TOPIC 1: BASIC THEORIES OF LAW

Positivism and Natural Law Both legal positivism and natural law are descriptive theories, in that they are principally concerned with identifying what law is, as opposed to what the law ou !t to be. Both are concerned with concepts of law and justice, even if they diverge as to how the two relate to one another. Both are largely based on Western, liberal ideas about law and society. • Legal positivism reflects the belief that law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings); insists on separation between law and morality; focuses on describing laws without reference to justness legitimacy fairness. Legal positivism is only concerned with what is legally valid, not what is morally valid. !he common slogan of legal positivists is "the e#istence of a law is one thing; it$s merit or demerit is another%.( i.e &a'is had a legal system used for evil and British had a legal system used for good; both were legally valid). (ee, e.g, Noble and Wolf, and note how judge appeals to the )*+!,-&!. of positivism, and the lac/ of certainty of relying on public policy and morality • &atural law theory is aspirational, in that laws are only those rules which adhere to certain moral truths, most often of a universal and immutable nature; i.e. law$s legal authority depends upon an e#ternal moral standard that holds across all societies. (ee Drummond Wren, (land not to be sold to 0ews) and note how judge appeals to our moral conscience F"minist P"rs#"$tiv"s on Law: $riti$al l" al t!"or% RES&LT ' E(&ALIT) • , normative theory, see/ing to describe how e#isting laws fail to achieve an e#ternal objective. • 1eminist perspective on law reflects a criti2ue of liberalism as a political ideology; laws that e#isted from 34 th century did not normally respond to the needs of women and even aided in their oppression. 1eminism ta/es issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision of what justice might be • *arly formalist feminism attempted to replace laws that favoured men w more gender neutral laws • )ontemporary feminism consists of different sects with different beliefs. -t$s a comple# movement, relying on various disciplines such as criminology and sociology 5 generally feminism 6 legal system is paternalistic and male7centred. • !he subject of abortion provides a good forum to e#amine how feminist theory may translate into practice (see Morganteler: -n this case on the constitutionality of the abortion restrictions, the majority found them unconstitutional on procedural grounds. 0ustice Wilson, however, wrote a concurring opinion focusing on much more "feminist% topics, such as rights in a wider social conte#t, the female e#perience, and far more emotional issues) 5 s. 4 offended Criti$al L" al Studi"s: $riti$al l" al t!"or% * +CLS, • Li/e some forms of feminism, critical legal studies is a radical alternative to established legal theories; rejects that there is any /ind of natural legal order discoverable by objective means. • )L( is a direct attac/ on traditional legal theory, scholarship and education. • !he )L( movement can be very theory7driven and densely philosophical. • )L(, li/e the feminist perspective, ta/es issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision of what justice might be • !he liberal belief that law should be certain and natural is, for )L( scholars, illusory. Law reproduces the oppressive characteristic of contemporary Western societies • 8 stages governing the application of )L( ideas9 3) Hegemonic consciousness9 Western laws are maintained by a system of beliefs that have their foundation in a liberal, mar/et driven economy, which reflect interests of a dominant class (*lite class beliefs) :) Reification9 !he beliefs that maintain Western laws are presented as essential and objective, and the laws that prop up this belief system necessary follow suit, becoming e2ually incontrovertible 8) Denial: Laws and legal thin/ing aid in the denial of real truths
(ee R v R.D.S (bias test): )ompare how the judges in this case dealt with the issue of race with the judges in Re Drummond Wren and Re Noble and Wolf

legislators) act in order to ma#imi'e political support; they are not necessarily attempting to ma#imi'e social welfare and are motivated by self interest. • (ee Duncan !state v "addeley (!his case dealt with the issue of how to calculate damages for an estate arising out of a negligence action for wrongful death. (hould future earnings be included or not; While the court did not do any e#plicit calculations or economic reasoning, there was a clear subte#t that the judge had to consider the wider social7economic implications of allowing for recovery of future earnings or not); "hadauria v "oard of #overnors (public choice theory behind the )ourt of ,ppeals decision; the )ourt recognised, on public policy grounds, a new "tort of discrimination%. But, at the (upreme )ourt level, this idea was rejected this idea of a new "economic tort%
< &ote9 =ne of the themes in public law is to show how common law has been displaced by policy formation (in the form of legislation) as the primary means of social regulation. , number of important 2uestions lie at the heart of this analysis9 What, in economic terms, is the problem that a legal rule or structure is attempting to resolve; What effect does this rule have on society; Why do we have the laws that we have; (hould we have different laws;

CASES

Hill v Church of Scientology
FACTS: >ill is a prosecutor in !oronto suing the )hurch of (cientology as a private individual. >ill brought a common law libel action based on allegedly false statements the church made about him. ISS&E9 -s the )harter applicable to a private action based on a common law tort; -s the common law tort of defamation inconsistent with the )harter (s. :b); REASONIN• ?rivate parties owe each other no constitutional duties and cannot found their cause of action upon a )harter right. !he party challenging the common law cannot allege that the common law violates a )harter right because, 2uite simply, )harter rights do not e#tend in the absence of state action. • !he most that the litigant can do is argue that the common law is inconsistent with )harter values. • /T!" #art% w!o is all" in t!at t!" $ommon law is in$onsist"nt wit! t!" C!art"r s!ould 0"ar t!" onus o1 #rovin 0ot! t!at t!" $ommon law 1ails to $om#l% wit! C!art"r valu"s and t!at2 w!"n t!"s" valu"s ar" 0alan$"d2 t!at t!" $ommon law s!ould 0" modi1i"d.3 • (o, it is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with the )harter values but also that its provisions cannot be justified. HEL4: *ven though private parties owe each other no constitutional duties and cannot found a cause of action upon a )harter right, )ourt concluded that the common law tort of defamation reflected an appropriate balance between freedom of e#pression values and the legislative objectives underlying the law. !herefore, no need to amend alter the legislation. RATIO: *ven though )harter doesn$t apply directly to this action, )ommon law should be interpreted with reference to )harter values (as per obiter in Dol hin). -f common law is inconsistent with )harter values, and not justifiable, the common law should be modified.

Societe de l’assurance automobile du Quebec v Cyr
FACTS: ?ursuant to s. @:A of the >ighway (afety )ode (>()), !he (ociBtB de lCassurance automobile du DuBbec ((,,D) entered into a contract with the )entre de vBrification mBcani2ue de EontrBal ()FEE) to carry out the mechanical inspection of road vehicles. ,ccording to this contract, )yr, an employee of )FEE, was designated as an accredited mechanic for the purpose of the (,,DCs vehicle inspection program. >owever, following notices of breach for failure to apply the appropriate standards during certain inspections, )yrCs accreditation was revo/ed by (,,D. )yr and )FEE filed a motion for judicial review of the decision to revo/e the accreditation, claiming that it had not been rendered in a manner consistent with the ,ct respecting administrative justice (,,0). !he (uperior )ourt concluded that the actions of the (,,D in sending the notices of breach and subse2uent revocation of accreditation were an e#ercise of contractual rights and dismissed the application. !he majority of the )ourt of ,ppeal set aside the decision, holding that )yr had the right to procedural fairness and that the e#istence of a contract could not be used by the (,,D to avoid the obligations codified by s. @ of the ,,0. ISS&ES: Whether a gov$t body can avoid public law duties when delegating its functions by contract or other agreement REASONIN)yr is entitled to procedural fairness under s. @ ,,0, as his designation as an accredited mechanic for the purposes of the (,,DCs mechanical inspection program constitutes an administrative authori'ation. )yr cannot be considered a party to the contract, because under this contract, )FEE is the mandatary of the (,,D, not )yr. Gelegations of government power are authori'ations. -n delegating to )yr the power to conduct vehicle inspections, the (,,D was granting him the authori'ation to act on its behalf. Eoreover, the authori'ation in the present case is specifically provided for in s. @:A of the >(). !he legislative origin of the authori'ation further confirms its administrative nature. )onse2uently, s. @ of the ,,0 and its procedural re2uirements are applicable to the present matter because (3) the revocation of )yrCs designation is a Hdecision concerning a permit or licence or other authori'ation of li/e natureH, and (:) )yr is a Hciti'enH as contemplated by the ,,0. &ot all acts of the (,,D are subject to public law, but the act of authori'ation has specifically been deemed worthy of procedural fairness protection by the legislature.

Law and E$onomi$s RES&LT ' EFFICIENC) • Law and economics theories loo/ at law differently, less grounded in moral theory and more in ideas about efficiency (as opposed to feminism, which deals with producing e2uality); law and economics scholars have applied economic analysis to e#plain various areas of law. • !he traditional law and economics approach applies economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient. • !he economic theory of regulation, or ublic choice theory, applies basic economic theory in an attempt to understand ublic olicy. -t attempts to e#plain government intervention as a corrective to mar/et failure. !he theory see/s to understand why some government programs seems to run counter to the public good, or at least do not ma#imi'e the public good. !his theory says that policy ma/ers (e.g.

HEL49 ,ppeal dismissed CO55ENT: !his case distinguishes between the applicability of public and private law. !he dissent held that the parties are bound by contract, since the (,,D chose to use a contract to appoint the persons authori'ed to conduct the mechanical inspection ARTICLES

David Tanovich, “The Charter of Whiteness: T enty!five years of "aintaining #acial $n%ustice in the Canadian Criminal &ustice System'
-ntroduction • +eflecting on the :@th anniversary of the )harter, much will be written about the impact it has had on those living on the margin. >as the )harter given any hope to ,boriginal and raciali'ed communities; !here$s reason to be optimistic about the possibilities for future reform, the )harter to date has had very little impact on racial injustice in )anada • We continue to incarcerate ,boriginals and ,frican at alarming rates, racial profiling at borders and streets flourishes !he utility of using litigation to address racial injustice • (uccessful litigation brings with it considerable attention 5 media, community organi'ations etc 5 and can help raise public consciousness, stimulate academic research and political action. ,nd one of the most important political responses could be the collection of data which will reveal the e#tent and scope of racial injustice • ,bsence of any racial profiling legislation, and the passing of ,nti !errorism Legislation, and the )onservative )riminal )ode amendments, all of this has had a disproportionate impact on raciali'ed communities. (o, )harter litigation remains as important means of addressing fundamental injustice • "While - place considerable reliance on )harter litigation to address racial injustice, there is no 2uestion that other legal and e#tra7legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigation fails. ,nti7racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti7racist actors etc are all e#amples of strategies that can wor/ together with litigation% T!" #ro0l"m is not wit! t!" C!art"r 0ut wit! t!os" w!o ar u" and int"r#r"t it • Narrow a roaches to judicial review and lac/ of judicial imagination have played a role in limiting the impact of )harter litigation on racial injustice. -n a number of /ey cases addressing issues such as bail (because blac/s are more li/ely to be detained), jury selection (because blac/s are less li/ely to be found on juries), the use of peremptory challenges and racial profiling, courts have refused to adopt critical race standards or arguments when they were advanced. (ee, e.g.9 R. v. $an% R. v. SawyerI (awyer, who is White, was tried together with Jalbraith, who is Blac/, on a charge of assault. 1ollowing the conviction, a juror contacted (awyer and told him that she had been under "undue pressure to come to a verdict and that certain racial comments were made by other members of the jury%. !he accused argued that the common law jury secrecy rule needed to be altered under section 4 of the )harter to ensure that verdicts were not tainted by racism. !he argument was rejected. • ,lso, in a number of cases, trial judges have been or appeared hostile when as/ed to adjudicate a race issue. *.g. in R v "rown, B was as/ed by the judge to apologi'e to the officer for raising racial profiling. (ometimes, hostility can be implied from the reasoning employed by the )ourt to dismiss the argument. !he relevant instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change • With respect to litigation, there has been a large7scale failure of trial lawyers to raise race once critical race standards have been established by the courts. Why are trial lawyers not raising race when it is appropriate to do so; *.g. small number of racial profiling cases litigated following the + v Brown decision. +ace is not being raised because some lawyers are not seeing the issue, while others are uncomfortable engaging in race tal/ before courts • ,ppellate lawyers often fail to raise the issue of race on appeal. !he ()) has yet to deal with the racial profiling issue. ,nd they face the hurdle of not having a record from which to wor/ (i.e race issues may not be raised at the trial level) )onclusion • !his refusal of judges to act and lac/ of race consciousness by lawyers are having a direct impact on the ability of the )harter to remedy racial injustice • !he two bright spots have been race7based challenges for cause, and the recognition of the e#istence of racial profiling by our courts. But even in these areas, there is still room for improvement

• !he role of law is to provide rules to coordinate reciprocal behaviour amongst various members of a social order, in order to avoid conflicts or detrimental effects amongst these members. , law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible • -t is the ill7defined notion of international law that is called to face the challenge of a menacing disorder spreading over the emerging international community • !he : categories of public international K private international law are most li/ely to fulfil this function in the emerging international community • Pu0li$ int"rnational law, or the "law of the nations%, is defined as the system of law governing the relations between states. Privat" int"rnational law, or the "conflict of laws%, is a system co7ordinating the different laws from different countries, and it responds to the 2uestion of applicability of foreign or domestic law within domestic courts • -n the present time, comple# interactions between states and private individuals occurs, and harmony between public and private international law cannot be confirmed anymore • !he decline of state sovereignty and the increasing insufficiency of a pure #ositivist t!"or% of law to e#plain phenomena on the legal plane, are two e#amples of how global change has shattered the fundaments of doctrinal thin/ing on which the classical doctrine was built L*J,L L E=+,L L" al #luralism and l" al #ol%$"ntri$it% in int"rnational law • T!" world $ommunit% o1 toda% is 1orm"d 0% a r"at num0"r o1 div"rs" so$i"ti"s6 "a$! #oliti$al so$i"t% !as its own law w!i$! is 0as"d on its own traditional r"li ious2 $ultural or so$ial valu"s • T!" 1irst st"#s in t!" r"$o nition o1 t!" div"rsit% o1 t!" world $ommunit% ar" 1ound in t!" t"rms o1 l" al #luralism and l" al #ol%$"ntri$it%2 r"#udiatin 0ot! t!" #r"sum#tion o1 t!" sol" "7ist"n$" o1 on" total l" al ord"r and a sin l" valu" a##roa$! to law. • )onsidering the very nature and rationale of public and private international law 7 both d"alin with interactions amongst these various societies, whether organised as states, peoples, groups or individuals, that together form the world community 7 different legal traditions must be iv"n their "8ual and due place in the international legal order, !his can be achieved by emphasising the continuity in the evolution of law; an evolution that has constantly been influenced by the e#change of many different cultures. T!" $riti$al #oint: t"nd"n$i"s in $ont"m#orar% law • !he second half of the :Ath century has faced dynamic development in human society, and driven by the t!"or% o1 l" al #ositivism law was not spared from this development and underwent, and is undergoing, significant changes • Law has reached a critical point which is cause for hope and concern 5 the critical point is understood as two parallel yet mutually antagnostic trends. !he evolution of technology has affected the evolution of law 5 law has rapidly evolved, but the 2uestion is whether it has progressed or regressed; • Law !as #ro r"ss"d E9TERNALL) * almost "v"r% a$tion in dail% li1" is su0:"$t to law +i.". 0road s$o#" o1 a##li$ation,. From an INTERNAL #oint o1 vi"w2 as 1ar as t!" F&NCTION OF LAW WITH RESPECT TO ;&STICE is $on$"rn"d +t!us in$ludin moralit%2 #r"di$ta0ilit% and $ontinuit%,2 t!" issu" is l"ss $l"ar. T!" !u " 8uantit% o1 norms "na$t"d iv"s ris" to $on$"rn. • A law is an att"m#t to 1ormulat" a norm wit! t!" us" o1 a0stra$t wordin 2 t!at ov"rns t!" 0road"st ar"a o1 li1" #ossi0l". Aristotl" #oint"d out t!at "v"r% law is laid down in "n"ral t"rms2 w!il" t!"r" ar" mat"rs a0out w!i$! it is im#ossi0l" to s#"a< a0out in "n"ral t"rms. But t!" d"1"$t li"s not in t!" law2 0ut in t!" natur" o1 t!" su0:"$t matt"r. B"$aus" o1 t!is 1law a##ar"ntl% in!"r"nt in law2 t!" $!all"n " in t!" n"ar 1utur" is to "7amin" t!" traditional #"r$"#tion o1 t!" t!"or% und"rl%in law. T!is 1law2 and various o##osit" t"nd"n$i"s in t!" "volution o1 law2 $all 1or n"w t!"or"ti$al a##roa$!"s to t!" law r" ulatin t!" #r"s"nt world ord"r. From a #ra$ti$al #"rs#"$tiv"2 it $alls 1or a sim#l"r "n"ral t!"or%2 allowin 1or a ra#id ori"ntation 0ut also a :ust a##li$ation o1 t!" vast vari"t% o1 norms. !=G,. ?=(-!-F-(E 6 L*J,L L E=+,L A Law 1or t!" World o1 Toda% • T!" #r"s"nt $!all"n " is to 1ind a l" al notion t!at 1a$"s t!" $!all"n "s o1 t!" n"w r"aliti"s t!at a lo0al #oliti$al world ord"r !as $r"at"d. Su$! a notion would not onl% !av" to $ov"r t!" di11"r"nt $at" ori"s o1 law2 0ut also it would !av" to m""t t!" im#li$ations o1 an imm"ns" $ultural div"rsit% o1 l" al s%st"ms $r"at"d 0% a lar " num0"r o1 stat"s • -n this process of adaptation, the preliminary step is to bring about the desired change by redefining e#isting notions, or by creating new notions used in legal discourse • Sin$" $odi1i$ation * t!" #ro$"ss w!"r"0% l" al id"as 0"$om" #ositiv" law * is ta<in #la$" "7t"nsiv"l%2 $!an "s in t!" id"as do not automati$all% r"sult in $!an "s o1 t!" writt"n #ositiv" law +i.". t!" mor" $ondi$itaiton2 t!" mor" di11i$ult it is to $!an " notions,. !herefore, when new legal ideas emerge, they are still e#pressed through notions that gave shape to their previous legal norms. !he new ideas may then stand in clear contradiction to each other. • T!is 1at" is s!ar"d 0% t!" notion o1 int"rnational law !he notion of "international law%9

#ostam &osef (eu irth, “$nternational )a and the *ublic+*rivate )a Distinction'
Bac/ground

the )ommon law. -nstead of trying to change the term itself the focus will be on a change of its understanding and scope of application T!" 4%namism o1 Pu0li$=Privat" 4i$!otom% ?ublic international law foundations • !he evolution of public international law reveals the strong influences that theories e#ercise on the shape of law and its institutions.• !his seems to be an outdated concept. precedent economi'es on information and minimi'es idiosyncratic conclusions. employs analogical reasoning from statutory provisions to fill in gaps. political.e. K judges infer from precedents what is the true law in a given instance • )ivil law9 Duebec inherited civil law.!*) • !he classical distinction is that public law governs the relations between the state and its nationals. as it stood at the time of first settlement.g. further e#pression of the naturalist character e#pressed by custom is found in the concept of obligations erga omnes. 0udges don$t ma/e the law but merely declare it.uro-ean la : • )anada law remains a largely *uropean inheritance. -t is judge7made law. a number of purposes • . . all the relevant past decisions are considered as evidence of the law.dvantages and disadvantages of precedent9 o . but they all appear to overlap • !he essay will use the term international law. With full awareness of the major importance of the distinction between customary and treaty law ?rivate international law 3 : 8 • )onflict of laws in its widest sense deals with 8 subjects9 jurisdiction. judicial bias).ct. the former re2uires implementation by way of statute. i. . 0udgements normally rely on the provisions of codes and statutes. Sin$" WW II2 t!" naturalist and #ositivist vi"ws $an 0" said to $oA"7ist in #arall"l. treaties which lac/ universal binding force) (corresponds with naturalist thought)9 !he universally binding force of custom is e#pressed in the concept of ius cogens. it is binding even if the decision is thought to be wrong) R ?erpetuation of errors.boriginals) • )ases such as Mitchell v &anada and Delgamuu'w v "& interpreted s 8@ CanadaDs Common and Civil Law Traditions a. synthetic search for a suitable notion9 • When contemplating the variety of notions that e#ist for the law of today. not fit for responding to new realities • M. modified only as far as was necessary to integrate them into the -mperial legal system. ?romotes efficiency and eliminates sources of error (i. aboriginal rights were constitutionally entrenched in s 8@ of the )onstitution . (vi) ?ossibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (e. difficult to learn it all. t!" 1irst "m#!asisin moral standards and t!" latt"r a mor" #ra$ti$al a##roa$!. economic and legal systems rights not protected after coloni'ation • But in 3PQ:. 0udicial reasoning is based e#tensively on the general principles of the rule or code. (ature of the Common and Civil la : • )ommon law9 )ommon law is an *nglish invention. !he implementation of international law • !he way a state approaches this depends on whether the state practice is influenced by the monist or dualist concept • !he reception and implementation of the international norm in the national realm is necessary because a state. !he incorporation can be made on the basis of a relevant constitutional provision or by judicial practice. developed through the common law courts (as opposed to the )ourt of )hancery).  Gisadvantages9 when one considers democratic participation in the international law ma/ing process. discuss how feminists enjoy this aspect of the doctrine. (ii) Bul/ comple#ity (so much law. British concepts of "reception% determined how )anada$s common law and statute law was received • 0ust as the aboriginal legal systems. 1ulfills a symbolic role by recogni'ing the relationship between courts and the legislature. without which the laws today relating to females in society might be primitive) o Gisadvantages problems9 (i) +igidity (once a rule is laid down.ids in the stability and coherence of the law.  Int"rnational $ustomar% law is considered to be part of municipal law if incorporated.g. lay people can$t access it). with the patriation of the )onstitution. Sin$" t!"n2 t!" naturalist and #ositivist vi"w $an 0" said to $oA"7ist in #arall"l • ?rinciple sources of international law9 (i) international conventions establishing rules e#pressly recognised by contesting states (corresponds more with positivist thought) (ii) international custom (e. Stewart) • (o there is an important distinction between )=&DO*+ and (*!!L* (that latter of which ignores the presence of . )ivil law is based on established laws.  !he difference between civil and common law lies more in their different methodological approaches as opposed to codification per se. -n civil law countries. the implementation of a treaty can ta/e place through a special or general transformation. (pecial 6 international norm must be adopted by legislation regulation. : fundamental ideas permeate common law theory9 +1. because its covers broadest range of these conte#ts. even where statutory sources of law are present. ma/ing it more predictable ?rovides fairness in decision ma/ing. choice of law and recognition of foreign judgments • !he body of rules called private international law fulfills a coordinating function between legal orders of different states.dvantages benefits9 (i) (ii) (iii) (iv) (v) . *ach notion has appeared in a different time and conte#t. possible conflicts between international and other nations norms TOPIC C: SO&RCES OF LAW Law and A0ori inals • -t is important for a legal system to recogni'e that )anada was populated by aboriginal people prior to its coloni'ation by the *uropean empires • .uthor then lists numerous notions related to international lawN . W!il" a naturalist vi"w dominat"d t!" 1> t! and 1?t! $"nturi"s2 t!" #ositivist vi"w ain"d im#ortan$" t!rou !out t!" 1@t! $"ntur%. The /-eration of Common )a and *recedent • !he principle of stare decisis is the formal term to describe how the $ommon law r"li"s on #r"$"d"nt • ?recedent in law helps in categori'ation.boriginals$ cultural. later national law is capable of nullifying the obligation set forth  Tr"ati"s9 !he way treaties are transferred into the national legal system not only depends on the constitution but also the character of the treaty. ?rovides some certainty (liberty to decide each case as you thin/ right without any regard to principles laid down in previous cases would result in uncertainty of law). T!" atro$iti"s $ommitt"d 0% t!" NaBi ov"rnm"nt t!at $ulminat"d in World War && r"viv"d t!" #o#ularit% o1 natural law. can in some cases only achieve compliance w international obligations by assuring that the behaviour of its nationals is in conformity w international obligations entered by the same state • Customar% int"rnational law and tr"ati"s: 4istin uis! 0"tw""n t!"s" two main sour$"s o1 int"rnational law. peremptory norms.e. the traditional subject of international law. therefore. which is based upon an "acceptance of fundamental and superior values within the system and ins some respects is a/in to the notion of public order%. while private law governs their relations amongst themselves. 1or those territories that were simply coloni'ed. • . legislation is seen as the primary source of law.boriginals. • !he "bijuralism% remains largely intact in )anada today c. in search for a greater decisional harmony • 1rom a theoretical perspective. the ade2uate fulfillment of the respective international obligations. and serves. a better fulfillment of relevant treaty obligations etc. it is hard to ma/e a choice. general 6 declared part of municipal law without any special legislation. !he )=&(!-!O!-=& determines the process from the beginning of negotiations until the final administration of a negotiated treaty within a national legislation. the historical development of private international law was dominated by : major ideas ?rivate ((*L1) and public law ((!. -f a location was con2uered. +C. #ece-tion of . 1rom a constitutional point of view. -ncorporation doesn$t automatically give such law higher standing within the national legal order. the adaption of international norms to domestic particular circumstances. )ommon law methodology. the theories themselves are shaped by influences stemming from the factual developments occurring in this world  !his becomes obvious when one considers the two main theories competing in international law9 natural law and #ositiv" law. written as broad legal principles. the local laws would continue to apply. was imported (&oo er v. on the other hand.dvantages9 the increase for the effectiveness of int$l law. 3PQ: (  protects the . it entails the automatic reception of *nglish law) • Eost of )anada considered "settled%. !reaties can either be self7e#ecuting or non7self e#ecuting. . so entire body of *nglish law was imported to the settled colonies • !he courts were the arbiters of settlement dates b. the British had special rules of incorporation that defined how non7British law would apply in their colonies.dvantages disadvantages of direct applicability of international laws in a municipal court9  .

the e#ecutive controls both the signature and ratification of international treaties.LL.H4U -n the case law.ct 3QU4. and whether or not they are binding on )anada • In Ba<"r2 t!" Court !"ld t!at t!" valu"s r"1l"$t"d in int"rnational !uman ri !ts law ma% !"l# in1orm t!" $ont"7tual a##roa$! to statutor% int"r#r"tation and :udi$ial r"vi"w • Canadian $ourts ar" ra##lin mor" wit! t!" /#ra$ti$al a##li$ation3 o1 int"rnational law • )anadian courts. non7compliant with "international >+ instruments to which )anada is signatory REASONIN-: . De 3u4man v Canada FACTS: Es J$s application to have her sons sponsored for admission to )anada was refused under the -mmigration and +efugee ?rotection +egulations. !herefore. Re De (aurier: &hildren)s interest • *2uity$s original function was to provide a corrective to the perceived harshness of the common law. • !ransformation must occur w in the jurisdictional framewor/ set out by the )onstitution .lso some intellectual uncertainty (as the law is in constant evolution) d.conclude that paragraph 8(8)(f) does not incorporate into )anadian law international human rights instruments to which )anada is a signatory. Es J argued. that the relevant provision is invalid. !he answer depends on the source of international law9 treaty or customary law. $nternational )a • Gistinguish between domestic and international law -nternational law (*S*)O!-F*( E.(iii) (lowness in growth (the system depends on litigation for rules to emerge). which have been debated and approved by ?arliament. the Suresh approach appears to not be satisfactory either. • W" ar u" t!at its not "nou ! to tr"at ALL normativ" t!r"ads as #ot"ntiall% #"rsuasiv"2 0ut not mandator% * ov"r tim"2 t!is a##roa$! ris<s w"a<"nin t!" 1a0ri$ o1 t!" law. common law must sometimes be distinguished from e2uity.W() Gistinguish between tr"ati"s (contracts between states who ta/e part in treaty) and $ustomar% int"rnational law (entrenched norms binding on all states. =nly e+ ress indication of such a principle by ?arliament would allow such an outcome • But the applications 0udge too/ an overly narrow view on the value of international law • -nternational law can be used to inter ret the )harter and it can influence the common law • -n "a'er. &evertheless. Tr"ati"s • Gualism9 )anada has a dualist tradition 5 an international treaty has no direct effect in domestic law until domestic legislation passed to implement the law into )anadian law by an act of ?arliament (if a federal matter) or provincial Legislatures (if a provincial matter) • !here are advantages. -n an attempt to bring greater clarity to the analysis in the evolving domestic jurisprudence. Brunnees and !roope in a >esistant *mbrace argue that courts have not always made it clear how influential international law should be in the interpretation of domestic legislation. because such an approach is not in accordance with the )ourt$s jurisprudence concerning the status of international law within the domestic legal system. *F*& -1 &=! -E?L*E*&!*G • 1urther. are overridden by a conflicting international legal instrument does not respect the legislative process in this country. !he )onvention has not been implemented by ?arliament. • !he point is the ()) and other courts have confused. disadvantages and uncertainties with the dualist mode of reception (e. -nternational treaties and conventions are not part of )anadian law unless they have been implemented by statute. (ometimes it is treated as merely persuasive.do not agree with the approach adopted by my colleague. the authors suggest that ?arliament should be presumed not to legislate in derogation of international legal norms that are binding in )anada. =ne ground was that it is inconsistent with international human rights instruments to which )anada is a signatory. e#cept those who have repudiated them by practice) -nternational law as a part of )anadian law >ow does domestic law interact with international law. further.. &utta 5 Ste-hen Too-e. but should be regarded as no more than persuasive and conte#tual HEL4: . part of domestic law 0ut $an 0" dis#la$"d 0% statut" • !here are also some concerns related to incorporating customary international law into domestic law • But the ()) has been unclear on the statutes of customary international law in )anadian domestic law • !he following are two cases on the application of international law in )anadian domestic law9 • !o conclude that the terms of the -+?. which states that for a treaty to be considered implemented. must be construed and applied in a manner that complies with them T!" 1ollowin is an arti$l" on issu"s $on$"rnin t!" a##li$ation o1 int"rnational law in Canadian $ourts: 1runnee. law sometimes fails to achieve ade2uate justice in particular case • +ules of e2uity are now applied concurrently in all superior courts. they wrestle with the implications of the common law principle that H?arliament is not presumed to legislate in breach of a treaty or in a manner inconsistent with the comity of nations and the established rules of international law. -mplemented !reaties • -n )anada. • )anadian courts struggle not only to determine when international norms re2uire implementation through legislation but also to determine whether such implementation has actually occurred. +a. rather than individuals and discrete happenings. but this does not answer the 2uestion of whether the treaty is effective within the )anadian domestic legal system • -nternational treaties are not directly applicable in )anada but re2uire transformation. • (o while the power to enter into an agreement rests with the federal e#ecutive. (v) . )ourt endorsed the use of int$l law to interpret a statutory provision as re2uiring immigration officers to give great weight to the best interests of any affected children when e#ercising discretion. for instance. (ame with courts • T!" SCC in Ba<"r and in Sur"s! said t!at t!" r"l"vant intDl instrum"nt was not im#l"m"nt"d in Canada +0ut w" t!in< itDs ar ua0l" t!at t!"r" is im#li"d im#l"m"ntation 0"$aus" o1 t!" C!art"r and its #rot"$tions. however. but merely directs that the -+?. . it remains unclear when this principle comes into play and how it relates to the implementation re2uirement. it is . J argues that priority should be given to international instruments which prevail over any inconsistent provision in either the -+?. wherein reference is made to the underlying values of an unimplemented international treaty in the course of the conte#tual approach to statutory interpretation and administrative law. implementation issue 5 no clear rules on when a treaty has been implemented into )anadian law. an international instrument. Common )a and . (iv) *asy to distinguish (Jive case e#ample).mbrace: 1a2er and the 6--lication of $nternational )a in Canadian Courts' • !oday. in this conte#t. -n contrast. “6 Hesitant . $an !"l# in1orm t!" int"r#r"tation o1 dom"sti$ law and ma% 0" #"rsuasiv". the "a'er approach seems to be unsatisfactory. non binding international norms should not be given the same interpretive weight. the values reflected in international human rights law may help inform the conte#tual approach to statutory interpretation and judicial review.g. )ourts appear to recogni'e the relevance of international norms whether or not they have been implemented through )anadian legislation. and therefore its provisions have no direct affect on )anadian law. are still inclined to avoid deciding cases on the basis of international law9 and the avoidance strategy is subtle 5 even when they invo/e international law.lso. unless the statutory te#t is irremediably inconsistent with international law. which suggests that you can use unimplemented treaties to aid interpretation of legislation) +0. B% $ontrast2 norms t!at ar"nDt 0indin +". .0uity • )ommon law has a variety of internal meanings according to conte#t. 1a2er v Canada • L$>eureu#7Gube9 -mportance of considering best interests of children indicated by )anada$s ratification of the )onvention on the +ights of the )hild. • Lacobucci9 -t is a matter of well7settled law that an international convention ratified by the e#ecutive branch of government is of no force or effect within the )anadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation.T* !>*(* L. transformation generally re2uires legislation that enacts treaty obligations into domestic law. invalid b c it renders the -+?. and which protect the right of families to live together and the best interests of children. so1t law. while at other times it is presumed to be determinative.+d. inter alia.!-). with e2uity prevailing in cases of conflict e. -f t!" tr"at% is in 1or$" and Canada !as rati1i"d it2 t!" tr"at% is 0indin on Canada as a matter of international law. or the regulations ISS&E: -s #ara 11>+@. Customar% int"rnational law • =nce a rule becomes recogni'ed as customary law. )anadian courts generally do not give international norms concrete legal effect in individual case • A1t"r t!" Ba<"r d"$ision2 t!"r" a##"ars to 0" a tr"nd towards tr"atin all int"rnational law2 w!"t!"r $ustom or tr"at%2 0indin on Canada or not2 im#l"m"nt"d or unim#l"m"nt"d2 in t!" sam" mann"r * as r"l"vant and #"rsuasiv"2 0ut not d"t"rminativ" +t!is $om"s im#li$itl% 1rom t!" d"$ision2 not "7#li$itl%. it must be done so e#plicitly in the relevant statute 5 see the " * Hesitant !mbrace% article below for a criti2ue of "a'er and this approach in general. • Law as a body of rules is by its nature concerned with generalities 5 groups classes of persons events.O!=E. . CONCERN: I1 int"rnational law is m"r"l% #"rsuasiv"2 it 0"$om"s #ur"l% o#tional2 and it $an 0" i nor"d at t!" dis$r"tion o1 t!" :ud " • W" ar u" t!at in t!" $as" o1 norms t!at ar" 0indin on Canada und"r int"rnational law2 Canadian $ourts !av" an o0li ation to int"r#r"t dom"sti$ law in $on1ormit% wit! t!" r"l"vant int"rnational norms as 1ar as #ossi0l". rather then clarified the domestic impact of international law • 0ob for academics and judiciary to attac/ international law 2uestions in a more principled manner.

it applies to all of )anada$s international obligations. international norms that are not legally binding on )anada may inform statutory interpretation and judicial review • . as a legal vacuum is impossible )ivil Law !radition (written law) • !he most important feature of the $ivil law tradition differentiating it from the common law tradition is its emphasis on the primacy o1 writt"n laws. the hierarchy of its sources and its inductive reasoning. whether treaty based or rooted in customary international law • !his leads to the inference that courts should ma/e every effort to interpret )G& law so as to conform to )anada$s international obligations • &n1ortunat"l%2 C4N $as" law !asnDt ta<"n a $onsist"nt a##roa$! to t!" #r"sum#tion o1 $on1ormit% w= intDl law. the case law since "a'er is unclear on whether the presumption applies e2ually to )anada$s international obligations and non7 binding international norms • T!" am0i uous stat" o1 t!" $as"Alaw in t!is r" ard is r"1l"$t"d in t!" CourtDs d"$ision in Ba<"r. • -nternational treaty law9 treaty that has been e#plicitly implemented by statute is part of our domestic law and should be determinative in the interpretation of )G& law. A$$ordin to Fno#2 an a##roa$! 1o$us"d on #"rsuasiv"n"ss o1 norms $an im#rov" t!" dom"sti$ a##li$ation o1 0ot! t%#"s o1 norms. . )ivil law is not judge made recogni'ed law. !he ()) tends to draw upon int$l norms merely to inform its interpretation of the )harter. Similarl%2 l" al norms #rodu$" a 1als" s"ns" o1 s"$urit% w!"n it is assum"d t!at t!"% r"8uir" not!in ot!"r t!an /m"$!ani$al3 a##li$ation 0% a :ud ". the common law means that they have access to a fragmented law that they will discover incrementally as needed. and there are potentially many ways this can be done in a statute. . !he two decisions permit the inference that custom merely helps inform a conte#tual approach to statutory interpretation. How s!ould t!"% a##roa$! norms t!at do not 0ind Canada 0ut r"1l"$t im#ortant int"rnational valu"sE +BAFER (&ESTIONS. How s!ould $ourts a##roa$! int"rnational tr"at% norms t!at ar" 0indin on Canada2 0ut a0s"nt im#l"m"ntation2 not dir"$tl% a##li$a0l" in CanadaE +C. When )harter issues arise. "11"$tiv"l% "8uatin im#l"m"ntation wit! statutor% im#l"m"ntation • But sur"l% t!"r" $an 0" im#li$it im#l"m"ntation2 ". )ourts should strive to interpret statutes and common law to be consistent with obligations under customary law. • -t would seem that the primary 2uestion for the majority with respect to the relevant international instrument was how to give effect to the unimplemented treaty. )anadian law did not categorically re2uire statutory implementation Onimplemented treaties • W!at is t!" l" al "11"$t o1 su$! tr"ati"sE W" su0mit t!at a tr"at% t!at is 0indin on Canada2 w!il" not dir"$tl% a##li$a0l" in Canada2 is non"t!"l"ss su0:"$t to t!" #r"sum#tion o1 l" islativ" int"nt to A$t $onsist"ntl% wit! CanadaDs int"rnational o0li ations. I1 w" 1ail to u#!old our o0li ations2 w" und"rmin" r"s#"$t 1or law int"rnationall% M&ote9 binding 6 ratified. there are some indications that our courts may be retreating from custom. international treaties to which )anada is not a party etc ((=1! L. !!" ma:orit% too< t!" narrow vi"w on t!" 8u"stion o1 im#l"m"ntation and o0s"rv"d t!at2 a0s"nt im#l"m"ntation 0% Parliam"nt2 itDs #rovisions !av" no 4IRECT a##li$ation in Canadian law. • In our vi"w t!" ma:orit% "rr"d 1or C r"asons: +1. +C. “1i%uralism and Harmoni4ation: 3enesis' • "Bijuralism% signifies the co7e#istence of the *nglish common law K 1rench civil law traditions. and can be rebutted by an e#plicit legislative . which consists of generali'ing from common points between distinct cases and then establishing legal categories with vague foundations and fle#ible limits • !o practitioners. a wea/er version of the presumption of conformity has emerged. T!"r"1or"2 t!" Conv"ntionDs "m#!asis u#on /t!" 0"st int"r"sts o1 t!" $!ild3 s!ould !av" w"i !"d !"avil% in $onsid"rin 5s Ba<"rDs a##li$ation. 4oin so ris<s som" norms 0"in i nor"d $om#l"t"l%2 sim#l% 0"$aus" t!"% ar" not l" all% 0indin . and the third source is prior judicial decisions. >owever. there is an array of international normative statements that may not be legally binding on )anada. but nothing more. proceeding from the general to the specific (as opposed to specific to general li/e in ) L). as the boundaries between nations becomes more blurred The “1i%uralism' $ssue De-artment of &ustice. the interpretation of the international instrumental ta/en was overly narrow • Ba<"r r"sults in C 8u"stions: +1. and could have used both). based on the very 2uote which they relied to cite authority for the presumption. Least common practice is "inferred implementation% • W!"n a tr"at% is "7#li$itl% trans1orm"d into Canadian law2 its #rovisions s!ould 0" d"t"rminativ" in t!" int"r#r"tation o1 dom"sti$ l" islation • When the purpose of a statute is to implement an international treaty. furnishing a potentially relevant and persuasive source for this power. !o what e#tent can international customary law inform domestic legal processes. !he best view appears to be that customary law can operate directly within the )anadian legal system • We hope that the ()) intended to suggest that the precautionary principle can inform statutory interpretation even if it should not yet have become customary international law. • (econdly. -f anything. • =n this presumption. *. the )ourt wouldn$t have had to distinguish between the provisions and "values%.g. Fno# t!"r"1or" li<"s Ba<"rDs a##roa$! • But w" ar" worri"d t!at 1a2er !as not si nal"d a #ositiv" s!i1t. !here is no une2uivocal statement on whether custom is part of )anadian law or not.et the "values% reflected in the )onvention could shape statutory interpretation. it would have been clearer for them to just have used the presumption in arriving at the conclusion. might encounter non7binding parts of a treaty (preamble). T!" $"ntral rulin in Ba<"r was t!at "v"n t!ou ! Canada !ad n"v"r "7#li$itl% trans1orm"d its o0li ations und"r t!" Conv"ntion o1 t!" Ri !ts o1 t!" C!ild into dom"sti$ law2 t!" immi ration o11i$ial was 0ound to $onsid"r t!" /valu"s3 "7#r"ss"d in t!at Conv"ntion w!"n "7"r$isin dis$r"tion. • In A!ani2 it was stat"d t!at a0s"nt im#l"m"ntin l" islation2 int"rnational law !as no "11"$t • !raditionally. but )anada may find relevant to the interpretation of a domestic statute. By avoiding the presumption. Worr% is t!at 1a2er si nals a #at! towards tr"atin all int"rnational law as #"rsuasiv" aut!orit%2 w!i$! t!" Court 5A) us" to in1orm its int"r#r"tation o1 dom"sti$ law. !he )ourt simply failed to adopt the presumption which they should have. 0us cogens norms are a particularly compelling form of customary international law. it$s codified law • . within a country organi'ed along federal lines )ommon Law !radition • !he $ommon law tradition can be distinguished from the civil traditional essentially by its method. • -nt$l law that is &=! binding9 finally. )G& legislatures retain control over domestic law. court must rely on the treaty to interpret the statute and on the international rules of treaty interpretation to interpret the treaty and resolve any te#tual ambiguities • Canadian $ourts !av" t"nd"d towards a narrow $onstru$tion o1 t!" im#l"m"ntation r"8uir"m"nt. B% tr"atin 0ot! 0indin and nonA0indin int"rnational norms in t!is mann"r2 $ourts mov" awa% 1rom t!"ir dut% to striv" 1or an int"r#r"tation t!at is $onsist"nt wit! CanadaDs int"rnational o0li ations.T*+ +OL-&J) • >ow did majority arrive at the conclusion "that the values reflected in int$l human rights law may help inform the conte#tual approach to statutory interpretation and judicial review.nother defining characteristic of the civilian tradition is its conceptualism as the civil law tradition is characteri'ed by its emphasis on abstract concepts.ct. What follows from this is the use of a deductive approach to legal reasoning is used. there is an uncertainty of the effect of that presumption in the conte#t of )harter interpretation. • Som" !av" su "st"d to i nor" t!" ri id distin$tion 0"tw""n 0indin and non 0indin . including even just cogens.W) • !hese norms should be treated as potentially relevant and persuasive for the interpretation of domestic law )onclusion • )anadian courts are becoming international courts.• -t is unclear what constitutes implementation. the approach of )G& courts to customary int$l law is unclear. is not directly binding in )anada. the )ourt must adopt an interpretation consistent with )anada$s obligations under the treaty. !he presumption of conformity is to be applied only where possible. • !he second source of law in civilian tradition is legal scholarship "la doctrine%. -f this reading is correct the )ourt would have confirmed a principle that it alluded to in "a'er9 in appropriate cases. (ummary • )ustomary int$l law (a peremptory norm of customary int$l law which emerges by general consensus of the int$l community)9 should be directly applicable (it is a part of )G& law). • 1irst. however.nother case after S raytech that the ()) commented on customary international law was in Suresh. On" o1 t!" #rin$i#l" $ausaliti"s o1 t!is la$< o1 $larit% is $ustomar% int"rnational law. • !he principle characteristic of the common law is this inductive process. • !he proper application of customary international law has emerged in a series of cases after "a'er as a major 2uestion for the (upreme )ourt. !he ()) decisions in S raytech and (uresh leave room to be interpreted as suggesting that customary law. (B. how the majority conceived of this principle in relation to the traditional presumption of statutory conformity with international obligations. that is. -n the )harter conte#t. they were binding =& )anada and therefore relevant to statutory interpretation through the presumption of conformity (from the standpoint of this presumption. implemented 6 implemented by statuteN )ustomary international law • !he e#istence of a binding rule of custom is proven with reference to two distinct. . !his leads to the legal fiction that a judge does not ma/e the law but discovers it. While the provisions in that instrument were not directly applicable -& )anadian law. elements9 state practice and opinio juris. Eore specifically. but interrelated. • . 0% wa% o1 t!" C!art"r. • Bindin int"rnational norms ar" not onl% #"rsuasiv"2 t!"% ar" o0li ator%. its rules of interpretation.

notions and institutions proper to the legal tradition of their particular province or territory • =ne distinctive and difficult feature of )G& bijuralism is the tas/ of rendering the common law in 1rench and the civil law in *nglish. Where there is a blatant conflict between the *nglish and 1rench versions. 8. t!"s" l" al s%st"ms !av" 0""n mov"d 1art!"r and 1art!"r 1rom t!os" ori ins./. it is the )ivil )ode that supplies the necessary conceptual support for an intelligent application of that statute • -n Duebec it is trite law that the Hordinary lawH of the province is constituted by the &ivil &ode of 0u1bec and the &ode of &ivil $rocedure • !here are a number of situations in which the civil law is re2uired to assume what might be called a passive role.ct. and the 5nter retation *ct is silent. Eore fre2uent. it is now readily recogni'ed that this process shouldnWt rely upon the techni2ue of simply transposing the concepts of one legal tradition into the corresponding functional e2uivalents of the other. !here$s widespread access to criminal justice in 1rench at the trial level throughout the country. but also bijural. Eore specifically. >armoni'ation • !he interaction of law emanating from the federal and provincial levels and the potential conflicts between them and possible harmoni'ation is a comple# issue • =ver the years. !he respondent then applied to the 1ederal )ourt. Eost of the time these laws do not contain all that is necessary for their application. -n one way or another. . civil law is called upon to fill the gaps left by the federal law • While civil law and common law complement the private law provisions of federal legislation.g. to state all of the principles that apply to the field they regulate. While this may be the ultimate goal of federal legislation.0 is doing important wor/ • !he negative side is that 1rench7language boo/s. -s the system of values of 1rancophones inconsistent with the common law tradition. this re2uires respect for the character and uni2ueness of the concepts and principles of each legal system St!Hilaire v Canada 76!3.cannot emphasi'e enough that my e#perience has taught me that 1rench is not the e#clusive linguistic vehicle for the e#pression of the civil law tradition nor is *nglish the e#clusive vehicle for the e#pression of the common law. !ranslation. !here are more new sources of substantive law. . however. (ome universities offer a double law degree.nother instance of this Hra--rochement H of the : traditions can be discerned from the current situation where common law courts are re2uired to apply K interpret substantive civil law. • Onless indicated otherwise. ?=L. )onse2uently.stress that language plays a crucial role in the evolution of law. courts must e#amine the legislative history of the two linguistic versions of the provision. how can we be e#pected to ma/e use of the insights it offers in resolving legal disputes.-. they are almost always incomplete. =n the flip7side. anglophone common law lawyers. recent tort case where )ourt made e#tensive reference K resorted to civilian authority • C!i"1 . anglophone Duebec civilian lawyers. francophone Duebec civilian lawyers. -ndeed. wittingly or unwittingly. in her capacity as a surviving spouse and as heir of her husbandCs succession. !he same holds true for the practice of civil law in *nglish • !he suitability of judges educated in the common law tradition hearing cases involving civil law issues has been the subject of some debate in Duebec K has even led to some opinion favouring a distinct () for Duebec or a separate civil law division within the e#isting () • =ne 2uestion that often arises is whether the common law system is intimately lin/ed to the .usti$" 5$La$!lin stat"d t!at loo<in to !ow ot!"r $ourts in di11"r"nt :urisdi$tions d"al wit! t!is issu" #rovid"s #"rs#"$tiv" 0ot! on t!" natur" o1 t!" #ro0l"m and #ossi0l" solutions. federal legislation should not be applied uniformly throughout the country in every respect. since federal legislation must be drafted in the *nglish and 1rench languages and in a manner which is compatible with two legal systems. ISS&E9 !he main issue on appeal was whether the civil law of Duebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Duebec and if so. T!" $ivil law is t!"r"1or" $all"d u#on to 1ill in t!" la$una" or a#s l"1t 0% 1"d"ral law . !his is /nown as the H"8ual aut!"nti$it% rul"G • !he rule of e2ual authenticity also re2uires the courts. -n the )anadian conte#t. -nterpreting Bilingual Legislation • !he re2uirement in )anada that legislation be enacted in both *nglish and 1rench has important implications6 both language versions of a bilingual statute are original. a new vocabulary must be forged. -n many areas. :. While common law and civil law share common origins. at the same time. . there are several areas of law found in federal statutory enactments which re2uire harmoni'ation with Duebec private law. *. it seems to me that a new analysis of the situation is also needed • !hings have already changed substantially. • -t is crucial that these four legal audiences in )anada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts. official and authoritative e#pressions of the law. !ranslation often results in some very difficult problems for the practice of the common law in 1rench. language training for judges K jurists. )onvergence and ?rogress • !here is evidence of a convergence between the civil law and common law traditions in )anada. just as it does with regard to provincial statutes of the same type.highly doubt that there is any mystical connection between the 1rench language and the civil law tradition and the *nglish language and the common law tradition. and V. !he !reasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. (uch situations include every instance where. • . to e#tract the Hhighest common meaningH from the two versions that is consistent with the conte#t of the provision. are situations in which the civil law plays an active role by applying directly to complement federal private law statutes. FACTS: !he respondent as/ed the !reasury Board to pay her. no document other than the )ivil )ode shall serve as ordinary law. in practice this goal is not easily attained.nglo7(a#on mentality and language. a federal statute assigns certain effects to juridical acts or facts governed by the )ivil )ode. loo/ing to the highest common meaning of the two versions • )ourts are therefore re2uired to interpret bilingual legislation in a manner that accords with the true spirit.s such.ct.have also noticed that the bilingualism of many young Duebec jurists is insufficient to give them full access to *nglish7language legal sources. or the federal statute does not fully occupy the possible field of private law jurisdiction in 2uestion. &either version has the status of a copy or translationIand neither has paramountcy. pursuant to the division of powers under the &onstitution *ct. in the federal legislation applicable to Duebec. they refer to institutions enshrined in the )ivil )ode or fail. !he codification of the law is increasingly e#tensive in both systems. francophone common law lawyers. • =ne often7cited e#ample of the convergence of the two legal traditions in )anada focuses on the acceptance in Duebec of specific institutions of the common law traditionInamely. ruled that the applicable law was the law of successions defined in the &ivil &ode of 0u1bec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. without e#cluding or discriminating against anyone. t!" trust. REASONIN-: Decary 2* 3dissenting in art4: • What is the applicable law9 the civil law of Duebec or the common law. even in common law jurisdictions. federal legislation must simultaneously address four different groups of persons9 3. Bilingual legislation • -t is perhaps trite to state that federal legislation in )anada is intended to apply consistently across the provinces and territoriesIthat the same federal law must apply in both Duebec and in =ntario. =ur objective is legal duality. !rial Givision for a declaratory judgment that would recogni'e her right to the benefits provided by the . . re2uire that recourse be had to the &ivil &ode of 0uebec to identify the precise nature of the juridical act in 2uestion. if 1rench is not understood in most of *nglish )anada. in private law. in furtherance of its own purposes. others have organi'ed 3 year wor/ terms for students studying the other system. -t must evolve in light of our bac/ground and needs. • !his move can be seen as the result of 1r"8u"nt $onta$t wit! ot!"r l" al s%st"ms. intent and meaning of an enactment and that best ensures the attainment of its objectives.llowing the application. the allowances prescribed in the . whether the respondent was unworthy by operation of law of inheriting from her husband under subsection U:A(3) of the &ivil &ode of 0u1bec. !hey employ civil law concepts without defining them. )onclusions • =ur legal system must now incorporate the shared values of society as a whole. how legislative statutes and judicial decisions of either legal tradition can be HtransposedH into the language of the other. • Whenever a federal statute that is to be applied to Duebec resorts to a private law concept without defining it. e#pressed primarily in the 0uebec &ivil &ode • . )ertain public law statutes. in interpreting bilingual legislation. =ne must therefore go further than mere verbal comparisons. ?arliament has enacted a considerable number of laws aimed at regulating private law issues. articles and cases from Duebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. • !he sources of common law were established in the *nglish language. not necessarily to achieve one rule to be applied uniformly across )anada. . Blais 0. loo/ing also to the purpose and object of the statute. and e#changes between law schools are far more common. when applied in Duebec. t!" rowt! in t!" num0"r o1 sour$"s o1 int"rnational law2 t!" mo0ilit% o1 #"rsons2 t!" in1lu"n$" o1 t!" m"dia2 t!" #rodu$tion o1 indi "nous r"1"r"n$" wor<s and t!" rowin us" o1 l" islation. With respect to the process of drafting federal legislation. . to enable the law to adapt 2uic/ly to societal change. 1ederal legislation must not only be bilingual. • -n this regard. including int$l law and native law.Language • =ne integral issue relating to )anadaCs bijuralism is that of HlanguageH.

(hould the circumstances of the crime in the case at bar lead to the dis2ualification of the respondent. since the 2uestion of eligibility is a 2uestion of civil rights and the applicable rule is one of private law. • )onstitutional conventions are a species of unwritten constitutional norms. Eajority too/ view of legal authority. ?. T!" 4iss"nt +5artland J Rit$!i". the respondent was forfeited from her entitlement to the benefits payable to a surviving spouse under subsection 38(8) of the . (etourneau 2*: • !he 1ederal )ourt of . ?recedent indicated intent to have consent.pril :8 and :V. from the scant evidence at its disposal. But is t!is r"all% t!" $as"E W!at w" ar" loo<in 1or !"r" is not w!o is t!" survivin s#ous". r"8uir"d. (econd. • !hree /ey elements to convention9 (3) precedent (:) intent to be bound by the convention. TOPIC L: Fundam"ntal Prin$i#l"s o1 t!" Canadian L" al S%st"m Bac/ground • ?ublic law concerns the relationship between the state and civil society • ?rivate persons may only create legal rights and duties b w each other. • -n sum. in this case.ll parties agreed that proposed amended constitution would affect provincial rights and powers.% )anada inherited these conventions. and only with consent. which is used to interpret them and to apply them. which states that Ha person convicted of ma/ing an attempt on the life of the deceasedH is unworthy of inheriting by operation of law. that there was a sufficient intention to /ill. VU ")onstitutional conventions R constitutional law 6 total constitution% • Eajority recogni'ed conventions. +e9 provincial consent there was precedent. state may not act arbitrarily. -t w n power of feds to pass such a resolution and ta/e it on to the OT. of civil law • T!" Civil Code of Qu9bec r"$o niB"s t!" #rin$i#l" t!at no on" s!ould #ro1it 1rom !is or !"r $rim" . the state holds all authoritative power (the state may impose its dictates on persons without their individual consent) • . : "federalism% principle and precedent to support the view that "in law% provincial approval was re2uired. may be sceptical and conclude. but also of the relevant provisions of the . but broader than the concept of constitutionalism. to the minimum amount of X4@. =ntario K &ew Brunswic/. W" <now !"r. which re2uires that all government action comply with the )onstitution. +C. given that the respondent has been convicted of manslaughter. will be operated with prevailing constitutional values or principles Mp. (ince 3P8A all amendments affecting the provinces were passed with provincial consent 5 there were no e#ceptions. and (8) reason for the convention. -n comparison.:A:. a person commits aggravated assault or inflicts serious bodily harm li/ely to cause death. T!" A$t a##"ars2 -rima facie2 to $onstitut" a $om#l"t" $od" in t!is r" ard.ct and to the supplementary death benefit of about XQ3. . the $ublic Service Su erannuation *ct. T!" 8u"stion t!"n is w!at t!" $ivil law und"rstands 0% t!" #rin$i#l" t!at no on" s!ould #ro1it 1rom !is or !"r $rim". Where.ct in 2uestion. she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouseCs annuity.9 &o unanimity for constitutional amendment w all provinces impacted. HEL49 . 3PQA. !he opposition of the others. HEL4: )onvention needs "substantial measure of provincial consent% wasnCt supported by precedent 5 arguably re2uired unanimous consent. !he unworthiness to inherit under subsection U:A(3) of the &ivil &ode of 0u1bec attaches to the person convicted of ma/ing an attempt on the life of the deceased. was based on their assertion that both conventionally and legally the consent of all the provinces was re2uired for the address to be forwarded to >er Eajesty with the appended statutes. 1.@A payable under subsection :4(:) of ?art . published on =ctober :. C. T!" answ"r is not so o0vious w!"n it $om"s to d"1inin t!" ri !ts o1 t!" Gsurvivin s#ous"G. T!is "7#r"ssion2 as I said "arli"r2 is d"1in"d in t!" A$t and 1urt!"rmor" do"s not $orr"s#ond to an% $on$"#t t!at is d"1in"d in t!" Civil Code of Qu9bec. T!is ar um"nt $annot su$$""d. !he British )onstitution was understood to include certain conventions that govern the wor/ings and interaction of the branches of the state. !he proposed +esolution contained an address to be presented to !he Dueen in right of the Onited Tingdom and a statute.ppeal has on many occasions recogni'ed that Duebec civil law compliments federal law where the latter is silent. it is necessary to refer to the &ivil &ode of 0u1bec and not the common law. rule of law is a rere9uisite to the constitutionalism • +ule of law means that laws must meet certain 2ualitative standards.4@A. • )onstitutional conventions unenforceable by courts. must act in accordance with the law • +ule of law is similar. -t would be too easy for anyone charged with murder to avoid the civil conse2uences of a conviction for murder by pleading guilty to a reduced charge of manslaughter and avoiding a trial in the course of which all of the relevant facts would be disclosed.*. Las<in. Because these . and given the balance of probabilities.ct. to which was appended another statute providing for the patriation of the ". /L" al Issu"3 H>:CI T!" 5a:orit% +C. Because the ). and thus. -t has also endeavored to harmoni'e the effects of federal statutes in order to avoid possible ine2uities as a result of disparities while ac/nowledging a right to be different where harmoni'ation proves impossible. !here is. !he &ivil &ode of 0u1bec is the foundation not only of all other Duebec laws. therefore.ppeal allowed Conv"ntion +&NWRITTEN A-REE5ENTS 5A4E B) POLITICIANS. Q provinces opposed the amendments it did not matter. /nowing that death may result but being indifferent as to whether or not it results. W!at w" ar" as<in ours"lv"s2 rat!"r2 is hether this surviving s-ouse is eligible to receive the benefit -rovided by the 6ct8 • Sin$" the 6ct is silent on the 0uestion of eligibility2 t!" Attorn"% -"n"ral su0mits t!at t!" l" islativ" void must 0" 1ill"d 0% t!" $ommon law. they are supplemented by the relevant provincial law. including the powerful state. ISS&ES: . society governed by the rule of law. -s there a $onstitutional $onv"ntion. as here.rgued9 feds doing indirectly what cannot do directly by having OT amend constitution w o provincial approval. But (ubsection U:A(3) of the &ivil &ode of 0u1bec does not e#clude from its purview all cases of manslaughter. !he proposed +esolution was adopted by the >of) and by the (enate on .of the . !he wording of this article creates serious difficulties since there is no offence in )anadian criminal law of ma/ing an attempt on the life of the deceased.cts derogate from or add to the 6us commune of each province. T!" Constitutional Conv"ntion HK:LI 5a:orit%  HIn$ludin 5artland J Rit$!i"I  p. there is unworthiness by operation of law only if the heir is convicted of ma/ing an attempt on the life of the deceased. faced with a plea of guilty to a charge of manslaughter. • -ssue :9 )onstitutional convention. 88 "history of amendments reveals the operation of constitutional constraints. with an amending procedure.thin/ so. REASONIN-: • -ssue 39 Eajority of 49: 7 "Legally% provincial consent was not re2uired. • !he following is a case where a specific convention was recogni'ed9 #e: #esolution to amend Constitution: FACTS: !he +eferences in 2uestion were prompted by the opposition of eight provinces to a proposed +esolution. a $om#l"m"ntar% r"lations!i# between federal legislation and the 6us commune of the provinces • I do not t!in< t!"r" $an 0" an% dou0t t!at t!is #art o1 t!" A$t2 w!i$! r"1"rs to Gsu$$"ssionG wit!out d"1inin it2 s!ould 0" int"r#r"t"d in (u"0"$ in li !t o1 t!" $ivil law. +eason  confirms )anada$s federal principle.g. !he civil court. *ct. it establishes the respective relationships between the institutions or branches of the state that perform the functions necessary to operationali'e law in society +ule of law • *veryone. -s agreement of provinces $onstitutionall% +l" all%. 3QU4 sought to effect "a )onstitution similar in ?rinciple to that of the OT. is silent. does not rule out the applicability thereto of some cases of manslaughter. 3PQ3. but she was entitled in her capacity as heir. save (as/atchewan. let alone the manslaughter committed by the respondent • (ince the respondent was Hconvicted of ma/ing an attempt on the life of the deceasedH. *#ist and recogni'ed to ensure that framewor/ of const. U98 majority found an e#isting convention that a "substantial measure of provincial consent% is re2uired. "& v 5m erial :obacco) . e. . !he proposed +esolution carried the approval of only two provinces. but being prospective and being general in character are not necessarily re2uirements (see the "& v 5m erial :obacco case) • !he rule of law is an implicit principle underlying the )onstitution (K such principles have full force of law) (see. that person is by operation of law unworthy of inheriting from his victim • >eld that respondent was dis2ualified Des6ardin 2*: • !o determine the meaning of the words Hsurviving spouseH and HsuccessionH when the federal statute in 2uestion. and a &harter of R78. -nsufficient provincial support. unilateral power to amend could see feds ta/e away all provincial powers Mthe in terrorem argumentN.% .• W!at2 in m% vi"w2 s!ould d"t"rmin" w!"t!"r or not it is n"$"ssar% to r"sort to t!" #rivat" law +in (u"0"$2 t!" $ivil law. !he first paragraph of article U:A of the )ode. • -n ab intestate and testamentary succession.N.VVN. here. is not t!" #u0li$ or #rivat" natur" o1 t!" 1"d"ral "na$tm"nt at issu" 0ut t!" 1a$t2 8uit" sim#l%2 t!at the federal enactment in a given case must be a--lied to situations +relationshi-s that it has not defined 5 that cannot be defined other than in terms of the -ersons affected8 • -t is also worth remembering the complementary nature of federal and civil law9 all of the 1ederal statutes created do not create an independent legal system. : issues9 +1. But. !he state must act lawfully in accordance with law • !he starting point in assessing the legitimacy of state action is the )onstitution • !he )onstitution establishes the foundational law through which the rule of law can occur.

inherent in the structure of our constitutional arrangements. a constitution must contain a comprehensive set of principles which are capable of providing an e#haustive definition for our system of government%9 Reference re Secession of 0uebec )onstitutional conventions . . Onli/e in the O(.-. e#ecutive and judiciary is important to )anadian law. each assigned respective spheres of jurisdiction • 1ederalism is an unwritten principle of the )anadian )onstitution (see Reference re Secession of 0uebec). democracy. and subse2uently. they help interpret the )onstitution. )anada adopted both a )harter of +ights and 1reedoms and an e#press declaration of constitutional supremacy (which put new limits on the lawma/ing ability of either level of legislature). closely tied to the separation of powers • 0I ensures that judges. • !hey have particular importance with respect to the wor/ings of the )rown and e#ecutive government • !hey were inherited from the British constitutional structure • see $atriation Reference case which defined what a convention is and recogni'ed a convention of "substantial provincial agreement% )onstitutional supremacy L &=! *&1=+)*. the )anadian system of government now operates under a principle of constitutional supremacy • !he essence of constitutionalism in )anada is that all government action must comply with the )onstitution • With the adoption of the )harter. !he federal structure adopted at )onfederation enabled 1rench7spea/ing )anadians to form a numerical majority in the province of Duebec. -n the $atriation Reference. including9 respect for the inherent dignity of the human person. !he ?E and members of their )abinet (the e#ecutive council "advising% the head of state) are elected members of legislature. • But with the )onstitution .e. the e#ecutive must locate any authority it has to act in )anadian society from a statutory source • !he e#ecutive. respect for cultural K group identity. the ()) in that case described this principle as a means of recogni'ing regional cultural diversity at the founding of )anada. !he following discussion addresses the four foundational constitutional principles that are most germane for resolution of this +eference9 federalism.djudication9 =ur system accepts that constitutional interpretation cannot be performed by the same body that enacts the ordinary law (i.mendment by super7majority re2uired !he (eparation of powers doctrine and parliamentary supremacy ((=?) B. observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our )onstitution as a Hliving treeH. is responsible to the legislature 5 which is essentially the meaning of "responsible government% in the parliamentary tradition 0udicial independence • 0udicial independence is an elemental constitutional doctrine. Gemocracy encompasses a number of values. 3QU4. constitutionalism and the rule of law.BL* B. • &evertheless. by constitutional convention. Gemocracy9 !he principle of democracy has always informed the design of our constitutional structure. !hat is. the courts have always been concerned with the federalism principle. !hese defining principles function in symbiosis. the )anadian system of government was transformed to a significant e#tent from a system of ?arliamentary supremacy to one of constitutional supremacy • !he doctrine of const$l supremacy carries with it necessary implications that spea/ to other aspects of public law9 (3) >ierarchy of law9 !o state that the )onstitution is )anada$s supreme law implies a hierarchy of law (:) . the power to interpret and enforce the )onstitution against majority preferences must be present (V) . we confirmed that the principle of federalism runs through the political and legal systems of )anada. a normative purpose of providing general boundaries for the operation of each institution • Legislative power and arliamentary su remacy9 (eparated between the federal (the ?arliament) and provincial legislatures. !his underlying principle of federalism.(*G =& )O(!=E( K ?+*)*G*&!( • )onstitutional conventions are another species of unwritten constitutional norms9 they represent accepted understandings of how organs of the government operate. and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction !he principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. the parliamentary system contemplates an overlapping of personnel between the legislature and the e#ecutive. where it was held that even a fully discretionary power is subject to the rule of law • (ee "& v 5m erial :obacco &anada.-. must be positive laws) (8) +e2uires that the relationship between the state and the individual be regulated by law Onwritten constitutional principles • Reference re Secession of 0uebec case confirmed that the )onstitution contains unwritten principles • !hese unwritten principles are important to understanding the legal constraints under which public power is e#ercised by the )G& state. they have the force of law and serve to impose (OB(!. the implementing of law (e#ecutive) and the interpreting and applying the law (judiciary) 8 3 : • -n )anada.-./ itself Gemocracy is commonly understood as being a political system of majority rule. !he principle of parliamentary supremacy is that )anada$s federal and provincial legislatures are understood to be the sole sovereign holders of state authority. *ttorney. B. .B=)T • !he (o? doctrine refers to the division of governmental functions between the legislative. -n order to endure time. as arbiters of disputes. !he democracy principle can best be understood as a baseline against which the framers of our )onstitution. )ourt described rule of law in 8 principles9 (3) !he law is supreme over govCt officials and private individuals (i. 3QU4 in such a way as to promote their language and culture. -t serves two principal purposes9 +1. !hus.e. K faith in social K political institutions which enhance the participation of individuals K groups in society.W(. . which has from the beginning been the lodestar by which the courts have been guided. )=O+!( • With s @:(3) ). the law applies to everyone e2ually) (:) +ule of law re2uires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order (i. $ublic Service Staff Relations "oard. our elected representatives under it. . *ach is assigned respective spheres of jurisdiction by the &*. .• (ee Roncarelli v Du lessis. and continues to act as an essential interpretive consideration today. has e#ercised a role of considerable importance in the interpretation of the written provisions of our )onstitution. -t also made provision for certain guaranteed representation within the federal ?arliament itself :.. subject to authority being divided between them along the lines set out in ss P3 and P: of the ). then. a point made earlier in 8raser v. -n interpreting our )onstitution. to invo/e the famous description in !dwards v. the legislature).#eneral for &anada !he effect of the preamble to the &* .&!-F* limits on the powers of government • "!hese principles are important because problems or situations may arise which hare not e#pressly dealt with by the te#t of the )onstitution. 3PQ:. are at a complete liberty to decide individual cases on their merits without interference • 0udicial independence also preserves the separation of powers b w the three branches of our democracy by depolitici'ing the relationship between the judiciary and the other two branches Cas"s #eference re Secession of Quebec +R"$o niB"s and "7#lains t!" im#ortan$" o1 M unwritt"n $onstitutional #rin$i#l"s. the distinction between the legislature. =ur system re2uires that the legislature will be chec/ed by the judiciary with the authority to interpret and apply the )onstitution (8) )ounter7majoritarianism9 -n a system of constitutional supremacy. e#ecutive and judicial branches of the state • *ach branch is defined by its relationship to law9 the ma/ing of law (legislature). the scope of rights and obligations. a functional purpose of identifying the institutional homes of the three major forms of public power and +C. nor does any one principle trump or e#clude the operation of another. have always operated. the concept of parliamentary supremacy was modified (and constitutional supremacy trumps it) !he principle of federalism • Gividing legislative power between federal govCt and regional govCts. to which the e#ecutive is made subordinate. there is no strict separation./ was to incorporate certain constitutional principles by reference. !he principle of federalism recogni'es the diversity of the component parts of )onfederation. particularly w respect to the distinct nature of Duebec as predominantly a 1rench7spea/ing society !he e#ecutive power • !he e#ecutive derives any power it has solely from the laws or statutes passed by the legislature. *2ually important. &o single principle can be defined in isolation from the others.e. where manufacturers of tobacco claimed that legislation enacted which favoured B) government in many respects violated principle of rule of law./.lso. accommodation of a wide variety of beliefs. -t is for this reason that the principle was not e#plicitly identified in the te#t of the &onstitution *ct. and respect for minority rights.ct 3PQ:. and so e#ercise the considerable provincial powers conferred by the )onstitution . 1ederalism9 )anada is a federal state in which political power is shared by two orders of government9 the federal government on the one hand. we determined that the preamble Hinvites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the e#press terms of the constitutional te#tH 3. and the provinces on the other. commitment to social justice and e2uality.ct. !he parliamentary tradition adopted by )anada$s founders gives pre7eminence to the legislative branch. Ose of unwritten principles9 !he principles assist in the interpretation of the te#t and the delineation of spheres of jurisdiction. -n the $rovincial 2udges Reference. and the role of our political institutions.&G. &ature of unwritten principles9 !hese principles inform and sustain the constitutional te#t9 they are the vital unstated assumptions upon which the te#t is based.J+**E*&!( W>-)> L L.

:hus.ppeal raises a range of issues relating to the independence of provincial courts. :he 0ueen. these doctrines should be applied rarely. as it was there engaged in a celebrated e#ercise of advising the *#ecutive. the most obvious being the statutory power of the ()) to give advisory opinions.udi$ial ind"#"nd"n$" is valu"d 0=$ it s"rv"s im#ortant so$i"tal oals O it is a m"ans to s"$ur" t!os" oals. for long standing reasons based on const$l principles such as responsible government.$ +Id"nti1i"s :udi$ial ind"#"nd"n$" as st"mmin 1rom an unwritt"n $onstitutional #rin$i#l"2 and d"tail"d dis$ussion o1 /1inan$ial s"$urit% at t!" institutional l"v"l 3. predictable and ordered society in which to conduct their affairs. ?rotection of Einorities9 !here are a number of specific constitutional provisions protecting minority language. religion and education rights. and the process of constitutional judicial review that it entails. for the e#ercise of judicial power). !he relationship between democracy and federalism means. for e#9 that in )anada there may be different and e2ually legitimate majorities in different provinces and territories and at the federal level. those invalidations didn$t cure all of the unconstitutional effects of the relevant provisions. even though the rendering of advisory o inions is 9uite clearly done outside the framewor' of adversarial litigation. and such o inions are traditionally obtained by the e+ecutive from the law officers of the &rown. a function not countenanced in systems of true separation of powers such as O(. applying and enforcing its statutes. -n the 0uebec Secession Reference )ourt unanimously confirmed its right to perform this function9 Moreover.ppellants$ position is essentially that any limitation on the jurisdiction of judicial bodies. "!he relationship between the state and the individual must be regulated by lawH. the rule of law vouchsafes to the citi'ens and residents of the country a stable. both governed by the laws of ?arliament. the rule of law cannot be ta/en to invalidate a statute which has the effect of allowing representatives of the )rown to identify certain documents as beyond disclosure9 that is. and to be candidates in those elections. the right to vote in elections to the >o) and the provincial legislatures. however purposively. the conse2uences will vary with the subject matter. $arliament 7 the rovincial legislatures may ro erly confer other legal functions on the courts.e. can be seen to be a violation of the separation of powers. on a legal foundation )onstitutionalism and the +ule of Law9 !he Crule of lawC is a highly te#tured e#pression. access to certain )abinet information. 0ust as there are fundamental policy reasons of a 2uasi7constitutional nature as to why legislators should have full control of their procedures and judges shouldnCt have to reveal the processes by which they reach a given decision. and with great circumspection. so the *#ecutive (with the guidance of an . -n this case. have been treated differently from private documents in a commercial law suit. although. although invalidated. )oncern that this eroded judicial independence guaranteed under s 33(3)(d) of )harter. -n individual terms. answering several hypothetical 2uestions posed by the Jovernor in )ouncil in the absence of any real Hcase or controversyH in the legal sense (the criterion in the O. !he upshot of this judgment is that every person found guilty by a provincial court in one of the relevant provinces while the unconstitutional laws were being applied has suffered a breach of their s. this appears to be an intra vires measure by ?arliament to define privileges of the federal *#ecutive in the furtherance of the well7established and well7accepted principles of )abinet secrecy. Ind"#"nd"n$" $ontri0ut"s to t!" #"r$"#tion t!at :usti$" will 0" don" in individual $as"s. precluding them in certain instances from engaging in the review of government decisions.(. !he 8 other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities.$ FACTS: )ertain statutes created by provincial govCts interfered with judicial independence of provincial courts. Anot!"r so$ial oal s"rv"d 0% . :he e+ce tion to this rule relates only to s. +ule of law9 !he elements of rule of law include9 that the law is supreme over the acts of both government and private persons (Hon" law 1or allH). <. !he provinces have re2uested declarations that these decisions cannot be reopened (i. conte#tually or policy7oriented may be the interpretative methods used to attribute such meaning. &o majority is more less HlegitimateH than the others as an e#pression of democratic opinion. !here are C 8uali1i$ations to t!" rul"9 3. =ne of the /ey considerations motivating the enactment of the &harter. But only individual 1inan$ial s"$urit% was considered. • Finan$ial s"$urit% must be understood as merely an as#"$t o1 :udi$ial ind"#"nd"n$". o1 t!" Canadian Charter of #ights 5 :reedoms r"stri$ts t!" mann"r 0% and t!" "7t"nt to w!i$! #rovin$ial ovNts and l" islatur"s $an r"du$" t!" salari"s o1 #rovin$ial $ourt :ud "s6 C. ?ast decisions cannot be reopened. to give to another branch of the *#ec. W!"t!"r and !ow t!" uarant"" o1 :udi$ial ind"#"nd"n$" in s. !he !rial 0udge (correctly) held that this did not constitute an interference with independence as measured by the now well7 established rules in >alente v.. -n the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective (eparation of powers9 !he appellants argue that doctrine of separation of powers prevents ?arliament from giving judicial functions to the *#ecutive. democratic institutions must rest. !o be accorded legitimacy. 8. ISS&E: . or the administrative independence of judges as dealt with in that case #eference re #umuneration of &udges of the *rov Court of *. When the rule does apply. !hey characteri'e the issuance of a section 8P certificate by the )ler/ of the ?rivy )ouncil as judicial in nature because it involves a determination of whether a court should have access to certain evidence -n )anada (unli/e the O( OT) there are many other e#amples of the mi#ing of functions among the various branches of government. t!"r" is a do$trin" t!at r"$o niB"s t!at in som" situations it is 0"tt"r to !av" a nonAim#artial and ind"#"nd"nt :ud " to non" at all * t!" do$trin" o1 n"$"ssit%. • !he aspect of judicial independence which is engaged by the impugned reductions in salary 7 1inan$ial s"$urit% 7 has only been dealt with in any depth by >alente v. the rule of law does not preclude a special law with a special result dealing with a special class of documents which. . as both preserve the effects of an unconstitutional law Singh v Canada +E7#lains som" o1 t!" 1undam"ntal #rin$i#l"s dis$uss"d a0ov". -t is not surprising that the )ourt reached this conclusion. even on the basis of the (o?. ultimately. :he 0ueen. there is no constitutional bar to this &ourt=s recei t of 6urisdiction to underta'e such an advisory role #ef re $nde-endence and $m-artiality of &udges of the *rov8 Court of *. L strict (o? in )anada -n the present conte#t it is difficult to see how. !he rule will not apply in circumstances where its application would involve positive and substantial injustice. the ?) =ffice. . the doctrine of necessity recogni'es the importance of finality and continuity in the administration of justice. importing many things which are beyond the need of these reasons to e#plore but conveying. 8 of the &harter.ct of ?arliament) should be able to identify those documents generated in its internal decision7ma/ing process which should not. Before after 3PQ: our system was is one of parliamentary sovereignty e#ercisable within the limits of a written constitution $rima facie. While the courts must determine the meaning of statutory provisions. democracy means that each of the provincial legislatures and the federal ?arliament is elected by popular franchise. -ndependence of the judiciary9 . they remain valid) REASONIN-: • =ne effect to those legislative provisions that had undermined the financial security of provincial court judges was to render those tribunals dependent. which is not an end in itself. ?arliamentary sovereignty9 -t is the prerogative of a sovereign ?arliament to ma/e its intention /nown as to the role the courts are to play in interpreting. !he )G& )onstitution does not insist on a strict separation of powers. 33(d) rights ("right to be heard by an independent and impartial tribunal%). for the integrity of the system of )abinet secrecy. particularly following the enactment of the &harter. 11+d. 8P in no way interferes with the security of tenure. for e#ample. -n fact. !he doctrine of necessity finds its sour$" in t!" rul" o1 law9 t!" do$trin" o1 n"$"ssit% is a##li"d to #r"v"nt a 1ailur" o1 :usti$". is guaranteed to H*very citi'en of )anadaH by virtue of s. • .. it only applies to the e#tent that necessity justifies • Li/e res judicata. that an actual order of positive laws be created and maintained to preserve Hnormative orderH. the &DN &onstitution does not insist on a strict So$.t its most basic level. they do so in the name of see/ing out the intention or sovereign will of ?arliament. >owever. -t is the law that creates the framewor/ within which the Hsovereign willH is to be ascertained and implemented. be disclosed. but are united by two interrelated issues9 1. then. is a violation of constitutionally guaranteed independence of the judiciary. It #rovid"s a s!i"ld 1or individuals 1rom ar0itrar% stat" a$tion. and may confer certain 6udicial functions on bodies that are not courts. !he retroactive annulment of the salary reductions does not change the fact that that provincial court judges were not independent during the period of time when those reductions were imposed on them • 4OCTRINE OF NECESSITI)9 But there is no need to ma/e those declarations. W!"t!"r t!" $onstitutional !om" o1 :udi$ial ind"#"nd"n$" li"s in t!" "7#r"ss #rovisions o1 t!" CA 1?K> to 1@?C2 or "7t"rior to t!" s"$tions o1 t!os" do$um"nts REASONIN-: "ac'ground • Litigation has ensued between two primary organs of our constitutional system I t!" "7"$utiv" and t!" :udi$iar% I which both serve important and interdependent roles in the administration of justice. s. a sense of ord"rlin"ss2 o1 su0:"$tion to <nown l" al rul"s and o1 "7"$utiv" a$$ounta0ilit% to l" al aut!orit%H. the refusal of one branch of the *#ec. the +)E? ?ublic )omplaints )ommission. statute decreased provincial court justices$ salaries b c of a provincial deficit.-n institutional terms. courts. :. the financial security. and that Hthe e#ercise of all public power must find its ultimate source in the legal ruleH. !he concern of our courts and governments to protect minorities has been prominent in recent years. is the protection of minorities. • On" o1 t!"s" oals is t!" maint"nan$" o1 #u0li$ $on1id"n$" in t!" im#artialit% o1 t!" :udi$iar% +"ss"ntial to t!" "11"$tiv"n"ss o1 $ourt. FACTS: .et democracy in any real sense of the word cannot e#ist without the rule of law.

must be interpreted in such a manner as to protect this principle. for e#. !he conceptual distinction between the core characteristics K the dimensions of 0I suggests that it may be possible for a core characteristic to have both an individual and an institutional or collective dimension • 1inancial security has both an individual and institutional dimension • . T!" Pr"am0l" has been us"d as a r"1"r"n$" #oint to 1ill t!" a#s in t!" Constitution. S"$tions @KA1PP. . there is always the danger. and the judiciary on the other. . T!" L $om#on"nts o1 t!" institutional or $oll"$tiv" dim"nsion o1 1inan$ial s"$urit%2 to m% mind2 1ul1ill t!is oal: +1.udi$ial ind"#"nd"n$" is at root an unwritt"n $onstitutional #rin$i#l". and the inferral of implied limits on legislative sovereignty with respect to political speech I illustrat" t!" s#"$ial l" al "11"$t o1 t!" #r"am0l". While not binding. these reviews should be ta/en seriously +C. =ne implication of the preamble$s recognition and affirmation of ?arliamentary democracy is the constitutionali'ation of legislative privileges for provincial legislatures. -f salaries are too low. (ection 3 typically re2uires a valid government reason for violating rights. the commission must also be effective. of all 8 types of courts (superior. individual +i. and most li/ely.". while ss. that members of the judiciary could be tempted to adjudicate cases in a particular way in order to secure a higher salary from the e#ecutive or the legislature or to receive benefits from one of the litigants) * lication of (egal $rinci les • !he ()) faulted the governments of PEI and Al0"rta for neither consulting salary commissions nor having such bodies to begin with. the )ourt went on to recogni'e the general principle of 0I as an unwritten rule Section . t!" d"t"rmination o1 t!" l"v"l o1 r"mun"ration 1rom t!" #u0li$ #urs" is #oliti$al in anot!"r s"ns"2 0"$aus" it rais"s t!" s#"$tr" o1 #oliti$al int"r1"r"n$" t!rou ! "$onomi$ mani#ulation. and in this case ?rince *dward -sland and . the independence of provincial courts adjudicating in family law matters. :. the fact remains that judges.lbertaCs actions failed the section 3 test because they did not e#plain why they did not have salary commissions. !he preamble identifies the organi'ing principles of the &* . • And t!"r" ar" C dim"nsions o1 :udi$ial ind"#"nd"n$": 1. also. s 33(d) of the )harter)).want to ma/e first is that t!" institutional rol" d"mand"d o1 t!" :udi$iar% und"r our Constitution is a rol" w!i$! w" now "7#"$t o1 #rovin$ial $ourt :ud "s • &ote that the increased role of provincial courts in enforcing the provisions and protecting the values of the )onstitution is in part a function of a legislative policy of granting greater jurisdiction to these courts. that some functions must be e#clusively reserved to particular bodies. the )ourt considered whether violations of these rights could be justified under section 3 of the )harter of +ights. the remedial innovation of suspended declarations of invalidity. and :.g.3d4 of the &harter • 8 $!ara$t"risti$s of judicial independence9 s"$urit% o1 t"nur"2 1inan$ial s"$urit% J administrativ" ind"#"nd"n$".lthough this case was settled using s 33(d). No n" otiations on :udi$ial r"mun"ration 0=w t!" :udi$iar% and t!" "7"$utiv"=l" islatur" (as they are indelibly political. !he reason it does is for financial security to protect the judiciary from political interference through economic manipulation.udi$ial salari"s ma% not 1all 0"low a minimum l"v"l (the )onstitution protects judicial salaries from falling below an acceptable minimum level. for e#. • T!"s" r"lations!i#s s!ould 0" d"#oliti$iB"d: t!" l" islatur" and "7"$utiv" $annot2 and $annot a##"ar to2 "7"rt #oliti$al #r"ssur" on t!" :udi$iar%2 and $onv"rs"l%2 t!at m"m0"rs o1 t!" :udi$iar% s!ould "7"r$is" r"s"rv" in s#"a<in out #u0li$l% on issu"s o1 "n"ral #u0li$ #oli$% t!at ar" or !av" t!" #ot"ntial to $om" 0"1or" t!" $ourts2 t!at ar" t!" su0:"$t o1 #oliti$al d"0at"2 and w!i$! do not r"lat" to t!" #ro#"r administration o1 :usti$". in my view. • But t!" institutional ind"#"nd"n$" o1 t!" :udi$iar% r"1l"$ts a d""#"r $ommitm"nt to t!" s"#aration o1 #ow"rs 0"tw""n and amon st t!" l" islativ"2 "7"$utiv"2 and :udi$ial or ans o1 ov"rnm"nt • !he point .-. only protects the security of tenure of superior court judges. as a result. preamble recogni'es and affirms that we are governed by a ?arliamentary democracy. such as s. the vesting of the power to regulate political speech within federal jurisdiction. • !he s"#aration o1 #ow"rs re2uires at the least. these don$t provide an e#press code for the protection of 0 I for all types of courts T!"r" ar" s"rious limitations wit! t!" vi"w t!at "7#r"ss #rovisions o1 t!" Constitution $om#ris" an "7!austiv" and d"1initiv" $od" 1or t!" #rot"$tion o1 :udi$ial ind"#"nd"n$". the e#ecutive or the legislature. 33(d) of the &harter. . • (ince these considerations were made using section 33(d). o1 t!" :ud ". • -ssue here is the character of the relationships between the legislature and the e#ecutive on the one hand. @KA1PP do"snDt a##l% to #rovin$iall% a##oint in1"rior $ourts2 i. institutional=$oll"$tiv" +i. they would undermine public confidence in the impartiality of the independence of the judiciary. =ften. !hus. is a fundamental principle of the )anadian )onstitution9 t!" s"#aration o1 #ow"rs. is limit"d as w"ll +onl% a##li"s to 0odi"s w!i$! "7"r$is" :urisdi$tion ov"r o11"n$"s. • !he institutional independence of the courts is ine#tricably bound up with the separation of powers. Mremove from political activity or influenceN • !his demands that t!" $ourts 0ot! 0" 1r"" and a##"ar to 0" 1r"" 1rom #oliti$al int"r1"r"n$" t!rou ! "$onomi$ mani#ulation 0% t!" ot!"r 0ran$!"s o1 ov"rnm"nt2 and t!at t!"% not 0"$om" "ntan l"d in t!" #oliti$s o1 r"mun"ration 1rom t!" #u0li$ 1unds TOPIC M: Basi$ Ar$!it"$tur" o1 t!" Canadian L" al S%st"m L" islativ" Bran$! +C!a#t"r M o1 Crai<. =n the other hand.. (o.lso. • 5anito0a did have a salary commission.lthough several sections of the )onstitution guarantee things such as financial security (e. Li/ewise. are not civil servants • With respect to the judiciary. on" as#"$t o1 w!i$! is t!" $onstitutional #rin$i#l" t!at t!" "7"r$is" o1 all #u0li$ #ow"r must 1ind its ultimat" sour$" in a l" al rul". and to thereby ensure public confidence in the administration of justice. and that the setting of remuneration from the public funds is. as the )rown is almost always a party to a criminal prosecution) +L. *# where the )ourt has inferred a basic rule of )G& constitutional law despite the silence of the const$l te#t is the doctrine of paramountcy. and county) s. 3. although they must ultimately be paid from public monies. the actions of these governments breached section 33(d) of the )harter of +ights. • !he depolitici'ation of these relationships is so fundamental to the separation of powers. respectively. for ?arliament as well. 1inally. !herefore. inherently political I with the depolitici'ed relationship between the judiciary and the other branches of government. onl% #rot"$t t!" ind"#"nd"n$" o1 :ud "s o1 t!" su#"rior2 distri$t2 and $ount% $ourts2 and even then. • How"v"r2 t!" d"#oliti$iB"d r"lations!i#s I !av" 0""n d"s$ri0in $r"at" di11i$ult #ro0l"ms w!"n it $om"s to :udi$ial r"mun"ration . !he constitutional response to the shifting jurisdictional boundaries of the courts is to guarantee that certain fundamental aspects of judicial independence be enjoyed not only by superior courts but by provincial courts as well &ollective 8inancial Security • T!" 1a$"ts o1 $oll"$tiv" 1inan$ial s"$urit% all 1low 1rom t!" im#"rativ" t!at t!" r"lations!i# 0"tw""n t!" :udi$iar% and ot!"r 0ran$!"s o1 ov"rnm"nt 0" d"#oliti$iB"d.udi$ial salari"s $an 0" r"du$"d2 so lon as "$onomi$ mani#ulation o$$urs t!rou ! an ind"#"nd"nt 0od%2 $om0in"d wit! a :udi$ial $om#"nsation $ommission +0"tw""n t!" :udi$iar% and ot!"r 0ran$!"s o1 ov"rnm"nt. on its terms. free from )rown )ourt interference T!"s" "7am#l"s I the doctrines of full faith and credit and paramountcy.. . S. Eanitoba did not e#plain why they did not use their salary commission CO55ENT: . !he first and most serious problem is that the range of courts whose independence is protected by the written provisions of the )onstitution contains large gaps. Eoreover. t!at would d"#oliti$iB" t!" #ro$"ss: !he commissions must be independent. in the sense that it implicates general public policy.". !he salary commissions must be objective. 11+d. =n the one hand. because in ord"r to uarant"" t!at t!" $ourts $an #rot"$t t!" Constitution2 t!"% must 0" #rot"$t"d 0% a s"t o1 o0:"$tiv" uarant""s a ainst intrusions 0% t!" "7"$utiv" and l" islativ" 0ran$!"s o1 ov"rnm"nt. o1 t!" $ourt or tri0unal o1 w!i$! t!at :ud " is a m"m0"r. and hence to the )anadian )onstitution. legislation of this nature denies litigants the choice of whether they must appear before a provincial court or a superior court. (tructure operation of ?arliament . district. not in a uniform or consistent manner. =ur tas/ is to ensure compliance with one of the "structural re2uirements of the )G& )onstitution%. • T!" d"#oliti$iBation is lar "l% ov"rn"d 0% $onv"ntion. the recognition of the constitutional status of the privileges of provincial legislatures. but its actions were unconstitutional because the provincial gov$t didn$t use it . ss../. :he ?nwritten "asis of 2udicial 5nde endence . as is normal procedure. that the provisions of the )onstitution. however speculative. !hese privileges are necessary to ensure legislatures can perform their functions. remuneration from the public purse is an inherently political concern. PU and3AA protect the core jurisdiction and the financial security. An uns$ru#ulous ov"rnm"nt $ould utiliB" its aut!orit% to s"t :ud "sD salari"s as a v"!i$l" to in1lu"n$" t!" $ours" and out$om" o1 ad:udi$ation • !he challenge which faces the )ourt in these appeals is to ensure that the setting of judicial remuneration remains consistent I to the e#tent possible given that judicial salaries must ultimately be fi#ed by one of the political organs of the )onstitution. and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the e#press terms of the constitutional te#t T!" sam" a##roa$! a##li"s to t!" #rot"$tion o1 :udi$ial ind"#"nd"n$" • !hese different components of the institutional financial security of the courts in here. #rovin$ial $ourts .".• • • • • • :udi$ial ind"#"nd"n$" is t!" maint"nan$" o1 t!" rul" o1 law. PP. reasonable person test employed to determine whether there is judicial independence under s 33(d) 5nstitutional 5nde endence • T!" institutional ind"#"nd"n$" o1 t!" $ourts "m"r "s 1rom t!" lo i$ o1 1"d"ralism2 w!i$! r"8uir"s an im#artial ar0it"r to s"ttl" :urisdi$tional dis#ut"s 0"tw""n t!" 1"d"ral and #rovin$ial ord"rs o1 ov"rnm"nt. -tCs with these broader objectives in mind that these reasons and the appeal must be understood. a conflict of interest would arise. would not be constitutionally protected.

also consider the limitations put on it by the )harterN • &onetheless. ?arliament cannot be entirely sidelined) 8. and Samson v *.• ?arliament consists of the Dueen. and (in the case of JJ) on appointment. )ourts say that this aspect of law ma/ing should be loo/ed after by ?arliament legislatures themselves. and has been challenged with )harter. -t constitutes a fairly comprehensive code of )ommons operations. their identity depends (in the case of Eonarch) on birth. it is still useful to spea/ about a distinct e#ecutive branch of gov$t • . 8 )o+K1 purpose 6 vote • Brin in t!" $onstitu"nt "l"m"nts o1 Parliam"nt to "t!"r: 3. @)Donohue v :he 0ueen.ct 3QU4) o -n e#ercising that power. as does ?arliament of )anada . it must be noted that. !he )G& )onstitution incorporates British parliamentary traditions via the preamble to the ). as a constitutional convention) Tey actors in parliament +a. an Opper >ouse styled (enate. but failed (see "rown v *lberta. !hat . where it was held that the )ourt cannot fetter the JJ$s discretion) • Hous" o1 Commons9 o Eembers of the >ouse of )ommons are elected o *ach riding elects 3 member to the house (the current number of districts. the dismissing of a chauffeur was not considered part of parliamentary immunity) >+ L employment M&=!*9 !he idea of privilege reflects and enforces the separation of powers. :.GF-)* of ?E (a constitutional convention) • T!" S"nat": o )anada has an unelected upper chambers of the federal legislature. the division of powers found in ss P3 and P:. 1or +oyal .!his means ?arliament is free to act unfairly i. and >ouse of )ommons9 s . as re2uired by constitutional convention.g. statute. but individual parliamentarians are not • !hus. paying compensation to those the legislation affects (Wells v Newfoundland4 • !hus.g. identify certain subjects in respect of which ?arliament cannot legislate. so long legislation ma/es such an intent clear (*uthorson v &anada) M!hat$s bull shitYN *thics in law ma/ing (focussing on conflicts of interest) • ?arliament may be sovereign. • 1urther. e. • But ?arliament can be held in chec/ if it passes arbitrary laws9 e. 3QU4 (s @) K )harter (s V(3)) limit the duration of a )ommons to @ years. free from interference by the )rown and the courts. which decided that )anada cannot unilaterally change succession rules o !he monarch appoints the JJ. • "?rivilege% in this conte#t usually means legal e#emption from some duty. the JJ follows the advice of the ?E. burden etc to which others are subject.ct re2uired a registered party to run candidates in at least @A electoral districts.ct • ?arliamentary privileges (the important part in this section) are those rights necessary to ensure that legislatures can perform their functions. Parliam"ntar% law ma<in (cope of law ma/ing jurisdiction (substantive law focus) • Parliam"ntar% su#r"ma$% means that ?arliament is the source of all power and ?arliament has the jurisdiction to ma/e or unma/e any law whatever M&=!*9 (ome suggest that. the )anada *lections . so what rules does it follow. !he spea/er +$. so long as is it conforms to the )onstitution (rules governing division of powers between federal and provincial legislatures). specifically the separation between ?arliament legislatures and courtsN (:) (tanding orders9 • )anada$s legislatures can administer that part of a statute relating to its internal procedure. . even free to pass careless or bad laws. separated by a prorogation. for e#. such an issue is not justiciable (see :urner v &anada). e#ercises Dueen$s powers o )G& head of state is not elected. K thus members of ?arliament. • (tanding orders are rules of procedure adopted by at least a simple majority vote of the members of the )ommons. the bill has to be passed in the same form by both >ouses (i. Summoning9 the calling of ?arliament. and constitutionally protected individual rights and liberties found in the )harter (this goes bac/ to parliamentary supremacy). flows from various sources i. then. e. if it strips away contractual rights (by legislation). o (election of Eonarch is discriminatory. most private bills originate in the (enate where the fees and charges imposed on the promoter are less o !hey are introduced by means of a petition signed by interested parties K presented in >ouse by a Eember who agrees to sponsor it T!" E7"$utiv" Bran$! +C!a#t"r Q o1 Crai<.ct spea/s of ?arliament possessing parliamentary "privileges%. however. e#cept those found in the )onstitution • !o demonstrate the breadth of ?arliament$s law ma/ing power. and chooses people to head the various government Gepartments o . • Eainly governed by rules of procedure of each chamber of ?arliament. although the discussion up to this point suggests that no prudential constraints e#ist on ?arliament other than those found in the )onstitution. clear set of legal principles governing the boundaries of e#ecutive powers and manner by which e#ecutive powers are to be e#ercised has been developed (namely administrative law) ?arliamentary procedure law ma/ing +a. the second reading being the most important stage (it is then that the principle and object of the bill are debated accepted rejected. (&ote9 ?E must resign or see/ parliamentary dissolution after a no confidence vote. Dissolution9 the dissolution of ?arliament prompts a new electoral cycle. • )G&s aren$t entitled to due process or procedural fairness in the law7ma/ing process (so long as the procedures in the )onstitution are met). in this case. including )ommons law ma/ing . a given ?arliament is generally divided into several sessions. in practice. e#cept in times of war or insurrection.. whether those laws 5 created by both the legislature or judiciary 4EFINITION • Gespite the absence of a rigid separation of powers doctrine in )anada. bill becomes law when it receives Ro%al Ass"nt./. acting on the advice of the ?E.ll the elected candidates have a seat in the >ouse of )ommons. as long as it stic/s within its )onstitutional mandate (see "acon v Sas'atchewan &ro 5nsurance. $rorogation9 once summoned.g.fter an election.e. prorogation is the prerogative of the governor general. . the party with the most elected representatives usually becomes the governing party. where the applicant failed in using the rule of law principle in an attempt to challenge an allegedly bad law). for e#. where they vote on Bills o Ontil recently. Sour$" o1 #arliam"ntar% law ?arliamentary law9 rules determining arliamentary rocedure. the ?arliament of )anada is &=! supreme.. !o do so would trench parliamentary privilege (Wells v Newfoundland). it may be held responsible for.ct. see e. ?rivate bills are subject to special rules in both >ouses of ?arliament.e. therefore. even if ?arliament is tric/ed into passing a law by the e#ecutive. it has been held that there can be e#propriation of property without compensation. a parliamentarian induced by the prospect of financial gain to vote in one way or another in performing his or her law ma/ing functions is subject to sanction in a number of ways • *thics rules e#ist both in statutory law and in the internal procedural rules governing each hose of ?arliament ?arliament$s law7ma/ing procedure (bill to law) • ?arliament is free to determine its own procedure K pass laws as it pleases within its constitutional jurisdiction. as well as to determine the contents of such things as (tanding =rders on ?rocedure. ?arliamentary committees +0. (ee &anada v >aid for an outline of the scope of parliamentary privilege. But the monarch does so on the . • ?arliament is. that alone is insufficient for a court to stri/e it down. (tanding =rders of the >ouse of )ommons • !here are : types of bills9 public (centred on public policy) and private (relates to matters of a particular interest benefit to a person persons).ssent to be given. !his rule was struc/ down by the S&& in 8igueroa v &anada s. unli/e the ?arliament in OT. the (enate and >ouse of )ommons). !he legislative process for each is a bit different (3) ?ublic bills9 o Joes through P stages. (:) ?rivate bills o . etc (3) )onstitution and statute9 • !o understand parliamentary law start at the )onstitution. by passing laws without any notice to those implicated in it. where it was held that the appellant didn$t raise legal issue. ?olitical parties +0. o !he leader of this party becomes the ?E. o : cases attempted to dispute this process.e. • !he e#ecutive branch refers to institutions in government that are responsible for implementing and enforcing laws.e.#. bill designed to e#empt an individual or group of individuals from the application of the law is a private bill. without court intervention. the scope of ?arliament$s law7ma/ing jurisdiction is endless. governed by the )anada *lections .g. Jovernor Jeneral. )onstitution. 3QU4. &onstitution *ct • T!" 5onar$! and -ov"rnor -"n"ral: o Dueen is essentially )anada$s head of state. the )onstitution e#pressly anticipates the appointment of senators by the governor general (see s :V of the )onstitution . ). (ection @ of the )harter provides that there shall be a sitting of ?arliament and of each legislature at least once every 3: months (i. no prudential constraints e#ist on ?arliament. is 8AQ) o )anada$s electoral system is referred to as a "single7member plurality% or "first7past7the7post% system. three types of amendments may be proposed at this stage) o .

and the system of governmental departments and ministries that are overseen by individual ministers o >owever. lac/ of same scrutiny legislation is enacted with) o (ee the "Jovernment of )anada. although in that case. 3QU4). is re2uired to enforce those policies that have the force of law. • Gespite that there is now a de7emphasis on functional distinctions in order to determine administrative actors$ duties functions responsibilities.e. deliver a wide range of public services. -t$s ?arliament legislatures that determines by statute the independence re2uired by admin bodies e. "lac' v &hretien says that such powers are subject to judicial oversight in certain circumstances. the Dueen appoints the JJ and lieutenant governors to act as her representatives. although there may be circumstances which re2uire their independence. the commercial nature of some activities may be illAsuit"d to ov"rnm"nt d"#artm"ntal stru$tur"s f. !he statutor% #ro$"ss is much more cumbersome and time consuming than the process for enacting regulations. don$t have to follow rigid laws always K can rely heavily on policy etc) (8) Benefit or obligation determination o !he most prevalent group of administrative decision ma/ers are those empowered to determine whether a person will be granted a particular public benefit (e.e. !he governor general is to e#ercise all powers and authorities lawfully belonging to the monarch in respect of )anada o But in a system of responsible government. however.ct 3QU4 o -dentification of the gov$t with the )rown spea/s only to the formal legal status of the e#ecutive. !he )rown9 o !he entire authority of the e#ecutive branch is v"st"d in t!" monar$!%. adjudicative admin bodies do not have to be independent. !he ?ublic (ervice o !he employees of ministries of the government. )ollective responsibility re2uires that the ministry maintain the confidence of the ?arliament. similar e#pectation underlies the e#ercise of legislative powers. !he constitutional convention of "responsible government% lies at the foundation of )G& governance. municipalities are governed by elected officials K e#ercise broad full powers Shell &anada: Eunicipal authority only 5 geographical location !ast Aor': -nferior state government e.e.&G e#pertise . in addition to being responsible for the implementation of gov$t policy.e. interests. o @cean $ort Hotel case draws the distinction b w independence re2uired by courts K those by admin bodies that are adjudicative. )rown corporations o !hese are essentially administrative bodies that have a legal personality separate from the government. -ndividual ministerial responsibility re2uires that each minister be answerable in ?arliament for the activities of his or her department o -n addition to )abinet duties.&G regulations are suited where rules re2uire readjustment (impossible for legislators to /now in advance the range of circumstances that will re2uire speciali'ed rules). such as the provision of road. which may re2uire d"$isions to 0" mad" 1r"" 1rom #oliti$al in1lu"n$"s that may unduly interfere with the commercial objectives. are also part of e#ecutive o !hey are distinct from ministers. Onder a system of responsible gov$t. and the creation of public policy is legitimi'ed through democratic processes. who the Dueen must follow. )abinet ministers have administrative duties for departments under their charge c.dministrative .• . are generally not elected • -n cases where administrative officials e#ercise narrow powers carefully defined through legislation. sewer and water services o Onli/e other forms of independent administrative bodies. but in the case of legislators. • !o a large degree. and the )rown is the bearer of both legal rights and obligations o !his is entrenched in s P of the )onstitution . public preferences are made /now. often referred to as civil servants. free from political oversight.&G it is impossible for legislators to /now in advance the range of circumstances that will re2uire speciali'ed rules o !here are concerns as well though (i. although there can be indirect inter7delegation (namely where the inter7delegation was to an administrative body) ($!5 $otato Mar'eting "oard v Willis). Eunicipalities o Eunicipalities. -t is the prime minister who presides over the )abinet o !he )abinet is in most matters the supreme e#ecutive authority9 -t is the )abinet that determines the legislative agenda of the gov$t in ?arliament and it is the )abinet and its ministers that are responsible for the administration of the individual departments of the gov$t o !he separation of the e#ecutive branch from the legislative branch is not absolute. . and vice versa (i. time e#pense. . it helps to review the major types of decisions commonly made by admin decision ma/ers9 (3) +ule ma/ing (i. *nforcement bodies9 ?olice and ?rosecutors o !he e#ecutive branch of gov$t.g. but the powers delegated must conform to the )onstitution. !hus. the ministry is accountable to the legislative branch both collectively and individually. yet they have to be held accountable) &am bell: +)E? action protected (ources of e#ecutive power . . but can$t abdicate their power (Re #ray9 delegation of war time powers) o ?arliament cannot delegate to provincial legislatures.s a matter of e#press constitutional recognition. !he ?rime Einister and the )abinet o 5inist"rs and the #rim" minist"r together comprise the ministry (which is used interchangeably with the word cabinet). in turn. in that they are politically neutral o )ivil servants must be loyal to the government they represent (8raser v &anada) d. although by constitutional convention the Dueen ma/es these appointments on the advice of the ?E.t the heart of administrative law is a re2uirement that government officials e#ercise their powers in furtherance of public. p. the issue was non justiciable • Statutory powers9 o !he majority of e#ecutive powers originate from a delegation of authority by the legislature by statute o Gelegation power of Legislatures is wide (parliamentary sovereignty). inter delegation) (the basis of this principle is that an inter7 delegation would upset the constitutional division of powers contained in ss P3 and P: of the )onstitution . . o !he #ur#os" of creating )rown corporations is that they may be useful where there is a strong commercial aspect to the ov"rnm"ntal s"rvi$".s a constitutional matter. Juide to Ea/ing 1ederal .n administrative body is the product of the legislative instrument that creates it o . the governor general and lieutenant governors for each province are bound by constitutional convention to e#ercise their powers with the advice of the )abinet of their respective government b. -ndependent . *nforcement duties fall primarily on the police and prosecutors o !here is a tension b w accountability and independence in the conte#t of enforcement (i.ll e#ecutive power flows from the royal prerogative and statutory delegation9 • $rerogative powers9 o ?rerogative powers are those e#ercisable by the )rown that don$t arise from a statutory grant of power to )rown o !hese powers can be overridden by statute o !here has been debate over who can e#ercise these powers. which are created under provincial legislation. the legal rules that have developed in admin law have arisen so as to constrain the e#ercise of administrative discretion in ways that respect the intentions of the legislative branch and promote outcomes that ta/e into account the public interest !he rise of the administrative state in )anada • Jrowth of gov$t leads to ad hoc growth of e#ecutive branch (not planned) • =ne of the implications of this transformation s a more attenuated lin/ between decision ma/ers and elected officials !he e#ecutive branch defined a.ct. &ature and function of delegated powers • Gelegated authority has been granted in virtually every area of public policy. for various reasons (e. +emember. e#ec functions are also carried out by various bodies that have a measure of independence from the gov$t. the )rown is the formal legal entity of the government. delegated legislation) Msubordinate to legislationN o Eost pervasive form of admin rule ma/ing is the regulation ma/ing power that is delegated to the )abinet through the governor in council. the )rown$s representative is not as potent as these provisions imply. the democratic legitimacy of administrative decisions is derived from the close relationship between admin officials and the legislature. legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political e#pediency R particular e#pertise may be needed) o -ndependent admin bodies appear in a broad range of forms depending on their function o . . the formal e#ecutive bodies are limited to the JJ and lieutenant governors. and another rule which says that no delegate can be authori'ed to e#ercise absolute discretion (Ronceralli v Du lesis4 o Legislatures can delegate power to e#ecs. not private. :48 of the boo/ for more (:) Gispute resolution Mcabinet cannot enact without noticeN o -t is common for administrative agencies to be created in order to hear and decide specific /inds of disputes o !here are some advantages (public participation. however. but admin rule ma/ing isn$t restricted to this form o !he legal effect of delegated legislation is determined by the parent legislation o Benefits of delegated forms of legislation relate mainly to the relative fle. and when they may be subject to judicial oversight.dditionally.cts and +egulations%.. the federal and provincial )abinets.gencies o .g a welfare entitlement) .dministrative actors.ibility o1 r" ulations.

 !he test to assess whether there is judicial independence is an objective. e. especially at the federal level (i. )oncern for patronage appointments (i.LL courts. these decisions usually initiated by the imposing agency. there are also concerns o -f admin decision ma/er e#ercises discretion in +1. -t is argued that the ()) is "legislating%. speciali'ed federal courts (e. calls for change to the federal appointment process have been especially persistent in relation to appointments to the ()) 0udicial independence • 0udicial ind. judges are selected by e#ec branch. 3QU4 provide for the appointment. that the e#ecutive and the legislative branches don$t impinge on the essential authority and function of the court (ources and scope • 0. improper purposes and irrelevant considerations o !here are benefits of admin decision ma/ers having broad discretion.ct 3QU4 • 1ed government created the ()). !he provinces. recommendation is made to )abinet by the Einister of 0ustice.e individual and institutional) .s a result. security of tenure and remuneration of federally appointed judges M&ote9 these provisions only apply to superior courtsN • =ther than those provisions. K !a# )ourt. • -t re2uires that the judiciary be left free to act w out improper interference from any other entity 5 i. Re Residential :enancies *ct developed a L #art t"st in ord"r to d"t"rmin" w!"t!"r $r"atin su$! a tri0unal would "rod" t!" s @K #ow"r.dmin decisionma/ers are generally re2uired by common law to act fairly toward those affected by the decisions o !he duty to be fair is no longer confined to judicial 2uasi judicial decisions o (ee Enight v 5ndian Head School and "a'er (8) &ontrolling discretion9 bad faith.ffairs). the federal courts. which is a superior court) :) :nd level is provincial territorial superior courts (s PU courts) (e#cept for &unavut.e. the ta# court of )anada and military courts) 0udicial appointments • . then their decision may be overturned Lbias o !hese are jurisdictional errors o !he standard of review of these decisions is important9 an imp consideration in determining whether an admin decisionma/er has improperly e#ercised their discretion will be the amount of deference a reviewing court gives an admin decision o (ee "a'er e#cerpt (()) considered the proper approach to the judicial review of discretionary decisions and the re2uirements of administrative decision ma/ers who e#ercise discretionary powers) Mofficer$s dismissal of /id$s interest 6 "unreasonable% Courts and t!" . cannot enact legislation to encroach on their core jurisdiction =verview of the court system 3) 3st level is the provincial territorial courts.re the right people appointed as judges. who has been advised by the judicial advisory committee b. and also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well7informed person o )ore characteristics Mof 0udicial -ndependenceN !here are 8 core characteristics and : dimensions (i. r"asona0l" #"rsons t"st2  +e2uires actual independence and a reasonable perception of independence on the part of a reasonable and well informed person  -ndependence includes both a re2uirement of actual independence. which every province has e#cept &unavut (there is no territorial courtImatters that are normally heard at that level are heard by the &unavut )ourt of 0ustice. also. bad faith. 1ederal court and ta# court are appointed by the governor in council (i. by police prosecutors and some administrative officials whose enabling statutes confers investigatory powers BBCN@:!: !ach of these functions may overla .o . .ffairs oversees the federal judicial appointment for s PU courts • -ndependent judicial advisory committees constitute the heart of the appointments process • 1ederal appointments are made by the governor general. )ourt system )onstitutional framewor/9 • (tarting point in understanding the )anadian court system is the )onstitution .lso. ta/es into account irrelevant considerations or +L. consists essentially in the freedom to render decisions based solely on the re2uir$ts of law and justice. acting on the advice of the federal )abinet.e. appoint members and then confer on the tribunal the jurisdiction of superior courts. is the notion that judges are at arm$s length from the other branches of government • 0udicial ind.. the law imposes a rigorous set of limitations on the e#ercise of power • !he principle is that delegated authority must be e#ercised w in the boundaries of the statutory grant of power • !he determination of the legality of the e#ercise of administrative authority is the function of the courts.e. s 11+d. following a short7listing procedure involving an advisory committee ?rovincial appointments9 Basic model is built on an advisory committee made up of a mi#ture of members from the legal community and laypersons.g. not just superior courts (see Reference re Remuneration of 2udges of the $rovincial &ourt of $!5) o .ppeal )ourt. minister has power to appoint from the "recommend% and "highly recommend list% (big lists 6 room for abuse of discretion) ("the basic concern%) • &o transparency or accountability • )alls for change have been made (one suggestion is to have interviews) Limits on the e#ercise of delegated authority • While the constraints on the ability of the legislative branch to delegate authority are minimal. or +C.udi$iar% +C!a#t"r K o1 Crai<. as authori'ed by the )onstitution • ?rovinces create s @K su#"rior $ourts • 1ed government appoints and pays the salaries of provincial su erior court judges • ?rovinces appoint and pay the salaries of rovincial court judges • ?rovinces cannot pass legislation creating a tribunal. leaving an affected person to ta/e affirmative steps to protect interest o !he desire for fairness is often in conflict with the need for administrative efficiency in these situations (V) *nforcement decisions *. obligation determinations may raise different issues. appointment of superior court judges) • -n )anada. and the (upreme )ourt of )anada justices are simply appointed by the governor in council a. that recommendation is made from amongst the names which have been previously reported by the committees to the Einister !he recommendation for appointment as a judge is made to )abinet by the minister of justice.ssessing independence M!*(!N  >ow is independence measured. once authority is delegated. @verview • =ffice of )ommissioner for 1ederal 0udicial .is richly a constitutional concept. !he supervisory role of the courts raises comple# issues concerning the conditions under which the judicial branch should interfere with decisions ta/en by the e#ecutive branch (see chapter Q) Msource of power 6 statutory delegationN (3) &ontrolling 2urisdiction: Substantive ?ltra >ires o )an only e#ercise the powers granted by the enabling statute 5 limited o )annot sub7delegate duties (with some e#ceptions 5 i. as an unwritten constitutional principle.e. >owever. matters that are merely admin may be subdelegated) (:) &ontrolling rocedures: :he duty to be fair o Guty to be fair refers to the procedures adopted by the decision ma/er o .g.ppointment processes described above do not apply to ()) (()) judges appointed by governor in council)  . e#tends to . 1ederal )ourt 1ederal . in the post 5)harter era. !here has been controversy surrounding judicial appointment. as shown by the &anadian Human Rights &ommission e+am leD <<&ote. !his is because superior courts are a fundamental institution protected by our )onstitution through the interpretation of s PU. or federal ?arliament.g. im#os"s a r"8uir"m"nt 1or :udi$ial ind"#"nd"n$" • -t$s source is also in unwritten constitutional principles (Reference re Remuneration of 2udges of the $rovincial &ourt of $!5) • 0udicial independence. &riticisms • Duestions have r"main"d a0out #oliti$al in1lu"n$" on t!" s"l"$tion #ro$"ss.e. which ma/es recommendations to the provincial attorney general 1ederal (non7(upreme )ourt) appointments)9 s PU courts.et. where the &unavut )ourt of 0ustice deals with both territorial and superior court matters) 8) 8rd level is courts of appeal V) !he highest level is the supreme court of )anada (upreme )ourt appointments  . allegations have been made that appointments are tainted by political considerations and that candidates who have contributed to political parties are appointed) • Too mu$! dis$r"tion in t!" !ands o1 t!" government 5 e. ignores mandatory considerations. the )abinet) (and the process is overseen by the =ffice of the )ommissioner for 1ederal 0udicial .g. the court$s decisions will have a great effect on public policy. . ss PU73AA of ).

s 88). S"$urit% o1 t"nur": • !his has both institutional and independent • Individual s"$urit% of tenure means that judges may not be dismissed until the age of retirement e#cept breaches of "good behaviour%. changes to remuneration re2uire prior recourse to a special process. the rule of law may subtly be transformed into the rule of unelected judges.boriginal relations • (ee #uerin v R. reading in 0 I principle in the )onstitution by reference to preamble.ct9 Falidity of s :8 was struc/ down V times. the most important features of the )onstitution . -nuit and EBtis peoples 0udicial interpretation • . there is a lot of built in deference to the legislature (see s 3.+1.nd it is the )ourt$s job to oversee adherence to these laws. +elationship between the substantive rights and the justification of limits on those rights under s 3 0udicial review of administrative action • 0+ of e#ecutive or administrative action raises some different 2uestions about institutional relationships than does 0+ of legislative action • !here is some overlap. !he ()) has adapted these largely private law concepts to the conte#t of )rown7. o1 t!" Constitution 6ct. courts have usurped power that is properly the domain of ?arliament and the provincial legislatures. who may introduce a motion before ?arliament. -n Doucet "oudreau v NS.boriginal peoples have always had a uni2ue legal and constitutional position. which reserved to the )rown the e#clusive right to negotiate cessions of . 0udicial review is not anti7democratic. defined as including the "-ndian. they read in concepts to laws which amounts to changing the law in itself (e. !hese factors have become part of the standard of review analysis that has become the first step a court must ta/e when reviewing an administrative decision • !he basic 2uestion addressed by the standard review analysis is how deferential should the courts be to e#ecutive branch interpretations of the mandate accorded to them by statutes. =n the other hand. the practical reality is that courts normally have to rely on the e#ecutive and legislative branches of government for the enforcement of their decisions. )ourt decided on a drastic remedy9 allowing the invalid acts to remain law until statutes were translated. this time in compliance w the standards set out in the statute delegating power or common law procedural fairness • .dmin independence re2uires that courts themselves have control over the administrative decisions that bear directly on the e#ercise of the judicial function • (ee &anada v :obiass (()) concluded that at least the appearance of independence was transgressed) Constraints on L" islativ" and Administrativ" A$tion +C!a#t"r ? o1 Crai<. +L. there must be a judicial in2uiry to establish that such cause e#ists.N Gifferent sorts of judicial review (specifically constitutional litigation) of legislative action Farious types of approaches courts use to address different types of constitutional challenges to legislation9 Onwritten )onstitutional principles )anadian courts have been willing to a limited e#tent to recogni'e underlying constitutional principles that can be given full legal effect (e. o =n one side. and then invalidate laws that do not conform to their interpretation of these re2uirements. (i) 1irst there was the Ro%al Pro$lamation o1 1>KL.ct establishes the )anadian 0udicial )ouncil as the body responsible for investigating complaints about the conduct of federally appointed judges. governed by an independent. effective and objective body who ma/es a recommendation of salary +C. there is no clear line b w applying. • Issu" o1 l" itima$%: . the concern is that sometimes 0+ is illegitimate. • -nstitutional financial security has 8 re2uirements +1.+ 6boriginal -eo-les3: .boriginal peoples. in Reference re Remuneration of 2udges of $!5. therefore.nd it$s the province of the judiciary to say what the law is (those who apply rules to cases must interpret that rule). 3QU4 -n terms of their potential to generate litigation.<-F recogni'es and affirms "e#isting aboriginal and treaty rights% of )anada$s .lso note the dialogue model which some say occurs between the judiciary and legislature (which preserves a proper separation of power). interpreting and ma/ing the law as critics appear to thin/. -f the )ouncil concludes that removal of a judge is warranted. TOPIC Q: R"lations!i# o1 A0ori inal P"o#l"s to t!" Canadian Stat" Arti$l"s /5ar% C Hurl"%2 /The Cro n’s fiduciary relationshi.lso. &ot permissible for judiciary to engage in negotiations over remuneration with the e#ecutive or representatives of the legislature.rgument is that courts have e#panded their proper role of interpreting the )onstitution and have thereby unduly shrun/ the 'one of parliament supremacy. .g. which "sta0lis!"d t!at9 . designed by the will of the people. at least to the e#tent that judges will normally want to respect the choice of democratically elected legislatures to allocate decision7ma/ing authority to institutions other than courts. more prominent concern is that judges have to interpret vague statements in the )onstitution. !his part e#plores the role that the judiciary plays in constraining legislative and administrative e#ecutive action !he role of constitutional judicial review in a democratic society 0ustification for constitutional judicial review • )onstitution. Administrativ" ind"#"nd"n$" • .s )anadian courts have become more sophisticated in their approach to judicial review. • !he 0udges . "1idu$iar% r"lations!i#% is one in which someone in a position of trust has "rights and powers which he is bound to e#ercise for the benefit% of another.% (iii) 1inally.ct. (ee Reference re (anguage Rights under s :8 of Eanitoba .g. . and even the )onstitution re2uires interpretation Limitations of judicial review • Issu" o1 :usti$ia0ilit%: the idea of a sense of lac/ of fitness of submitting 2uestions to a judicial or 2uasi judicial determination (see @ eration Dismantle v :he 0ueen) • Issu" o1 "n1or$"m"nt: although the )onstitution is supreme and the judiciary is relied on to interpret and invalidate legislation that is inconsistent with it. and so the legislative acts must be consistent with it • . rights that may be unpopular elements of society M. 1urther. <=>? rant"d t!" 1"d"ral Parliam"nt l" islativ" aut!orit% ov"r /Indians2 and Lands R"s"rv"d 1or t!" Indians. ?eriodic reports on its progress were also ordered M>ow close is this to the judiciary usurping the role of the e#ecutive. made up of principles that are so fundamental and established. +L. 1urther. Reference re Secession of 0uebec% Reference re Remuneration of $rovincial &ourt 2udges) !he )onstitution . before a judge may be removed for cause. at which the judge affected must be afforded the opportunity to be heard • !hus judge can only be removed from office for reason relating to their capacity to perform their judicial duties. the issue of court usurping e#ecutive function arose (where the court ordered the government of &ova (cotia to use its best efforts to build a 1rench Language school to comply with its duties under the )harter (minority language rights). +C.ct 3QU4 are the provisions of ss @1*@Q that distribute legislative power between the federal and provincial levels of government !he )anadian )harter of +ights and 1reedoms • !he other type of constitutional litigation arises from the )harter • !wo aspects9 +1. in that unelected officials (judges) are overruling elected representatives (legislators). Institutional s"$urit% of tenure means that. -t was the )ourt$s duty to ensure the language rights in the constitution are protected. when judges give concrete shape to vague ideas set out in the )harter for e#ample. without legislative response. .N . because it is anti7democractic. +eductions to judicial remuneration cannot ta/e those salaries below a basic minimum level of remuneration that is re2uired for the office of a judge (see Reference re Remuneration of 2udges of the $rovincial &ourt of $!5). • !he actual authority to recommend removal of a judge is found in s K@+L. . it ma/es a report to the minister of justice. core 2uestion lies at the heart of both of these complaints9 in rendering constitutional decisions. section 8@ of the &onstitution *ct. how much deference should courts show elected officials. Finan$ial s"$urit% • 1inancial security relates to the pay judges receive for performing their job 5 and protects against an unscrupulous government that could utili'e its authority to set judges salaries as a vehicle to influence the course and outcome of adjudication • -t has both an individual and institutional dimension.boriginal title (ii) !hen came subsection @1+CM. . they have become more willing to ta/e into account a number of other factors in determining the nature of their institutional relationship with administrative decision ma/ers. for e#ample. related issue is how courts address the sometimes sweeping disregard by the legislature of constitutional rules. ?rocess of defining the substantive right protected by the relevant provision of the )harter. o1 t!" &udges 6ct +C. the judicial invalidation of particular administrative acts on non7constitutional grounds often does not preclude the decision ma/er from repeating his or her actions. !o conform with rule of law. (:) )oncern about the substantive approach courts have ta/en to particular rights. !wo main complaints about judicial review aspect9 (3) Onder the banner of constitutional supremacy. which have been interpreted to include misconduct or disability. was critici'ed in dissenting opinion of La 1orest 0) o !he other side is that it was the will of the people that enacted the )onstitution (including the )harter) and administrative tribunals.

boriginal relationship. • L t%#"s o1 s"l1 ov"rnm"nt9 nation government. S#arrowAt%#" obligations arise when the )rown must respect constitutionally protected .boriginal and treaty rightsH were recogni'ed in the &* . the +oyal ?roclamation of 34U8 (a) !reaties9 o !reaties were a way for *uropeans and . gives the )rown discretion to decide the .boriginal group and has discretionary power in the matter (for e#ample. we outline a powerful set of interlin/ed ideas for moving forward. governments continue to bloc/ .merica. -u"rinA t%#" obligations arise in situations where the )rown has a duty to act in the interests of an .boriginal people have rights of occupancy or use of portions of )anada that far e#ceed their current land base.boriginal peoples and establishing a process to permit British settlement. o !he proclamation summari'ed the rules that were to govern British dealings with . the fiduciary obligation owed by the )rown is sui generis (3 of a /ind) • !he scope of the relationship was e#tended in + v S arrow. is small and treaty agreements did not end the conflict. (elf government • !he right is inherent in . !hey set about beginning to rebuild their communities K their nations with new7found purpose. By their actions.b$s later found out that the treaties were used different to what they e#pected (b) +oyal proclamation9 o !he Royal $roclamation of . o . • W" #ro#os" M PRINCIPLES as 0asis 1or a r"n"w"d r"lations!i#: r"$o nition2 r"s#"$t2 s!arin J r"s#onsi0ilit% • W" #ro#os" t!at tr"ati"s 0" t!" m"$!anism 1or turnin #rin$i#l"s into #ra$ti$" +estructuring the relationship • To r"stor" t!" "ss"n$" o1 t!" "arl% r"lations!i# 0"tw""n A0ori inal and s"ttl"r so$i"ti"s d"s$ri0"d in C!a#t"r 12 t!" "l"m"nts o1 #artn"rs!i# must 0" r"$r"at"d in mod"rn 1orm.G was a defining document in the relationship between . if not their words. o in the uni2ue )rown7.boriginal land. a partnership b w *nglish K 8rench. o !he proclamation portrays -ndian nations as autonomous political entities. ?overty. o -t wal/s a fine line between safeguarding the rights of .boriginal institutions.boriginal or treaty rights and justify interferences with those rights )ommentary • !he foregoing overview suggests that the )rown$s fiduciary relationship with and ensuing obligations toward .boriginal laws and institutions began with the main instruments of the partnership9 the treaties and the Royal $roclamation of . A s"ri"s o1 $ourt d"$isions !as $on1irm"d t!at A0ori inal #"o#l"s !av" mor" t!an a stron moral $as" 1or r"dr"ss on land and r"sour$" issu"s A t!"% !av" l" al ri !ts. outlined above. /Hi !li !ts 1rom t!" R"#ort o1 t!" Ro%al Commission on A0ori inal P"o#l"s3 (tage 39 (eparate worlds • . .boriginal people 7 especially in relation to the /ey 2uestion of land. the transformation from respectful coe#istence to domination by non7.boriginal nations have gone to court to force governments to recogni'e their rights to land and resources. for e#. economic and political problems. +C. or purchase by the )rown. they have failed to bring contentment or prosperity to . and contemporary recognition K affirmation of aboriginal rights must be defined in light of this historic relationship%. (tage 89 +espect gives way to domination .<-F. -t is this refusal that effectively bloc/s the way forward. . • +esistance to assimilation grew wea/.boriginal group and third parties to prevent e#ploitation.% while in2uiries such as whether the infringement has been minimal. which was the )ourt$s 1irst s LQ d"$ision9 o "Jeneral guiding principle% for s. +edistributing lands and resources • . • !he new partnership we envision is much more than a political or institutional one. 8. T!"ir $om0in"d #ur#os" is to #rovid" t!" aut!orit% and tools 1or A0ori inal #"o#l" to stru$tur" t!"ir own #oliti$al2 so$ial and "$onomi$ 1utur" .boriginal governments are . and whether the affected .mericas (tage :9 &ation7to7nation relations • )autious co7operation was the theme of this period. But governments have so far refused to recogni'e the continuity of . • =ne stimulus was the federal governmentCs White ?aper on -ndian policy.boriginal peoples and other )anadians.boriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and wor/ out their own solutions to social.o the fiduciary relationship is rooted in the concept of . T!" startin #oint 1or t!is trans1ormation is r"$o nition o1 A0ori inal nation!ood.boriginal group. develop human resources • W" #ro#os" a n"w Ro%al Pro$lamation.b$s to recogni'ing each others sovereignty and mutual respect o .g.. :. o H!he honour of the )rown is at sta/e in dealings with aboriginal peoples.boriginal land were to be negotiated properly between the )rown and Hassemblies of -ndiansH.boriginal interest. including appeals to the Dueen and the British ?arliament. most since 3P43. whether fair compensation has been available.boriginal people. .boriginal fiduciary relationship remain.boriginal in . of G orders of gov)t in &anada 7 federal. and transforms its obligation into a fiduciary one so as to regulate )rown conduct when dealing with the land for the . • -mportant 2uestions related to implementation of the )rown7.boriginal title.boriginal peoples have implications for the development and conduct of gov$t policy in matters that engage .boriginal title establishes t!r"" t!in s9 (3) .boriginal people • -n the following chapters./. But then see Weway'um 5ndian "and v &anada which set out some limitations of the fiduciary duty (e.boriginal interest in land may be alienated only via surrender to the )rown.boriginal lands were to be ac2uired only by fair dealing9 treaty. developing own source revenues such as a ta#ation system) F./. !he way forward • !he policies of the past have failed to bring peace and harmony to the relationship between . and some have been successful. in connection with the surrender of reserve land). • Ri !t to s"l1 ov"rnm"nt is im#ortant: . o (ee also R v *dams. !he special trust relationship K responsibility of the gov$t vis7Z7 vis aboriginals must be the first consideration in determining whether the MinfringingN legislation or action in 2uestion can be justified%. and community interest government • 1inancing self government is another issue (e.g. which was negotiated wHout *boriginal nations • :hen came the "N* *ct. !he application of ()) decisions confirming the fiduciary relationship has yet to be fully defined in a number of conte#ts. 3. the standard(s) for government conduct that will uphold "the honour of the )rown% in various situations re2uire clarification • -ronically.G • !hen came )onfederation in 3QU4. issued in 3PUP • !hey studied their history K found evidence confirming that they have rights arising from the spirit K intent of their treaties K the #oyal *roclamation of <?>@. harmony and mutual support.boriginal interests.boriginal and non7. coupled with the re2uirement. do'en years of intense political struggle by . o "!Nhe justificatory standard to be met may place a heavy burden on the )rown. sometimes to the point of collapse.boriginal people and their nationhood • We hold that . that the fiduciary duty "does not e#ist at large) *#tra7judicial considerations • !he federal government identifies : principal categories of fiduciary obligations for government managers to ta/e into account9 +1. land claim and self7government negotiations. o this re2uirement. • !he law of .boriginal group has been consulted may also be included in the justification test. provincial territorial and . !he proclamation should be followed by the enactment of companion legislation by the ?arliament of )anada 7 legislation to create the new laws K institutions needed to implement the renewed relationship. living under the protection of the )rown but retaining their own internal political authority. produced an historic brea/through9 H*#isting . !hese rights are based on their history of having lived in and used those lands since time immemorial. (imilarly. which places the )rown between the .boriginal people were not to be Hmol"st"d or distur0"dH on their lands o !ransactions involving . affirming a special relationship with the )rown K their uni2ue interest in their traditional lands. their nationhood erased from the public mind and almost forgotten by themselves. rather than adversarial.boriginal people struggled for survival as individuals. Delgamuu'w v "& etc which e#panded on the duty.boriginals in charge of own affairs • )o7operation was formali'ed in two important ways9 +1. they need to establish larger communities. • !o have self7government. in relation to the si'e of )anada.boriginal people to divide and share sovereign rights to the lands that are now )anada.!hey too/ heart from decisions of )anadian courts. it caught fire and grew into a political movement. LQ is that "the Jov$t has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. -t finds a balance in an arrangement allowing .boriginal nations and the need to permit their decoloni'ation at last.boriginal.boriginal K non7. V. • (ome . that the . young )anada$s new constitution. *2ually.boriginals inhabited the . ill health and social disorgani'ation grew worse. • . +C. which made "-ndians and Lands reserved for the -ndians% subject for government regulation (tage V9 Renewal and renegotiation • ?olicies of domination and assimilation battered . !he relationship b w the Jov$t and aboriginals is trust7li/e. but it never died. -t must be a !"art1"lt $ommitm"nt among peoples to live together in peace. -n the Vth stage of the relationship. public government. treaties.

it can be done. :. right that has been validly e#tinguished before 3PQ: is not protected by s 8@ • . • !he main objectives of a new treaty7ma/ing process would be to establish the full jurisdiction of those nations as part of an A0ori inal ord"r o1 ov"rnm"nt. ine2uality. that the progressive restriction and detailed regulation of the fisheries has had the effect of e#tinguishing any aboriginal right to fish. independent of government.tinguished aboriginal rights and treatiesB 7C. there is nothing in the 1isheries . to be free of dependence on others. !here may never be enough jobs in .boriginal economies from dependence to self7reliance will not be easy. Sets out the test of %ustified interference. FACTS: !he appellant. !he greatest boost for most nations will come from access to a fair share of lands and resources.boriginal and non7.<-F and therefore invalid ISS&E: Whether the respondent was e#ercising an "aboriginal right% within the meaning of s 8@(3) REASONIN-: !he word "e#isting% in s 8@ • What is the status of aboriginal or treaty rights that had been e#tinguished or regulated before 3PQ:. But this argument confuses regulation with e#tinguishment. . It a$ts as d"1"nd"r o1 t!" CrownNs int"r"sts J also as :ud " J :ur% on $laims. • -t is clear. was charged under s. • ?rior to 3PQ: when this provision was enacted.<-F. *conomic self7reliance will let them thrive as individuals and as nations and ma/e their new governments a success • (everal factors will ma/e revitali'ation of . . is not a good way of providing cash income. Let us review them briefly9 (3) T!" 1"d"ral ov"rnm"nt s!ould 0" in t!" $%$l" o1 r"n"wal wit! an a$t o1 national int"ntion A a n"w Ro%al Pro$lamation (We propose a new +oyal ?roclamation. !reaties9 the mechanism for change • !he )ommission proposes a wide7ranging agenda for change to achieve two goals9 o +ebuilding . restore health and prosperity to their communities. the )ommission has concluded that the treaties should be im-lemented to reflect their s-irit and intent A not :ust t!"ir words. "+ecogni'ed and affirmed% • We now turn to the impact of s. and needs reform support • ?ublic investment in education K training is vital to improve employment prospects for . stating )anadaCs commitment to principles of mutual recognition. o +estoration of relations of mutual respect and fair dealing between .boriginal individuals and nations • !ransforming . • W" #ro#os" a n"w tr"at% #ro$"ss to l"ad t!" wa% to r"$on$iliation 0"tw""n A0ori inal and nonAA0ori inal #"o#l" ov"r t!" n"7t CP %"ars. represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. 8. 1or its part. whether spo/en or written • -t is deeply self7serving of )anadian authorities to insist on a literal interpretation of such clauses. a new proclamation will change nothing. -t traps recipients in a marginal e#istence V. . it needs to be bac/ed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision7ma/ing bodies.<-F. the only way e#tinguishment could have occurred is with a clear and plain intention by ?arliament. .boriginal nations to provide support. 8@(3) of the &*.boriginal people to protect their heritage and identity.boriginal K non7 . but are not absolute rights.boriginal people. to conduct them. "7#and t!" land and r"sour$" 0as" under their control (:) . We call on federal and provincial governments to enter into long7 term development agreements with . 8@(3) applies are those that were in e#istence. and reorgani'e their relations with )anada. • .s comple# as the project appears. !he steps are numerous and may seem daunting. costly K insensitive way to solve human issues that underlie land K resource claims • T!" "7istin land $laims s"ttl"m"nt #ro$"ss is d""#l% 1law"d: It assum"s t!at no A0ori inal ri !ts a##l% on Crown land unl"ss A0ori inals $an #rov" ot!"rwis". and they constitute a wor/able plan. .boriginal people want to ma/e a decent living. -f the relationship between . Cl"ar $on1li$t o1 int"r"st: it $onsid"rs its"l1 t!" Nlos"rN i1 a $laim is s"ttl"d in 1avour o1 A0ori inal ##l • A n"w #ro$"ss 1or n" otiatin t!" 1air distri0ution o1 lands and r"sour$"s is lon ov"rdu". !he relationship restructured • We have outlined major steps needed to transform the relationship between .et social assistance. -t also affords aboriginal peoples constitutional protection against provincial legislative power. • !he word He#istingH ma/es it clear that the rights to which s.<-F came into effect.lternatives to welfare are needed. T!is #osition is at odds wit! t!" do$trin" o1 $ontinuin A0ori inal titl" J wit! dut% o1 Crown to #rot"$t A0ori inal int"r"sts. at the least.boriginal ppl to state of dependency on other )G&s 7 causing grievance on both sides G. variability (in that aboriginal communities are located all over the country) • =wnership of lands and resources is essential to create income and wealth for . • We have no doubt that the -ndians have an e#isting aboriginal right to fish in the relevant area.greements between the )rown and an . the phrase He#isting aboriginal rightsH must be interpreted fle#ibly so as to permit their evolution over time. • To s"t t!" sta "2 w" r"$omm"nd t!at Parliam"nt d"$lar" its su##ort 1or t!" tr"at% r"lations!i# in t!" 1orm o1 a n"w Ro%al Pro$lamation. and may be infringed if the test of “%ustified interference' is metB 7@. gov$ts were able to ignore terms and promises that no longer suited them • =n the second point.boriginal economies a big challenge9 dependence on government for funds.boriginal people can occupy or use that nationCs traditional lands. The ords “recogni4ed and affirmed' in s @A mean that aboriginal rights+treaties are constitutionally -rotected. or une#tinguished.ct that demonstrates this. U3(3) of the 8isheries *ct of the offence of fishing with a drift net longer than that permitted by the terms of the BandCs -ndian food fishing licence.boriginal people is ever to be set right. 8@(3) of the &onstitution *ct. that s. respect. responsibility K sharing in the relationship between original peoples and those who came later) (:) Parliam"nt s!ould "na$t $om#anion l" islation to iv" t!"s" int"ntions 1orm and m"anin and #rovid" t!" l" al instrum"nts n""d"d to im#l"m"nt t!"m. . they reinforce each other.boriginal people shifted.boriginal communities. 8@(3) of the &onstitution *ct. • .<-F on the regulatory power of ?arliament and on the outcome of this appeal specifically.boriginal and non7.boriginal people and other )anadians from its present state of tension and failed initiatives to one of co7operation and growing successes. but has defended the charge on the basis that he was e#ercising an e#isting aboriginal right to fish and that the net length restriction contained in the BandCs licence is inconsistent with s. however. free of the social stigma and sense of personal failure that go with dependence. )anada has a duty to conclude such treaties. T!" Commission #ro#os"s t!at t!is 0" !andl"d as #art o1 a n"w tr"at% #ro$"ss • 1ailure to redistribute land K resources will lead . *conomic development • . as now delivered. !hose rights are Haffirmed in a contemporary form rather than in their primeval simplicity and vigour !he "aboriginal right% • !hat Er.isting in s @A means that s @A only -rotects une. An a r""d tr"at% #ro$"ss $an 0" t!" m"$!anism 1or im#l"m"ntin virtuall% all t!" r"$omm"ndations in our r"#ort A ind""d2 it ma% 0" t!" onl% l" itimat" wa% to do so. >e has throughout admitted the facts alleged to constitute the offence. • W" #ro#os" t!at t!" tr"at% r"lations!i# 0" r"stor"d and us"d 1rom now on as t!" 0asis o1 t!" #artn"rs!i# 0"tw""n A0ori inal and nonAA0ori inal #"o#l" in Canada • -mplementation of treaty terms K promises was problematic from the start.boriginal title to their traditional lands and is obliged to protect their interests in those lands 3. a member of the Eus2ueam -ndian Band. accord. !his means that e#tinguished rights are not revived by the &onstitution *ct. (8) !he )rown is the guardian of . advice and stable funding for economic development • !he employment problem is immense. By itself.lso. (8) T!" 1"d"ral ov"rnm"nt s!ould #rovid" a 1orum 1or n" otiatin a CanadaAwid" 1ram"wor< a r""m"nt to la% t!" round rul"s 1or #ro$"ss"s to "sta0lis! t!" n"w r"lations!i# (V) A0ori inal nations s!ould 0" in t!"ir r"0uildin #ro$"ss"s (@) All ov"rnm"nts s!ould #r"#ar" to "nt"r into t!" n"w tr"at% #ro$"ss (U) -ov"rnm"nts s!ould ta<" int"rim st"#s2 as #ro#os"d 0% t!is Commission2 to r"distri0ut" lands J r"sour$"s (4) A0ori inal and nonAA0ori inal ov"rnm"nts s!ould $oAo#"rat" to stimulat" "$onomi$ d"v"lo#m"nt A0ori inal Ri !ts # v S-arro 77<. the underlying intentions of treaty promises 7 not the letter of outdated terms 7 must guide their present7day implementation • We believe that those without a treaty. they are progressive. . compact or other agreement clarifying their relationship with )anada have the right to see/ one. . T!" ovDt o1 Canada $ontrols t!" #ro$"ss. T!" $"ntral m"$!anism o1 $!an " is t!" tr"at%. The ord e. when the &onstitution *ct. provides a solid constitutional base upon which subse2uent negotiations can ta/e place. But that won$t be enough. • (ection 8@(3). But they are logical. .boriginal people in the e#isting job mar/et.boriginal nation (such as treaties) must be wor/ed out before non7.s time passed K the balance of power b w .• But courts are cumbersome. and free of the debilitating effects of poverty. then. (parrow was fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of the 1raser +iver for salmonH is supported by the evidence and was not contested • !he respondent contends.boriginal nations as the best and proper way for .

-f yes. !he e#change of fish too/ place. U3(3) of the 8isheries *ct. Earie enjoy a constitutionally protected right to hunt for food under s. does the regulation deny to the holders of the right their preferred means of e#ercising that right. STEP C +T!" INTE-RAL to a 4ISTINCTISE C&LT&RE TEST.N. the Jovernment has the responsibility to act in a fiduciary capacity with respect to aboriginal people. it is also necessary to identify the pre7contact practice upon which the claim is founded in order to consider how it might have evolved to its present7day form STEP 1 +CHARACTERIRATION. aboriginal peoples were already here. (econd. !he government is re2uired to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. ar" 0"st und"rstood as2 1irst2 t!" m"ans 0% w!i$! t!" Constitution r"$o niB"s t!" 1a$t t!at #rior to t!" arrival o1 Euro#"ans in Nort! Am"ri$a t!" land was alr"ad% o$$u#i"d 0% distin$tiv" a0ori inal so$i"ti"s2 and as2 s"$ond2 t!" m"ans 0% w!i$! t!at #rior o$$u#ation is r"$on$il"d wit! t!" ass"rtion o1 Crown sov"r"i nt% ov"r Canadian t"rritor%. FACTS: !he appellant Gorothy Fan der ?eet was charged under s. it can still be considered integral to an 6boriginal community’s distinctive culture. as they had done for centuries%. it does hold the )rown to a substantive promise. 1idu$iar% on". Courts lays do n @ indicia of “"etis -eo-le'. ISS&E: Whether a right to harvest timber e#isted pre7contact for the relevant aboriginal peoples REASONIN-: !he . and participating in distinctive cultures. the focus on . !he onus of proving a rima facie infringement lies on the individual or group challenging the legislation.<-F see/s to provide a constitutional framewor/ for the protection of the distinctive cultures of aboriginal peoples. together with R.<-F. LQ+1. 9 *vidence established that the wood was critically important to the Ealiseet and Ei$Tma2 people pre7contact. >owever. • (ection 8@ of the &onstitution *ct. and the s 8@ rights are subject to regulation by federal laws. But this argument fails # v Dan der *eet 7The Court articulated the legal test to be used to identify an “e. 8@(3) of the &onstitution *ct. living in communities on the land. !he appellant has based her defence on the position that the restrictions imposed by s. REASONIN-9 • .claiming the right % o !hings that must be considered in applying the test9 (3) )ourts must identify precisely what it is that is being claimed # v *o ley 77<.merica can be recogni'ed and reconciled with the sovereignty of the )rown9 >an der $eet. at para. a member of the (to9lo. :. ISS&E: >ow are the aboriginal rights recogni'ed and affirmed by s.uro-ean contact had to be moved for effective . t!" natur" o1 t!" right must 0" d"t"rmin"d in li !t o1 #r"s"ntAda% $ir$umstan$"s6 /lo i$al "volution m"ans t!" sam" sort o1 a$tivit%2 $arri"d on in t!" mod"rn "$onom% 0% mod"rn m"ans .would therefore characteri'e the respondents$ claim as a right to harvest wood for domestic uses as a member of the aboriginal community. :aylor and Williams. v. so that their prior occupation of &orth . 83. (econd. :4(@) of the "ritish &olumbia 8ishery 3#eneral4 Regulations. T!" $ont"nt o1 a0ori inal ri !ts must 0" dir"$t"d at 1ul1illin 0ot! o1 t!"s" #ur#os"s. they have aboriginal right to hunt for food in the (ault (te Earie ISS&E: Whether members of the EBtis community in (ault (te. -t is through identifying the interests that s. instead defending the charges against her on the basis that in selling the fish she was e#ercising an e#isting aboriginal right to sell fish. (a) )ontinuity9 . they say they possess an aboriginal and treaty right to harvest timber for personal use. !hird. .0. . !he 1irst 8u"stion to be as/ed is w!"t!"r t!" l" islation in 8u"stion !as t!" "11"$t o1 int"r1"rin wit! an "7istin a0ori inal ri !t. custom or tradition integral to the distinctive culture of the aboriginal grou. FACTS: )harged w unlawful possession or cutting of )rown timber. 8@(3) must be directed at identifying the crucial elements of those pre7e#isting distinctive societies. contrary to s. !he appellant. at para. t!" s"$ond 8u"stion is whether the )rown can justify it (for the law to be upheld.". :4(@) of the +egulations infringe her e#isting aboriginal right to sell fish and are therefore invalid on the basis that they violate s.. customs and traditions of the particular aboriginal community claiming the right HEL4: !he appellant has failed to demonstrate that the e#change of fish for money or other goods was an integral part of the distinctive (to9lo society which e#isted prior to contact. significant or defining feature of (to9lo society. 8@(3) M. !he way to accomplish this tas/ is through a #ur#osiv" a##roa$! to s. o !he following test should be employed9 "in order to be an aboriginal right an activity must be an element of a -ractice.lthough e2ual in importance and significance to the rights enshrined in the &harter. 8@(3) of the &onstitution *ct.N. -n defence. the relevant practice for the purposes of the >an der $eet test is harvesting wood. ? argues that. -n an oft72uoted passage. and is recogni'ed and affirmed by s.uro-ean controlB 7C.boriginal right claim H4EFINITIONI • -n order to be an aboriginal right. . !he relationship between the Jovernment and aboriginals is trust7li/e. 8@(3). !he appellant has thus failed to demonstrate that the e#change of salmon for money or other goods by the (to9lo is an aboriginal right recogni'ed and affirmed under s. has not contested these facts at any time. #uerin. :or "etis claimants of aboriginal rights. custom or tradition integral to the distinctive culture of the aboriginal group claiming the right9 R. does the regulation impose undue hardship. transportation. because of one simple fact9 when *uropeans arrived in &orth . -f there is a prima facie infringement. tools and fuel. purposive analysis of s 8@(3) results in the following conclusions9 t!" a0ori inal ri !ts r"$o niB"d and a11irm"d 0% s. # v Sa--ierB # v 3ray 7. s 8@(3) is a constitutional guarantee of aboriginal and treaty rights.(.: HTESTI o !he test for identifying the aboriginal rights recogni'ed and affirmed by s. the ne#t section of the judgment • T"st 1or id"nti1%in a0ori inal ri !ts in s LQ+1. 8@ REASONIN-: .merica. 8@(3). interdependent and sophisticated. -s the regulation sought to be imposed re2uired to complete that objective.isting aboriginal right' +in the meaning of s @A.<-F. aboriginal rights must be viewed differently from &harter rights because they are rights held only by aboriginal members of )anadian society. w!i$! aris"s 1rom t!" natur" o1 t!" r"lations!i# 0=w t!" Crown and a0ori inals +i.ny other conclusion would free'e the right in its pre7contact form.• -n our opinion. rather than adversarial. 8@(3) was intended to protect that the dual nature of aboriginal rights will be comprehended • !his purposive approach must be guided by the general principle that s LQ+1.: -n the present cases. with the offence of selling fish caught under the authority of an -ndian food fish licence.% (o.<-F to be defined. but was not a central.). the right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling. (=+ QV7:VQ. 8A. • . Lamer ).s/9 is the limitation unreasonable. therefore. (a) !he practices. )onsider things li/e whether the practice was merely incidental to another practice. 3P4A. LQ+1. ard to the time of FACTS: ? charged with unlawfully hunting moose. • !he respondents rely on the pre7contact practice of harvesting timber in order to establish their aboriginal right. there must be sensitivity to and respect for the rights of aboriginal peoples on behalf of the government) (a) What constitutes legitimate regulation of a constitutional aboriginal right M-s there a valid l" islativ" o0:"$tiv". "the doctrine of aboriginal rights e#ists. 8@(3). ac/nowledged in >an der $eet. While it does not romise immunity from government regulation in a society that is increasingly more comple#. as Eetis. >an der $eet. the guarantee isn$t absolute. it represents a rima facie infringement of s. 173V. and where e#haustible resources need protection and management. and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship • !he constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong chec/ on legislative power. • !he goal for courts is. provided that the laws meet a standard of justification. v. +. !hat is. *#tinguishment9 !his issue was raised in the #ray case. s!ould 0" iv"n a "n"rous and li0"ral int"r#r"tation in 1avour o1 a0ori inal #"o#l"s. &ote that this test re2uires the practice to be distinctive. . • -n short. to determine how the claimed right relates to the pre7contact culture or way of life of an aboriginal society. that. customs and traditions must have $ontinuit% with those that e#isted prior to contact (b) )ourts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims (c) )laims to aboriginal rights must be adjudicated on a specific rather than general basis9 the e#istence of an aboriginal right will depend entirely on the practices.lthough the nature of the ractice which founds the aboriginal right claim must be considered in the conte#t of the pre7contact distinctive culture of the particular aboriginal community. an activity must be an element of a practice. not distinct. !he )rown must show that legislation evidenced a clear intention to e#tinguish the right. Gistinct means uni2ue. -f it does have such an effect.. go on to (b). (b) Consid"r t!" s#"$ial trust r"lations!i# and r"s#onsi0ilit% o1 ov"rnm"nt vis a vis a0ori inals M!here must be a lin/ between the 2uestion of justification and the allocation of priorities in the fisheryN (:) Eust satisfy the /int" ral3 t"st: T!" $laimant must d"monstrat" t!at t!" #ra$ti$"2 $ustom or tradition was a $"ntral and si ni1i$ant #art o1 t!" so$i"t%Ns distin$tiv" $ultur" #rior to $onta$t. ground a general guiding principle for s. !he record shows that wood was used to fulfil the communities$ domestic needs for such things as shelter. c. (ection 8@(3) and 0ustified -nterferences 3. !he charges arose out of the sale by the appellant of 3A salmon. 8@(3) of the &* .ven though a -ractice may have been underta2en for survival -ur-oses. • !he tas/ of this )ourt is to define aboriginal rights in a manner which recogni'es that aboriginal rights are rights but which does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal. Furt!"r2 "v"n t!ou ! t!" #ra$ti$" ma% !av" 0""n und"rta<"n 1or survival #ur#os"s2 it $an still 0" $onsid"r"d int" ral to an A0ori inal $ommunit%Ds distin$tiv" $ultur" +THIS IS THE PRINCIPAL ISS&E ON THIS APPEAL. .

pending final resolution of the underlying claim) Go third parties owe a duty to consult and accommodate. Earie EBtis community -s the infringement justified. *#ercising that legal title. there is no reason to overturn !0$s findings that ? is member of Eetis that arose K still e#ists in and around (ault (te. !he )rown.t one end of the spectrum lie cases where the claim to title is wea/. • But2 w!"n #r"$is"l% do"s a dut% to $onsult aris"E T!" 1oundation o1 t!" dut% in t!" CrownDs !onour and t!" oal o1 r"$on$iliation su "st t!at t!" dut% aris"s w!"n t!" Crown !as <nowl"d "2 r"al or $onstru$tiv"2 o1 t!" #ot"ntial "7ist"n$" o1 t!" A0ori inal ri !t or titl" and $ont"m#lat"s $ondu$t t!at mi !t adv"rs"l% a11"$t it • Fnowl"d " o1 a $r"di0l" 0ut un#rov"n $laim su11i$"s to tri "r a dut% to $onsult and a$$ommodat". at p. !hrough the environ$tal assessment process. accommodate arises only upon final determination of the scope and content of the right. cannot cavalierly run roughshod over . FACTS: !his brings us to the issue before this )ourt. =r must it adjust its conduct to reflect the as yet unresolved rights claimed by the . !he scope and content of the duty to consult and accommodate • In "n"ral t"rms2 it ma% 0" ass"rt"d t!at t!" s$o#" o1 t!" dut% is #ro#ortionat" to a #r"liminar% ass"ssm"nt o1 t!" str"n t! o1 t!" $as" su##ortin t!" "7ist"n$" o1 t!" ri !t or titl"2 and to t!" s"riousn"ss o1 t!" #ot"ntiall% adv"rs" "11"$t u#on t!" ri !t or titl" $laim"d • -n all cases. -n such cases consultation. the !+!1&$s concerns with the road proposal became apparent. W!il" t!is #ro$"ss $ontinu"s2 t!" !onour o1 t!" Crown ma% r"8uir" it to $onsult and2 w!"r" indi$at"d2 a$$ommodat" A0ori inal int"r"sts When the duty to consult and accommodate arises • -s the )rown. Earie • T!" r"l"vant tim" 1ram"E !he test for EBtis practices should focus on identifying those practices. at para. the honour of the )rown re2uires negotiations leading to a just settlement of . • T!" #r"A$onta$t t"st is inad"8uat" to $a#tur" t!" ran " o1 5"tis $ustoms2 #ra$ti$"s or traditions t!at ar" "ntitl"d to #rot"$tion2 sin$" 5"tis $ultur"s 0% d"1inition #ostAdat" Euro#"an $onta$t • 1irst.am-le of ho the duty to consult is fulfilled. t!"r" is no dut% to a r"". K the high ris/ of non7compensable damage. su ra. if appropriate. S arrow HEL4: Legislation is invalid • 4ut% round"d in !onour o1 t!" Crown9 in all its dealings with . customs and traditions that are integral to the EBtis community$s distinctive e#istence and relationship to the land. in the conte#t of a claim for title to land K resources.boriginal interests !he provinces$ duty ?rovinces and federal government are subject to this duty Haida (ation v 1C 7case deals ith the situation here aboriginal interests are in the -rocess of being -roved: 7<.boriginal right limited. the . and the conse2uent application of the challenged provisions to the ?owleys. . ISS&E: -s the gov$t re2uired to consult with >aida people about decisions to harvest the forests and to accommodate their concerns about what if any forest in Bloc/ U should be harvested before they have proven their title to land.• We uphold the basic elements of the >an der $eet test and apply these to the respondents$ claim. -n such cases.boriginal peoples with respect to the interests at sta/e. S"l1Aid"nti1i$ation +C. W!"n t!" $onsultation #ro$"ss su "sts am"ndm"nt o1 Crown #oli$%2 w" arriv" at t!" sta " o1 a$$ommodation6 +Q. 3UQ. -ts concerns . 5an% 0ands r"$on$il"d t!"ir $laims wit! t!" sov"r"i nt% o1 Crown t!rou ! n" otiat"d tr"ati"s.The duty arises hen the Cro n !as <nowl"d "2 r"al or $onstru$tiv"2 o1 t!" #ot"ntial "7ist"n$" o1 t!" A0ori inal ri !t or titl" J $ont"m#lat"s $ondu$t t!at mi !t adv"rs"l% a11"$t it6 i.e. Earie EBtis community. REASONIN-: (ource of duty to consult and accommodate Ta2u #iver v 1C 7. FACTS: . pending proof K resolution of the . which ended with the approval of the application to reopen the mine.boriginal claim. . >owever. the )rown must act honourably • Where treaties remain to be concluded.lthough conservation is clearly a very important concern. this may re2uire ta/ing steps to avoid irreparable harm or to minimi'e the effects of infringement. disclose information K discuss any issues raised in response to the notice. T!"r" is no dut% 1or t!" ov"rnm"nts to a r"". the right K potential infringement is of high significance to . Earie. • The Dan der *eet test STEP 1 +C!ara$t"riBation o1 t!" ri !t. • -f the moose population in this part of =ntario were under threat (there was no evidence that it is) the EBtis would still be entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria in R. T!" s$o#" o1 t!" dut% is #ro#ortionat" to a #r"liminar% ass"ssm"nt o1 t!" str"n t! o1 t!" $as" su##ortin t!" "7ist"n$" o1 t!" ri !t or titl"2 and to t!" s"riousn"ss o1 t!" #ot"ntiall% adv"rs" "11"$t u#on t!" ri !t or titl" $laim"d6 +M. acting honourably. • T!" answ"r2 on$" a ain2 li"s in t!" !onour o1 t!" Crown. LQ o1 t!" C6 <E=C. T!" #rovin$ial and 1"d"ral ov"rnm"nt ar" su0:"$t to t!" dut%6 +>. STEP C +Int" ral t"st. !his application triggered a statutory environ$tal assessment process.K the practice continuous to the present. accommodate • !he )ourt$s seminal decision in Delgamuu'w. from the assertion of sovereignty to the resolution of claims and the implementation of treaties. !he evidence indicates that subsistence hunting was an important aspect of EBtis life and a defining feature of their special relationship to the land. The duty to consult and accommodate is rooted in the honour of the Cro nB 7C. T!" #ot"ntial ri !ts "m0"dd"d in t!"s" $laims ar" #rot"$t"d 0% s.boriginal claimants. entitled to use the resources at issue as it chooses.t the other end of the spectrum lie cases where a strong rima facie case for the claim is established. T!" !onour o1 t!" Crown r"8uir"s t!at t!"s" ri !ts 0" d"t"rmin"d2 r"$o niB"d and r"s#"$t"d. suggesting the content of the duty varied with the circumstances • CanadaDs A0ori inal #"o#l"s w"r" !"r" w!"n Euro#"ans $am" J w"r" n"v"r $on8u"r"d. !he focus should be on the period after a particular EBtis community arose and before it came under the effective control of *uropean laws and customs +THE PREACONTROL TEST. and reinforces the -rinci-le set out in Haida that meaningful consultation doesn’t re0uire agreement. T!ird #arti"s do not ow" su$! a dut%6 +K. t!" $ourt s"t out t!" indi$ia to d"t"rmin" w!"t!"r a $laimant m""ts t!" d"1inition o1 5"tis #"o#l": +1.. Ot!"rs2 nota0l% in BC2 !av" %"t to do so. T!is2 in turn2 r"8uir"s t!" Crown2 a$tin !onoura0l%2 to #arti$i#at" in #ro$"ss"s o1 n" otiation. *vidence supports the trial judge$s finding that hunting for food was integral to the EBtis way of life at (ault (te. it has granted Weyerhaeuser the right to harvest the forests in Bloc/ U of the land (which is subject to a land title claim by the >aida people). we agree with the trial judge that the record here does not support this justification. under the aegis of its asserted sovereignty. infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the (ault (te. v. >owever. the only duty on the )rown may be to give notice. !he government holds legal title to the land. mining company applied to the B) gov$t for permission to reopen an old mine in an area that was subject of an unresolved land claim by the !+!1& ppl. • W!"n t!" $onsultation #ro$"ss su "sts am"ndm"nt o1 Crown #oli$%2 w" arriv" at t!" sta " o1 a$$ommodation (i. or any "special access rights to natural resources% for the EBtis whatsoever (appellant$s record.Onderlying this duty is s 8@ of )onstitution. which implies a duty to consult K. • !he main justification advanced by the appellant is that of conservation.: >ere.boriginal ppl.: !he practice of subsistence hunting and fishing was a constant in the EBtis community. (harp dealing is not permitted. even though the availability of particular species might have wa#ed and waned. !he )rown alone remains legally responsible for the conse2uences of its actions and interactions with third parties that affect . the honour of the )rown re2uires that the )rown act with good faith to provide meaningful consultation appropriate to the circumstances.boriginal claims. aimed at finding a satisfactory interim solution maybe re2uired • !he controlling 2uestion in all situations is what is re2uired to maintain the honour of the )rown and to effect reconciliation between the )rown and the . confirmed and e#panded on the duty to consult. or the potential for infringement minor. -nfringement of right9 =ntario currently does not recogni'e any EBtis right to hunt for food. !his uni2ue history can most appropriately be accommodated by a #ostA$onta$t 0ut #r"A$ontrol t"st t!at id"nti1i"s t!" tim" w!"n Euro#"ans "11"$tiv"l% "sta0lis!"d #oliti$al and l" al $ontrol in a #arti$ular ar"a. if appropriate. An$"stral $onn"$tion +L. !his lac/ of recognition. 3A:P).boriginal peoples. &o.boriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof • !he )rown isn$t rendered impotent 5 it may continue to manage the resource in 2uestion pending claims resolution. the right being claimed can therefore be characteri'ed as the right to hunt for food in the environs of (ault (te. rat!"r2 t!" $ommitm"nt is to a m"anin 1ul #ro$"ss o1 $onsultation • ." <nowl"d " o1 a $r"di0l"2 0ut un#rov"n $laim2 tri "rs t!" dut%6 +L. we modify certain elements of the pre7contact test to reflect the distinctive history and post7contact ethnogenesis of the EBtis. but d"#"ndin on t!" $ir$umstan$"s2 t!" !onour o1 t!" Crown ma% r"8uir" it to $onsult and r"asona0l% a$$ommodat" A0ori inal int"r"sts • &either the authorities nor practical considerations support the view that a duty to consult and. Communit% a$$"#tan$" • -n this case. Earie in the period just prior to 3Q@A (which meets the modified time frame test) (a) )ontinuity9 >unting for food was an important feature of the (ault (te. and the resulting differences between -ndian claims and EBtis claims.

even rior to proof of asserted . &Jt1) governments. uses of the lands that would threaten that future relationship are. . namely that aboriginal demands should be placed first. his conclusions on these issues of fact might have been very different. T!" land must !av" 0""n o$$u#i"d #rior to sov"r"i nt%: !he relevant time period for the establishment of title is different than for the establishment of aboriginal rights to engage in specific activities.boriginal title at common law is protected in its full form by s. after refusing to admit.lienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it. T!" #ro$"ss o1 rantin #ro:"$t a##roval to R"d1"rn too< t!r"" and a !al1 %"ars2 and was $ondu$t"d lar "l% und"r t!" . arise afterward). I1 #r"s"nt o$$u#ation is r"li"d on as #roo1 o1 o$$u#ation #r"Asov"r"i nt%2 t!"r" must 0" a $ontinuit% 0"tw""n #r"s"nt and #r"A sov"r"i nt% o$$u#ation: )onclusive evidence of pre7sovereignty occupation may be difficult to come by. 34U8.g.Proo1 o1 o$$u#an$% must 0" "sta0lis!"d 0% 0ot! $ommon law +i".lthough cases involving aboriginal title have come before this )ourt and ?rivy )ouncil before. li/e fee simple.. both by the federal (e. such as9 whether there has been as little infringement as possible in order to effect the desired result. are not absolute. 8@ Jit#san and 38 Wet$suwet$en >ereditary )hiefs instituted proceedings against the ?rovince of British )olumbia. >owever. -t is for this reason also that lands held by virtue of aboriginal title may not be alienated.boriginal title differs from aboriginal rights (which are defined in terms of activities). as an aspect of aboriginal title. Delgamuu2 v 1C 7The leading case on 6boriginal title and sho . . whether the infringement is in furtherance of a legislative objective that is compelling and substantial. arises from the prior occupation of )anada by aboriginal peoples.nother dimension of aboriginal title is its SO&RCE (it$s source. in a situation of e#propriation. which need not be aspects of those aboriginal practices. and to a level of responsiveness to its concerns that can be characteri'ed as accommodation. . accommodate .boriginal rights and title over at least some of the area that they claim and the potentially adverse effect of the Einisters$ decision on the !+!1&$s claims appears to be relatively serious. 1urther. where indicated. an assessment must be made of whether the infringement is consistent with the special fiduciary relationship between the )rown and aboriginal peoples 5 the fiduciary duty principle has been interpreted in terms of the idea of priority.. !he idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e. A0ori inal titl" und"r s LQ+1. !hey claimed. !he contemplated decision thus had the potential to impact adversely the rights and title asserted by the !+!1&. and its reception into the )onstitution by s. it is apparent that the !+!1& was entitled to something significantly deeper than minimum consultation under the circumstances.s a result. • . aboriginal title is held CO55&NALL) (aboriginal title cannot be held by individual aboriginal persons) Cont"nt • . .. • -t follows that the honour of the )rown re2uired it to consult and if indicated accommodate the !+!1& in ma/ing the decision whether to grant project approval to +edfern. #roo1 o1 "7$lusivit% must r"l% on 0ot! t!" #"rs#"$tiv" o1 t!" $ommon law and t!" a0ori inal #"rs#"$tiv"2 #la$in "8ual w"i !t on "a$! In1rin "m"nt o1 a0ori inal titl": t!" t"st o1 :usti1i$ation • !he aboriginal rights recogni'ed and affirmed by s. What is re2uired. by their very nature. !hey used those histories in an attempt to establish their occupation and use of the disputed territory. =ther conte#ts permit that the fiduciary duty be articulated in other ways. and to the seriousness of the potentially adverse effect upon the right or title claimed% • !here is sufficient evidence to conclude that the !+!1& have rima facie . !he duty of honour derives from the )rown$s assertion of sovereignty in the face of prior . because the relevant time for the determination of aboriginal title is at the time before sovereignty. re2uires that those infringements satisfy the test of justification. in addition. and. fair compensation is available.s with the proof of occupation. 8@(3) of the &onstitution *ct. Proo1 o1 a0ori inal titl" • .<-F. FACTS: -n 3PQV. .4Hre9uirements for roof -"n"ral #oints • !he parties disagree over whether the appellants have established aboriginal title to the disputed area.boriginal peoples. is a continuity between present and pre7sovereignty occupation. but this does not demand that aboriginal rights always be given priority.. But factual issues aside. an essential re2uirement for aboriginal title • !he trial judge.g. >ad the trial judge assessed the oral histories correctly. "ritish &olumbia 3Minister of 8orests4. customs and traditions which are integral to distinctive aboriginal cultures. including aboriginal title. second. to common law aboriginal title. the !+!1&$s claim is relatively strong • While it is impossible to provide a prospective chec/list of the level of consultation re2uired. which recogni'es and affirms e#isting . reached the conclusion that the appellants had not demonstrated the re2uisite degree of occupation for "ownership%. the parties also have a more fundamental disagreement over the content of aboriginal title itself.boriginal peoples prior to proof of rights or title claims. sin$" t!os" 1a$tual issu"s r"8uir" a n"w trial2 w" $annot r"solv" t!at dis#ut" in t!is a##"al. LQ+1.boriginal rights and title. this )ourt has confirmed the e#istence of the )rown$s duty to consult and. it was apparent that the decision could adversely affect the !+!1&$s asserted rights and title. • T!" Crown 1ul1ill"d its dut% to $onsult and a$$ommodat". 8@(3). although thought to be in the +oyal ?roclamation. and s"$ond.e. new trial is warranted &ontent of aboriginal titleHhow it)s rotected by s GI3. S arrow) and provincial (e. 8@(3). including giving little weight to aboriginal oral histories and recollections of aboriginal live • !hese errors are particularly worrisome because oral histories were of critical importance to the appellants$ case.boriginal rights and titles • !he duty to consult arises when a )rown actor has /nowledge.nvironmental 6ssessment 6ct8 5"m0"rs o1 t!" TRTFN w"r" invit"d to #arti$i#at" in t!" Pro:"$t Committ"" to $oordinat" r"vi"w • HEL4: Crow 1ul1ill"d dut% • A0ori inal titl" is a ri !t in land and2 as su$!2 is mor" t!an t!" ri !t to "n a " in s#"$i1i$ a$tiviti"s w!i$! ma% 0" t!"ms"lv"s a0ori inal ri !ts • &ni8u" dim"nsions o1 a0ori inal titl": A0ori inal titl" is a sui generis int"r"st in land. real or constructive. vests in the aboriginal community which holds the ability to e#clude others from the lands held pursuant to that title.s/. that aboriginal title encompasses the right to e#clusive use and occupation of the land held pursuant to that title for a variety of purposes. • !he principle of the honour of the )rown grounds the )rown$s duty to consult and. ownership (une#tinguished . 1or e#ample.AAA s2uare /ilometres ISS&E: !he nature and scope of the constitutional protection afforded by s. . of the potential e#istence of . or giving no independent weight to these oral histories. >owever. &eedless to say.crystalli'ed around the potential effect on wildlife and traditional land use. there is no need to establish "an unbro/en chain of continuity +ii. #!%si$al o$$u#ation=#oss"ssion. -mplicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time. -nstead. • T!" "n"ral #rin$i#l"s ov"rnin :usti1i$ation laid down in S-arro o#"rat" wit! r"s#"$t to in1rin "m"nts o1 a0ori inal titl" (-.boriginal title 6 right to land itself . by strip mining it). .have arrived at the conclusion that t!" $ont"nt o1 a0ori inal titl" $an 0" summariB"d 0% two #ro#ositions9 1irst.boriginal title) and resulting jurisdiction (entitlement to govern by . -n summary. if indicated.g. LQ+1. REASONIN-: !rial judge errors MEust follow 8 stepsN • 1irst thing court noted is the errors made by the !0. =ne dimension is INALIANABILIT) +lands $anDt 0" trans1"rr"d sold or surr"nd"r"d to an%on" ot!"r t!an t!" Crown. both individually and on behalf of their respective >ouses. • In ord"r to ma<" out a $laim 1or a0ori inal titl"2 t!" a0ori inal rou# ass"rtin titl" must satis1% t!" 1ollowin $rit"ria: H5&ST satis1% to 0" $onsid"r"d A0ori inalI +i. whether. whereas normal estates. it is drawn by reference to the other dimensions of aboriginal title which are sui generis as well%. there has never been a definitive statement from either court on the content of aboriginal title • ..boriginal occupation. . what ma/es aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty. J a0ori inal #"rs#"$tiv" on land. e#cluded from the content of aboriginal title. to accommodate .boriginal rights or title and contemplates conduct that might adversely affect them • When +edfern applied for project approval. in its efforts to reopen the !ulse2uah )hief Eine. an aboriginal community may provide evidence of present occupation as proof of pre7sovereignty occupation in support of a claim to aboriginal title. as well as the lac/ of ade2uate baseline information by which to measure subse2uent effects ISS&E: Guty to consult and of accommodation REASONIN-: • -n Haida Nation v. that those protected uses must not be irreconcilable with the nature of the group$s attachment to that land • +egarding the second proposition. At sov"r"i nt%2 t!at o$$u#ation must !av" 0""n "7$lusiv": *#clusivity.boriginal laws) over separate portions of territory in northwest British )olumbia totalling @Q.-t has been enshrined in s. whether the aboriginal group in 2uestion has been A0ori inal Titl" s ho to -rove it. first. s. and. LQ+1. !hose rights may be infringed. and on what terms • !he scope of the duty to consult is "proportionate to a preliminary assessment of the strength of the case supporting the e#istence of the right or title. -n order to give guidance to the judge at the new trial. if occupation is established with reference to the use of the land as a hunting ground.

+0. subject only to the needs of conservation (@) !he scope of aboriginal title and rights depend on specific facts relating to the aboriginal group and its historical relationship with the land Tsilh0ot’in (ation v 1C . !he standard of occupation re2uired to prove aboriginal title may be established in a variety of ways (e.lso. !he recognition of aboriginal title in &alder as a legal right was sufficient to cause the federal government to establish a land claims process..ny definition of e#isting aboriginal rights must ta/e into account that they e#ist in the conte#t of an industrial society with all of its comple#ities and competing interests. . decoloni'ation e#perienced its first legal challenge in )alder (())) • Cald"r was a turnin #oint in our 0asi$ und"rstandin o1 A0ori inal ri !ts. ?rofessor argues for a new concept of the )onstitution which he calls the =rganic Eodel. aboriginal people gave up their title in e#change for land reserves and for the right to hunt and fish on the land they$d given up • -n B).ny land that was occupied pre7sovereignty. T!" Court ado#t"d stri$t #roo1 o1 a0ori inal titl". with regard to the second stage.boriginal peoples.boriginal title in (t )atherine$s Eilling case • T!" d"s$ri#tion o1 A0ori inal titl" as a usu1ru$tuar% ri !t was 1avour"d 0% t!" SCC in t!" 1@?Ps (usufructuary meaning a legal right to use. ?rofessor (lattery argues that this provision represents a basic shift in our understanding of the constitutional foundations of )anada. It is mor" a$$urat" to s#"a< o1 a Sari"t% o1 A0ori inal ri !ts2 on" o1 w!i$! is titl" to land. is sufficiently important to be of central significance to the culture of the claimants%. )ontinuity9 !his only becomes an aspect of the test where an aboriginal claimant relies on present occupation to raise an inference of pre7sovereignty occupation. aboriginal rights and treaty rights are recogni'ed and affirmed !he *volution of . a right to the land itself. ?ut simply. who said that unless legislation had evinced a "clear and plain intention% to e#tinguish aboriginal rights. said that Cald"r was solid aut!orit% 1or t!" "n"ral #ro#osition t!at t!" law o1 Canada r"$o niB"s t!" "7ist"n$" o1 an a0ori inal titl" ind"#"nd"nt o1 T!" Ro%al Pro$lamation or an% ot!"r #r"ro ativ" a$t or l" islation +it aris"s at $ommon law.boriginal law was the patriation of the )anadian )onstitution with the "na$tm"nt o1 t!" Constitution A$t2 s LQ+1. T!" d"s$ri#tion o1 A0ori inal titl" as sui "n"ris $a#tur"s t!" "ss"n$" o1 a #ro#ri"tar% ri !t s!a#"d 0% 0ot! $ommon law and A0ori inal s%st"ms +not" t!" L sui "n"ris as#"$ts not"d in Delgamuu2 .merica. the protected right must be a logical evolution of the activity carried on at the time of treaty7ma/ing. aboriginal peoples signed treaties. construction of dwellings) :. resource.boriginal title holders and the )rown. • =ne of the /ey challenges of . t!" "arshall and 1ernard d"$ision s"ts limits on a0ori inal titl". this right did not e#tend to commercial logging.boriginal title is held communally. does not contain within it the same discretionary component. !his point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in S arrow. !his case dealt with particular aboriginal rights. governance and jurisdiction issues through a treaty process or go to court K have aboriginal rights title decided on a case to case basis • Haida Nation and :lingit 8irst Nation cases provide guidelines for the negotiation K definition of aboriginal title in B) • -n Mi'isew.boriginal people$s prior occupation of )anada and the sovereignty of the )rown. it did not have that effect.ct in 3P:4 to ma/e it illegal to raise funds to pursue land claims (which was lifted only in 3P@3) • (o treaties should have been made but they weren$t.ct 3PQ:. -sn$t it simply too late to revisit this. !raditional practices must translate into a modern legal right. including the intention and capacity to retain e#clusive control of the lands. =ttawa amended the -ndian . • T!" Dan der *eet d"$ision $lari1i"d our $urr"nt und"rstandin o1 t!" ori in and natur" o1 t!"s" ri !ts (and articulated a test for determining whether a particular activity is protected as an . • T!" n"7t im#ortant d"v"lo#m"nt in )anadian . under which it is said that the )onstitution is rooted in )anadian soil • T!" vi"w t!at a0ori inal titl" is root"d in Canadian soil is "m0odi"d in t!" t!"or% t!at titl" is sui "n"ris. -t found that although the treaty protected the Ei$/ma2 rights to sell certain products. which will ordinarily give rise to fair compensation when . and it is the tas/ of the court to consider any proper limitations on the modern e#ercise of those rights. -n response. occupation and possession to use the land for the general welfare and present day needs of the . but B) refused to participate. the governments and 1irst &ations have two options9 either negotiate land. . T"st 1or a0ori inal titl" HDelgamuu2 t"stI . the economic aspect of aboriginal title suggests that compensation is relevant to the 2uestion of justification as well • HEL4: +emit case bac/ to trial 3..!he )ourt said that while rights are not fro'en in time.boriginal title also includes a proprietary type right to choose what uses aboriginal title holders can ma/e of their lands. not rights in land. T!" d"$ision was a l" al turnin #oint .boriginal rights e#ist in law (:) . (ection 8@ renounces the old rules of the game under which the )rown established courts of law and denied those courts the authority to 2uestion sovereign claims made by the )rown. . aboriginal title is a (?*)-*( of aboriginal right which differs from aboriginal rights to engage in particular activities.boriginal !itle • Calder d"$ision r"$o niB"s a0ori inal titl" +1@>L. benefit from and derive profit from property belonging to another person) • But. decided shortly after )alder.boriginal title as a usufrutuary right isnt$ helpful (see Gelgamuu/w. • !he courts have confirmed that aboriginal title still e#ists in B).boriginal title also has an economic component. -n S arrow. -t is inaliable to third parties. !o resolve this situation. S"asonal !untin and 1is!in in a #arti$ular ar"a amount"d to !untin or 1is!in ri !ts onl%2 not a0ori inal titl".llied !ribes of B) in 3P3U to wor/ for treaties. !he demand intensified. -n the case. !his aspect of aboriginal title suggests that the fiduciary relationship between the )rown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions ta/en with respect to their lands. -t confers a right to e#clusive use. and only by treaty • -n most of the treaties.boriginal law is reconciliation between present day . which is a uni2ue communally held property right (V) . ?roof must rely on both common law and aboriginal perspective on land. All o1 t!"s" landmar< :ud m"nts to "t!"r $on1irm t!at: (3) . a0ori inal titl" in t!is $ountr% is uni8u" and in a $lass 0% its"l1. aboriginal people protested demanding treaties to be signed.boriginal title has been infringed.g. culminating in the formation of the . What do these legal decisions mean. (uch inherent limits prohibit uses that would destroy the ability of the land to sustain future generations of . but can be surrendered to the )rown. and which the parties have maintained a substantial connection with since then. the )ourt unanimously dismissed the claim to both treaty and aboriginal rights. Now2 it $an no lon "r 0" $!ara$t"riB"d as su$! • !he notion of an occupancy based . -n )anada. -t stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in 2uestion.boriginal community.boriginal title started to gain acceptance at a time when countries such as )anada began the process of decoloni'ation.. the ()) e#tended the )rown$s obligation to consult and accommodate aboriginal interest (established in Haida and :a'u) to include e#isting treaty rights. that is. T!" Court 1urt!"r stat"d t!at a0ori inal titl" would r"8uir" "vid"n$" o1 "7$lusiv" and r" ular us" o1 land 1or !untin 2 1is!in or r"sour$" "7#loitation. but they were later on e#tinguished by the Gominion of )anada • =ver the decades. . • (till.boriginal claimants do not need to establish an unbro/en chain of continuity. !he aboriginal right to fish for food.boriginal title (nature) • )anadian courts began to outline and define . it is not surprising that the ()) has found that describing . which is subject to an inherent limit which is defined by the nature of the attachment to the land.consulted with respect to the conservation measures being implemented) • -n this conte#t. *#clusivity9 *#clusive occupation may be demonstrated to e#clude others. but they have not indicated where it e#ists. ?re7sovereignty occupation9 ". the )ourt too/ the same approach as in )alder. viewed through a contemporary lens.boriginal rights and title calls for a reconciliation of . It is #ossi0l" 1or an A0ori inal rou# to s!ow t!at a #arti$ular #ra$ti$" ta<in #la$" on #arti$ular lands was int" ral to t!"ir distin$tiv" $ultur" so as to "sta0lis! sit" s#"$i1i$ A0ori inal ri !ts2 0ut not "sta0lis! A0ori inal titl" on t!os" sam" lands • Delgamuu2 is a si ni1i$ant $as" in r"lation to a0ori inal titl" • To summariB". . BC Tr"at% Commission2 /W!% tr"ati"s in t!" mod"rn a "3 • When the early *uropeans first began to settle in the eastern part of &orth . each being given e2ual weight. Britain recogni'ed that those people who were living there had title to land9 the +oyal ?roclamation of 34U8 declared that only the British )rown could ac2uire lands from 1irst &ations. • Onder s LQ of the )onstitution . • !he common law recognition of . !he "a'er La/e case. the 2uestion remained9 had aboriginal title been e#tinguished before B) joined )onfederation or not. 8.boriginal rights are distinct from the rights of other )anadians (8) !hey include aboriginal title.boriginal right) • Toda%2 w" no lon "r s#"a< o1 an ov"rar$!in A0ori inal titl". • But in Delgamuu2 2 t!" SCC $on1irm"d t!at a0ori inal titl" "7ists in BC • Eorever. !reaties protect traditional activities e#pressed in a modern way and in a modern conte#t. aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. new and different activities are not protected.boriginal rights ta/e priority over the rights of others. . by contrast. -t confers a sui generis interest in land.

. !al/ about idea of responsible government here. who comprise the e#ecutive council "advising% the head of state. to which the e#ecutive is made subordinate (an introductory e#ample) b) !he parliamentary system contemplates an overlapping of personnel between the legislature and the e#ecutive.dvantages about )anada$s approach re9 international law9 • Gemocratic participation in the international law ma/ing process • Teeps in chec/ separation of powers (ie. the 2uestion is whether the commercial logging here at issue is the logical evolution of a traditional Ei$/ma2 trade activity !est applied • -n each case. ?revents e#ecutive from "law ma/ing%) c) ?roblems9 • -mplementation issue9 "a'er$s approach too strict (why can$t there be "implied% implementation. Onwritten constitutional principles Positiv"s in$lud": • !hese are fundamental concepts about which everyone can agree. on a practical level. found no direct evidence of any trade in forest products at the time the treaties were made. are elected members of the legislature. . is not directly binding in )anada. e#ecutive) 5 it is the same individuals.). -t is often said that under our constitutional system. Giscuss cases cited in the )rai/ boo/ that demonstrate the blur between the separation of powers and or the problems that result as a result of the blurred roles of the legislature."oudreau case) g) ()) ability to give "advisory opinions% to the federal government (the government may as/ the )ourt to consider 2uestions on any important matter of law or fact. Lordon ?rov. 3PQ: (Q) Jov$t has a duty to consult and possible accommodate aboriginal interest even where title has not been proven (P) Jov$t has continuing duty to consult. including even just cogens. as to whether presumption applies e2ually to )anada$s international obligations and non7binding international norms. see also the leniently interpreted difference between delegation of power ?arliament legislature power and abdication (re #ray4 e) !here is a considerable degree of integration between the Legislature and Jovernment (i. Gualist tradition re9 treaties (i. Pot"ntial Essa% (u"stions +1. so it ma/es sense that they will affect judicial decision ma/ing (even the highest court of -ndia has recogni'ed almost identical unwritten principles. S arrow) • !hese principles were canvassed at length in Delgamuu'w v. !he )rown can impinge on aboriginal title only if it can establish that this is justified in pursuance of a compelling and substantial legislative objective for the good of larger society9 R.boriginal title REASONIN-: . -n order to endure over time. =nly in this way can the honour of the )rown be upheld • A su0 issu" !"r" is w!"t!"r nomadi$ and s"miAnomadi$ #"o#l"s $an "v"r $laim titl" to a0ori inal land. • )rown argues that s$o#" o1 tr"at% ri !t is to 0" d"t"rmin"d 0% w!at trading activities w"r" in t!" $ont"m#lation o1 t!" #arti"s at t!" tim" t!" tr"ati"s w"r" mad". who control the legislative and e#ecutive branches of government. the rule of law may become subtly transformed into the rule of unelected judges d) 1orms of administrative justice or adjudication have grown out of the development of e#ecutive functions (tribunals verge on being courts in some circumstances 5 see >uman +ights !ribunal. it was binding on )anada (via ratification) and ()) should have appealed to presumption • (uresh approach of allowing unimplemented treaties aid interpretation of legislation (potential problem) • Onclear what ())$s position is re9 customary int$l law9 !here is no une2uivocal statement on whether custom is part of )G& law or not.e. )urran ?rov.boriginal rights and title cannot be e#tinguished by simple legislation because they are protected by the ). but what about presumption. -n "ernard. and the role of the e#ecutive is to apply the law. e#ecutive and judiciary9 +L. -n practice. furnishing a potentially relevant K persuasive source for this power. +C. than/s to "a'er. hesitancy after ba/er to treat international law as binding (generally treated as merely persuasive) 5 this wea/ens the fabric of law 5 on the verge of becoming "optional% law to be applied at judge$s discretion 5 this would wea/en international respect for us • )ourts$ use (or lac/ thereof) of presumption of legislative intent (see article)9 uncertainty of the effect of that presumption in conte#t of )harter interpretation.lthough int. that$s about it +M. instrument in that case was unimplemented.boriginal treaty right9 the test • !he cases raise issue of scope of treaty right. the role of the legislature is to ma/e the law. f) !he ability of the ()) to "enforce% e#ecutive decisions creates a tension between the appropriate relationship of judiciary and e#ecutive (see Doucet. &ow it is not possible. p. which enunciated a test for aboriginal title based on e#clusive occupation at the time of British sovereignty. particularly suspect in conte#t of interpreting customary international norms 5 "a'er 6 "values% of international instruments may help inform conte#tual approach to statutory interpretation if dealing w unimplemented norm.ct. 3QU4 leads to concern is that when judges give concrete shape to the rights provided in the )harter. !he ?E and members of his her )abinet. /T!" 8u"stion is w!"t!"r t!" mod"rn tradin a$tivit% in 8u"stion r"#r"s"nts a lo i$al "volution 1rom t!" traditional tradin a$tivit% at t!" tim" t!" tr"at% was mad"3 • !hus. ?rior to constitutionali'ation of aboriginal rights in 3PQ:. !his is not the case in the O( (another introductory e#ample) # v "arshallB # v 1ernard FACTS: E and B were convicted of offences related to the selling possession of timber ISS&E: Whether the Ei$/ma/ people in &( and &B have the right to log on )rown lands for commercial purposes pursuant to either treaty or . !his is correct • But tr"at% ri !ts ar" not 1roB"n in tim". needs to be "implemented% in legislation). especially concerning the interpretation of the )onstitution. W!"t!"r a nomadi$ #"o#l" "n:o%"d su11i$i"nt /#!%si$al #oss"ssion3 to iv" t!"m titl" to t!" land2 is a 8u"stion o1 1a$t • HEL4: Court $on$lud"s t!at t!"r" is no round to int"r1"r" w= t!" trial :ud "s 1indin t!at no titl" "7ist"d AAA T!" 1ollowin would 0" mor" suita0l" 1or t!" 0od% o1 t!" "ssa%: c) Legitimacy of )onstitutional judicial review9 ())$s interpretation of the "vague% )harter and vague language in the )onstitution . the role of the judiciary is to interpret the law. )t. a constitution must contain a comprehensive set of rules and principles which are capable of providing an e#haustive definition for our system of government. :V3) K rule ma/ing of admin bodies (delegated legislation) blurs the role between the e#ecutive and legislature. • ?roblems or situations may arise which are not e#pressly dealt with by the te#t of the )onstitution. 5od"rn #"o#l"s do traditional t!in s in mod"rn wa%s. !he ()) decisions in S raytech and Suresh leave room to be interpreted as suggesting that customary law. aboriginal title could be e#tinguished by clear legislative act (see >an der $eet). and invalidate laws that do not conform to their interpretation of these re2uirements. continues to enjoy title to it. the )ourt must consider both the aboriginal perspective and the common law perspective. where treaty rights might be adversely affected A0ori inal Tr"ati"s !he following areas are where the separation of powers starts to blur9 a) !he parliamentary tradition adopted by )anada$s founders gives pre7eminence to the legislative branch. R 3 more). does this theoretical understanding always unfold.boriginal title • !he respondents also claim they hold aboriginal title to the lands they logged • !he common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of *uropean sovereignty and never ceded or otherwise lost its right to that land. customary international law (no special approach) b) . "ritish &olumbia. )riti2ue the role of international law in )anadian domestic law9 a) What is the approach.e. !he : decisions permit the inference that custom merely helps inform a conte#tual approach to statutory interpretation. )t. and perhaps accommodate. unclear.merica long before settlers arrived (4) . v. • Delgamuu'w re2uires that in analy'ing a claim for aboriginal title. 0.(U) !he legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the peoples and governing societies that were resident in &orth . the trial judge concluded that the evidence did not support a treaty right to commercial logging • -n Marshall. !he answer is that it depends on the evidence. 0. made similar findings on similar evidence. • I $on$lud" t!at t!" "vid"n$" su##orts t!" trial :ud "sD $on$lusion t!at t!" $omm"r$ial lo in t!at 1orm"d t!" 0asis o1 t!" $!ar "s a ainst t!" r"s#ond"nts was not t!" lo i$al "volution o1 traditional 5iD<ma8 tradin a$tivit% #rot"$t"d 0% t!" tr"ati"s o1 1>KPAK1 .

(iii) (lowness in growth (the system depends on litigation for rules to emerge). !o recogni'e these principles can be seen as an unauthori'ed judicial e#pansion of their power in the constitutional sphere. !hey are so broad that they can be found to apply to any issue. Go you thin/ there needs to be a reforming of the judicial appointment process. he she may select ppl to fill some important appoints that are technically made by the governor general • 1ormal e#ecutive bodies are limited to the governor general and lieutenant governors. (iv) 1ulfills a symbolic role by recogni'ing the relationship between courts and the legislature. summoning ?arliament) • ?arliament can be prorogued through a speech by the governor general in the (enate )hamber • ?E to resign his or her gov$t or see/ parliamentary dissolution after a "no confidence% vote by the >ouse • +esponsible government (and all of its understood "rules%) • !he individual commanding the confidence of the >o) (that is. ambiguity. +@. ma/ing it more predictable (ii) ?rovides fairness in decision ma/ing.g.ids in the stability and coherence of the law. federal and provincial )abinets. the governor general and lieutenant governors for each province are bound by constitutional convention to e#ercise their powers with the advice of the )abinet of their respective government • (electing members for the (enate9 the governor general follows advice of the ?E • !he governor general calls ?arliament into session on the advice of the ?E (i. consider the limitations put on it by the )harter. and constitutionally protected individual rights and liberties found in the )harter (this goes bac/ to parliamentary supremacy). lay people can$t access it). . . (ee boo/ for definition b. • )onsider that even if the ministry tric/s ?arliament into passing a law. abundance of discretion. difficult to learn it all. (iv) *asy to distinguish (give case e#ample). )ritically analy'e the limits on delegated legislation +1P.. leader of the )abinet gov$t. • We are used to unwritten legal principles (that$s what our common law system is built on) N" • • • • ativ"s in$lud": By swaying away from written te#t. )onstitutional conventions 7 what are they. • What should be done. +1L .9 • (trengths. • )onsider that ?arliament is free to pass careless or bad laws. )onsider that there can be e#propriation without compensation by way of legislation that ma/es such an intent clear (*uthorson v &anada4 Ar um"nts a ainst: • )onsider the division of powers found in ss P3 and P: which identify certain subjects in respect of which ?arliament cannot legislate.lso some intellectual uncertainty (as the law is in constant evolution) +?.• !hey are only resorted to when the e#press wording of the )onstitution is insufficient to solve a problem (which is a valuable limit on the doctrine. (ii) Bul/ comple#ity (so much law.boriginal rights s 8@ 2uestion +Q. in turn. . . the significance of the rule of principle in )anadian society and law +1C. which gives rise to concerns that it may be manipulated in individual rather than societal favour. fle#ibility in appointing allows for ability to tailor bench to needs of society at the time • )oncerns. • &ote9 discuss both times of federal appointments 5 non (upreme )ourt and (upreme )ourt (and note the uni2ue concerns w (upreme )ourt appointments) +11. Giscuss. (v) (v) .dvantages and disadvantages of precedent Advanta "s=0"n"1its: (i) . lac/ of transparency accountability. e. Why why not.e. Go you thin/ )anada should abolish prorogation. Bijuralism +>. (iii) ?romotes efficiency and eliminates sources of error (such as judicial bias). Jive some e#amples.9 a. we get into a realm of uncertainty. *#amples include9 • (electing a governor general9 the Dueen follows the )anadian ?E$s recommendations (based on an "instrument of advice%). the majority) is appointed ?E • =nly privy councillors who are in the )abinet are entitled to e#ercise the powers of the ?rivy )ouncil • !he ?E. Giscuss9 Ar um"nts 1or: • )onsider that the scope of ?arliament$s law7ma/ing jurisdiction is endless. and prevents it from being used inappropriately). written constitution promotes certainty and predictability. including the civil service +K. . ?olitical patronage. and cannot be legally enforced. • )onsider that )anadians aren$t entitled to due process or procedural fairness in the law7ma/ing process (so long as the procedures in the )onstitution have been met). number of filters e#ist before judges are selected. so law is it conforms to the )onstitution (rules governing division of powers between fed and prov legislatures). it is binding even if the decision is thought to be wrong) R ?erpetuation of errors. without which the laws today relating to female participation in society might be primitive) 4isadvanta "s=#ro0l"ms: (i) +igidity (once a rule is laid down. -s the ?arliament of )anada truly "supreme%. that alone is insufficient for a court to stri/e it down (see !urner v )anada). possess authority to e#ercise so7called personal prerogatives. (vi) ?ossibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (tal/ about how feminists would enjoy this aspect of the doctrine. (v) ?rovides some certainty (liberty to decide each case as you thin/ right without any regard to principles laid down in previous cases would result in uncertainty of law). and the system of governmental departments and ministries that are overseen by individual ministers. the appointment process is simply policy. and give e#amples demonstrating.