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Foundations of Law Final

Foundations of Law Final

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1. a.

Legal Positivism Noble and Wolf- certainty of positivism, and the lack of certainty of relying on public policy and morality i. Individual lots in the Beach O’Pines subdivision contained covenant that the lands shall not be sold or transferred to any person of the “Jewish, Hebrew, Semitic, Negro or coloured race or blood” ii. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only iii. Constitutes a radical departure from established principle to deduce there from any policy of the law which any be claimed to transcend the paramount public policy that one is not lightly to interfere with the freedom of contract

b. Reflects the belief that law is nothing more than the rules and principles that actually govern society (laws are made by human beings) c. Separation between law and morality- “the existence of a law is one thing; it’s merit or demerit is another”. Natural law Laws are only those rules which adhere to certain moral truths- external moral standard that holds across all societies. b. Natural law does not deny the necessity of positive law, but where positive law contravenes natural law, the contravening positive law rules are held by natural law theorists not to be ‘true’ law in the sense that a citizen owes no allegiance to them c. Re Drummond Wren [1945]- judge appeals to our moral conscience i. Land was restricted by covenant pronouncing that it was ‘not to be sold to Jews or person of objectionable nationality. Grounds were that the racially restrictive covenant was void against public policy and that it contravened with the Racial Discrimination Act ii. Courts and eminent judges have warned against inventing new heads of public policy, I do not conceive that I would be breaking new ground were I to hold the restrictive covenant impugned in this proceeding to be void against public policy. Quoted from UN Charter and Racial Discrimination Act.
a. 3.



Feminist Perspectives A normative theory, seeking to describe how existing laws fail to achieve an external objective. b. Edwards v AG Canada [1930]- The question at issue in this appeal is whether the words ‘qualified persons’ in that section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada. Their lordships are of the opinion that the word ‘persons’ in s.24 does include women i. ii. iii. females iv. v. To the object of the Act- namely to provide a constitution for Canada That the word ‘person’ is ambiguous and may include members of either sex There are sections in the Act above referred to which show that in some cases the word ‘person’ must include

That in some sections the words ‘male persons’ is expressly used Under the Interpretation Act Lordships have come to the conclusion that the word ‘persons’ includes both male and female sex

Morganteler: Drs. Morgentaler, Smoling and Scott were each charged with conspiracy to procure a miscarriage contrary to ss.251(1) and 423(1)(d) of the Criminal Code. In this case on the constitutionality of the abortion restrictions, the majority found them unconstitutional on procedural grounds. Justice Wilson, however, wrote a concurring opinion focusing on much more “feminist” topics, such as rights in a wider social context, the female experience, and far more emotional issues i. Integral part of modern woman’s struggle to assert her dignity and worth as a human being. The present legislative scheme for obtaining an abortion asserts that the woman’s capacity to reproduce is not subject to her own control

ii. Right to liberty guaranteed under s.7 of the charter gives a woman the right to decide for herself whether or not to terminate a pregnancy s.251 of the Criminal Code violates the charter 4. Critical Legal Studies

a. Radical alternative to established legal theories; rejects that there is any kind of “natural legal order” discoverable by
objective means. Law is not independent or instrumental- it is simply another form of politics. b. 3 stages governing the application of CLS ideas:

i. ii. iii.

Hegemonic consciousness: Western laws are maintained by a system of beliefs that have their foundation in a liberal, market driven economy, which reflect interests of a dominant class Reification: The beliefs that maintain Western laws are presented as essential and objective, and the laws that prop up this belief system necessary follow suit, becoming equally incontrovertible Denial: Laws and legal thinking aid in the denial of real truths – lead us to cope with vast storeouse of contradictions R v R.D.S (SC 1997) A white officer arrested a black 15 year hold who had allegedly interfered with the arrest of another youth. The youth court judge weighed the evidence and determined that the accused should be acquitted. When delivering her reasons judge remarked police officers had been known to mislead the court in the past and they were known to overreact particularly with non white groups. Crown appealed-reasonable apprehension that judge was not impartial between the crown and the accused? Requirement for neutrality dos not require judges to discount the very life experiences that may so well qualify them to preside over disputes…Judges must strive to ensure that no word or action during the course of the trial or in delivering judgement might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations. …Still, although judges shd avoid making comments on generlizations when assessing the credibility of individual witnesses does not automatically lead to conclusion that reasonable apprehension of bias arose.



iii. Judge benefits from presumption of judicial integrity -- distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context, and the findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper, the former is not.


Dissent: Our jurisprudence has repeated prohibited the introduction of evidence to show propensity. There was no evidence before the trial judge to support the conclusions she reached. The trial judge presumably called upon her life experiences to decide the issue, which she is not entitled to do. Our jurisprudence prohibits tying credibility to something as irrelevant as gender, occupation or perceived group predisposition.

d. i.

Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian Criminal Justice System Charter litigation remains as important means of addressing fundamental injustice

ii. We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets flourishes


The problem is not with the Charter but with those who argue and interpret it- issues such as bail (because blacks are more likely to be detained), jury selection (because blacks are less likely to be found on juries), the use of peremptory challenges and racial profiling, courts have refused to adopt critical race standards or arguments when they were advanced. See, e.g.: R. v. Sawyer— Sawyer, who is White, was tried together with Galbraith, who is Black, on a charge of assault. Following the conviction, a juror contacted Sawyer and told him that she had been under “undue pressure to come to a verdict and that certain racial comments were made by other members of the jury”. The accused argued that the common law jury secrecy rule needed to be altered under section 7 of the Charter to ensure that verdicts were not tainted by racism. The argument was rejected.


e. Gosselin v Quebec (2002)- it was argued that s7 imposed on government a positive obligation to provide adequate
welfare benefits to those who were without other sources of income.


Her challenge was on age discrimination s 15 and on s7 and she failed on both grounds. Court held s.7 has not been extended to economic rights nor has it been interpreted as imposing positive obligations on the state to ensure that each person, enjoyed life, liberty or security of the person.


ii. Arbour dissent: The evidence demonstrates that the physical and psychological security of young adults was severely compromised during the period at issue and that the legislated exclusion of young adults from the full benefits of the social assistance regime substantially interfered with their fundamental right to security of the person and perhaps even their right to life. Freedom from state interference with bodily or psychological integrity is of little consolation to those who are faced with a daily struggle to meet their most basic bodily and psychological needs. In such cases, one can reasonably conclude that positive state action is what is required in order to breathe purpose and meaning into their s. 7 guaranteed rights.


Law and Economics- efficiency

a. The 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.

b. The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understand
public policy. The theory seeks to understand why some government programs seems to run counter to the public good. This theory says that policy makers (e.g. legislators) act in order to maximize political support; they are not necessarily attempting to maximize social welfare and are motivated by self interest

c. Duncan Estate v Baddeley (Alberta CA 1997)- This case dealt with the issue of how to calculate damages for an estate
arising out of a negligence action for wrongful death. Should future earnings be included or not? While the court did not do any explicit calculations or economic reasoning, there was a clear subtext that the judge had to consider the wider socialeconomic implications of allowing for recovery of future earnings or not. To recognize the capital of the propertied person but not that of the unpropertied is to make an invidious class distinction. Claim for loss of future earnings survives death of victim and shd be assessed.

d. Bhadauria v Board of Governors (SC 1981)- public choice theory behind the Court of Appeals decision; the Ct
Appeals Court recognised, on public policy grounds, a new intentional “tort of discrimination” under common law. But, at the Supreme Court level, this idea was rejected this idea of a new “economic tort”. i. There is a narrow line between founding a civil cause of action directly upon breach of a statute and as arising from the statute itself and founding a civil cause of action at common law by reference to policies reflected in the statute and standards fixed by statute. The Ontario Human Rights Code foreclose any civil action based directly upon a breach thereof but is also excludes any common law action based on an invocation of the public policy expressed in the Code. The code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.

6. a.

Private Actors v. Public Hill v Church of Scientology

i. ii. iii.

FACTS: Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common law libel action based on allegedly false statements the church made about him ISSUE: Is the Charter applicable to a private action based on a common law tort? Is the common law tort of defamation inconsistent with the Charter (s. 2b)? Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not extend in the absence of state action. The most that the litigant can do is argue that the common law is inconsistent with Charter values. -and that, when these values are balanced, that the common law should be modified.” HELD: Even though private parties owe each other no constitutional duties and cannot found a cause of action upon a Charter right, the Court concluded that the common law tort of defamation reflected an appropriate balance between freedom of expression values and the legislative objectives underlying the law. As such, there was no need to amend or alter the legislation.



Societe de l’assurance automobile du Quebec v Cyr



Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ) entered into a contract with the Centre de vérification mécanique de Montréal (CVMM) to carry out the mechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program. However, following notices of breach for failure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked by SAAQ. Cyr and CVMM filed a motion for judicial review of the decision to revoke the accreditation, claiming that it had not been rendered in a manner consistent with the Act respecting administrative justice (AAJ). Can body will avoid public law duties when delegating its functions by way of contract or other form of agreement? No- Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was granting him the authorization to act on its behalf.

ii. iii.


Rostam Josef Neuwirth, “International Law and the Public/Private Law Distinction”

a. Private international law, or the “conflict of laws”, is a system co-ordinating the different laws from different
countries, and it responds to the question of applicability of foreign or domestic law within domestic courts i. Conflict of laws in its widest sense deals with 3 subjects: jurisdiction, choice of law and recognition of foreign judgments

ii. The body of rules called private international law fulfills a coordinating function between legal orders of different states, in search for a greater decisional harmony

b. Public international law, or the “law of the nations”, is defined as the system of law governing the relations between
states. c. Law has progressed EXTERNALLY – almost every action in daily life is subject to law (i.e. broad scope of application). From an INTERNAL point of view, as far as the FUNCTION OF LAW WITH RESPECT TO JUSTICE is concerned (thus including morality, predictability and continuity), the issue is less clear. The huge quantity of norms enacted gives rise to concern.





a. “Bijuralism” signifies the co-existence of the English common law and French civil law traditions, within a country
organized along federal lines


History in Canada:


If a location was conquered or ceded, the local laws would continue to apply, modified only as far as was necessary to integrate them into the Imperial legal system. For those territories that were simply colonized, the Common law, as it stood at the time of first settlement, was imported (Cooper v. Stewart)

ii. For settled - rules of reception dictated that the entire body of English law, both statutory and common, was imported into the settled colony


Common and Civil law


Common law: Common law is an English invention. It is judge-made law, developed through the common law courts (as opposed to the Court of Chancery). Two fundamental ideas permeate common law theory: (1) Judges do not make the law but merely declare it; (2) all the relevant past decisions are considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance Civil law: Quebec inherited civil law. Civil law is based on established laws, normally written as broad legal principles. In civil law countries, legislation is seen as the primary source of law. Judgements normally rely on the provisions of codes and statutes. Judicial reasoning is based extensively on the general principles of the rule or code. On the other hand, common law methodology, even where statutory sources of law are present, employs analogical reasoning from statutory provisions to fill in gaps.


d. Common v. Civil Law Applicability- St-Hilaire v Canada (A-G) i.
FACTS: The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay- public policy rule that no one may profit from his own crime. Applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. Civil or common law where fed statute? Unless indicated otherwise, no document other than the Civil Code shall serve as ordinary law, in private law, in the federal legislation applicable to Quebec. Whenever a federal statute that is to be applied to Quebec resorts to a private law concept - Civil Code that supplies the necessary conceptual support for an intelligent application of that statute. The civil law is therefore called upon to fill in the lacunae or gaps left by federal law. I do not think there can be any doubt that this part of the Act, which refers to "succession" without defining it, should be interpreted in Quebec in light of the civil law. Civil Code of Québec recognizes the principle that no one should profit from his or her crime (unworthy of inheriting from his victim)- policy problems w/allowing manslaughter to inherit- It would be too easy for anyone charged with murder to avoid the civil consequences of a conviction for murder by pleading guilty to a reduced charge of manslaughter.



e. Operation of Common Law and Precedent


Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (Give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution) Limitations on Stare Decisis-


iii. 1.

Distinguishing- Canada Trust v. Ontario HRC (1990)- Allows P to come directly to ct to complain abt trust which is only avail to Christians of Br. nationality, even though didn’t exhaust HRC grounds. This isn’t discrimination case- it’s trust case – HRC doesn’t have power to change trust so resort to ct necessary. Question of law- no facts in dispue, and mechanism under Trustee Act to come to ct.


Constitutionalism - Halpern v Canada (AG) (2003) - Exclusion of same-sex couples from common law definition of marriage breaches ss.2(a) or 15(1) of the Canadian Charter of Rights and Freedoms in a manner that is not justified in a free and democratic society under s.1 of the Charter? Yes. Sexual orientation is an analogous ground that comes under the umbrella of protection in s.15(1) of the Charter. a. Facts: Seven gay and lesbian couples wanted to celebrate their love and commitment to each other by getting married in civil ceremonies. The ‘Modernization of Benefits and Obligations’ Act extends federal benefits and obligations to all unmarried couples that have cohabited in a conjugal relationship for a year, regardless of sexual orientation Definition of marriage found at common law-



a. Parliament and provincial legislature are free, however, to enact new statutes to displace common law. Statutory rule
will supersede judge-made rule.


Bhadauria v Board of Governors (SC 1981)- Overturned Ct Appeals finding new tort (as evolution of common law based on public policy against discrimination). Code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use- policy embodied in statute. not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed by the Code.



a. Equity’s original function was to provide a corrective to the perceived harshness of the common law. Law as a body of rules is by its nature concerned with generalities – groups or classes of persons and events, rather than individuals and discrete happenings. Because of this, law sometimes fails to achieve adequate justice in a particular case. Rules of equity are now applied concurrently in all superior courts, with equity prevailing in cases of conflict. (E.g. specific performance and injunction.)

b. Equity recently adapted to public law>> fiduciary obligations varying in scope i. 1.
Guerin v. Canada (1984)- Private-like fid duty owed to Indians Band of Indians suing to recover damages from Crown re: leasing of land to golf club. Section 18(1) of Indian Act that reserves held by Govt for the use of Indian band for which they were set apart. Indian Band is prohibited from directly transferring interest to 3rd party- any lease can only carried out after surrender- this surrender requirement,

and responsibility it entails are the source of a distinct fid obligation owed by Crown to Indians to deal with land for benefit of surrendering Indians. 2. Title is characterized by general inalienability, coupled w/fact that crown must deal w/land on Indians behalf when interest surrendered. Royal Proclamation of 1763 provided that no private person cd purchase from Indians any lands that Proclamation reserved to them – that all purchases had to be by Crown. So that Indians wouldn’t be exploited. 3. Fid duties generally arise in private law. Crown’s obligation is not a public law duty – not a private law duty in strict sense, but it is in the nature of a private law duty. So regard Crown as a fiduciary.


KLB v. BC (2003) Abuse in foster homes – did govt. breach fid duty to children?


Content of fid duty- Ps say govt must act for best interests of children. Govt. says more narrow duty- to avoid certain harmful actions that are breach of trus loyalty and disinterest – not private fid duty. Cf. aboriginal duties require govt to use due diligence in advancing particular interests of aboriginals. 3. Here narrow duty b/c statute evices clear intent that kids be in private home environment, eliminates govt capacity to exercise close supervision in relation to parents’ day to day conduct. So duty is just conflict of duty and interest and duty not to profit at expense of beneficiary. No evidence of breach of this duty.


International law

a. Treaties (contracts between states who take part in treaty) and i.
Dualism: Canada has a dualist tradition – an international treaty has no direct effect in domestic law until domestic legislation passed to transform or implement the law into Canadian law by an act of Parliament (if a federal matter) or provincial Legislatures (if a provincial matter) 1. Otherwise executive wd be able to do an end-run around legis approval – and division of powers


Baker approach –for a treaty to be considered implemented, it must be done so explicitly in the relevant statute, but can consider as CIL


Convention on Rights of Child- never implemented, so Best Interest of Child no direct application within Canadian law. Nevertheless, the “values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.” As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330: [T]he legislature is presumed to respect the values and principles enshrined in international law, both customaryd and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.


Suresh approach - you can use unimplemented treaties to aid interpretation of charter/legislation. UN Convention Against Torture- expressly bars deportation to torture, but since this wasn’t implemented in Canadian immigration law, not applicable. Still, Treaty informed content of Canadian Charter s.7 fundamental justice- barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter. but didn’t require compliance with it.

iv. 1.

De Guzman v Canada (2005) – beginning to establish presumption of conformity? FACTS: Ms G’s application to have her sons sponsored for admission to Canada was refused under the Immigration and Refugee Protection Regulations. Ms G argued that the relevant provision is invalid - inconsistent with

international human rights instruments to which Canada is a signatory, and which protect the right of families to live together and the best interests of children.


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


But “In reaching its decision, the Federal Court adopted an unduly limited view of the effect of the burgeoning common law when holding that it was required to consider the international human rights instruments merely as “context” when interpreting ambiguous provisions of the immigration law. This view did not take proper account of the expanding role that the common law has given to international law in the interpretation of domestic law... The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the IRPA.” “determinative of the meaning of the IRPA, in the absence of a clear legislative intent to the contrary.”


Because the only international instruments relevant to this case are legally binding on Canada, it is not necessary to decide here the effect of paragraph 3(3)(f) with respect to non-binding international human rights instruments…[but] I am inclined to think that Parliament intended them to be used as persuasive and contextual factors in the interpretation … of the IRPA, and not as determinative.

b. Customary international law (entrenched norms binding on all states, except those who have repudiated them by

i. 1. 2.
ii. iii.

CIL Definition State practice = Constant and uniform usage +

Opinion juris = Sense of Legal Obligation. It is the subjective element of customary international law as it refers of beliefs. The other element is state practice, which is more objective as it is readily discernable. Once a rule becomes recognized as customary law, it is AUTOMATICALLY part of domestic law

Jus cogens- Norm of general international law that is accepted and recognized by the international community of states as a whole from which no derogation is permitted (Vs. CIL - allows intra-state genocide). iv. E.g. Universal Declaration of Human Rights - UN 1948 –

c. Presumption of Conformity- Brunnee, Jutta & Stephen Toope, “A Hesitant Embrace: Baker and the Application of
International Law in Canadian Courts”:


Even when they invoke international law, Canadian courts generally do not give international norms concrete legal effect in individual case- appears to be a trend towards treating all international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and persuasive, but not determinative . Vaguely-implemented treaties- When the purpose of a statute is to implement an international treaty, the Court must adopt an interpretation consistent with Canada’s obligations under the treaty. A court must rely on the treaty to interpret the statute and on the international rules of treaty interpretation to interpret the treaty and resolve any textual ambiguities. Implicit implementation- Surely there can be implicit implementation, e.g. by way of the Charter. Unimplemented treaties -If the treaty is in force and Canada has ratified it, the treaty is binding on Canada as a matter of international law. So presumption of legislative intent to act consistently with Canada’s international obligations (presumption of conformity). Courts should make every effort to interpret Canadian law so as to conform to Canada’s international obligations. Criticizes Baker for basing holding on customary int’l law instead of presumption of conformity for unimplemented treaty. We argue Canadian cts have an obligation to interpret domestic law in conformity with the relevant intl norms as far as possible.


iii. iv.




Secession Reference –constitutionalism, federalism, democracy, protection of minority rights. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based

a. Craik also says: rule of law, parliamentary supremacy, constitutional supremacy, statutory authority (executive
power), judicial independence

b. Reference re Secession of Quebec case confirmed that the Constitution contains unwritten principles, but recognized –
“primacy of our written Const”, so unwritten principles can only supplement gaps.

13. a.

Rule of Law Generally Rule of law – “All government action must comply with the law, including the Consittiton.” (Secession


1. Broader than the concept of constitutionalism, which requires that all government action comply with the Constitution.


Not arbitrary- Roncarelli v Duplessis (1959)- even a fully discretionary power is subject to the rule of law 1. “No legislative act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose…” 2. “Discretion” necessarily implies 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 scope of the discretion conferred 3. Facts: General manager of the liquor commission (ordered by Mr. Duplessis as Attorney General and Prime Minister of the province) revoked license of Montreal restaurant owner who posted bail for Jehovah’s Witnesses b/c he hated Witnesses. Not only revoked existing licence but barred him one “forever.”


Does not require prospective or being general in character- BC v Imperial Tobacco- manufacturers of tobacco claimed that legislation enacted which favoured BC government in many respects violated principle of rule of law.

b. Definition (BC v Imperial Tobacco)- “Rule of law embraces 3 principles”i. ii. iii.
Law is supreme over officials of the government as well as private individuals (i.e. “one law for all”) Rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order (i.e. must be positive laws) Requires that the relationship between the state and the individual be regulated by law

c. But doctrine of necessity - 2nd decision- Reference re Remuneration of Judges of the Prov Court of PEI (1997)
i. Certain statutes created by provincial governments interfered with judicial independence of provincial courtsevery person found guilty by a provincial court in one of the relevant provinces while the unconstitutional laws were being applied has suffered a breach of his or her s 11(d) rights (“right to be heard by an independent and impartial tribunal”). The provinces have requested declarations that these decisions cannot be reopened (i.e. they remain valid)

ii. Don’t need to be reopened- DOCTRINE OF NECESSITIY: recognizes that in some situations it is better to have a non-impartial and independent judge to none at all. The doctrine of necessity finds its source in the rule of law: the doctrine of necessity is applied to prevent a failure of justice. But there are 2 qualifications to the rule: (1) the rule will not apply in circumstances where its application would involve positive and substantial injustice; (2) when the rule does apply, it only applies to the extent that necessity justifies. Like res judicata, the doctrine of necessity recognizes the importance of finality and continuity in the administration of justice. However, these doctrines should be applied rarely, and with great circumspection, as both preserve the effects of an unconstitutional law



Constitutional supremacy- Secession Reference (1998)

a. s 52(1) of the Constitution Act, 1982, the Canadian system of government now operates under a principle of constitutional supremacy

b. Hierarchy of law: Establishes the foundational law through which the rule of law can occur. The constitution serves
as ‘a law to make law’: the ground rules for law making and governance i. Starting point in assessing the legitimacy of state action is the Constitution- all government action must comply with the Constitution Parliamentary supremacy outdated w/Charter- Principle of parliamentary supremacy: Canada’s federal and provincial legislatures are understood to be the sole sovereign holders of state authority, subject to authority being divided between them along the lines set out in ss 91 and 92 of the Constitution Act, 1867. But with the Constitution Act, 1982, Canada adopted both a Charter of Rights and Freedoms and an express declaration of constitutional supremacy (which put new limits on the lawmaking ability of either level of legislature). Thus, the concept of parliamentary supremacy was modified (and constitutional supremacy trumps it). But still in force subject to constitution. 1. Secession Reference: “With the adoption of the Charter, the Canadian system of govt was transformed to a significant extent from a system of Parliamnetary supremacy to one of constitutional supremacy.”



Singh v Canada - Parliamentary sovereignty: While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention or sovereign will of Parliament, however purposively, contextually or policy-oriented may be the interpretative methods used to attribute such meaning. Both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution

c. Counter-majoritarianism: In a system of constitutional supremacy, the power to interpret and enforce the
Constitution against majority preferences must be present- Constitutional supremacy represents a check on majoritarian democracy. So amending beyond the scope of simple majority rule. i. more easily Otherwise majority might be tempted to ignore fundamental rights in order to accomplish collective goals

d. Convention – Patriation Reference (1981)
i. “Constitutional conventions + constitutional law = total constitution (Patriation Reference) 1. Constitutional conventions are a species of unwritten constitutional norms. The British Constitution was understood to include certain conventions that govern the workings and interaction of the branches of the state. Because the Constitution Act 1867 sought to effect “a Constitution similar in Principle to that of the UK,” Canada inherited these conventions.


Three key elements to convention: (1) precedent (2) intent to be bound by the convention & (3) reason for the convention. (Patriation Reference) – can not be enforced by courts since not law 1. 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 2. Main reasons why conventional rules cannot be enforced by the courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce legal rules


Re: Patriation Reference (1981)


Existing convention that a “substantial measure of provincial consent” is required. Since 1930 all 22 amendments affecting the provinces were passed with provincial consent – there were no exceptions. Precedent indicated intent to have consent.


Reason- Confirms Canada’s federal principle. Federalism can’t be reconciled with state of affairs where modification of provincial legis powers could be obtained by unilateral action of feds – can’t obtain by simple resolution that which they could not accomplish by statute.



FACTS: All parties agreed that proposed amended constitution would affect provincial rights and powers. Opposition of eight provinces to a proposed Resolution containing address to Queen for statute provid ing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. Conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty? “Legally” provincial consent was not required. Convention needs “substantial measure of provincial consent” -here, 8 provinces opposed the amendments. Insufficient provincial support.

e. Establishes the respective relationships between the institutions or branches of the state that perform the functions
necessary to operationalize law in society i. Constitutional interpretation cannot be performed by the same body that enacts the ordinary law (i.e. the legislature). Our system requires that the legislature will be checked by the judiciary with the authority to interpret and apply the Constitution


Separation of powers doctrine- Each branch is defined by its relationship to law: the making of law (legislature); the implementing of law (executive) and the interpreting and applying the law (judiciary)- The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative branch, to which the executive is made subordinate

1. Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) – provides for separation of powers

2. a.

Separation not so severe (Secession)

“Canadian Constitution does not insist on a strict separation of powers.” Statutory power of the Supreme Court of Canada to give advisory opinions (a function not countenanced in systems of true separation of powers such as the United States – not even case or controversy required). (Secession reference)


“Parliament and the provincial legislatures … may confer certain judicial functions on bodies that are not courts”. (Secession reference)


Responsible govt- Under a system of responsible government, the ministry is accountable to the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain the confidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in Parliament for the activities of his or her department


Delegation to Tribunals allowed, but review

a. b.

Nova Scotia (Workers Comp Bd) v. Martin- tribunals established by legislature (as part of exec branch) can be entitled to interpret and apply charter. Crevier v. A.G. of Quebec - Professions Tribunal, with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunal were final. SCC overturns, right to judicial review of administrative agencies was constitutionally guaranteed on jurisdictional issues. 4. Executive power- subordinate to the legislature


Executive derives any power it has solely from the laws or statutes passed by the legislature. That is, the executive must locate any authority it has to act in Canadian society from a statutory source. Legis overlaps with Exec (cabinet from Parliament)


Judicial independence

a. Elemental constitutional doctrine, closely tied to the separation of powers- ensures that judges, as arbiters of
disputes, are “at a complete liberty to decide individual cases on their merits without interference” (SCC, Mackin v. New Brunswick). Federalism requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. – Remuneration Reference (1997)


Babcock v Canada AG [2002]- DOJ lawyers sue for higher pay, ask for documents, govt refuses. SCC Rejected challenge to S. 39 of Evidence Act, which allows fed govt to withhold cabinet docs from ct proceedings to which docs are relevant— case raises issue of when, if ever, Cabinet confidences must be disclosed in litigation between the government and private citizens. Cabinet confidentiality is essential to good government. Cites Singh- based on parliamentary sovereignity in the context of unwritten constitutional principles- federal crown privilege is part of fed law over which Parliament has no power to legislate- rule of law ok with class of documents that are treated differently than private documents. (Based on long-standing reasons – of constitutional principles and responsible govt.)


Singh v Canada - Appellants’ position is essentially that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions (not all documents provided to tribunal), is a violation of a constitutionally guaranteed independence of the judiciary. Here, Section 39 in no way interferes with the security of tenure, the financial security, or the administrative independence of judges as dealt – distinguishable from Valente v. The Queen.

b. Guaranteed under 11(d) but recognizes unwritten- Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997)


Unwritten principle of judicial independence in Const - could have the effect of invalidating statutes that reduced judicial comp (even though independence explicitly guaranteed in s.99 of BNA to superior courts), Ct required elaborate procedures be followed to remove a judge and even to set salaries. Reasoning: Independence necessary to maintain public confidence that justice will be done in individual cases, and that rule of law will be maintained. relationship between the judiciary and other branches of government must be depoliticized – so courts both be free and appear to be free from political interference through economic manipulation by the other branches of government.



FACTS: A statute decreased provincial court justices’ salaries b/c of a provincial deficit. Concern that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. Held- Judicial salaries can be reduced, so long as (1) economic manipulation occurs through an independent body, combined with a judicial compensation commission (between the judiciary and other branches of government) that would depoliticize the process. (2) No negotiations on judicial remuneration b/w the judiciary and the executive/legislature. (3) Judicial salaries may not fall below a minimum level. Here, didn’t happen – so breach of section 11(d) of the Charter of Rights. As well as unwritten rule. c. Scope of Independence


Core characteristics of judicial independence include: security of tenure, financial security and administrative independence. 2 dimensions of judicial independence for financial and security: individual (i.e. of the judge) and institutional/collective (i.e. of the court or tribunal of which that judge is a member). Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997)

Security 1. Individual security of tenure means that judges may not be dismissed until the age of retirement except breaches of “good behaviour”, which have been interpreted to include misconduct or disability. 2. Institutional security of tenure means that, before a judge may be removed for cause, there must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded the opportunity to be heard 3. Judges Act establishes the Canadian Judicial Council as the body responsible for investigating complaints about the conduct of federally appointed judges. If the Council concludes that removal of a judge is warranted, it makes a report to the minister of justice, who may introduce a motion before Parliament. iii. Financial iv. Admin independence 1. Requires that courts themselves have control over the administrative decisions that bear directly on the exercise of the judicial function . Canada v Tobiass (where SCC concluded that at least the appearance of independence was transgressed) 16. Federalism


a. Reference re Secession of Quebec- In interpreting our Constitution, the courts have always been concerned with the
federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided.


Described federalism as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society. Notes experience of Canada East and Canada West had been bad under the Union Act (1840)- new Const structure enabled French-speaking Canadians to form numerical majority in Quebec . b. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign status derived from Const.


Democracy (Secession Reference)

a. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. . . Democracy is commonly understood as being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.




Parliament Structure

a. Section 17 of the Constitution Act, 1867 creates a “parliament of Canada” consisting of “the queen, and Upper house styled the Senate, and the House of Commons” i. Queen is essentially Canada’s head of state. Governor general, in practice, exercises Queen’s powers. Monarch appoints gov-general on the ADVICE of the PM (a constitutional convention). Also appears in executive




i. ii.

Canada has an unelected upper chambers of the federal legislature; the Constitution expressly anticipates the appointment of senators by the governor general (see s 24 of the Constitution Act 1867) Governor general follows the advice of the PM, as required by constitutional convention.


House of Commons


Conventions- After an election, the party with the most elected representatives usually becomes the governing party. The leader of this party becomes the PM, and chooses people to head the various government departments


General Summoning: the calling of Parliament.

i. ii.

Prorogation: once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation. A prorogation is the prerogative of the governor general, acting on the advice of the PM.

iii. Section 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least once every 12 months (i.e. Parliament cannot be entirely sidelined)


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


Parliamentary Operations and Law

Scope of Power Parliament is free to pass careless or bad laws, so long as it sticks within its Constitutional mandate (see Bacon v Saskatchewan Crop Insurance, where the applicant failed in using the rule of law principle in an attempt to challenge an allegedly bad law). ii. Even if Parliament is tricked into passing a law by the executive, that alone is insufficient for a court to strike it down; such an issue is not justiciable (see Turner v Canada). iii. E.g. it has been held that there can be expropriation of property without compensation, so long legislation makes such an intent clear (Authorson v Canada)



“Parliamentary Privileges” - Houses of Parliament and the provincial legislative assemblies posses a set of powers and privileges that are “necessary to their capacity to function as legislative bodies.” (New Brunswick) i. “Privilege” in this context usually means legal exemption from some duty, burden etc to which others are subject. See Canada v Vaid for an outline of the scope of parliamentary privilege; in this case, the dismissing of a chauffeur was not considered part of parliamentary immunity) ii. Preamble to the Constitution Act, 1867- speaks of Parliament possessing parliamentary “privileges”, and so doeas the Parliament of Canada Act.



New Brunswick Broadcasting Co. v Nova Scotia (1993) - unwritten doctrine parliamentary privilege should be included in the s52(2) definition of Const. even though no mention of it. “Strangers” were excluded from the Nova Scotia legislative assembly. Also includes freedom of speech in debate, including from legal proceedings for things said in debates. It also includes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature is in Session. 1. Does not include all internal affairs of employees of House – chauffer of Speaker alleged that he’d been constructively discharged on grounds forbidden by Human Rights Act, SCC denied Parliament’s position that they were internal affairs of Parliament – SCC held didn’t fulfill test of necessity 2. Powers authorized by parliamentary privilege are not subject to the Charter Rights. 3. The court’s decision means the definition can be expanded. iv. Privilege reflects and enforces the separation of powers, specifically the separation between Parliament/legislatures and courts Standing orders – internal operations Statute relating to its internal procedure, as well as to determine the contents of such things as Standing Orders on Procedure, without court intervention. ii. Standing orders are rules of procedure adopted by at least a simple majority vote of the members of the Commons. Standing orders constitute a fairly comprehensive code of Commons operations, including in relation to Commons law making i. Public bills: Goes through 9 stages, the second reading being the most important stage (it is then that the principle and object of the bill are debated/accepted/rejected; three types of amendments may be proposed at this stage) ii. A bill becomes law when it receives Royal Assent. For Royal Assent to be given, the bill has to be passed in the same form by both Houses (i.e. the Senate and House of Commons). i. Private bills A bill designed to exempt an individual or group of individuals from the application of the law is a private bill. Private bills are subject to special rules in both Houses of Parliament, however, most private bills originate in the Senate where the fees and charges imposed on the promoter are less ii. They are introduced by means of a petition signed by the interested parties and presented in the House by a Member who has agreed to sponsor it i. Executive Branch Generally i. Notwithstanding the absence of a rigid separation of powers doctrine in Canada, it is still useful to speak about a distinct executive branch of government ii. A clear set of legal principles governing the boundaries of executive powers and manner by which executive powers are to be exercised has been developed (namely administrative law) Definition i. The Crown: The entire authority of the executive branch is vested in the monarchy. Thus, the Crown is the formal legal entity of the government, and the Crown is the bearer of both legal rights and obligations (s9 BNA) 1. The governor general is to exercise all powers and authorities lawfully belonging to the monarch in respect of Canada - by constitutional convention these appointments are now made on the advice of the PM, who the Queen must follow b. 3. a. e. d.



Prime Minister and the Cabinet 1. Ministers and the prime minister together comprise the ministry (which is used interchangeably with the word cabinet). It is the prime minister who presides over the Cabinet 2. Responsible govt- Under a system of responsible government, the ministry is accountable to the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain the confidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in Parliament for the activities of his or her department Public Service - politically neutral



Administrative Agencies 1. Ocean Port Hotel case draws the distinction between independence required by courts and that required by admin bodies that are adjudicative. It is Parliament/legislatures that determines, by way of statute, the independence required by admin bodies. Crown corporations 1. Administrative bodies that have a legal personality separate from the government. 2. Purpose of creating Crown corporations is that they may be useful where there is a strong commercial aspect to the governmental service, which may require decisions to be made free from political influences that may unduly interfere with the commercial objectives. Municipalities 1. Municipalities, which are created under provincial legislation, deliver a wide range of public services, such as the provision of road, sewer and water services Enforcement bodies: Police and Prosecutors c. Sources of executive power Prerogative powers - exercisable by the Crown that do not arise from a statutory grant of power to the Crown Powers can be overridden by statute




i. 1. ii.

Statutory powers 1. Majority of executive powers originate from a delegation of authority by the legislature by statute 2. Legislatures can delegate power to executive, but cannot abdicate their power (see Re Gray re: delegation of war time powers) Delegated powers Types


Rule making (i.e. delegated legislation). Benefits: Statutory process is much more cumbersome and time consuming than the process for enacting regulations (readjustment for range of circs); expertise. i. Most pervasive form of admin rule making is the regulation making power that is delegated to the Cabinet through the governor in council; but admin rule making isn’t restricted to this form b. Dispute resolution c. Benefit or obligation determination d. Enforcement decisions e. Other Issues



Substantive Ultra Vires- Can only exercise the powers granted by the enabling statute Fairness duties

4. Judiciary a. S.96 provides that the federal exec shall appoint justices of the country’s superior, county and district courts (s.96). Provinces-establish these courts in their respective jurisdiction (s.92-14). i. Federal Courts Act- trial level federal ct of Canada ii. Supreme Court Act (1875)- created Sup Ct

b. Payment/Appt i.
Fed govt appoints and pays the salaries of provincial superior court judges 1. Federal appointments are made by the governor general, acting on the advice of the federal Cabinet. A recommendation is made to Cabinet by the Minister of Justice; that recommendation is made from amongst the names which have been previously reported by the committees to the Minister The recommendation for appointment as a judge is made to Cabinet by the minister of justice, who has been advised by the judicial advisory committee 2. SCC judges normally appointed by governor in council Provinces appoint and pay the salaries of provincial court judges


Structure First level is the provincial/territorial courts, which every province/territory has except Nunavut (there, there is no territorial court—matters that would normally be heard at that level are heard by the Nunavut Court of Justice, which is a superior court) ii. Second level is provincial/territorial superior courts (s 96 courts) (except for Nunavut, where the Nunavut Court of Justice deals with both territorial and superior court matters) 1. Provincial appointments- Basic model is built on an advisory committee made up of a mixture of members from the legal community and laypersons, which makes recommendations to the provincial attorney general iii. Third level is courts of appeal iv. The highest level is the supreme court of Canada i. d. i. Role of Judicial Review


JI is richly a constitutional concept; e.g. sections 96 to 100 of the Constitutional Act, 1867 provide for the appointment, security of tenure and remuneration of federally appointed judges [Note: these provisions only apply to superior courts] Constitutional Law Jurisdiction- role for an adjudicative institution to rule whether ordinary legislation has violated the limits on legislative powers set by the constitution. Principle of Constitutional Supremacy presupposes role for cts.


1. 2.

Federalism requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. – Remuneration Reference (1997) Charter- s.52


Administrative Law Jurisdiction- supervisory jurisdiction with respect to exercises of executive government authority. Judicial review of exec power is “hallmark” of s. 96 jurix. (Admin-Crevier)


Limitations of judicial review

i. Justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial


Operation Dismantle v The Queen (1985) Americans testing cruise missiles in Canada, s.7 challenge- cruise missile increases the risk of nuclear war. Court held it was ok to consider- no doctrine of political questions in Canadian constitutional law. 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, but causal link between the actions of the Canadian government, and the alleged violation of the appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action


Enforcement: Cts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions.


In Doucet Boudreau v NS, the issue of court usurping executive function arose (where the court ordered the government of Nova Scotia to use its best efforts to build a French Language school to comply with its duties under the Charter (minority language rights). Periodic reports on its progress was also ordered [How close is this to the judiciary usurping the role of the executive?]


Reference re Language Rights Under s 23 of Manitoba Act, 1870 (SC, 1985): But In 1890 , the Manitoba Legislature enacted the Official languages Act which provided English Language only” in records and journals of the Legislature and in the pleadings and process in the Manitoba courts. Courts held that Manitoba’s Official Languages Act was unconstitutional 4 times- but legislature didn’t respond. Re Manitoba Language Rights (1985) SCC confirmed that the failure to comply with s 23 requirement resulted in the invalidity of the purported statue. To conform with rule of law, Court decided on a drastic remedy – namely allowing the invalid acts to remain law until statutes were translated. The constitution will not suffer a province without laws- avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law 3.


Legitimacy: A more prominent concern is that judges have to interpret vague statements in the Constitution; when judges give concrete shape to vague ideas set out in the Charter for example, and then invalidate laws that do not conform to their interpretation of these requirements, the rule of law may subtly be transformed into the rule of unelected judges.



a. Constitution Act, 1867, s.91(24) - confers power upon the federal Parliament the power to make law in relation to “Indians, and
lands reserved for the Indians”.

i. Federal govt has taken a broad view – incl matters otherwise outside its legislative competence:
1. e.g. Indian Act- provisions that govern: succession to the property of deceased Indians, administration of property of mentally incompetent Indians and infant Indians law of property.

2. Are they in pith and substance in relations to Indians? Lysyk-doubts as to the validity of the Indian Act’s forays into the

b. Power over “Indians” i. Reserved for only Indians where they reside on, or have any connection with, lands reserved for Indians.) ii. Federal Indian Act - defines the term “Indian” /establishes a register to record names/ and persons within this statutory definition are known as “Status Indians”. They can enjoy the right to live on Indian reserves. 1. Non-Status “Indians” –some persons’ with Indian Blood and Culture-who are outside the definition. Metis People (French/Indian) outside reserve system most likely Indians Under s 91(24) & The Inuit or Eskimo people- are outside reserve system but held to be Indians within the meaning of s91(24)

2. R v Powley- Courts lays down 3 indicia of “Metis people” (a) FACTS: P charged with unlawfully hunting moose; P argues that, as Metis, they have an aboriginal right to hunt for food in the Sault Ste Marie area (i) (1) Self-identification (ii) (2) Ancestral connection (iii)(3) Community acceptance

c. Power over “lands reserved for Indians”
1. Maybe exercised in respect of Indians and Non Indians so long as the law is related to lands reserved for the Indians. aboriginal rights of the Indians and of those rights along with other matters pertaining to the control and administration of the reserves are subject to the legislative authority of the federal government.

2. St Catherine’s Milling and Lumber Co v the Queen (1889) - The title of the provincial crown is subject to the

3. Delgamuukw v B.C. (1997)- the SCC went even further holding the phrase extends to “all lands held pursuant to
aboriginal title”. For that reason, only the federal Parliament had the power to extinguish aboriginal title. Includes huge area of land recognized by the Royal Proclamation 1763. This is all land within the territory covered by the proclamation that was in possession of the Indians and that had not been covered by the crown.

d. Provincial Laws i. General rule is that provincial laws apply to Indians and lands reserved for the Indians.

1. R v Hill (1907)- Ont. Court of appeal held that a provincial law confining the practice of medicine to qualified
physicians applied to Indians: an Indian was convicted of the offence of the unauthorized practice of medicine. ( not on reserve but it didn’t matter)

2. Four B Manufacturing v United Garment Workers( 1979) –The SCC held that that provincial labour law applied to
shoe manufacturing business which was located on a reserve, which was owed ( through a corporation) by Indians, which employed manily Indians and which had been funded by the Department of Indian Affairs.

3. R v Francis- (SC 1988)- the court held that a provincial traffic laws applied to an Indian who had been driving a vehicle
on a reserve.

ii. Five Exceptions

1. A) Singling Out –A provincial law that singles out Indians or Indian reserves for special treatment would run the risk of
being classified as a law in relation to Indians or Indian reserves and if so classified, the law would be invalid. R v Sutherland [1980]

2. B) “Indianness” - basically anything that affects status or capacity- Kruger and Manuel v The Queen [1978] 3. C) Paramouncty- If a provincial law is inconsistent with a provision of the Indian act (or any other federal law) the
provincial law is rendered inoperative by the doctrine of federal paramountcy.

4. D) Natural Resource Agreement- Provincial laws cannot deprive Indians the right to take game and fish for food. The
NRA is part of the Constitution of Canada.

5. E) Section 35 has protected treaty rights.

2) Aboriginal Rights

Royal Proclamation of 1763, which reserved to the Crown the exclusive right to negotiate cessions of Aboriginal title i. Aboriginal people were not to be "molested or disturbed" on their lands ii. Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown. iii. The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal political authority. iv. It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement-divide and share sovereign rights to the lands that are now Canada.

b. Constitution Act, 1982, s.35
i. Elevated existing common law aboriginal rights to constitutional status 1. 1 - The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

2. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada. 3. (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. (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

ii. S.25- Charter doesn’t detract from existing rts.

iii. Charter Challenges under S.15

1. Corbiere v Canada (1999)- the SCC struck down a provision of the Indian Act that made residence on the reserve a
requirement for voting in band elections. Held: That the distinction between Indians who lived on the reserve( an could vote) and Indians who lived off the reserve was a breach of s 15.

2. Lovelace v Ontario ( 2000)The SCC rejected a challenge to the distinction of the Casino Rama gambling profits that
was limited to communities registered as bands under the Indian Act. The court held that the exclusion of non status bands from the distribution of the profits was not a breach of s15.

c. Scope of Rights – enforceable at c/l or s.35, protected by govt. fiduciary


R v Van der Peet (1996): Definition of Rights w/I s .35

(a) Aboriginal rights not held by virtue of Crown grant, legislation or treaty but b/c “the doctrine of aboriginal rights
exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.”. (i) “by reason of the fact that aboriginal peoples were once independent, self governing entities in possession of most of the lands now making up Canada.

(b) To identify an “existing aboriginal right within the meaning of s35 of the Constitutional Act 1982.”: identifying the
crucial elements of those pre-existing distinctive societies. Test - In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right.

(i) In order for the practice to be “integral”, the practice, custom or tradition must be “of central significance” to the
aboriginal society : it must be a defining characteristic of the society, “one of the things that made the culture of the society distinctive. (Not incidental to another practice.)

(ii) The practice must have been developed before “contact” that is, “before the arrival of Europeans in North

1. cf. R v Powley ( 2003)- Held- for Metis claimants of aboriginal rights, the focus on European contact had
to be moved forward, not to the time of European sovereignty, but to “the time of effective European control.” The focus should be on the period after a particular Métis community arose and before it came under the effective political and legal control of European laws and customs in a particular area.

(iii)The practice can evolve over the years as the result of contact- ( ie bone hook-metal hook & bow and arrowgun) but Do not qualify- contemporary practices that developed “solely as a response to European influences” do not qualify. See harvesting timber below.


the existence of an aboriginal right will depend entirely on the practices, customs and traditions of the particular aboriginal community claiming the right

(c) Facts: Van der Peet- defendant had been convicted of catching and selling fish that she had caught under the
authority of a Indian food-fish license. The court held that fishing for food was part of the Sto:lo society as well with the exchange of fish, but selling the fish was not an “integral part” of the Sto”lo culture. The exchange of fish took place, but was not a central, significant or defining feature of Sto:lo society. No right to sell. Conviction upheld.

Sparrow-type obligations (rights) arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights – no extinguishing rights (a) R v Sparrow ( 1990) – The SCC unanimously recognized the aboriginal right of a member of the Musqueam Indian Band to fish for salmon in the Fraser River. “where his ancestors had fished from time immemorial” (i) The defendant had been charged with the violation of the federal Fisheries Act and because the charge related to facts occurring after 1982 he was able to invoke the s35 of the Constitution Act 1982.

(ii) Held- That s35 did provide constitutional protection for the aboriginal right (“existing” language required that rt
had to exist at time of 1982, not extinguished rights) -- gives a measure of control over government conduct and a strong check on legislative power. Court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act b/c only if the intention to extinguish was “clear and plain.” 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)- but s35 rights are subject to regulation by federal laws, provided that the laws meet a standard of justification.

(iii) Standard of justification test:

1. Is there a valid legislative objective that is “compelling and substantial”? Is the regulation sought to be
imposed required to complete that objective?


Consider the special fiduciary relationship and responsibility of government vis a vis aboriginals. Ask: is the limitation unreasonable? a. Fiduciary been interpreted as (Delgamuukw v British Columbia) i. idea of priority, namely that aboriginal demands should be placed first; but this does not demand that aboriginal rights always be given priority.

ii. whether there has been as little infringement as possible in order to effect the desired result; iii. whether, in a situation of expropriation, fair compensation is available; iv. whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented)

(b) Ct enlarged the fiduciary duty “the Government has the responsibility to act in a fiduciary capacity.”
(i) R v Sparrow, which was the Court’s first s 35 decision, extended scope of the relationship- the “general

guiding principle” for section 35 is that “the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship”; (ii) "the honour of the Crown is at stake in dealings with aboriginal peoples (7)The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified”; (iii) “[t]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test(8) 3. Other Rights:

(a) Not Selling fish: R v. NTC Smokehouse – rights not established The practice of of exchanging fish was not
sufficiently central to the aboriginal culture to qualify as an aboriginal right .

(b) Yes - Hunting/fishing on non-title lands: Rights to particular activities such as hunting, fishing and harvesting may
also exist on land to which the aboriginal people do not have title to. ( Fishing- R v Adams [1996])

(c) Yes- harvesting timber, even if originally for survival purposes. R v Sappier (Even though a practice may have
been undertaken for survival purposes, it can still be considered integral to an Aboriginal community’s distinctive culture) (i) FACTS: Charged w/ unlawful possession or cutting of Crown timber – to build permanent home ok? In defence, they say they possess an aboriginal and treaty right to harvest timber for personal use. In the present cases, the relevant practice for the purposes of the Van der Peet test is harvesting wood. The record shows that wood was used to fulfil the communities’ domestic needs for such things as temporary shelter, transportation, tools and fuel. I would therefore characterize the respondents’ claim as a right to harvest wood for domestic uses as a member of the aboriginal community. (ii) Evidence established that the wood was critically important to the Maliseet and Mi’Kmaq people pre-contact, evolved into modern right to harvest wood by modern means to construct permanent dwelling. Further, even though the practice may have been undertaken for survival purposes, it can still be considered integral to an Aboriginal community’s distinctive culture (iii) Continuity: Although the nature of the practice which founds the aboriginal right claim must be considered in the context of the pre-contact distinctive culture of the particular aboriginal community, the nature of the right must be determined in light of present-day circumstances; “logical evolution means the same sort of activity, carried on in the modern economy by modern means.” So, the right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling. Any other conclusion would freeze the right in its precontact form.

(d) Yes- hunting in Sault Ste. Marie - R. v. Powley-Métis community enjoy a constitutionally protected right to hunt
for food under s. 35. The practice of subsistence hunting and fishing was a constant in the Métis community, even though the availability of particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Métis life and a defining feature of their special relationship to the land. Evidence supports the trial judge’s finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850 (which meets the modified time frame test)


(i) The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with the trial judge that the record here does not support this justification. (ii) Legislation is invalid


Extinguishments of Aboriginal Rights (a) by surrender (must be voluntary and to the Crown) R v Howard [1994 (b) by constitutional amendment R v Horseman [1990] (c) legislation w/ “clear and plain intention” to extinguish aboriginal rights (Sparrow)

3) Aboriginal Title 1. Exclusive occupation of land, which permits the aboriginal owners to use the land in a variety of purposes. It would obviously permit the owners to hunt fish and harvest their lands . (a) Aboriginal title vs non-aboriginal title (i) Source of aboriginal title- derives from pre sovereignty occupation rather than post sovereignty grant from the crown.

(ii) Range of uses to which aboriginal title land may be put. (iii) Aboriginal title is inalienable, except to the Crown. The Crown has to act as an immediatry between the aboriginal owners and third parties. To pass to third parties, the aboriginals must surrender the land to Crown. (iv) Aboriginal title can only be held communally. (v) Aboriginal title is constitutionally protected.

2. Guerin-type obligations fiduciary w/r/t/ land - arise in situations where the Crown has a duty to act in the interests of
an Aboriginal group

(a) Guerin v The Queen (1984) –. SCC recognized that the aboriginal title of Musqueam Indian Band to land in BC. “a
legal right derived from the Indians historic occupation and possession of their tribal lands”. Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable by the courts

(i) Fiduciary duty: The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to deal
with the land for the benefit of the surrendering Indians.

1. The fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement,
outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown; this requirement, which places the Crown between the Aboriginal group and third parties to prevent exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group; (ii) Held- This fiduciary duty had been broken and awarded damages to the Band for lease of reservation land to golf club - $10mm.

3. Delgamuukw v British Columbia (1997) proceedings for a declaration that they had aboriginal title and self
government right over a territory in northern B.C. The SCC did not grant the declaration sought and ordered a new trial.

(a) Test for Aboriginal Title

1. The land must have been occupied prior to sovereignty (Not “prior to contact”)
2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation.


At sovereignty, that occupation must have been exclusive

(b) Source: Aboriginal title is a common law interest in land - arises from the prior occupation of Canada by aboriginal
peoples; what makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty. 1. Aboriginal title at common law is protected in full form under s.35(1)

(c) Scope: Aboriginal title encompasses the right to (1) exclusive use and occupation of the land held pursuant to that
title for a variety of purposes – doesn’t have to be for aboriginal practices, custom and traditions. But it’s not fee simple—(2) use must not be irreconcilable with the nature of the group’s attachment to that land 1. E.g. occupation of land for hunting can’t use it to destroy value for such a use (e.g. for strip mining)

2. “held communally” , 3. May not be alienated- Other than Crown. Alienation would bring to an end the entitlement of the
aboriginal people to occupy the land and would terminate their relationship with it i. Extinguish: If aboriginal peoples wish to use their lands in way that aboriginal titles does not permit, then they must surrender those lands and convert them in to non title lands to do so – can exchange for non-aboriginal land in exahnge for fair consideration from Crown. it applies not only to the past but to the future as well→ as a result, uses of the land that would threaten that future relationship are, by their very nature, excluded from aboriginal title

ii. The relevance of the continuity of the relationship of an aboriginal community with its land is that

(d) Evidentiary Proof – oral histories ok. (e) Limitation: Rights may be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., Côté) governments.
However, s. 35(1) requires that those infringements satisfy the test of justification.

4. Haida Nation v BC- duty to consult when the Crown (or province) has knowledge, real or constructive, of the potential
existence of the Aboriginal right or title and contemplates conduct that might adversely affect it (esp. where aboriginal interests are in the process of being proved), scope of the duty is proportionate to a preliminary assessment of the strength of the case

(i) Duty to consult and accommodate - duty grounded in honour of the Crown, and embodied in s.35: In all its
dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably- requires that these rights be determined, recognized and respected. Content of the duty varied with the circumstances - but may require it to consult and, where reasonable, accommodate Aboriginal interests.

(ii) 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. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation

1. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the
potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required 2. Duty doesn’t extend to 3d party

(iii)FACTS: This brings us to the issue before this Court. The government holds legal title to the land. Exercising
that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land (which is subject to a land title claim by the Haida people)- Haida people have not proven title to land. Govt duty to consult??

1. Held- The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof – even before final detrmination.

4) Aboriginal Self –Government a. Paramountcy of aboriginal law vs. provincial/federal? i. Should be resolved by the Sparrow test.

b. Slatttery- The aboriginal right of self government must exist because aboriginal people were living in self government communities before the arrival of Europeans.

c. R v Pamajewon (1996) – the aboriginal right to self government extends only to activities that took place before
European contact and only those activities that were an integral part of the aboriginal society.

1. SCC rejected a claim by the Shawanaga and Eagle Lake First nations to conduct high stakes
gambling on their reserves. In each case the gambling operations were conducted pursuant to a law enacted by the band council. It was not a by-law of the Indian Act. They were charged with a gaming offence under the Indian Act. Larmer CJ characterized the claimed right as a right “to participate in and regulate, gambling activities on their respective reserve lands.” Evidence showed- that they gambled before the arrival of Europeans, it was small scaled and informal and was never part of the means by which the communities were sustained. Court was concerned with- the ability of aboriginal people to immunize themselves from the rules of the Criminal Code was a major concern for the courts.

5) Definition of Treaty has been described as “unique” or “sui generis”. i. It is an agreement between the Crown and aboriginal nation with the following characteristics. 1. Parties-Crown on one side, aboriginals on the other. 2. Agency- the signatories on the treaty must have the authority to bind their principles, namely the Crown and the aboriginal nation. 3. Intention to create legal relations: the parties must intend to create legally binding obligations. 4. Consideration- the obligations must be assumed by both sides, so that the agreement is a bargain. 5. Formality: there must be a certain measure of solemnity.

ii. Principle of interpretation- that treaties and statues reacting to Indians should be liberally construed and doubtful expressions
resolved in favour of the Indians. Simon v The Queen [1985]

iii. 2 leading cases about treaties, both cases were applying s88 of the Indian Act not s35 of the Constitution Act 1982-(safe to say word treaty is similar. ) 1. Simon v the Queen (1985)-Held to be a valid treaty to except the Micmac defendant from the game laws of Nova Scotia.

iv. R v Marshall (“Marshall 3”- 2005)
Aboriginal treaty right: Scope of treaty right is to be determined by what trading activities were in the contemplation of the parties at the time the treaties were made. This is correct. But treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. “The question is whether the modern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made” 2. FACTS: M and B were convicted of offences related to the selling/possession of timber, commercial logging w/o authorization in violation of provincial forest mgmt laws. Do Mi’kmak people in NS and NB have the right to log on Crown lands for commercial purposes pursuant to either treaty or Aboriginal title? The question is whether the commercial logging here at issue is the logical evolution of a traditional Mi’kmaq trade activity. In Marshall, Curran Prov. Ct. J. found no direct evidence of any trade in forest products at the time the treaties were made- 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/minor trade in wood products protected by the treaties of 1760-61.

Highlights from the Report of the Royal Commission on Aboriginal Peoples (1996 We propose 4 PRINCIPLES as the basis for a renewed relationship: recognition, respect, sharing and responsibility. We propose that treaties be the mechanism for turning principles into practice b. Restructuring the relationship i. Elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood. ii. Right to self government important. 1. The right is inherent in Aboriginal people and their nationhood 2. We hold that Aboriginal governments are one of three orders of government in Canada - federal, provincial/territorial, and Aboriginal. 3. Their combined purpose is to provide the authority and tools for Aboriginal people to structure their own political, social and economic future. 4. 3 types of self government: nation government, public government, and community interest government 5. Financing self government is another issue (e.g. developing own source revenues such as a taxation system) c. Redistributing lands and resources i. The law of Aboriginal title establishes three things: 1. (1) Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their history of having lived in and used those lands since time immemorial. 2. 2) Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that nation's traditional lands. 3. (3) The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests in those lands. ii. Cts cumbersome: assumes that no Aboriginal rights apply on Crown land unless Aboriginal nations can prove otherwise. This position is at odds with the doctrine of continuing Aboriginal title and with the duty of the Crown to protect Aboriginal interests. The government of Canada controls the process. It acts as defender of the Crown's interests and also as judge and jury on claims. This is a clear conflict of interest, since it considers itself the 'loser' when a claim is settled in favour of Aboriginal people iii. A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of a new treaty process


d. i.

Economic development Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for most nations will come from access to a fair share of lands and resources. But that won’t be enough. We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development e. Treaties: the mechanism for change Parliament declare its support for the treaty relationship in the form of a new Royal Proclamationstating Canada's commitment to principles of mutual recognition, respect, responsibility and sharing 1. backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them.



Taku River v BC (Example of how the duty to consult is fulfilled, and reinforces the principle set out in Haida that meaningful consultation doesn’t require agreement) FACTS: A mining company applied to the BC government for permission to reopen an old mine in an area that was subject of an unresolved land claim by the TRTFN people. This application triggered a statutory environmental assessment process, which ended with the approval of the application to reopen the mine. Through the environmental assessment process, the TRTFN’s concerns with the road proposal became apparent. Its concerns crystallized around the potential effect on wildlife and traditional land use, as well as the lack of adequate baseline information by which to measure subsequent effects ISSUE: Duty to consult and of accommodation REASONING:  In Haida Nation v. British Columbia (Minister of Forests), this Court has confirmed the existence of the Crown’s duty to consult and, where indicated, to accommodate Aboriginal peoples prior to proof of rights or title claims.  The principle of the honour of the Crown grounds the Crown’s duty to consult and, if indicated, accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles  The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them  When Redfern applied for project approval, in its efforts to reopen the Tulsequah Chief Mine, it was apparent that the decision could adversely affect the TRTFN’s asserted rights and title. The contemplated decision thus had the potential to impact adversely the rights and title asserted by the TRTFN.  It follows that the honour of the Crown required it to consult and if indicated accommodate the TRTFN in making the decision whether to grant project approval to Redfern, and on what terms  The scope of the duty to consult is “proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed”  There is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over at least some of the area that they claim and the potentially adverse effect of the Ministers’ decision on the TRTFN’s claims appears to be relatively serious. In summary, the TRTFN’s claim is relatively strong  While it is impossible to provide a prospective checklist of the level of consultation required, it is apparent that the TRTFN was entitled to something significantly deeper than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation.  The Crown fulfilled its duty to consult and accommodate. The process of granting project approval to Redfern took three and a half years, and was conducted largely under the Environmental Assessment Act. Members of the TRTFN were invited to participate in the Project Committee to coordinate review HELD: Crow fulfilled duty Aboriginal Title Tsilhqot’in Nation v BC Aboriginal title (a) Nature - Canadian courts began to outline and define Aboriginal title in St Catherine’s Milling case - The description of Aboriginal title as a usufructuary right was favoured by the SCC in the 1980s (usufructuary meaning a legal right to use, benefit from and derive profit from property belonging to another person) - But, viewed through a contemporary lens, it is not surprising that the SCC has found that describing Aboriginal title as a usufrutuary right isnt’ helpful (see Delgamuukw). Now, it can no longer be characterized as such - The notion of an occupancy based Aboriginal title started to gain acceptance at a time when countries such as Canada began the process of decolonization. In Canada, decolonization experienced its first legal challenge with the SCC in Calder - Calder was a turning point in our basic understanding of Aboriginal rights. The Baker Lake case, decided shortly after Calder, said that Calder was solid authority for the general proposition that the law of Canada recognizes the existence of an aboriginal title independent of The Royal Proclamation or any other prerogative act or legislation (it arises at common law) - The next important development in Canadian Aboriginal law was the patriation of the Canadian Constitution with the enactment of the Constitution Act, s 35(1). Professor Slattery argues that this provision represents a basic shift in our understanding of the constitutional foundations of Canada. Section 35 renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown. Professor argues for a new concept of the Constitution which he calls the Organic Model, under which it is said that the Constitution is rooted in Canadian soil - The view that aboriginal title is rooted in Canadian soil is embodied in the theory that title is sui generis. Put simply, aboriginal title in this country is unique and in a class by itself. The description of Aboriginal title as sui generis captures the essence of a proprietary right shaped by both common law and Aboriginal systems (note the 3 sui generis aspects noted in Delgamuukw) - One of the key challenges of Aboriginal law is reconciliation between present day Aboriginal title holders and the Crown. Any definition of existing aboriginal rights must take into account that they exist in the context of an industrial society with all of its complexities and competing interests. - The common law recognition of Aboriginal rights and title calls for a reconciliation of Aboriginal people’s prior occupation of Canada and the sovereignty of the Crown.

- The Van der Peet decision clarified our current understanding of the origin and nature of these rights (and articulated a test for determining whether a particular activity is protected as an Aboriginal right) - Today, we no longer speak of an overarching Aboriginal title. It is more accurate to speak of a Variety of Aboriginal rights, one of which is title to land. It is possible for an Aboriginal group to show that a particular practice taking place on particular lands was integral to their distinctive culture so as to establish site specific Aboriginal rights, but not establish Aboriginal title on those same lands - Delgamuukw is a significant case in relation to aboriginal title - To summarize, aboriginal title is a SPECIES of aboriginal right which differs from aboriginal rights to engage in particular activities. It confers a sui generis interest in land, that is, a right to the land itself. It confers a right to exclusive use, occupation and possession to use the land for the general welfare and present day needs of the Aboriginal community. Aboriginal title also includes a proprietary type right to choose what uses aboriginal title holders can make of their lands, which is subject to an inherent limit which is defined by the nature of the attachment to the land. Such inherent limits prohibit uses that would destroy the ability of the land to sustain future generations of Aboriginal peoples. Aboriginal title also has an economic component, which will ordinarily give rise to fair compensation when Aboriginal title has been infringed. Aboriginal title is held communally. It is inaliable to third parties, but can be surrendered to the Crown. (b) Test for aboriginal title 1. Pre-sovereignty occupation: “Any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants”. The standard of occupation required to prove aboriginal title may be established in a variety of ways (e.g. construction of dwellings) 2. Continuity: This only becomes an aspect of the test where an aboriginal claimant relies on present occupation to raise an inference of pre-sovereignty occupation. Aboriginal claimants do not need to establish an unbroken chain of continuity. 3. Exclusivity: Exclusive occupation may be demonstrated to exclude others, including the intention and capacity to retain exclusive control of the lands. Proof must rely on both common law and aboriginal perspective on land, each being given equal weight.

Potential Essay Questions (1) It is often said that under our constitutional system, the role of the legislature is to make the law, the role of the judiciary is to interpret the law, and the role of the executive is to apply the law. In practice, does this theoretical understanding always unfold? The following areas is where the separation of powers starts to blur: (a)The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative branch, to which the executive is made subordinate (an introductory example) (b) The parliamentary system contemplates an overlapping of personnel between the legislature and the executive. The PM and members of his/her Cabinet, who comprise the executive council “advising” the head of state, are elected members of the legislature. This is not the case in the US (another introductory example) --- The following would be more suitable for the body of the essay: (c) Legitimacy of Constitutional judicial review: SCC’s interpretation of the “vague” Charter and vague language in the Constitution Act, 1867 leads to concern is that when judges give concrete shape to the rights provided in the Charter, and invalidate laws that do not conform to their interpretation of these requirements, the rule of law may become subtly transformed into the rule of unelected judges (d) Forms of administrative justice or adjudication have grown out of the development of executive functions (tribunals verge on being courts in some circumstances – see, e.g. Human Rights Tribunal, p. 241), and rule making of admin bodies (delegated legislation) blurs the role between the executive and legislature; see also the leniently interpreted difference between delegation of power Parliament/legislature power and abdication (re Gray) (e) There is a considerable degree of integration between the Legislature and Government (i.e. executive) – it is the same individuals, on a practical level, who control the legislative and executive branches of government. Talk about idea of responsible government here. (f) The ability of the SCC to “enforce” executive decisions creates a tension between the appropriate relationship of judiciary and executive (see Doucet-Boudreau case) (g) SCC ability to give “advisory opinions” to the federal government (the government may ask the Court to consider questions on any important matter of law or fact, especially concerning the interpretation of the Constitution. (2) Discuss cases cited in the Craik book that demonstrate the blur between the separation of powers and/or the problems that result as a result of the blurred roles of the legislature, executive and judiciary:

(3) Critique the role of international law in Canadian domestic law: (a) What is the approach? Dualist tradition re: treaties (i.e. needs to be “implemented” in legislation); customary international law (no special approach) (b) Advantages about Canada’s approach re: international law: (i) Democratic participation in the international law making process (ii) Keeps in check separation of powers (ie. Prevents executive from “law making”) (c) Problems: (i) Implementation issue: Baker’s approach too strict (why can’t there be “implied” implementation?); hesitancy after baker to treat international law as binding (generally treated as merely persuasive) – this weakens the fabric of law – on the verge of becoming “optional” law to be applied at judge’s discretion – this would weaken international respect for us (ii) Courts’ use (or lack thereof) of presumption of legislative intent (see article): uncertainty of the effect of that presumption in context of Charter interpretation; unclear, thanks to Baker, as to whether presumption applies equally to Canada’s international obligations and non-binding international norms; particularly suspect in context of interpreting customary international norms – Baker = “values” of international instruments may help inform contextual approach to statutory interpretation if dealing w/ unimplemented norm, but what about presumption? Although int. instrument in that case was unimplemented, it was binding on Canada (via ratification) and SCC should have appealed to presumption (iii) Suresh approach of allowing unimplemented treaties aid interpretation of legislation (potential problem) (iv) Unclear what SCC’s position is re: customary international law: There is no unequivocal statement on whether custom is part of Canadian law or not. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more. (4) Unwritten constitutional principles Positives include: (1) These are fundamental concepts about which everyone can agree, so it makes sense that they will affect judicial decision making (even the highest court of India has recognized almost identical unwritten principles, with the addition of one more); (2) Problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive definition for our system of government; (3) They are only resorted to when the express wording of the Constitution is insufficient to solve a problem (which is a valuable limit on the doctrine, and prevents it from being used inappropriately); (4) We are used to unwritten legal principles (that’s what our common law system is built on) (b) Negatives include: (1) by swaying away from written text, we get into a realm of uncertainty, ambiguity; (2) they are so broad that they can be found to apply to any issue; (3) To recognize these principles can be seen as an unauthorized judicial expansion of their power in the constitutional sphere; (4) A written constitution promotes certainty and predictability. (5) Constitutional conventions - what are they? Give some examples?: a. See book for definition b. Examples include: (i) Selecting a governor general: the Queen follows the Canadian PM’s recommendations (based on an “instrument of advice”); in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet of their respective government (ii) Selecting members for the Senate: the governor general follows advice of the PM (iii) The governor general calls Parliament into session on the advice of the PM (i.e. summoning Parliament) (iv) Parliament can be prorogued through a speech by the governor general in the Senate Chamber (v) PM to resign his or her government or seek parliamentary dissolution after a “no confidence” vote by the House (vi) Responsible government (and all of its understood “rules”) (vii) The individual commanding the confidence of the House of Commons (that is, the majority) is appointed PM (viii) Only privy councillors who are in the Cabinet are entitled to exercise the powers of the Privy Council (ix) The PM, leader of the Cabinet/government, possess authority to exercise so-called personal prerogatives, e.g., he/she may select people to fill some important appoints that are technically made by the governor general (x) Formal executive bodies are limited to the governor general and lieutenant governors, federal and provincial Cabinets, and the system of governmental departments and ministries that are

overseen by individual ministers, including the civil service (6) Bijuralism (7) Advantages and disadvantages of precedent a. Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (talk about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive) b. Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution) (8) Is the Parliament of Canada truly “supreme”? Discuss: a. Arguments for: Consider that the scope of Parliament’s law-making jurisdiction is endless, so law is it conforms to the Constitution (rules governing division of powers between fed and prov legislatures), and constitutionally protected individual rights and liberties found in the Charter (this goes back to parliamentary supremacy); Consider that Parliament is free to pass careless or bad laws; Consider that even if the ministry tricks Parliament into passing a law, that alone is insufficient for a court to strike it down (see Turner v Canada); Consider that Canadians aren’t entitled to due process or procedural fairness in the law-making process (so long as the procedures in the Constitution have been met); Consider that there can be expropriation without compensation by way of legislation that makes such an intent clear (Authorson v Canada) Arguments against: Consider the division of powers found in ss 91 and 92 which identify certain subjects in respect of which Parliament cannot legislate; consider the limitations put on it by the Charter;


(9) Critically analyze the limits on delegated legislation (10) Do you think there needs to be a reforming of the judicial appointment process? Why/why not?: a. Strengths? A number of filters exist before judges are selected; flexibility in appointing allows for ability to tailor bench to needs of society at the time b. Concerns? Political patronage; abundance of discretion; lack of transparency/accountability; the appointment process is simply policy, and cannot be legally enforced, which gives rise to concerns that it may be manipulated in individual rather than societal favour; c. What should be done? d. Note: discuss both times of federal appointments – non Supreme Court and Supreme Court (and note the unique concerns w/ Supreme Court appointments) (11) Discuss, and give examples demonstrating, the significance of the rule of principle in Canadian society and law (12) Do you think Canada should abolish prorogation? (13 ) Aboriginal rights/s 35 question

The “Bijuralism” Issue Department of Justice, “Bijuralism and Harmonization: Genesis”  “Bijuralism” signifies the co-existence of the English common law and French civil law traditions, within a country organized along federal lines Common Law Tradition  The common law tradition can be distinguished from the civil traditional essentially by its method, that is, its rules of interpretation, the hierarchy of its sources and its inductive reasoning.  The principle characteristic of the common law is this inductive process, which consists of generalizing from common points between distinct cases and then establishing legal categories with vague foundations and flexible limits

 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 Civil Law Tradition  The most important feature of the civil law tradition differentiating it from the common law tradition is its emphasis on the primacy of written laws. Civil law is not judge made/recognized law, it’s codified law  Another defining characteristic of the civilian tradition is its conceptualism as the civil law tradition is characterized by its emphasis on abstract concepts. What follows from this is the use of a deductive approach to legal reasoning is used, proceeding from the general to the specific (as opposed to specific to general like in C/L).  The second source of law in civilian tradition is legal scholarship “la doctrine”, and the third source is prior judicial decisions. Language  One integral issue relating to Canada's bijuralism is that of "language". It is very important for me to stress that I consider language to play a crucial role in the evolution of law.  The sources of common law were established in the English language. Translation often results in some very difficult problems for the practice of the common law in French. The same holds true for the practice of civil law in English  The suitability of judges educated in the common law tradition hearing cases involving civil law issues has been the subject of some debate in Quebec and has even led to some opinion favouring a distinct Supreme Court for Quebec or a separate civil law division within the existing Supreme Court  One question that often arises is whether the common law system is intimately linked to the Anglo-Saxon mentality and language? Is the system of values of Francophones inconsistent with the common law tradition? In this regard, I cannot emphasize enough that my experience has taught me that French is not the exclusive linguistic vehicle for the expression of the civil law tradition nor is English the exclusive vehicle for the expression of the common law. I highly doubt that there is any mystical connection between the French language and the civil law tradition and the English language and the common law tradition. Bilingual legislation  It is perhaps trite to state that federal legislation in Canada is intended to apply consistently across the provinces and territories —that the same federal law must apply in both Quebec and in Ontario. While this may be the ultimate goal of federal legislation, in practice this goal is not easily attained, since federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Federal legislation must not only be bilingual, but also bijural. Indeed, federal legislation must simultaneously address four different groups of persons: 1. anglophone common law lawyers; 2. francophone common law lawyers; 3. anglophone Quebec civilian lawyers; and 4. francophone Quebec civilian lawyers. - It is crucial that these four legal audiences in Canada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory - One distinctive and often difficult feature of Canadian bijuralism is the task of rendering the common law in French and the civil law in English. More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. With respect to the process of drafting federal legislation, it is now readily recognized that this process should not rely upon the technique of simply transposing the concepts of one legal tradition into the corresponding functional equivalents of the other legal tradition. In many areas, a new vocabulary must be forged. Interpreting Bilingual Legislation  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. Neither version has the status of a copy or translation—and neither has paramountcy over the other. This is known as the "equal authenticity rule"  The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extract the "highest common meaning" from the two versions that is consistent with the context of the provision. Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute. One must therefore go further than mere verbal comparisons, looking to the highest common meaning of the two versions  Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit, intent and meaning of an enactment and that best ensures the attainment of its objectives. Harmonization  The interaction of law emanating from the federal and provincial levels and the potential conflicts between them and possible harmonization is a complex issue  Over the years, pursuant to the division of powers under the Constitution Act, 1867, Parliament has enacted a considerable number of laws aimed at regulating private law issues. Certain public law statutes, when applied in Quebec, require that recourse be had to the Civil Code of Quebec to identify the precise nature of the juridical act in question. Consequently, there are several areas of law found in federal statutory enactments which require harmonization with Quebec private law, expressed primarily in the Quebec Civil Code  As such, civil law is called upon to fill the gaps left by the federal law

 While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not be applied uniformly throughout 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 Convergence and Progress  There is evidence of a certain convergence between the civil law and common law traditions in Canada. While the common law and civil law families share common origins, these legal systems have been moving farther and farther from those origins.  This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of international law, the mobility of persons, the influence of the media, the production of indigenous reference works and the growing use of legislation, even in common law jurisdictions, to enable the law to adapt quickly to societal change.  One often-cited example of the convergence of the two legal traditions in Canada focuses on the acceptance in Quebec of specific institutions of the common law tradition—namely, the trust.  Another instance of this "rapprochement " of the two traditions can be discerned from the current situation where common law courts are required to apply and interpret substantive civil law – .e.g recent tort case where Court made extensive reference and resorted to civilian authority  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. Conclusions  Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone. It must evolve in light of our background and needs. In the Canadian context, it seems to me that a new analysis of the situation is also needed  It is true that things have already changed substantially. The codification of the law is increasingly extensive in both systems. There are more and more new sources of substantive law, including international law and native law. Translation, language training for judges and jurists, and exchanges between law schools are far more common. There is widespread access to criminal justice in French at the trial level throughout the country. Some universities offer a double law degree; others have organized one-year work terms for students studying the other system. POLAJ is doing important work  The negative side is that French-language books, articles and cases from Quebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. I have also noticed that the bilingualism of many young Quebec jurists is insufficient to give them full access to English-language legal sources. On the flip-side, if French is not understood in most of English Canada, how can we be expected to make use of the insights it offers in resolving legal disputes? QUESTIONS governor in council- governor in council (i.e. the Cabinet)


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