1. Basic Theories of Law a. Positivism and Natural Law i.

Positivism: separation of law and morality; laws without reference to justness or legitimacy Re Noble and Wolf: Covenant restricting sale of summer cottages to Jews. Court upheld covenant. Said public policy rulings lead to uncertainty and capable of being understood in different ways. Legislature should determine the public policy not the judge. Public policy based on Canada’s treaty obligations would be too broad to apply to the summer home scenario. Duty of court to give benefit of doubt to contract. Court should not create law. Went to SCC, struck down, on technical grounds, not public policy. ii. Natural law: adhere to moral truths; aspirational; not simply official rules Re Drummond Wren: covenant restricting sale of Toronto land to Jews and questionable races. Court struck it down based on public policy. If injurious to interests of public then void. Deepens divisions between existing ethnic groups. Decision based on moral duty (aspirational). Void because contrary to public policy of equality which is substantiated by ratification of international policies against discrimination. iii. Descriptive theories: Positivism and Natural law are concerned with identifying what the law is as opposed to what law ought to be. b. Feminist Perspective i. Early Formalist Feminism: replace laws that favoured men into neutral laws (Emily Murphy, Nellie McClung, Louise McKinney, Irene Parlby, Henrietta Muir Edwards) Edwards v. AG Canada: Whether “qualified persons” in BNA Act of 1867 includes women aka whether a woman is eligible to be a member of senate. Determination of meaning of word looked to (1) external evidence such as previous legislation and cases and (2) internal evidence from Act. Found “person” is ambiguous and could apply to male/female; Act includes women as “persons” in some cases; “male persons” is used when expressly restricting matter to men; “persons” must include women. ii. Contemporary Feminism: different groups of feminism; theme is if women had the chance to reconstruct society, they could do it better R. v. Mogentaler: J Wilson’s decision is example of modern feminist approach to public law. Crim. Code criminalized unauthorized medical abortions. Focusing on s. 7 Right to life, liberty and security, Wilson focused on the real impact that abortion has on an individual woman’s life. Not just a medical decision, but a social and ethical one. Impossible for a man to respond without eliminating the subject female element. Right

to reproduce or not is integral to woman’s assertion of dignity. Crim. Code takes decision away from women and gives it to committee which is violation of personal autonomy and right to liberty. A woman’s capacity to reproduce is taken out of her control and given to control of state. Denies security and liberty. Fails Oakes proportionality. c. Critical Legal Studies i. Associated with the left; law institutionalizes and legitimizes authority and power of particular social groups and classes ii. 3 Stages hegemonic consciousness: western laws maintained by system of beliefs based in a liberal, market-driven economy. Laws reflect arbitrary interests of dominant class reification (“convert into something material”): first stage beliefs are reified into material thing. Presented as essential, necessary, objective. a. Denial: laws and legal thinking aid in denial of real truths. Assist in coping with contradictions. Denial when promise of certain state of law (equality) and reality (racism that is so prominent in society) iii. Judging with CLS R. v. R.D.S.: whether comments made by judge in decision as to current state of racism between police and minorities gave rise to a reasonable apprehension of bias (not impartial);Crown said she prejudged issue, basis not in evidence for conclusion; Judges must appear impartial; true impartiality when judges open to differing points of view; judges must ensure no word/action during trial might leave reasonable, informed person impression that issue predetermined or question decided on generalization; appropriateness of references to social context and whether reasonable apprehension of bias arises depends on facts of case; if no evidence linking generalizations to witness, judge may have reasonable apprehension of bias because credibility prejudged on generalization; reasonable and informed people may perceive judge used info as basis for assessing credibility instead of making genuine evaluation of evidence; Judge benefits from presumption of integrity, crown has onus to refute with “cogent evidence”; judge’s decision is restored. a. Concurrence: disagree that comments were “close to line”; reflect an appropriate recognition of facts in evidence and of the context well known to judge and any member of community (context of racism of police towards minorities); reasonable person expects judge influenced by individual perspectives on world in which events took place (contextual approach); Judge

recognized cops sometimes overreact with minorities, accounts for well known racial dynamics. b. Dissent: Did judge reach decision based on evidence or something else? (1) did judge properly instruct herself on evidence? (2) whether comments would cause reasonable person to apprehend bias?; whether racism exists is not issue, issue is whether there was evidence upon which to base a finding that cop was motivated by racism. Life experience is not a substitute for evidence; credibility is not tied to occupation or gender (can’t assume prostitutes consentcant assume cops are racist). d. Law and Economics i. Focus is on efficiency; applies economics methodology to legal rules to see if rules will result in efficient outcomes; “efficiency” is ideal where welfare of relevant parties can no longer be maximized except at expense of another party (“Pareto optimality”) ii. Public Law and Economic Theory: governments have to consider costs of providing/maintaining institutions of justice; economic approach in private law can be used to understand public policy goals. Public Choice Theory: fragmented groups are less effective than more concentrated groups in achieving political success; iii. Theme of public law is to show how common law has been displaced by policy formulation (legislation) as primary means of social regulation Duncan Estate v. Baddeley: e. Hill v. Church of Scientology i. Issue: whether the common law of defamation can be subject to charter scrutiny? constitutionality of the common law could be scrutinized in those situations where a case involved government action which was authorized or justified on the basis of a common law rule which allegedly infringed a Charter right a. When government action is challenged, whether it is based on legislation or the common law, the cause of action is founded upon a Charter right. The claimant alleges that the state has breached its constitutional duty. The state, in turn, must justify that breach. b. No government action, just because π is crown attorney does not make action ‘governmental’ = no charter violation i. Charter creates duties to executive, legislative and judicial branch. Those actors cannot infringe charter rights  no reference to private parties Next step: should common law be changed to reflect the values of the Charter? Dolphin

Delivery Case a. Held common law could be subjected to charter scrutiny absent government action i. When private A sues private B relying on common law and with no government action, charter will not apply BUT the judiciary is able to modify the common law to adapt with Charter 1. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. 2. If court can balance the common law and Charter without upsetting balance between legislature and judiciary then it should b. 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 exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values.19 i. Charter values provide the guidelines to common law modification c. Common law of defamation complies with underlying values of charter and therefore no need to alter it f. International Law and the Public/Private Law Distinction g. Charter of Whiteness i. Focus on judicial reluctance to address racism in the justice system ii. Racial discrimination in preemptory challenges; challenges for cause iii. Looks at race based challenges for cause and recognition of racial profiling Sources of Law 1. Law and Aboriginal Peoples Indians, Inuits and Metis Federal Parliament has power over “Indians” and “lands reserved for indians” (s.91(24) Constitution Act 1867 Existing aboriginal and treaty rights recognized and constitutionally protected in s.35 of Constitution Act 1982 Mitchell v. MNR (What is the Nature of Aboriginal Rights?) o Fiduciary obligation to Indians by crown through crown assertion of

sovereignty over land and ownership of title i. Obligation to treat aboriginals fairly, protect from exploitation o Aboriginal interests and customary laws survived sovereignty and merged into common law as rights unless i. Incompatible with Crown’s assertion of sovereignty ii. Surrendered via treaty process iii. Government extinguished o s.35(1) Constitution Act 1982, gave constitutional status to existing common law aboriginal rights Delgamuukw v. BC (Aboriginal title to land) o Aboriginal title – interest in land arising due to group’s historic association with land i. Includes right to exclusive use and occupation ii. Arises from prior occupation; must be occupied and used in same way (if historically hunting ground, aboriginal title cannot be claimed unless continued use as hunting ground vs parking lot) iii. May not be alienated; if wish to use in way title does not permit, must surrender land and convert to non-title lands o Aboriginal Title Test: aboriginal group asserting title must satisfy i. Land was occupied prior to sovereignty; ii. If present occupation relied on as proof of pre-sovereignty occupation, must be continuity between pre-sovereignty and present occupation; and iii. At sovereignty, occupation must be exclusive 2. Canada’s Common Law and Civil Traditions Reception of European law o Rule of conquest applied to central Canada; rule of settlement everywhere else o Rules of reception dictated entire body of English law (statutory and common) imported into settled colony Nature of Common and Civil Law o Common Law: judge made law, based on precedent i. Modern: not exclusively case law, statutes now seen as part of common law o Civil Law: not based on cases, but primarily on general written laws (codes, legislation) i. British common law basis for private law in all provinces except Quebec; Quebec private law based on French civil law Operation of Common Law and Precedent o Stare decisis is principle of precedent i. All courts (except SCC) bound to follow SCC precedent and any pre 1949 decision of Privy Council that has not been overruled; minority opinion of SCC not binding ii. Provincial courts of appeal not bound by PCA of other province; bound by own prior precedent

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iii. Lower provincial courts bound to follow provincial appellate court iv. Decision of court of coordinate jx is not binding but is highly persuasive v. Advantages a. Stability + coherence + certainty = predictability b. Fairness c. Promotes efficiency + eliminates errors (bias) d. Fulfills role between judiciary and legislative e. Room for growth vi. Disadvantages a. Rigid (must follow decision even if poor) b. Bulk + complex = lay people do not understand c. Slow growing o Every case has two points of view; (1) narrowest rule that a later unkind court will concede has been laid; (2) widest rule that a later friendly court could use to support novel position i. Bhadauria (wide reading): wide reading of judge’s reasoning to “advance common law” by gap filler, narrow reading applied in Canada Trust ii. Canada Trust Co. v. Ontario Human Rights Commission (narrow reading) a. Jx issue between Human Rights Commission and Court b. Procedure provided for in code must be pursued before resort to court; this issue is not a typical human rights proceeding however c. There is no gap in the common law, here is the administration of a trust which superior courts have had inherent jx d. Remedial measures given to human rights board do not give them power to alter or void terms of a trust because those terms may be in violation of human rights code Common Law and Equity o Equity: body of law developed by court of chancery before its dismantling i. Allows for exigencies of special case; tied to conscience, morality and conduct vs the law a. Modern: equitable jx = body of rules, principles, doctrines with a commitment to conscience and moral based decision making o Re DeLaurier: overruled parental right to religious upbringing of child based on best interests of the child = exercise of courts equitable jx to override statutory rights in certain circumstances o Guerin v. Canada: equitable relationship of fiduciary duty arises between Crown and aboriginals. Aboriginal title to land is inalienable except upon surrender to Crown  Crown must act on Indians behalf.

Purpose of the surrender requirement is to avoid 3rd party exploitation of Indians. i. Rule: where on party has obligation to act for benefit of another, obligation carries discretionary power and that party is a fiduciary  Equity will supervise the fiduciary relationship o KLB v. BC: fiduciary duty to promote best interests of foster children while in foster care not implied by statute because statute implies children be nurtured in private home  eliminates govt’s capacity to supervise day to day conduct of foster parents i. Superintendant may have been negligent but no evidence that govt (through superintendant) put its interests ahead of foster children 3. International Law Domestic law: legislation enacted by legislature or made as regulations; comes in form as Common law (outside Quebec); top is Constitutional Law International Law: (1) treaty/convention; and (2) customary international law o Treaty/Convention i. contract between states; ii. binding on states that are parties iii. content from text o Customary International Law i. Binds all states except those that have rejected before became binding norm ii. Formed by state practice + opinio juris (legal obligation) = legally binding as customary international law International Law as part of Canadian Law o Once treaty signed + ratified = binding on Canada, compliance or contravention i. Domestic law must not run counter to binding international law o Receiving Treaties into Domestic Law and Questions of Legitimacy i. Dualist jx: there must be an act of parliament (federal or provincial legislature) to transform treaty into Canadian law ii. Problem: federal and provincial leg’s may face problem where laws are not consistent with treaty a. They can reject the international obligation, putting Canada at risk of contravention; or b. Stamp approval by changing laws to adhere to treaty concluded exclusively by fed exec branch o Customary International Law Reception and Legitimacy i. Once rule recognized as customary law, automatically part of Canadian common law (monist vs dualist) a. can be overturned by contrary legislation 4. Statutory Law Statutes and Common Law o Statutes will supersede common law (judge made rules) o Statutes covering common law issues (1) fill a gap that CL does not

address; (2) override CL with leg in pursuit of public policy that CL does not support o Halpern v. Canada: i. I: whether exclusion of same-sex couples from CL def’n of marriage breaches charter and is not justified under s.1? ii. R: CL is subject to charter scrutiny where gov’t action based on CL rule  CL rule is marriage = one man + one woman iii. A: (1) parliament has authority to make laws re: marriage; (2) to freeze meaning of marriage to 1867 meaning is contrary to progressive jurisprudence and constitutional interpretation (living tree)  constitution drafted with eye to future, constitutional flexibility to meet changing realities iv. C: CL subject to charter scrutiny; CL def’n of marriage violates charter and is not justified 5. ARTICLE – “Bijuralism and Harmonization: Genesis” Bijuralism: co-existence of English common law and French civil law within country organized along deferral lines Common Law Tradition (judge made) o Inductive (specific to general), generalizing common points in distinct cases to establish legal categories with vague foundations and flexible limits Civil Law Tradition (codified) o Emphasis on what is written rather than judge-made o Deductive (general to specific) o Sources of Law: (1) code; (2) la doctrine: legal scholarship; (3) prior decisions (never course of legal rules as in common law) Language o Common law established in English; Civil law established in French i. Translation results in problems for practice of common law in French and civil law in English ii. Neither language has authority over the other. Equally important Bilingual Legislation o Must be bilingual and bijural = apply consistently in all provinces and drafted in both languages in a manner that is compatible with both systems o 4 different groups addressed: (1) Anglophone common law lawyers; (2) francophone common law lawyers; (3) Anglophone Quebec civil law lawyers; (4) francophone Quebec civil law lawyers o difficulty is in expressing notions of civil law in English and common law in French Interpreting Bilingual Legislation o Equal Authenticity Rule: English and French versions of a statute are equally authentic and authoritative (neither is a copy or translation, neither has paramountacy) i. Authenticity requires the extraction of the “highest common

meaning” when courts interpret bilingual leg o Reader of legislation, no matter his language, must find wording respectful of concepts and institutions to legal system in effect in relevant jx o Where blatant conflict between English and French versions, courts look to leg history, purpose and object of statute to extract highest common meaning of both versions Harmonization o No general federal judicially created common law to fill gaps where parliament has not legislated. Law of Quebec (civil law) called upon as droit commun with respect to matter within federal competence when that jx has not been exercised by federal parliament i. civil law is the gap filler Convergence and Progess o Common law and civil appear to be moving farther from each other. This is evidenced by (1) frequent contact with other legal systems (2) growth in sources of international law (3) mobility of persons (4) influence of media (5) indigenous reference works and (6) growing use of legislation o Convergence of both systems seen through acceptance in Quebec of common law tradiation – The Trust i. Also when common law courts apply and interpret substantive civil law 6. St. Hilaire v. Quebec F: Wife convicted of manslaughter of Husband; She applied as surviving spouse to benefit from Superannuation Plan. I: If a fed statute is silent as to a matter of civil rights, does the common law apply or does the civil code of Quebec? R: If civil rights in dispute and federal statute silent, apply private law of province to fill gap (suppletive) A: A Quebec litigant involved in an action pertaining to his civil rights under a federal enactment that is silent in this regard is entitled to expect that his civil rights will be defined by the Quebec civil law, even if the adverse party is the federal government. The rule that one should not profit from one's own crime was developed primarily in the context of the law of wills, intestate succession and insurance. Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces. To "succession" without defining it, should be interpreted in Quebec in light of the civil law. C: applicable law is civil code of Quebec, which says wife is unworthy of inheriting

7. Indigenous Legal Traditions – John Burrows Intro o Laws are to be interpreted in manner consistent with preservation and enhancement of multicultural heritage o Charter rights empower people to practise culture and traditions subject to only such reasonable limits presecribed by law and demonstrably justified in free and democratic society Legal Pluralism in Canada o Legal Tradition: set of deeply rooted historical attitudes about nature of law, role of law in society and its organization and operation of legal system o Legal Pluralism: simultaneous existence – within a single legal order – of different rules of law applying to same situations o First treaties of NA involved indigenous law before Euro arrival  continuation of treaty rights and obligations entrenches continued existence of indigenous legal traditions in Canada o Doctrine of Continuity: original application of CL recognized continuity of aboriginal customs, laws and traditions upon Crown’s assertion of sovereignty; they were not terminated by European settlement o Indigenous legal traditions continued to exist in Canada unless (1) incompatible with Crown’s assertion of sovereignty (2) surrendered voluntarily via treaty process (3) government extinguished them i. Based on customs and practices ii. Best understood through customary law; memory devices important; oral history; iii. Elders and wisdom keepers identify and communicate law Relationship of Canada’s Legal Traditions o Bijuralism is problematic as it does not include Indigenous traditionsbetter described as multijuridicial o Ways Canada could recognize and develop Indigenous legal traditions i. Indigenous governments to determine legal issues within their own communities in accordance with their values ii. Indigenous Courts and Dispute Resolution Bodies would create greater accountability and legitimacy if own institutions were able to resolve disputes. a. Power of aboriginal people to judge and hold their own

members accountable is aboriginal right prior to arrival of Euro Conclusions o Recognizing indigenous legal traditions would facilitate rule of law within indigenous communities as they lived closer to their values and principles o Greater responsibility for affair, allow them to hold gov’ts and one another accountableGuzman 8. Baker v. Canada I: whether federal immigration authorities must treat best interests of child as primary consideration in assessing an application for humanitarian and compassionate considerations under the Act, given that the legislation DOES NOT implement the provisions contained in Convention on the Rights of Child? R: international convention ratified by exec branch of govt is of no force in Cdn law until incorporated into domestic law via implementing legislation A: International treaties/conventions not part of Cdn law unless implemented by statute o Values in int’l human rights law may help inform contextual approach to statutory interpretation and judicial review 9. De Guzman v. Canada F: woman sponsored by her mother and got residency in Canada; came with her daughter, did not say she had other children or that she was married; later tried to sponsor two sons from Phillipines, application was rejected because they were not initially examined for immigration purposes I: Is IRPA invalid because it is non compliant with int’l human rights instruments that Canada is a signatory to? R: IRPA must be construed and applied in manner consister with int’l human rights instruments to which Canada is signatory o Binding conventions: IRPA construed and applied in manner consistent o Non binding: persuasive and contextual, not determinative A: domestic law (IRPA) not overrode by int’l instruments, only explicit indication by parliament could make that happen C: If not incorporated into domestic law, only persuasive Fundamental Principles of the Canadian Legal System 1. Recurring Constitutional Principles in Canadian Public Law Definitions o Rule of Law: all exercises of legit public power must have source in law and every state official or agency is subject to constraint by law o Constitutional Supremacy: constitution is supreme law, any inconsistent ordinary law is of no force or effect o Separation of Powers: public power is exercised through three institutional branches at federal or provincial levels – the legislature, executive, and judiciary – each carrying its own function -

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o Parliamentary Supremacy: subject to constitution, leg branch is holder of all legit public power and may enact any ordinary statute law and delegate power as it deems fit o Federalism: legislative sovereignty divided between national legislature (parliament) and provincial legislatures, according to law making powers or jx’s set out in constitution o Judicial independence: judicial branch of state must have sufficient institutional independence Constitutionalism in Canada o What Comprises the Constitution of Canada? i. Constitution Act 1867: gave federalism ii. Constitution Act 1982: gave Charter iii. 2 sources of unwritten constitutional norms a. Constitutional conventions; come into existence based on 3 factors i. Practice or agreement by political actors; ii. Recognition by political actors that they are bound to follow convention; and iii. Normative reason/purpose b. Unwritten principles of constitution iv. The Patriation Reference a. Constitution consists of written statutes and common law rules = “law of constitution” enforced by courts b. Purpose of constitutional conventions is to ensure legal framework of constitution operated in accordance with prevailing constitutional values of period c. Establishing a convention i. What are the precedents? ii. Did actors in precedents believe they were bound by rule? iii. Is there reason for a rule? = federal principle d. Conclusion = agreement of provinces of Canada (no ruling on quantity) is constitutionally required for passing a resolution v. Reference re Secession of Quebec a. Issues: (1) under constitution of Canada, can Quebec effect secession from Canada unilaterally? (2) Does int’l law give Quebec right to effect secession unilaterally? (3) if conflict between domestic and int’l law on right of Quebec to effect secession unilaterally, which would prevail in Canada? b. 4 relevant constitutional principles i. Federalism ii. Democracy iii. Constitutionalism and Rule of Law

iv. Respect for Minorities c. Principles assist in interpretation of text i. Essential to evolution of constitution as “living tree” d. The principles are not just descriptive but have normative force and binding on courts and gov’t i. Substantive role is to fill gaps in text, not override it o The Principle of the Rule of Law i. Constitutionalism vs Rule of Law a. Constitutionalism (s.52(1) of 1982 Act) means constitution is supreme law of Canada and any inconsistent law with constitution is of no force or effect = all gov’t action must comply with constitution b. Rule of Law: all gov’t action must comply with law, including constitution; the most powerful state organs and officials are subordinate to the law – broader than constitutionalism ii. Roncarelli v. Duplessis a. F: Liquor Comm. revoked license of restaurant owner because he supported Jehovah group b. I: was the revocation within jx and discretion of administrator and commission? No c. R: no legislative act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however irrelevant, regardless of nature of statute\ d. A: “discretion” implies good faith; to deny license based on something totally irrelevant to sale of liquor is beyond scope of discretion; administration according to arbitrary likes and dislike of officers acting beyond their duty would damage rule of law iii. BC v. Imperial Tobacco Canada Ltd. a. F: Tobacco Act creates CoA vs manufacturers for Gov’t to recover costs associated with tobacco with a reverse onus on the manufacturer b. I: does the act violate the “rule of law”, rendering it constitutionally invalid? No c. R: unwritten constitutional principles, including rule of law, are capable of limiting gov’t actions d. A: rule of law 3 principles i. Law is supreme over officials of govt as well as private individuals = legislation applies to all those specified in its terms ii. Creation and maintenance of actual order of

positive laws which preserves and embodies more general principle of normative order = legislation must exist iii. Relationship between state and individual be regulated by law = state officials actions be legally founded e. C: Act does not breach rule of law, can’t displace written laws with unwritten laws…unwritten laws give effect to those that written i. Ex: there is rule of statutory interpretation that statute should not be retroactive UNLESS it is clearly expressed, as this one was iv. BC v. Christie a. I: whether general access to legal services in relation to court/tribunal proceedings dealing with rights and obligations is a fundamental aspect of rule of law? No b. A: 3 principles of rule of law (1) law is supreme over officials of govt as well as private individuals, thereby preclusive of arbitrary power (2) requires creation and maintenance of actual order of postitive laws which preserve and embodies more general principle of normative order (3) relationship between state and individual be regulated by law i. If rule of law implied right to counsel in relation to all proceedings, why have s.10(b) (right to retain and instruct counsel on arrest or detention) and s.7 (right to counsel when life, liberty, security of person affected)? c. C: Text of constitution, jurisprudence and historical understanding do not foreclose that the right to counsel may be recognized in specific situations, but there is no general constitutional right to counsel in proceedings dealing with rights and obligations v. Reference re Secession of Quebec (re Rule of Law) a. Elements of rule of law i. Law is supreme over govt/individual acts = one law for all ii. Creation and maintenance of actual order of positive laws which preserves and embodies the more general principle of normative order iii. Exercise of all public power must find its source in legal rule = relationship of state and individual regulated by law b. Constitutionalism and Rule of Law

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i. Constitutionalism requires all govt action to comply with constitution and rule of law requires that all govt action comply with the law, including the constitution ii. Constitutionalism and Rule of Law important in answering why constitution is beyond reach of majority rule? 1. Safeguard fundamental human rights and individual freedoms from govt interference 2. Ensure vulnerable minorities given institutions and rights necessary to maintain and promote identities against assimilation into majority 3. Division of political power amongst different levels of gov’t vi. Hierarchy of Law a. Ordinary law: statute > common law i. Parliamentary supremacy: common law can be overridden through statute by legislature ii. Statute must be consistent with constitution b. Adjudication: legislature checked by judiciary i. Judicial independence: ability to interpret and apply constitution w/out political interference ii. Independent courts have final adjudicative word 1. Administrative and Tribunal decision can be reviewed by a board c. Counter-Majoritarianism: power to interpret and enforce constitution against majority preferences d. Amendment by Super Majority: majority of both federal and provincial govt’s to agree on proposed changes The Exercise of Public Power in Canada o The Principle of Separation of Powers i. Each branch defined by relationship to law: a. Legislative: make law b. Executive: implement law c. Judicial: interpret and apply law ii. Distinction between the leg, exec, and jud has 2 purposes: a. Functional purpose – identifies institutional homes of 3 major forms of public power; and b. Normative purpose – general boundaries for each institution iii. Canada (Prime Minister) v. Khadr a. K, cdn citizen in Gitmo, request repatriation to

Canada which is denied b. SCC found Gitmo violated rights and denial to bring back to Canada violted his rights c. Issue is whether its appropriate to require gov’t to make a request for repatriation? i. His rights were violated violated, but what is the appropriate remedy? 1. Is remedy sufficiently connected to charter and breach; and a. Yes 2. Is it inappropriate because it would infringe Crown’s prerogative power over foreign affairs a. Yes, prerogative power is residue of discretionary and arbitrary authority legally left to crown over matters that have not been taken away by parliament (foreign affair leg has not taken prerogative power of crown over foreign affairs away) o Legislative Power – fed/parliament (house of commons + appointed senate and elected leg’s in each province i. Principle of Parliamentary Supremacy a. Prov and fed leg hold own state authority subject to ss. 91 and 92 which divided that authority (federalism) b. Constitution Act 1982 changed Canada from parl. Supremacy to constitutional supremacy i. S.33 still encompasses parliamentary supremacy by allowing leg’s to override certain charter rights c. Babcock v. Canada i. I: what is nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished? Is s. 39 of Canada Evidence Act constitutional? ii. R: (1) cabinet confidentiality is essential to good govt (2) a challenge based on unwritten principles of rule of law, judicial independence and separation of powers must be balanced against principle of parliamentary sovereignty iii. A: (2) unwritten principles can limit govt action, but do not here because rule of law

does not “preclude special law w/ special result dealing w/special class of docs which, for long standing reasons based on const. principles such as good government, have been treated differently from private docs iv. C: Within power of leg to enact laws as long as they don’t fundamentally interfere or alter rel’ship btwn courts and other branches of govt ii. Principle of Federalism a. Divides power between fed and prov; residual law making related to peace, order and good government (POGG) to parliament b. Unwritten principle of constitution providing a “means of recognizing cultural diversity (specifically the ability of minority to be prov majority as Francophones in Quebec) c. Reference re Secession of Quebec i. Underlying principle of federalism in interpreting constitution  recognizes diversity and autonomy of prov govt to develop their societies ii. Facilitates pursuit of collective goals by cultural and linguistic minorities which form a majority within a particular prov (Quebec) d. Federalism and HR Leg i. Prov leg: all prov have enacted HR codes to regulate areas of “PROPERTY AND CIVIL RIGHTS” ii. Fed leg enacted Cdn HR Code to cover fed regulated areas (Banking, military, etc) o Executive Power i. Exec subordinate to legislature; derives all power from laws/statutes passed by leg a. Executive = all ministries of govt and their employees (civil service) i. Also crown corps, armed forces b. Through statute, legislators delegate elements of sovereign power to executive actors (Cabinet member, minister of Crown, public official) c. Executive is responsible for legislature = responsible govt o Judicial Power i. General a. S.96 – fed exec shall appoint judges to superior, county and disctrict courts; provinces have power to

appoint to non s. 96 courts b. S. 101 – parliament has power to create courts for (1) better admin of laws of Canada/passed by parliament and (2) general courts i. (1) trial level fed court of Canada and federal CoA ii. (2) SCC = general CoA in Canada c. 2 public law powers in core jx of superior cts = (1) jx to rule on constitutional validity – Con law Power (2) jx to supervise activities of exec govt and other statutorily delegated officials – Admin Law power ii. Judiciary’s Constitutional Law Jx a. Jx to rule on constitutional validity of ordinary laws i. If unconstitutional = invalid, no force & effect b. S. 24 Charter authorizes courts of competent jx to grant remedies for charter breaches (like exclusion of unlawfully obtained evidence from Crim process) iii. Judiciary’s Administrative Law Jx a. Make sure exec acts w/in delegated statutory authority i. Limited by and to jx granted through statute from leg b. All persons adversely affect by govt action petition for “judicial review” of whether exec official has acted within bounds of statutory power iv. Principle of Judicial Independence a. Ensure judges are able to decide individual cases on merits without interference b. Essential to free, just and democratic society that judges are not swayed by other branches of govt i. Tied to separation of powers 2. Reference re Secession of Quebec - 4 unwritten principles of Constitution (make up structural framework); do not dispense of written text of constitution - unwritten principles held interpret constitution, enable flexible approach (living tree) - 4 Principles o Federalism i. Facilitates pursuit of collective goals by cultural/linguistic minorities which for majority in particular province ii. Recognizes diversity of component parts of Confederation, and autonomy of provincial govt’s to develop their societies within their jx’s o Democracy i. Political system of majority rule = sovereign people exercise

right to self-governance through democratic process a. Institutional: provincial leg’s and fed parliament elected by popular franchise b. Individual: right to vote and be candidate c. Court: process of representative and responsible govt and right of citizens to participate as voters and candidates ii. Committed to considering dissenting voices which leads to political debate and negotiation o Constitutionality and Rule of Law i. Law is supreme over govt and private actors ii. Requires creation and maintenance of actual order of positive laws which preserves normative order iii. Relationship between state and individual regulated by law iv. Constitutionalism requires vs Rule of Law a. Constitutionalism = all govt action comply w/constitution b. Rule of Law: all govt action comply with law, including constition v. Why constitution is beyond reach of majority rule? a. Safeguard fundamental human rights/freedoms b. Protection of vulnerable minorities vs assimilation c. Allocation of political power amongst different levels of govt o Respect for Minority Rights i. Explicit provisions protecting minorities is part of more general principle of protection  lead to Charter creation 3. Singh v. Canada - F: Indian refused refugee status; argued s.39 of Evidence Act is “ultra vires” (beyond the power) o S.39 allows member representative of crown (here, tribunal, exec) refuse disclosure of docs w/out exam by court - I: is s.39 ultra (beyond the power) or intra (within the power) vires, based on the 4 unwritten principles of Constitution? - A: went through Singh’s 4 principles o Parliamentary Sovereignty i. Leg, through parliament, not courts, set constitutional boundaries ii. Courts give meaning to constitution only by interpreting and finding leg’s intent WHEN not explicitly stated o Separation of Powers i. Each level of govt must not overstep boundaries and play their proper role HOWEVER each must show proper deference to the other ii. Executive, based on act of parliament, should be able to identify docs generated in its internal decision making

process which should not, for integrity of system of Cabinet secrecy, be disclosed o Rule of Law i. the rule of law cannot be taken to invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure ii. the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit. o Judicial Independence i. Provision does not interfere with (1) security of tenure; (2) financial security; (3) administrative indep. of judges ii. Provision only bars court from reviewing cabinet docs a. Prirative clause: legislative clauses that can preclude courts from reviewing findings of fact made by a tribunal where fact finding is done wthin its jx - C: s.39 is intra vires = OKAY, Singh loses 4. Reference re Remuneration of Judges - I: The powers of the provincial legislatures to reduce the salaries of the provincial court judges was challenged as a violation of section 11(d) of the Canadian Charter of Rights and Freedoms, which gives an accused the right to be presumed innocent until proven guilty "in a fair and public hearing by an independent and impartial tribunal" - R: there is a constitutional norm that protects judicial independence of ALL judges (not just superior judges) - A: 3 requirements of judicial independence and 2 types of independence o Requirements of Judicial Independence i. Security of tenure ii. Financial security iii. Administrative independence o Types of Judicial Independence i. Individual (judge) ii. Institutional (court) o There are gaps in written constitution re judicial independence i. Ss.96-101 only protects financial security of superior, district and county judges; s.99 only protects superior court judges; s.11(d) only applies to courts w/jx over offences ii. Unwritten principles applied to fill in gaps a. Unwritten principle of judicial independence applies to ALL judges o Establishment of independent judicial salary commissions to set salaries of all judges i. Depoliticizes relationship btwn judiciary, leg and exec regarding wages of judges

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o If remuneration of provincial judges is to be raised, lowered or kept the same, this may be done along with the remuneration of other government employees or with the judges' alone. i. The continued independence of judges, however, will be kept apparent in any of these circumstances if it involves review by an "independent, effective, and objective" body, i.e. the salary commissions. C: SCC recognized judicial independence is unwritten rule of constitution o Salary commissions must give report, they are not binding but should be taken seriously i. PEI and Alb did not consult commission nor have them  breach of s.11(d) ii. Mb did not use its commission  unconstitional

Parliament and the Legislative Process 1. Structure and Operation of Parliament - Constituent Parts of Parliament of Canada o Monarch and Governor General i. Queen is official head of state; powers exercised by gov gen ii. O’Donohue v. The Queen a. I: Is Act of Settlement (which sets up succession as to monarch) violation of s.15(1) of Charter? b. R: Charter cannot be used to trump another part of our constitution c. A: constitutional monarchy is at root of constitutional structure and fundamental to constitutional framework. Rules of succession and requirement that they mirror Great Britain are necessary to proper functioning of Constitutional monarchy (preamble of constitution) not subject to charter scrutiny d. C: no issue to be tried, outside charter scrutiny iii. Monarch appoints gov gen, following cdn PM recommendations o Senate: unelected upper chamber of fed leg, gov gen follows advice of PM i. Brown v. Alberta a. Challenged appointment of senators by gov gen as contrary to democratic principle and in order to be in conformity with those principles, must follow Alberta statute, making senators have to be elected b. Court says they cannot rule on the appointment process because there is no legal issue and w/no legal issue, no jx ii. Samson v. Attorney General a. Applicants challenging gov gen’s constitutional

power of appointment b. Court held limitation on power only via constitutional amendment; issue is political and not legal  relief attained in political arena through constitutional amendment o House of Commons (elected) i. Based on electoral disctricts/ridings; each riding elects 1 member a. “Single Member Plurality” aka “First Past the Post” = in every district, candidate w/most votes wins seat in HoC, represents that district as MP ii. Saskatchewan Reference a. I: what is the meaning of the “right to vote” b. R: Right to vote means “effective representation”; unlike USA “one person, one vote” c. A: absolute parity (US system) is impossible; can’t draw boundaries which guarantee same # voters/district i. Geography, community history, community interests and minority representation justify departure from absolute voter parity ii. Absolute voter parity does not permit sufficient flexibility (living tree) to meet difficulties inherent in representative govt in Canada; effective representation does d. C: no charter violation iii. Canada’s Electoral System a. Each party endorses one candidate/riding (candidates w/out party designation = indep) b. Political party have constitution, by-laws, elects leader and officials, endorse candidates for election into HoC c. After election, party w/most elected representative is governing party; leader is PM d. Party in 2nd becomes “Official Opposition” i. All elected officials have seat in HoC iv. Figueroa v. Canada a. I: is a law that restricts access to certain benefits to political parties that have nominated candidates in at least 50 electoral districts a charter violation? Yes b. R: every citizen has a right to play a meaningful role in the electoral process c. A: the law infringes s.3 as it undermines capacity of indiv. Citizens to influence policy by introducing ideas and opinions into public discourse and debate through participation in electoral process and

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undermines right to vote i. Irrespective of outcome of election, a vote for any candidate is an expression of support for particular ideas  no wasted votes ii. Oakes Analysis (there is charter violation, can it be saved under s.1 = no) 1. Is objective of legislation pressing and substantial to warrant a violation? a. Cannot be trivial 2. If (1) passed, govt must show infringement is proportionate a. Rationally connected to objective b. minimal impairment to charter right c. salutary benefits > deleterious effects iii. govt cannot satisfy (2) Oakes d. C: the law is not justified and is therefore a violation of s.3 of Charter Bring the Constituent Elements of Parliament Together o Summoning: gov gen calls Parliament to session on advice of PM i. Formal opening of parliament: Oath of allegiance + election of speaker ii. Speech from the throne: formally opens first session and any subsequent session iii. Address in reply to speech of throne: House returns from Senate after speech from throne; routine motion by PM that throne speech be considered o Prorogation: ends session but does not dissolve parliament i. Abolishes all pending leg and further committee activity ii. Between prorogation and next session, house is in recess iii. Ends parliamentary session (usually when agenda of speech from throne is completed) a. Remains in recess until gov gen or liutenant gov (province) summons iv. Used by PM Harper to stave off vote of non-confidence a. Postponed vote, asked gov gen for progogation to prevent planned no confidence vote, 8 weeks later upon return, opposition coalition collapsed o Dissolution i. Parliament must dissolve and have elections at least every 5 years ii. PM must resign or seek parliamentary dissolution after “no confidence” vote by House a. A lost vote is not a loss of confidence

iii. 3 types of confidence votes a. explicitly worded i. state expressly that house has lost confidence ii. govt made; govt states that if a motion is defeated by house, it will resign or seek disollution iii. implicit (rare); usually involve supply b. lost votes on items central to govt policy not stated to be confidence votes i. can become retrospective confidence votes if govt seeks disollution or resigns 2. Key Actors in Parliament - Political Parties o Success of motions determined by whether it gets a majority of votes o Person who is leader of majority of the house is PM - The Speaker o MP elected as speaker by other MP’s o Powers set out in “standing orders”  procedural rules established by HoC pursuant to their parliamentary priv o Highest authority in HoC o Roles i. Spokesperson: speaks on behalf of HoC ii. Presiding Officer: maintain order in debate and apply and interepret practices and tradition of HoC a. Relying on standing order (rules of house) b. Never participates in debate c. Impartial iii. Maintaining Order a. Strongest penalty speaker has is to “name” a member i. 2 options 1. withdraw for rest of day 2. wait for house to take disciplinary action which may result in suspension from HoC (serious) - Parliamentary Committees o Committess of the Whole (House): entire membership of HoC o Standing Committees: parallel govt depts. whose policy, programs and budgets they estimate and examine o Legislative Committees: examine and report on bills o Special Committees: “task forces” established by motions to study specific matters o Joint Committees: members of both HoC and Senate o Subcommittees: standing committees delegate part of their mandate or task to smaller group 3. Parliamentary Procedure

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Sources of Parliamentary Law o Constitutional and Legislative Bases: Parliamentary Privilege i. Starting point is constitution, incorporating Britisish parliamentary tradition in preamble ii. Parliamentary Privileges: rights necessary to ensure leg’s can perform their functions, free from interference from Crown and courts iii. Canada (House of Commons) v. Vaid a. I: Can Cdn Human Rights Comm. investigate firing of Vaid (driver of Speaker)? b. R: member seeking to invoke PP must show activity for which PP is claimed so closely and directly connected to fulfillment of assembly or its members of their functions as a legislative body, that outside interference would undermine level of autonomy required c. A: to apply PP to the firing of a driver would be too broad an application of PP’s scope considering it’s purpose d. C: π has not shown PP in broad and all inclusive terms. Dismissal of driver is subject to HR investigation o Standing Orders i. Rules of procedure adopted by simple majority vote (if silent, decided by Speaker) Parliamentary Law Making o Scope of Parliament’s Law-Making Jx i. Parliamentary Supremacy: parliaments and prov counterparts only true sovereign body in Cdn Con law a. Still limited by Constitution (division of powers and rights protected by Charter) ii. Power to Pass Bad Laws a. Bacon v. Saskatchewan Crop Ins. Corp. i. I: leg passed to extinguish any claims for BoK that might arise as result of new leg ii. R: law is subject to change through leg and when it is changed it is the law for all iii. A: public protection from arbitrary use of power by legislators is ballot box iv. C: no basis to challenge validity of leg b. Turner v. Canada i. I: ∆ in another lawsuit in Yukon when leg amendment passed w/retroactivity deprived him of defense ii. R: action against Crown based on allegations that Parliament was induced to enact leg

through tortuous conduct of Ministers is not justiciable iii. C: dismissed c. Wells v. Newfoundland i. I: can parliament escape financial obligations to former office holders who lost their jobs through leg, w/out explicitly stating so in the new leg? No ii. R: In the absence of clear express intent to abrogate rights and obligations, those rights remain in force iii. A: Gov’t cannot simply rely on separation of powers to avoid consequences of actions. Leg has the power to expressly terminate K w/out compensation but if they do not expressly state, not up to executive and judiciary to enforce. iv. C: Crown had obligation which was not expressly taken from him through leg TF entitled to compensation iii. Power to Follow Unfair Procedures a. Any attempt by courts to scrutinize procedure by which laws are passed would violate PP i. Leg decision making is not subject to duty of fairness ii. Courts come into picture AFTER leg is passed, not BEFORE b. Authorson v. Canada i. I: Does the Bill of Rights require Parliament give just compensation to veterans? 1. Parliament passed leg that made debts held in trust to veterans unenforceable ii. R: Due Process cannot interfere with right of leg branch to determine its own procedure  no DP right against duly enacted leg unambiguously expropriating property interests iii. A: legislative decision making is not subject to any known duty of fairness. Due Process protection in Bill of Rights do not grant procedural rights in process of leg enactment iv. Ethics in Law Making a. Individual parliamentarians are not sovereign; subject to statutory and internal procedural rules b. Conflict of Interest i. Real: situtation where minister of Crown has

knowledge of private economic interest sufficient to influence ii. Potential: where minister finds himself in situation where existence of some private economic interest could influence exercise of duties provided that they have not yet exercised iii. Apparent: reasonable apprehension, which reasonably well informed persons could properly have, that a conflict exists c. Techniques to control COI’s i. Disclosure: personal interest is made public ii. Avoidance: divesting interest iii. Withdrawal: refrain from acting on certain matters d. Conflict of Interest Code for Members of HoC (213) o Parliament’s Law-Making Procedure i. Governed by rules of procedure of each chamber of Parliament (standing orders) ii. Public Bills a. Introduction b. 1st reading c. 2nd reading i. most important stage ii. principle and objected of bill debated and accepted or rejected d. Committee Stage i. Committee look over the bill, after done, order bill reported to house ii. Examined clause by clause e. Report Stage i. Members not involved on committee may propose amendments ii. No debate unless notice of amendments is given f. 3rd Reading i. formality before passage to senate g. Passage by Senate i. Must be passed in identical form by both houses ii. If so, passes back to house for royal assent h. Royal Assent and Proclamation i. Approval of Crown required for any bill to become law after passage by both houses iii. Private Bill a. Introduced by petition signed by interested parties

and presented in House by member who agrees to sponsor b. “Parliamentary Agents” authorized to promote private bills and find sponsors; member cannot be PA The Exercise of Executive Authority 1. The Rise of Administrative State in Canada - Railway Act 1851: regulatory functions (rates) given to board - Railway Act 1903: created Board of Railway Commissioners, vesting power of govt functions - WWI: fed govt intervention in economy  admin agencies (Board of Grain Supervisors  CWB) - Public Service Rearrangment and Transfer of Duties Act 1918: Governor in Council may transfer duties, functions, powers, control, supervision of any part of public service from one minister/department to another - Great Depression: New Deal Leg 1935 (creation of regulatory and adjudicatory agencies) - WWII: another govt intervention in economy  creation of crown corps o PEI Potato Marketing Board: regulatory power w/in jx of fed govt could validly be delegated to boards created and operated by prov govt and vice versa  creation of more indep admin agencies, interests of cooperative federalism 2. Executive Branch Defined - Crown o As symbol of monarchy, reference to executive branch itself o formal legal entity of govt o “Cabinet” – collective decision making committee comprising of PM (or premier in prov) and ministers i. 1867 Act: Privy Council ii. Privy Council and fed Cabinet are not same a. Gov Gen swears in Privy Councillors for life b. All Cabinet ministers are privy counselors BUT not all privy counselors are sitting cabinet ministers o Federalism: crown is divisible – govts or provs and fed are distinct - Prime Minister and Cabinet o PM presides over Cabinet i. Sole authority to determine who Gov Gen swears in as minister, who sits in Cabinet and what they do w/in, authority to remove ministers as well o Cabinet: supreme executive authority i. Determine legislative agenda and responsible for admin of indiv depts. o Separation of Executive and Leg Branches not absolute i. Responsible Government

a. Cabinet members drawn from leg branch  all ministers expected to be members of leg b. Ministry accountable to leg branch both collectively and individually i. Collective Responsibility: ministry maintain confidence of Parliament ii. Individual Responsibility: Public Service o Employees of ministries of govt (civil servants) = Politically Neutral o 3 principles structure relationship btwn Civil Service and Political Officials w/in govt i. Ministerial Responsibility a. Minister held politically accountable for all matters arising w/in dept, including policy decisions by civil servants ii. Political Neutrality a. Civil servants carry out responsibility loyally to govt in power w/out regard for own political views iii. Public Service Anonymity a. Bureaucrats should be held accountable to their political overseers, but not answerable to parliament o Fraser v. Canada (public officials owe loyalty to govt and should refrain from public criticism of govt policies) i. I: was it a violation to fire Revenue Canada employee after criticizing govt policy on metrification – Is loyalty to govt only related to employees direct professional responsibilities? No ii. R: fed public servants should be loyal to employer, govt of Canada, not political party in power. Public servant cannot engage in sustained and public attack on major govt policies iii. A: Some circumstances allow a public servant to actively and publicly express opposition BUT must not engage in sustained highly visible attacks on major govt policies  displayed lack of loyalty inconsistent w/ duties  public interest in actual and apparent impartiality of public service iv. C: dismissal was OK o OPSEU v. Ontario: prov legislation restricting prov civil servants political activities, including activites in fed politics, upheld o Osborne v. Canada: whether restrictions in OPSEU were consistent w/ Charter  fed statutory restrictions struck as contrary to free expression (overinclusive) Independent Administrative Agencies o Role similar to judiciary although scope is limited to defined area o Do not have to be independent although some circumstances require independence i. Human Rights Commission: indep admin agency, separate

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from Parliament, has security of tenure and operational independence. a. More judicial = more independence o Admin body is product of legislation that creates it (HR commission is product of Cdn HR Act) i. HR commission has authority to investigate complaints against fed govt, making indep critical a. Tribunal, at request of commission, inquires into complaints b. Commission can appear before tribunal, representing the “public interest” o Ocean Port Hotel v. BC i. I: what is the degree of independence required of members sitting on administrative tribunals who have power to impose penalties? ii. R: absent constitutional restraints, degree of independence required by govt decision maker or tribunal is determined by enabling statute  legislature or parliament determines iii. A: courts that are judicially reviewing admin decisions must defer to leg’s intent in assessing degree of independence. Where intention of leg is clear, no room to import CL doctrines of independence, even if inviting a. Tribunals span constitutional divide btwn judiciary and exec  they have adjudicative functions but ultimately part of exec branch under mandate of leg  not courts and TF don’t have same constitutional restraints b. Unwritten principle of Judicial Indep. is protected constitutionally but admin tribunals lack this, only applies to the judiciary o Bell Canada v. Cdn Telephone Employees Association: tribunal, thought not bound to highest standard of independence via unwritten constitutional principle of judicial indepedence, must act impartiality and meet relatively high standard of independence both at CL and under Bill of Rights Crown Corporations o Where there is strong commercial aspect to govt service, may require decisions be made free from political influences that may interfere w/ commercial objectives o Separate legal personality from govt o Deliver services that are of public importance (Canada Post) i. Eliminated or Privatized when judstification for providing service through crown corp can no longer be maintained (Air Canada) o Financial Administration Act: primary vehicle for accountability of fed crown corps  imposes standardized governance and

accountability requirements on listed crown corps i. Directive Power: authority for govt to intervene in mgmt of crown corp by directing BoD’s to follow particular course of actoin - Enforcement Bodies: Police and Prosecutors o R v. Campbell i. I: status of RCMP officer in course of criminal investigation ii. R: police are independent of control of exec govt iii. A: commissioner is not to be considered a servant or agent of govt while engaged in criminal investigation iv. C: police are answerable to the law and only the law o Krieger v. Law Society (Alberta) i. R: it is constitutional principle that AG must act independently of partisan concerns when supervising prosecutorial decisions and courts cannot interfere ii. A: subject to abuse of process doctrine, supervising one litigants decision making process – rather than the conduct of litigants before the court – is beyond legit reach of court - Municipalities and Other Elected Subordinate Bodies o East York v. Ontario: municipalities, as creations of province, may be altered by province w/out constraint o Shell Canada v. Vancouver i. I: what is the legal authority of a municipality to refuse to do business with companies that had business ties to South Africa during Apartheid era ii. R: Municipal authority could only exercised in relation to acitivites that fell w/in municipal purposes iii. A: city can only act for a “municipal purpose” and purples of influencing Shell’s business w/ foreign country was not related to health of welfare of inhabitants because outside territorial boundaries (narrow holding) a. Dissent (McClachlin): actions was w/in municipal authority  primary responsibility for deciding welfare of community belongs to municipality – courts w/no connection to local inhabitants usurp democratic process  “welfare of citizens” embraces immediate needs as well as psychological welfare (broad) iv. C: Municipal purposes having to relate more directly to matters w/in boundaries (narrow) o Spraytech: introduced concept of “subsidiarity  proposition that law making and implementation are often best achieved at level of govt that is not only effective, but also closest to citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity 3. Sources of Executive Power

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Prerogative Powers o Powers exercisable by Crown that do not arise from statutory grant i. Residual, pre existed legislature o Can be abolished via statute (parliamentary supremacy > prerogative powers) o Current PP’s include powers of appointment, foreign affairs, declare war, appoint ministers and convey honors o Black v. Chretien i. F: Chretien recommended not to give honor to Conrad Black ii. I: (1) Who in executive can exercise PP? (2) Is PM’s PP reviewable by court? iii. R: once a statute occupies ground formerly occupied by PP, crown may no longer act under PP, if no statute, PP exists a. (1) cabinet minister, including PM, can exercise PP b. (2) if individual claims PP violetes individual Charter rights, court has duty to review iv. A: (1) no statute displacing right to convey honors TF gov gen AND cab ministers can exercise  PM included (2) Black does not assert Charter claim. Controlling consideration for review is not source of PP but the subject matter. It is reviewable if it affects rights or legit expectations of individual  look at subject matter  no right or expectation of honors. Once exercise of PP is found beyond scope of review by courts, the motives behind a decision is not reviewable v. C: PM’s discretion to confer or refuse to confer an honor is not reviewable by court via PM’s PP Statutory Powers o Most executive powers come from delegation of authority by leg via statute i. Cannot delegate powers that exceed leg’s own powers ii. Delegation cannot amount to complete abdication of leg authority iii. Re Gray a. I: did legislation abdicate all powers of executive i. “Gov in Council shall have power to do and authorize such acts and things…” b. R: Parliament expressly enacted, when need arises, executive may for common defense make such order and regulations as they may deem necessary or advisable for security, peace, order and welfare of Canada. c. A: regulation passed to provide for security and welfare of Canada TF w/in scope of statute d. C: w/in leg authority of parliament to delegate to Gov in Council power to enact the impugned order in

council iv. A-G NS v. A-G Can (No swapping from Parliament to Provincial Legislators and Vice Versa) a. I: neither is subordinate body of other, issue is not whether one can delegate to other, but whether the other can accept? No b. R: Division of Powers ss. 91 and 92 (1867 Act) c. Parliament CAN delegate to administrative provincial bodies as opposed to provincial legislatures themselves (PEI Potato Board) - Limits on the Exercise of Delegated Authority o Exercise of delegated authority must be w/in confines of delegation itself i. Any act done outside boundaries of statutory delegation is unlawful o Delegated authority cannot be redelegated (one Agent cannot appoint another to perform duties of Agency) i. Except involving matters w/no substantial amounts of discretion and immaterial who actor is ii. Also subdelegation allowed when expressly provided in statute 4. The Nature and Function of Delegated Powers - Rule Making o Regulation making power delegated to cabinet or other bodies via Gen in Council o Regulations considered subordinate leg to statutes o Legislators delegate authority to enact rules that pertain to statute to those persons who are in charge with implementation of statute - Dispute Resolution o Admin agencies hear special kinds of disputes in similar way as courts TF adjudicate on existing law, do no initiate proceedings themselves, power to summons witnesses and award costs o Public policy is major consideration - Benefit or Obligation Determination o Benefit  admin decision makers empowered to determine whether person granted particular benefit (welfare, licence) o Obligation  initiated by imposing agency, requires affected person to take affirmative steps to protect interests if aggrieved o Concerns of fairness vs admin efficiency - Enforcement Decisions o Exec branch use of police and prosecutors to investigate and prosecute violations of statutory and regulatory requirements, commonly through the courts o Ex: Human Rights Tribunal - Overlapping Functions

The Courts and the Judiciary 1. Structure of Canadian Court System - Constitutional Framework of Judiciary o Constitution Act 1867 i. s.92(14) – gives exclusive power to prov. leg’s with respect to administration of justice in prov (civil and crim) ii. s.96 – GG (fed) appoints judges to superior prov courts, prov’s only create s.96 courts  limits prov’s ability to make appointments and pay prov court judges iii. s.100 – fed gov pays prov judges iv. s.101 – fed govt created SCC as general CoA for Canada, as well as fed court, fed CoA, tax court (all w/own leg) o In Re Residential Tenancies Act i. I: whether province was encroaching on fed govts s.96 power to appoint judges by creating its own quasi-judicial body to adjudicate in an area of jx that belongs to superior courts ii. R: provinces cannot enact leg conferring on tribunal jx of superior courts iii. A: 3 Part test to determine if provincial grant of power is valed a. (1) whether powers exercised by tribunal conformed to those under the “exclusive jx” of s.96 court at time of confederation (powers shared with inferior courts at confederation can validly be exercised by prov tribunal) b. (2) if yes to (1)  whether power is to be exercised in judicial manner – do tribunal’s proceedginds involve a dispute that is to be determined on solely legal grounds (as opposed to policy grounds) c. (3) Is “institutional setting” fundamentally judicial  whether tribunal is ancillary to broader admin scheme  if no broader scheme = unconstitutional - Overview of the Current Canadian Court System (chart p.295) o 4 Levels i. Provincial/Territorial Courts  hear fed/prov laws, most criminal and family (except divorce), youth, traffic, small claims, preliminary inquiries ii. Provincial/Territorial Superior Courts (s.96)  aka Superior Court of Justice, Queens Bench, Supreme Court (prov) a. Inherent jx: hear cases in any area except those specifically limited to another level b. Most serious criminal and civil, divorce, large amount of $ iii. Courts of Appeal  appeals from superior courts and

provincial courts, hear constitutional questions in appeals involving individuals, govt, and govt agencies iv. Supreme Court  final CoA, jx over all disputes, all other avenues must be taken before SCC, SCC must grant permission aka “leave” to appeal a. No leave required for (1) Crim case where CoA judge has dissented on interpretation of law and (2) acquiited in trial #1, guilty on appeal, auto right to appeal to SCC v. Specialized Federal Courts tax, military, immigration 2. Judicial Appointments - Controversy over manner in which judges appointed  models of appointment process (299-302) - Provincial Judicial Appointment Process o Selected by executive branch o Model varies in each province o Basic Model i. Advisory committee made up of legal community and lay persons ii. Accept applications and interview candidates before submitting list of recommendation to provincial attorney general - Federal Judicial Appointment Process o s.96 Courts, Federal Court, Tax Court i. appointed by GIC (cabinet) following review of candidates by advisory committee ii. SCC judges appointed directly by GIC o Non SCC Appointments i. Process a. Apply to commissioner for Federal Judicial Affairs b. Commissioners sends info to appropriate committee for assessment c. Independent Judicial Advisory Committee (IJAC)  assess the qualifications of each applicant i. Consist of 7 members representing the bar, bench and general public d. Federal appointments made by GG on advice from fed Cabinet e. Recommendation is made to Cabinet by Minister of Justice and by PM with respect to CJ’s f. Recommendation for appointment as judge made to Cabinet by Minister of Justice who has been advised by the IJAC ii. Criticism a. Too much discretion in govt (recommended vs higly recommeneded)

b. Candidates face no formal scrutiny and no info made public about candidate c. Patronage appointments: candidates who support party in power get appointed d. No requirement to follow IJAC recommendations o SCC Appointments i. 2005 Minister of Justice Proposal a. initial list of candidates made based on consultations b. IJAC would assess based on merit c. IJAC provides list of 3 d. Minister would look over and advice PM, PM makes recommendation to Cabinet e. Minister goes in front of justice committee after appointment to explain process and credentials of appointed 3. Judicial Independence - Sources and Scope o 1867 Act  ss.96-101 = appointment, tenure, remuneration of fed judges i. s.99 – fed appointed superior court judges are removable only for breach of “good behavior” before 75 ii. s.100 – salaries, allowances and pensions of superior court judges fixed and provided for by Parliament of Canada  guarantee financial security of judges of superior, district and county courts iii. 1867 only applies to superior courts judges o s.11(d) of Charter fills in gaps left by 1867 Act i. requires “independent and impartial tribunal”  institutional independence for provincial courts and provincial court judges ii. 3 requirements for “independent and impartial tribunal” a. Security of Tenure b. Financial Security c. Administrative Control w/ respect to Management of Court Business o Reference re Remuneration of Judges (“Provincial Judges Reference”) i. I: whether Judicial Independence is a written principle and limited to its express terms in 1867 and 1982 Acts, or is it an unwritten principle? ii. R: Judicial Independence of ALL judges is an unwritten constitutional principle iii. A: express provisions of constitution do not afford enough protection of judicial independence a. Problems w/reading s.96-100 (1867) and s.11(d) of Charter as exhaustive and definitive code for judicial

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independence i. Range of courts protected by express provisions of Constitution contains large gaps (para85, p.319) ii. Some the terms of the provisions (ss.96-100 and s.11(d)) do not speak to the objective of judicial independence b. Unwritten principles can be explained by reference to Preamble of 1867 Act i. Key in construing provisions and invites the use of those organizing principles to fill gaps in express terms of constitutional scheme iv. C: express terms of 1867 Act and Charter are not exhaustive code for protection of judicial independence. Judicial Independence is an unwritten norm, recognized and affirmed by Preamble of 1867 Act  Judicial Independence extends to all courts not just superior courts a. Ell v. Alberta  extends unwritten principle of judicial independence to those who exercise judicial functions – justices of peace – constitutionally required to be independent Assessing Independence o Test for Presence or Absence of Independence  whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status (Mackin) i. Requires Actual independence and Reasonable Perception of independence o Canada v. Tobiass i. I: whether judicial independence, or appearance of it, suffered as a result of private meeting between judge and senior justice official regarding pending casesYES ii. R: whether well informed and reasonable observer would perceive that judicial independence has been compromised. iii. A: independence of judges has two aspects; (1) institutional and (2) personal aka impartiality iv. C: judiciary should ACTUALLY remain independent and also APPEAR to be indpendent Dimensions and Core Characteristics of Judicial Independence o Core characteristics vs dimensions i. Core characteristics are distinct facts  tenure, financial security, administrative independence ii. Dimensions indicate which entity  individual judge or court or tribunal to which that judge belongs – is protected by certain core characteristics a. Sometimes a characteristics attaches only to a certain

dimension o 3 Core Characteristics i. Security of Tenure a. Individual  judges may not be dismissed before age of retirement except for misconduct or disability b. Institutional  before a judge may be removed for cause, must be judicial inquiry to establish that such cause exists, at which time the judge must have opportunity to be heard c. Canadian Judicial Council Complaint Process i. Jx over federally appointed judges ii. If a federally appointed judge has breached standard of good behavior, only Parliament can remove and under Judges Act, Parliament delegated this authority to CJC iii. Complaints must be about CONDUCT not OUTCOMES iv. Process 1. Review Complaint 2. Investigate 3. Review Panel 4. Inquiry Committee  if complaint serious, review panel decides there should be inquiry w/public hearing, opportunity for judge to be heard, report made 5. Recommendations  Council decides whether judges conduct has rendered judge “incapacitated or disabled from the due execution of office of judge” 6. Notice of Decision ii. Financial Security a. Protects against govt attempts to influence judges through the setting of their salaries  paying judges more who favor govt in adjudication b. Reference re Remuneration of Judges i. I: whether financial security has institutional (collective) dimension? ii. R: financial security has an individual and institutional dimension iii. A: Financial Security for courts has 3 components 1. Judicial salaries can be reduced, increased or frozen, so long as done by independence, objective body

w/judicial compensation commission (not binding but should not be set aside lightly) that would depoliticize the process a. JCC must be independent, objective, effective b. If all 3 complied with, s.11(d) is satisfied 2. Not permissible for judiciary – as individuals or as a whole – to negotiate over renumeration with executives or reps of leg 3. Reductions to judicial salaries cannot go below a basic minimum level of remuneration which is required to maintain public confidence and prevent economic manipulation c. Provincial Court Judges of NB v. NB i. Govt need not comply with JCC recommendations but legit reasons must be given if they do not comply w/it ii. Must show commissions recommendation has (1) been taken into account (2) noncompliance based on facts and sound reasononing (3) articulate grounds for rejection (4) preclude suggestions of attempting to manipulate judiciary (5) must reflect underlying principle of public interest and need to preserve judicial independence iii. Administrative Independence a. Courts themselves have control over administrative decisions that bear directly and immediately on exercise of judicial function such as assignments of judges, sitting of court, and court lists, allocation of court room b. Canada v. Tobiass i. Regarding administrative independence  DOJ officer and judge privately met concnerning pending cases  judge pledged to take all reasonable steps to avoid a reference to SCC  reasonable observer would perceive judiciary was improperly and unduly influenced by DOJ officer Statutory Interpretation 1. Overview of Statutory Interpretation

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Common Law Rules o Rules of statutory interpretation operate as guidelines i. Equitable Construction – legislation construed as to promote leg purpose and suppress attempts to avoid impact of leg ii. Presumed Intent – natural law theory iii. Plain Meaning Rule – court obliged to stick to literal meaning in so far as it is clear iv. Golden Rule – permits courts to depart from ordinary meaning of text to avoid absurdity o Modern Approach: legislative text must be read in ordinary sense harmoniously with the scheme and object of the Act and the intention of legislature i. Intention of parliament has 4 components a. Expressed intent: expressed by enacted words b. Implied intent: legit implied from enacted words c. Presumed intent: intent courts will impute in absense of indication to contrary d. Declared intent: intent parliament has said may or must be Range of Interpretation Issues o Disputed Meaning Argument: interpreter claims that provision has a particular preferred meaning i. Must be established by ordinary, intended technical or plausible o Static vs Dynamic Interpretation Argument: interpreter claims that text should be interpreted as it would have been when the text was first enacted (static) or interpreted in light of current understanding of language and social conditions (dynamic) o Non-Application Argument: interpreter identifies a reason not to apply a provision to the facts even though, given its ordinary meaning, it would otherwise apply i. Read down o Incorrigible Gap Argument: interpreter claims legislation as drafted cannot apply to facts, even though, given its purpose, it probably should apply; whether omission is deliberate or accidental, court has no jx to fill gaps by enlarging scope of legislation o Supplement Argument: interpreter concedes that leg as drafted does not apply, but common law does apply so as to supplement underinclusive leg o Corrigible Mistake Argument: interpreter claims provision contains drafting mistake, which must be corrected before determining whether provision applies to facts  must establish what leg clearly intended and what text would have said i. Bilingual o Exhaustive Code Argument: interpreter concedes that overlap between leg provisions and common law does not create conflict, but claims a

particular Act or provision was meant to apply exhaustively, to the exclusion of the other law, whether statutory of common law o Paramountcy Argument: conflict between two provisions, or between provision and common law and that one takes precedence over the other Type of Problem Type of Argument in Response Ambiguous, vague, incomplete text Disputed meaning Evolving context Static vs dynamic interpretation Overinclusive text Non-application Underinclusive text Incorrigible gap in leg scheme, or supplement with common law rule or remedy Contradictory or incoherent text Corrigible mistake Overlapping provisions No conflict: overlap vs exhaustive code Conflict: paramountcy rule 2. Overview of Rules of Statutory Interpretation - Rules About Meaning o Ordinary Meaning – meaning that spontaneously comes to mind upon reading text, presumed to be meaning intended unless rebutted by evidence that some other meaning was intended o Technical Meaning – if leg deals with specialized subject where specialized and technical language is used by those who are governed by leg, that specialized understanding is preferred over ordinary usage i. Re Witts and Attorney General for BC a. I: appropriate construction to be placed on word “sex” used in Horse Racing Act b. R: Horse racing uses specific language and word considered technical rather than ordinary c. A: common meaning of male or female vs technical meaning as used by persons involved w/horses to designate colt/gelding/stallions etc.  regulation was considered technical and therefore technical and not ordinary meaning used d. C: “sex” is meant in its technical and not ordinary purpose ii. One who claims a text has technical meaning different than populat meaning has burden of establishing (1) technical meaning of word or expression; and (2) that the technical meaning was intended o Shared Meaning – discrepancy between bilingual statute, meaning that is shared by both versions is presumed i. If English is broader, shared meaning would be French and vice versa ii. Presumption of shared meaning can be rebutted by evidence o Original Meaning – meaning of words used are fixed at time of enactment but application to facts is not fixed

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i. Technical and specific  static interpretation ii. General and abstract  dynamic interpretation o Plausible Meaning – if ordinary meaning is rejected, meaning being adopted must be supported and text must be capable of bearing Presumptions Relied on to Analyze Meaning of Text o Straightforward expression – clearest, simplest, most direct way of stating meaning o Uniform expression – same word to express same meaning, different words to express different meanings o No Tautology/Redundancy – no superfluous words, all words are there for a reason and are meaningful o Internal Coherence – provisions of text fit together logically and work together coherently to achieve purpose of legislation o Impied Exclusion – if something not mentioned where expected, its impliedly excluded o Associated Words – meaning of word is affected by other words to which it is linked o Limited Class – when list of things belonging to limited class is followed by a general term, general term read down to include only other things within that limited class o Leg would have said X – interpretation can be rejected if it can be shown that if that interpretation was intended, leg would have been framed in different way o R. v. Daoust i. I: meaning of word “transfer” as actus reus of s.462.31(1) ii. R: “transfer” must be given its ordinary meaning iii. A: “transfer” refers to person giving but not receiving iv. C: responsdents did not “transfer” property w/in meaning of provision Purpose and Scheme Analysis o Legislative Purpose – vaguer the language, the more discretion conferred on court that applies it and greater importance of purpose in adopting an appropriate interpretation o Interpretation Acts – interpretation that promotes purpose of legislation is preferred over strict construction but when leg is overly broad, narrow construction best ensures attainment of objects o Legislative Scheme – look at titles, headings, subheadings as indication of scheme o R. v. Chartrand i. I: meaning of the “unlawfully” as used in s.281 (abduction of person under 14)  it was not in French version ii. R: purpose of s.281 is to secure right and ability of parents to exercise control over their children iii. A: 281 must be interpreted in manner which conforms to aim, here prevention of harm to and protection of children.

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In light of purpose and context, leg has a broad scope and restrictive interpretation  crown does not need to prove an unlawful act other than the taking of a child by person who did not have lawful authority over the child iv. C: “unlawfully” found to be meainingless based on purpose of legislation Mistake and Gaps in Legislative Scheme o Corrigible Mistakes – presumption of no mistake rebutted by persuasive evidence that text does not accurately reflect the rule leg intended to enact i. Courts have jx to correct unless mistake amounts to gap in scheme o Incorrigible Gaps – if mistake amounts to gap or if leg is underinclusive, courts deny jx to cure by making them apply to facts outside boundaries of language in text o Reliance on Common Law/Civil Code – although courts cannot cure underinclusive leg by expanding its scope beyond what text allows, they can rely on supplemental sources of law to complement what leg scheme providce Presumptions in Legislative Intent o Penal Legislation – restricts individual rights or freedoms  strict construction i. Emphasis on wording of text; general terms read down; ambiguities resolved in favour of non-application o Remedial Legislation – confers benefits or cures mischief  liberal construction i. Focus on achieving benevolent purpose of leg; general principles applied as broad as can be; exception are strictly interpreted; ambiguities resolved in favor of person seeking benefit o Presumed that legislature does not intend absurd results i. Irrational distinctions ii. Irrational, constradictory, anamolous effects iii. Defeating purpose of leg iv. Undermining efficient application v. Violating important norms of justice and fairness Relation to Other Legislature and Other Sources of Law o Constitutional Law – presumed that leg intends to enact law consistent w/ constitution and interpretations that render this are preferred. However, leg sometimes does intend to restrict a charter right or freedom in order to achieve some important goal, and they are entitled to do so if it is justified under s.1 (Oakes Test) of Charter o Regulations – must be read in light of enabling provision and their enabling legislation as whole o Related Legislation – statutes dealing w/same subject matter must be read together and are presumed to offer a coherent and consistent

treatment of the subject o Common Law – leg often uses terms and concepts from common law and in such cases a resort to common law to determine the meaning of the word is okay. However, leg intented to displace and preclude further resort to common law is often labeled as a “complete code” o International Law – presumed leg from both levels of govt intend on complying w/both customary and conventional international law - Extrinsic Aids o Legislative Source – when leg is meant to implement another document, like incorporation act, appropriate to look to external document to inform the meaning of leg instrument o Legislative History – ministerial statements, committee reports and debate records to inform on intent of particular individuals but cannot refer to intent of legislature as whole o Legislative Evolution – successive amendments and re-enactments give insight to current purpose and interpretation o Expert Opinion – precedent, admin opinion, legal publications 3. Illustrations - R. v. McIntosh o I: is self defense justification in s.34(2) available where accused is initial aggressor i. Crown is asking court to read words into section which are not there o R: where, by use of clear and unequivocal language capable of only one meaning, anything is enacted by legislature, it must be enforced no matter how hard or absurd result may be  approach is disputed meaning o A: The omission of the requirement self defense cannot be claimed by an initial aggressor in 34(2) but included in 34(1) was deliberate. 34(2) must be interpreted according to its terms o C: 34(2) is available where accused is initial aggressor having provoked the assault against which he claims to have defended himself o Dissent: In order to prevent 34(2) from applying to intitial aggressors, “without having provoked the assault” found in 34(1) would have to be read in. History, wording and policy underlying 34(2) all indicate that parliament did not intend it to apply to provoked assault.  approach is corrigible mistake - Re Rizzo and Rizzo Shoes Ltd o Preferred Approach to Statutory Interpretation i. Words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, object of Act, and intention of Parliament ii. Every Act is remedial and directs fair, large and liberal construction and interpretation as will best ensure the

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attainment of the object of the Act according to its true intent, meaning and spirit Medovarski v. Canada o Interpreting bilingual statutes i. Search for shared meaning (2 parts) a. Apply rules of statutory interpretation to determine whether or not there is an apparent conflict, and if so, whether there is common meaning between French and English versions (if one is broader than the other, the common meaning is the more limited one) b. Determine if common meaning is consistent w/ Parliament’s intent Canada v. Mossop o Meaning of “family status” as grounds for discrimination (gay couple) o “living tree” doctrine well suited to human rights legislation. Grounds of discrimination must be examined in context of contemporary values and not vacuum, the grounds are not frozen in time and they may evolve o Tribunal found claim was one based on discrimination on the basis of “family status.” Based on purpose of the Act, purpose of the benefit, all evidence, perfectly reasonable for tribunal to conclude that the Collective Bargaining agreement violated s.10(b) of Human Rights Act

Constraints on Legislative and Administrative Action -principle of constitutional supremacy implies a restriction on govt action that is inconsistent w/Charter  use of Charter in courts is to challenge law enforcement activites engaged in by cops 1. Limitations on Judicial Review - Issue of Justiciability o Courts can review moral/political issues ONLY when rights are involved o Operation Dismantle v. The Queen i. I: challenge under s.7 of Charter to decision of Cabinet to permit USA to test cruise missiles in Cdn territory  is there a cause of action ii. R: no duty imposed on govt by s.7 to refrain from permitting testing  its completely speculative that it will lead to nuclear war iii. A: non-justiciability not only on the speculative issue but also outside scope of courts to question foreign policy. This could lead to constitutional review of declaration of war etc. Individual rights must be at issue in order for judicial review iv. C: Appeal dismissed. - Issue of Enforcement o 2 avenues to remedy constitutional violation

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i. s.52 – any law inconsistent w/constitution of no force or effect ii. s.24 – if Charter rights violated, apply to courts to craft remedy that is appropriate and just given the circumstances o Doucet-Boudreau v. Nova Scotia i. I: having founds a violation of s.23 of Charter and having ordered province to provide French facilities and programs by a certain date, did the NSSC have authority to retain jx to hear reports from the province as part of its s.24(1) remedy? ii. R: s.24(1) requires courts issue effective and responsive remedies that guarantee full and meaningful protection of Charter rights iii. A: Purposive approach to remedies requires 2 things; (1) purpose of right being protected must be promoted  courts must craft responsive remedies; (2) purpose of remedies provision must be promoted  courts must craft effective remedies iv. C: court was w/in jx v. Dissent: under separation of powers, courts function is to interpret and settle disputes. Courts should assume their orders will be followed w/ resort to contempt mechanism o Reference re Language Rights under s.23 of Manitoba Act i. I: S.23 of Manitoba Act stated Manitoba Legislature must become bilingual. However, Manitoba continued to legislate in English only. Because these English only acts were inconsistent with the Manitoba Act, they were essentially of no force and effect = invalid ii. R: exception to no force and effect  to invalidate all these laws would cause legal chaos and would undermine the rule of law iii. A: Rule of Law requires (1) law is supreme over all and (2) maintenance of normative order of laws. (2) is at issue if all laws that are unilingual are invalidated iv. C: to uphold Rule of Law and out of necessity of context, the unilingual laws will be given force and effect for the time until they are validated by French version Issue of Legitimacy o 2 core complaints about judicial review i. courts have usurped power that is domain of Parliament and provincial legislatures through interpretation of Charter ii. substantice approach courts have taken to particular rights that may protect unpopular elements of society (criminal offences, gay rights) disliked by policial, social and religios views o Vriend v. Alberta

i. I: whether Alberta’s failure to include “sexual orientation” as grounds for discrimination in their Individual Rights Act violated equality rights under s.15 of Charter and was not justified under s.1 ii. R: appropriate remedy was to “read in” sexual orientation iii. A; democratic values and principles under Charter demand legislators and executive take rights into account and if they do not, courts should be ready to intervene and protect the rights as appropriate iv. C: IRPA is read in to include sexual orientation o Built-in Deference – s.33 allows parliament to expressly declare any act to operate notwithstanding Charter rights but the political price of exercising it may deter them o Dialogue Model i. Legislature examines potential legislation for Charter compliance ii. If legislation, once passed, is called into question, courts examine if legislature discharged its responsibility to comply with Charter a. Yes = no problem b. No = courts obliged to strike down and identify the violating aspects as clear as possible so legislature can fix iii. Matter goes back to legislature for remedial action - Role of the Courts – Beverley McLachlin Speech o (1) define precise contours of division of legislative powers between federal and provincial govts (2) rule on legislation alleged to be unconstitutional of the Charter and in doing so, define the scope of constitutional rights and freedoms (3) exercise de facto supervision over the hosts of administrative tribunals created by parliament and the legislatures o Interpretations of Judicial Activism i. Judges should never go against will of elected representatives a. They must if it fails to meet constitutional standards ii. Judges are pursuing a particular political agenda and allowing their views to determine the outcome of cases iii. Law is black and white; judges should apply the law not make or rewrite it iv. Judges are making decisions that should be made by elected representatives 2. Judicial Review of Administrative Action - Controlling Procedures: The Duty to be Fair o Baker v. Canada (Minister of Citizenship and Immigration) i. Factors Affecting Duty of Fairness a. Nature of decision being made

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i. The more the process resembles judicial decision making, the more likely procedural protections required for fairness b. Nature of statutory scheme and terms of statute pursuant to which body operates c. Importance of the decision to individual(s) affected i. The more important to lives of those affected, more stringent the procedural protections d. Legitimate expectations of the person challenging the decision e. Respect for choices of procedure made by agency itself, particularly when statute leaves to decisionmaker ability to chose its own procedures ii. R: duty of fairness requires written explanation for decisions and that decisions be made free from “reasonable apprehension of bias” by impartial decision maker a. TEST: what would an informed person, viewing matter realistically and practically – and having thought the matter through – conclude iii. A: immigration officers statements gave impression that he was drawing conclusions not on evidence but on fact fact that Baker was single mother with many kids and mental problems iv. C: there was reasonable apprehension of bias Substantive Judicial Review o Dunsmuir v. New Brunswick i. I: the standard of review in judicial review of administrative tribunals ii. R: two standards of review a. Reasonableness – deference to the decision maker i. Privative Clause: direction from Parliament or legislature indicating need for deference ii. Special administrative regime where decision maker has special expertise iii. Even if reasonableness is proper standard, it does not mean that deference must be given  decision must still be reasonable given the context b. Correctness – court undertakes its own analysis of question and after, whether court decides to agree with determination of decision maker i. Question of law of central importance to legal system and outside special area of expertise ii. Legal issue not confided to administrative tribunal by way of jx or general law

iii. A: “Standard of Review Analysis” a. (1) whether there is precedent already determining degree of deference to be accorded to a particular category of question (2) if not, analysis of factors making it possibly to identify proper standard of review b. Relevant Factors in determined proper standard i. Whether or not privative clause (if so, leads to reasonableness and deference usually owed) ii. Purpose of tribunal by interpretation of enabling legislation iii. Nature question at issue 1. Questions of fact – deference 2. Questions of law – correctness (more scrutiny) 3. Questions of law where parliament has provided a statutory right of review – correctness 4. Questions of mixed fact and law – reviewing court owes same deference to admin adjudicator as appeal court would show lower court iv. Expertise of tribunal o Canada v. Mowat i. I: whether Cdn Human Rights Tribunal has authority to grant legal costs to successful complainant ii. R: 2 step “Standard of Review Process”  (1) requires court to ascertain whether jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question (2) look to factors in their entire context to find a standard of reasonableness or correctness iii. A: usually standard of review will be reasonableness but if analysis leads to correctness, no deference is owing a. 3 situations where correctness is appropriate i. true question of jx – where tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter ii. question of general law that is BOTH of central importance to legal system and outside adjudicators special area of expertise iii. where determination of jx between two competing tribunals is required b. the Issue is a general question of law of central

importance to legal system and outside specialized area of human rights and therefore standard of review is correctness i. under this standard, did parliament intent to endow HRT with authority to award costs No 1. act offers no definition of “expenses” or “costs” 2. no implied jx because not necessary to enable HRT to attain objects expressly prescribed by parliament iv. C: correctness standard applies and after analysis, HRT does ont have authority to award costs Relationship Between Aboriginals and Canada 1. Aboriginal Rights  s. 35(1) 1982 Act: recognized and affirmed existing abo. rights - R. v. Van Der Peet (Determining if Aboriginal Right Exists) o F: abo caught and sold salmon contrary to Fisheries Act and argued that Act violated s. 35(1) o Test i. To be abo right, activity must be an element of a practice, custom or tradtion integral to the distinctive culture of aboriginal group claiming the right pre-euro contact a. (1) identify nature of right being claimed b. (2) is the right integral to a distinct society? i. Must be sensitive to aboriginal perspectives ii. Must be of central significance to aboriginal society in question iii. Must have continuity that existed prior to euro contact iv. Rules of evidence favor aboriginal in sense that evidentiary difficulties inherent in proving existenceOral history is okay to prove existence v. Must be integral to community not incidental of some other practice vi. Must be distinctive (cannot be something integral to every society like the need for food) vii. Must not be a response to European contact, had to exist before that o Summary (Aboriginal Rights Test) i. What is nature of claim a. Characterize as narrow as can (right to sell fish for money) ii. Is the right claimed integral to a distinctive society

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a. Defining feature of the group b. Doesn’t have to be unique, just integral and of central importance iii. Does right have continuity with customs prior to contact a. Evolution is permitted b. Does not need to be unbroken chain R. v. Sparrow (Justifying an Infringement of an Aboriginal Right) o Justification Test i. Is there an existing aboriginal right (onus on aboriginal)? a. Apply Van Der Peet analysis ii. Has that right been extinguished by feds (onus on fed)? a. Must be w/ clear and plain intention prior to 1982 b. Regulation of a right DOES NOT extinguish iii. Is there interference w/ right (onus on aboriginals)? a. Is infringement unreasonable? b. Undue hardship on aboriginal? c. Denial of preferred means to exercise right? iv. Is infringement justified (onus on feds)? a. Do feds have valid objective? b. Has priority to exercise right been given to aboriginals? c. Minimal impairment to achieve valid objective? d. Fair compensation to aboriginals in return for infringement? e. Were aboriginals consulted and, if needed, accommodated? R. v. Sappier; R. v. Gray (Evolving Nature of Aboriginal Rights) o Abo’s relied on right to harvest wood for temporary shelter to justify their taking of crown timber to make homes and furniture, not selling o Court held right to harvest wood must be allowed to evolve into right to harvest wood by modern means to be used in construction of modern home  any other conclusion would “freeze” aboriginal right but s.35(1) requires a liberal and purposive reading similar to “living tree” doctrine o Applied Distinctive Practices Test from VDP i. What is nature of claim? a. Harvesting wood ii. Is right integral to distinctive society? a. Even though it was used for survival purposes, history shows it was integral to that specific abo group iii. Does right have continuity with customs prior to contact? a. Right must be determined pre contact but nature of right is allowed to evolve given present day circumstances  logical evolutions R. v. Powley (Modified VDP for Metis Rights [inherently post contact])

o Pre contact element of VDP test does not account for Metis because there ethnogenesis and history occurred post contact o Metis Rights Test (modified VDP precontact prong) i. Characterize the Right a. General right to hunt for food in this case ii. Identification of the Rights Bearing Community a. Must have ties to historic metic community w/distinctive collective identity who lived together in same geographic area b. Existence of identifiable Metis community must be demonstrated with some degree of stability and continuity to support SITE-SPECIFIC claim c. Existence must also be established as occurring before European political and legal control iii. Identification of Contemporary Right Bearing Community a. Community must self-identify as Metis; AND b. Must prove conttmporary Metis community is continuation of historic Metis community iv. Verification of Claimant’s Membership in Relevant Contemporary Community a. Claimant must self-identify as member of particular Metis community w/ ongoing connection b. Ancestral Connection to historic Metis Community i. Birth, adoption or other means c. Community Acceptance i. Must show past and ongoing relationship ii. Objectively evident iii. Core community acceptance = past + ongoing participation in shared culture, customs, traditions of Metis community v. Identification of Relevant Time Frame a. Post Contact but Pre Control Test i. Identifies the practices that predate Euro law and customs vi. Was Practice Integral to Claimant’s Distinctive Culture a. Test: is practice an important aspect of Metis life and defining feature of their special relationship to land? i. Here, evidence shows subsistence hunting was important aspect and defining feature vii. Establishment of Continuity between Historic Practice and Contemporary Rights Asserted a. There is flexibility to ensure aboriginal practices can evolve and develop over time but there msut be evidence to support viii. Has Right been Extinguished a. Done through constitution, legislation or treat prior

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to 1982 ix. If Right Exists, Has It Been Infringed? a. Here, Ontario legislation does not recognize any Metis right to hunt for food = infringement x. Is Infringement Justified? a. Must be important objective b. Here, conservation wouldn’t outweigh right because under Sparrow, Metis would have priority to hunt for subsistence Haida Nation v. BC (Duty to Consult and Accommodate) o Duty to consult and accommodate rests in honor of crown and must be understood generously i. When crown has discretionary control over aboriginal interests, it becomes fiduciary duty ii. Duty to prov and feds, not to 3rd parties o Duty arises when Crown has knowledge, REAL OR CONSTRUCTIVE, of potential existence of Aboriginal right or title and contemplates activity that may adversely affect it i. The claims need not be proven in court in order for duty to arise, they can just be asserted a. Crown cannot ignore aboriginal interests where claims affecting these interests are being seriously pursued  must protect potention but unproven interests ii. Knowledge of a credible but unproven claim is sufficient to trigger the duty but the scope of the duty varies with circumstances o Scope and Content of Duty to Consult and Accommodate i. Scope: proportionate to prelim assessment of strength of claim to aboriginal right or title and seriousness of the potential adverse affects on it a. Key is what is required to maintain honor of crown and to effect reconciliation between crown and aboriginal peoples re: interests at stake ii. Content: must be approach case-by-case and flexibly a. No duty to reach agreement but duty to meaining process of consideration in good faith b. If strong prima facie case case exists for claim and consequences of govt decision may adversely affact in a major way, addressing aboriginal concerns may require taking steps to avoid irreparable harm or minimize effects of infringement c. Taku River v. BC (example of successful exercise of crown duty to consult and accommodate) o Duty to C&A arises when crown has real or constructive knowledge

of potential existence of aboriginal right or title and contemplates an activity that may adversely affect it i. Scope of duty is proportionate to prelim assessment of strength of case ii. Must be meaningful, good faith consultation o If consultation is meaningful, there is NO duty to reach agreement i. Accommodation requires aboriginal concerns balanced reasonably with potential impact of particular decision on those concerns and competing societal concerns o Here, aboriginal claims appeared to be strong and were entitled to more than minimum consultation BUT crown fulfilled its duty by allowing for aboriginal participation in project committee and process with full participation as members 2. Aboriginal Title - Delgamuukw v. BC o Nature of Aboriginal Title (sui generis) i. Inalienable, except to crown a. If aboriginals wish to use land in way title does not permit, must surrender land to crown and convert to non-title land b. Only feds can extinguish ii. Flows from historical possession, it is not granted iii. Communally held, not individual o Scope of Aboriginal Title i. Right to exclusive use and occupation ii. However, lands cannot be used in manner that is irreconcilable with nature of claimants attachments o Test for Title (altered VDP) i. Occupation before Crown asserted Sovereignty a. Oral history is allowed b. Look at group’s size, manner of life, material resources, and technological abilities, and character of the lands claimed c. Looks to use of land as part of socieity’s traditional way of life d. If present occupation relied on, must show continuity ii. Continuity a. Substantial connection between present and presovereign occupation b. Does not need to be unbroken chain iii. Exclusivity a. Group must show territory is ancestral and of central significance b. Joint exclusivity is possible c. At sovereignty, occupation must be “exclusive”  intention and capacity to retain control

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o Has Infringement Occurred [onus on Aboriginals]? i. Does regulation create hardship or deny rightholders preferred means of exercising that right o Justification Test i. Does it futher a compelling and substantial legislative objective ii. Is it consistent with special fiduciary relationship between Crown and aboriginal people a. Right to exlusive use and occupation is relevant to the degree of scrutiny of infringing measure b. Duty to consult? c. Duty to fairly compensate/accommodate? i. If it go to heart of “indianess”greater duty ii. If it touches upon it  less consideration iii. Minimum infringement? iv. Has priority to exercise right been given to aboriginals? o Extinguishment i. By feds (post 1867) or treaties (pre 1867) ii. General provincial laws do not exitinguish  there must be clear and plain intention to extinguish Tsilhqot’in v. BC o Aboriginal title is a sub-category of aboriginal rights which deals solely with claims of rights to land o Site-specific aboriginal rights to fish and hunt may be established over some or all the groups traditional territory even where aboriginal title is not made out i. If group come back to same place each year to fish then left after season was over and land could be used by anyone = aboriginal right but not title o Aboriginal title does not subsist everywhere that aboriginal rights are carried out and title does not exist everywhere in a groups traditional territory o Aboriginals may demonstrate that an activity on a specific tract of land gives rise to an aboriginal right, but this will not be sufficient to satisfy aboriginal title o Summary of Aboriginal Title i. Right to exclusive use, occupation and possession to use land for general welfare and present-day needs of community ii. Title is subject to inherent limit which is defined by the nature of attachment to the land which forms the basis of particular groups aboriginal title iii. Title has an economic component which will give rise to fair compensation when it is infringed, varying in amount with nature and severity of infringement and extent to which aboriginal interests were accommodated

iv. Title is held communally and is inalienable except to Crown  it must be surrendered in order to use lands in a way contrary to inherent limit o Baker Lake Test (title test pre-1982) o Test for Aboriginal Title (post 1982) i. Pre-Sovereign Occupation a. If present occupation relied upon, must be continuity between present and pre-sovereignty occupation b. Factors of proof  dwellings, cultivation, tracts for hunting and fishing, group’s size, manner of life, material resources and technological abilities ii. Exclusivity a. Ability to exclude others including the intention and capacity to retain exclusive control iii. Continuity a. Aspect of test when group relies on present occupation as proof of pre-sovereign occupation because pre-sovereign occupation is mandatory b. Where there is evidence of pre-sovereignty use and occupation of land, title is established and no additional requirement that group show continuous occupation from sovereignty to present day c. Claimants must show a substantial connection between people and land has been matintained 3. Aboriginal Treaties - R. v. Marshall; R. v. Bernard o I: whether the modern trading activity in issue (commercial logging) is a logical evolution from the traditional trading activities (bows, baskets, furniture, snowshoes) at the time treaties were made i. Truckhouse clause in treaty was a trade clause concerning only traditionally traded products  issue is whether commercial logging could have been contemplated when parties made treaty in 1760  NO o R: the modern practice must have represent a logical evolution of the practices contemplated when treaty was made i. In order to be protected under the treaty, trade in forest products must be the modern equivalent or a logical evolution of that particular abo groups use of forest products at time treaties were signed o A: logging was not a traditional abo acticity, it was actually a Euro activity beginning after the treaties were signed and TF is not the logical evolution. The court must examine pre-sovereignty aboriginal practice and translate that practice into a modern right. Process begins by examining nature and extent of pre sovereignty aboriginal practice in question and seek a corresponding common law right. i. Right to trade and right of access to resources for trade must

bear some relation to traditional use of resources in lifestyle and economy of those people when treaty was signed  they gathered and occasionally traded in wood products and traded baskets, canoes, wigwam frames etc.  commercial logging could not have been contemplated