
Held: The appeals were allowed and the convictions restored. The truckhouse clause of the treaties was a
trade clause which only granted the Mi‘kmaq the right to continue to trade in items traditionally traded in
1760-61. The right conferred is the right to trade.

                                                       67
Background:
In 1760 and 1761, the British Crown concluded ―Peace and Friendship‖ treaties with the Mi‘kmaq
peoples of the former colony of Nova Scotia, now the Provinces of Nova Scotia and New Brunswick.
The British had succeeded in driving the French from the area. The Mi‘kmaq and French had been allies
and trading partners for almost 250 years. The British, having defeated the French, wanted peace with the
Mi‘kmaq. To this end, they entered into negotiations, which resulted in the Peace and Friendship
treaties. The existence of a treaty and a right to claim under it are questions of fact to be determined in
each case.

In Marshall 1, a member of the Mi‘kmaq nation was charged with fishing and selling eels contrary to
Federal regulations. The defendant in that case, Donald Marshall Jr., admitted that he had caught and sold
several hundred pounds of eel out of season. His defense was that the truckhouse clause of the treaties of
1760-61 gave him the right to catch and trade fish. The issue before the Court was whether the treaties
conferred this right. The truckhouse clause was a trade clause. It was concerned with what could be
traded. The right conferred is not the right to harvest, in itself, but the right to trade. The question is
whether the modern trading activity in question represents a logical evolution from the traditional trading
activity at the time the treaty was made. This prevents aboriginal rights from being unfairly confined
simply by changes in the economy and technology. But the activity must be essentially the same.
     The test: The trial judges in both cases applied this test to the evidence before them, asking
         whether the respondents‘ logging activity could be considered the logical evolution of a
         traditional Mi‘kmaq trade activity. In each case, the trial judge concluded that the evidence did
         not support a treaty right to commercial logging. I conclude that the evidence supports the trial
         judges‘ conclusion that the commercial logging that formed the basis of the charges against the
         respondents was not the logical evolution of traditional Mi‘kmaq trading activity protected by the
         treaties of 1760-61. The trial judge in each case applied the correct test to findings of fact
         supported by the evidence.




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