Cover Page - Foundations of Canadian Law - Most Update 1013

Ronald Chan Foundations of Canadian Law 2018/09/29
唔熟 GEH 範圍：1) Parliamentary 2) Executive 3) Basic Theories 補少少就 OK 4) Judiciary – Judicial Appointments 5) 中
間啲 chapters
1. Basic Theories of Law

a. Legal Positivist – aimed at describing law rather than assessing whetehr and how laws meet external
guidelines – Re Drummond Wren, Noble et al v Allley
i. Validity of restrictions attached to properties limited them from being sold to certain ethnic and
religious groups
ii. Drummond Wren (natural law discrouse); Noble and Wolf (positivist statements)
b. Legal Pluralism
i. Norms always involve both an argument as to what the norm should be and a mechanism by
which that argument is brought to a provisional conclusion
1. Norms are always constructed
c. “group theories”
i. Feminisht theory
1. Liberal - law should function to function to provide all indivdiuals with liberty, as long as
it does not infringe the other’s liberty = sth like harm principle
2. Formal equality under the law
a. Edwards v AG (Canada) – women successful argued that they should be
considered as person in an Act
3. Contemporary
a. Substantive equality
4. Feminism and Intersectionality (交叉性)- 種族、階級和性別等其他權力相互作用形成
社會制度，而這些社會制度反過來建構出被這些特徵所定義的群體
a. Arguments have been made that:
i. Mainstream feminish tehoriests have failed to account for wormen who
do not fall within the mainstreat – i.e. who are not white, middle-class,
heterosexual or able bodied
ii. The supreme court of Canada in Law v Canada has recognized
intersection discrimination as an analogous ground of discrimination
under s.15(1) of the Charter; multipled oppression must be taken into
accountin future advocacy efforts
iii. Carol Aylward, “intersectionality: crossing the theoritecal and Praxis
Divide” – For essay question
5. Critical Legal Studies – Postmodernism – Law is contexual
a. Law can never exist indep from politics and morality; law reproduced
society’s oppressive nature
b. Focus on how the law affect particular groups
c. R v S [RD] 1997
d. Critical race theory: how the law and legal traditions affect people of
colour as members…
6. Law & Economics
a. Concerned with efficiency; whether rules lead to efficient outcomes
b. Private law areas, expanded to public law
c. Critique of public regulation
ii. Essay Question:
1
- What insights have feminists and critical legal studies scholars
borugh to the discussion of the law and legal processes?
2. Indigenous Peoples and the Law **

2. Key Concepts: Abo rights and freedoms are not affected by the Charter (s.25, Charter)
s.35, Constitutional Act 1982
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims
agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1)
are guaranteed equally to male and female persons.
Importance of Cons act 1982 on Aboriginal rights is thus – Existing treaty Formatted: Font: 16 pt, Underline
rights have been recognized and affiremed by the Constitution, thus

enjoying the highest possible status Formatted: Font: 16 pt, Bold, Underline
Read critiques such as John Borrows, “indigenous legal traditions” 2005
a. Aboriginal law – distinctive existence

i. Abo rights are derived from Abo laws, governance, practice, customs and traditions [s.35, Cons]
1. Part of cn common law and cons law
2. Abo rights are pre-existing rights
3. Rights plus=in additional to other rights
4. Abo rights were never extin by the Crown [Mitchell v. MNR]
ii. Limited recognition and enforcement until 1982
1. Connolly v wollrich (1867) – inherent
2. Mitchell: continuation of pre-existing Abo rights unless rights were: (1) incompatible with
the Crown’s assertion of sover sovereignty (2) surrendered voluntarily via the treaty
process (3) the government extinguished them
3. 1969 White paper: proposed elimination of Abo and treaty rights, ultimate
purpose=assimilation of Abo peoples
a. Never implementedmobilzation and resistance
b. Abo activism and s.35 of the Cons Act 1982
i. Entrenched existing Abo and treaty rights, defined Aboriginal peoples of
canada
4. Charter,S.25 – Aboriginal rights and freedoms not affected by Charter
a. The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or
other rights or freedoms that pertain to the aboriginal peoples of Canada
including
any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and any rights
or freedoms that now exist by way of land claims agreements or may be so acquired.
4. : Insulates
2
a. The guarantee
iii. The legal Recognition of Abo Rights (R v Sparrow)
1.5. S.35: Addition of ss (3) &(4), adding modern land claims agreements to def of treaty
rights and guaranteeing Abo and treaty rights equally to male and female person
a. Insertion of cl expressly indicating that Charter rights not to
2.6. R v Sparrow [1990]
a. Sparrow had been fishing with a drift net longer than permitted by his
band’s Indian food fishing license
i. Charged with violating federal Fisheries Act, but maintained hi Abo right
to fish
b. Was Parliament’s power to regulate fishing limited by the protection of
Abo rights in s.35(1)?
i. S.35(1) protects rights “existing” at April 1, 1982, does not revive
extinguished rights
ii. S.35(1) protects unextinguished rights in their full and ample form, not
in their regulated form
c. Test for extinguishment: Clear and plain intent to extinguish
i. R can demonstrate no intention
d. Existing rights not frozen in time; s.35(1) rights are purposive in nature
i. Generous and iberal interpretation of s.35(1) Abo rights is necessary
e. Crown’s fiduicairy duty to Abo peoples grounded a general guiding
principle for s.35(1)
f. Contemporary recognition and affirmation of Abo rights must be defined
in light of the historic, “trust-like” rel between Abo ppls and the Crown
g. Corwn legislative initiatives must uphold honour of the Crown and be
consistent with the sui generis Crown-Aboriginal relationship
i. Abo rights still subject to appropriate
h. Court explained in Sparrow:
i. S.35(1) is not subject to s.1 of the Charter. In our opinion, this does not
mean that any law or regulation affecting abo rights will automatically
be of no force or effect by the operation of s.52 of the Cons Act, 1982.
Legislation that affects the exercise of abo rights will nonetheless be
valid, if it meets the test for justifying an interference with a right
recognized and affirmed under s.35(1)
ii.Test for justification of govt legislative restrictions on Abo rights
iii.(1) Valid Legislative objective (conservation deemed to be valid, while
public interest is not)
iv.(2) Is there a prima facie infringement of Abo rights? If so, move to
justification (beginning at Step 3).
v.(3) Is the limitation of Abo rights unreasonable? If so, the legislation is
invalid.
vi.(4) Does the legislation impose undue hardship upon Abo peoples? (if
so, the legislation fails the test.)
vii.(5) Does the legislation deny Abo peoples their preferred means of
exercising their rights? (if so, the legislation fails the test)
viii.(6) Has there been as little infringement as possible in effecting the
desired result?
ix.(7) Has there been fair compensation offered? Have there been
appropriate levels of consultation with the affected group?
3
x.(8) Legis objectives are to be assessed in light of the Crown’s fiduciary
duty to Abo peoples? (fiduciary duties??)
i. Hierachy for Abo rights: Priority over non-Abo rights, but subordinate to
important govt objectives (e.g. conservation)
3.7. R v Van Der peet (adopted and expanded Sparrow) –
a. Key: identify the precise time that the right arises
b. Framework for analyzing s.35(1) claims created in Sparrow
c. Has applicant demonstrated he/she was acting pursuant to an Abo
right?
d. Has that right has been extinguished?
e. Has the right been infringed?
f. Is the infringement justified?
g. Overriding principle: S.35(1) Abo rights “ must be directed towards
the reconciliation of the pre-existence of abo societies with the sovereignty of
the Crown”
h. S.35(1) to be interpreted in a purposive way that accounts for the
Crown’s fiduciary duty to Abo peoples
i. Key element of this case: an activity must be “an element of a
practice, custome or tradition integral to the distinctive culture of the Abo
group claiming the right”
j. “Integral to a distinctive culture”: claimant must demonstrate that
the practice, customs or tradition was a central and significant part of the
society’s distinctive culture
k. Right must exist prior to contact with Europenan?
l. Group claiming the right must demonstrate a continuity of present-
day and historic practices (ie. Link)
m. Abo rights claims will be assess on a case by case basiss
n. Abo rights must be made cognizable(within the jurisdiction) to the
Canadian legal system to be protected
o. R v Sappier; R v Gray 2006
i. Importance of the pre-contact and communal nature of the Abo right
being claimed, in order for the right to be protected under s.35(1)
ii. Evi must “determine how the claimed right relates to the pre-contact
culture or way of life of an abo society”
iii. Issue: Whether an Abo practice undertaken for survival purposes could
meet the “integral to a distinctive culture” test
iv. Held: affirmative. Communal right that assists in the continued survival
of the Abo societis can constitute an abo right
v. Communal right cannot be exercised by individual abo persons for their
personal use or consumption
vi. Importance of flexibility, context, and need for court to draw necessary
inferences about the existence and integrity of a practice when direct
evidence is not available
vii. Pre-contact practice need not go to the core of the society’s identity or
be a defining feature of the Abo society (contrary to Van der Peet)
viii. “Distinctive culture” focuse on pre-contact way of life:
1. Means of survival
2. Socialization methods
3. Legal systems
4. Trading habits
4
ix. Nature of the practice founding the Abo right claim must be considered
in the context of pre-contact distinctive culture o particular Abo
community; nature of the right asserted must be determined in light of
present-day circumstances
p. The Charaacterization of Metis Abo rights by the Courts [modified version
of van der peet”
i. s.35(2): Metis peoples are “abo peoples of Canada” under
ii. Metis abo rights
iii. R v Powley, 2003 (modified the Van der peet test)
1. Indicia for claiming Metis identity under s.35(1) self-
identification, 2 ancestral connection (3) comjunity acceptance
2. Van der peet test inappro, as Metis ppl did not exist prior to
European contact
3. Modified version of the test: Substittued “prior to the time of
effective European control” for “contact”( Van Der Peet) as the
operative time for establishment of Metis Abo rights
4.8. Conclusion
a. Context for understanding the uniqure nature of Abo rights and their
place withitn the Can cons order
b. Protection of Abo rights in s.35(1) of the Cons Act, 1982
c. Overlaps with the issues of fiduciary duties and treaty rights
iv.iii. Crown Abo fiduciary Relations, the duty to Consult, and the Honour of the Crown
1. Crown holds Fiduciary duties to Abo peoples
a. R v Sparrow: part of section 5
2. Sources of fiduciary duty:
a. Royal proclamation of 1763 – gave crown excl right to negotiate
b. S.91(24) Const act 1867 – legistive authority to Fed Parl
c. S.35 of the Cons Act 1982
3. What is Fid Relationship?
a. Two parties:
i. Fidu – has rights and powers that must be exercised for the benefit of
another
ii. Benef – is owed the fiduciary obligations
b. Protects those who trust from having that trust abused (rel of important
social or eco value/necessity)
c. Strict rules of conduct on fid: must act with honesty, integrity, fidelity, and
in the best interests of the bene
d. Guerin v the Queen [1984] – first judicial recognition
i. Surrender of the XXX
ii. Crown’s involvement in the surrender of Abo reserve lands for lease to
a non-Abo group caused it to be described as a “fidu” (involvement date
to at least the Royal Proclamation of 1763)
e. Crown must act solely in the band’s best intersts when an Indian band
surrenders land (ie. Respect the wishes of the band and attempt to obtain
the best possible outcome for the band)
f. Crown’s fiduciary duties are sui generis (“of its own class”) as a result of
unique historical rel
4. Honour of the Crown
a. Notion of the crown as a fid to Abo peoples rooted in this notion
(articulated predom in Crown-Abo treat relations)
5
b. “Honour of the Crown”: Crown’s obligatin to act honourably in dealins
with Abo peoples
i. Have appl in non-treaty situations – see Manitoba
ii. Manitoba Act – an act to amend and continue the Act 32-33 Victoria,
ch.3; and to establish and provide for the Government of the Province
of Manitoba
iii. P argued Crown has breached its fid duty
iv. S.31 of the Act expresses cons obligation to provide Metis children with
plots of land
v. For there to be fid, control had to relate to abo interest. Land interest
here were in favour of individuals, No fiduciary duty.
vi. Honour of the crown triggered tho: Corwn had not met obligations
1. Metis were entitled to a declaration
vii. When the issue is the
implementation of a
cons obligation to an
Abo people, the
honour of the Crown
requires that the
Crown:
1. Takes a
broad
purposive
approach to
the
interpretatio
n of the
promise AND
2. Acts
diligently to
fulfil it
5. Duty to Consult
a. Arises from the honour of the Crown
b. Less onerous than its fid duty
c. If Crown seeks to engage in activity that will detrimentaly affect an
asserted or existing abo or treaty right
i. Crown must engagen in meaningful consultation with affected abo
groups
d. May require acco of group claiming acutl o or potential infringement of
rights
e. Wewaykum Indian Band v Canada + Haida Nation v. BC (minister of
Forests) [2004]
i. First two cases to establish basis of duty to consult
ii. “when the Crown has knowledge, real or constructive of the potential
existence of the Abo right or title and contemplates conduct that might
adversely affect it”
f. 3 part test for establish
the duty to consult –
Haida
6
i. The Cronws acutla or
constructive
knowledge of a
potential Abo cliam or
right
ii. Contemplated Crown
Conduct
iii. The potential for the
conduct to adversely
affect an abo claim or
right
g. Crown must account for
both contested and
established rights prior
to making a decision that
may have an adverse
impact on Abo rights
h. Must ascertain that a
credible cliam exists: no
frivolous claim
i. If consu suggests change
to policyaccomodation
v.iv. Duty to Consult
1. Mikisew cree first nation v Canada (2005)
a. Duty to consult is intended to protecte abo and treaty rights and to
further the goal of reconciliation between Abo peopes and the Crown
2. Rio Tinto Alcan Inc v. carrier ekani Tribal council
a. What triggers a duty to consult?
i. Duty to consult is a constitutional duty
ii. Triggered when adverse effect on Abo right or title
iii. Crwon can expressly delegate duty to consult to tribunals
iv. Legislation constituting tribunal dictates what powers it has with
regards to consultation
v. If tribunal can’t deal with adverse effects, Abo ppl can seek court
remedies
3. Conclusion:
a. The duty is a legal rather than political duty
b. Determination of fid nature of Crown’s obligation to Abo peoples is critical
to jurisprudence
c. Cron’s has largely been focused on duty to consult
d. Court confirms that not every interaction is fid in nature
e. Interactions between Crown and Abo peoples implicates the “honour of
the crown”
f. Where the honour of the Crown is at stake, but not in a sufficiently
onerous way to require the imposition of fiduciary duties, the duty to
consult will often apply
g. While the Cronw’s duty to consult is not as onerous as its fiduciary duty,
the former still requires that the Crown act honourably by working with
Aboriginal peoples with the purpose of reconciliation rather than
unilateraly or antagonistically
7
vi.v. Aboriginal title

1. [Ron, from wiki]Jurisiction: Section 91(24) of the Constitution Act, 1867 ("British North
America Act 1867") gives the federal government exclusive jurisdiction over First Nations,
and thus the exclusive ability to extinguish Aboriginal title
2. Aboriginall customs, traditions, and practices tied to landrights and some treaty rights
are strongly tied to rel to land – not depending on legal finding of A. title
3. Aboriginal rights exist independently of title and may be exercised without the need to
demonstrate title to a particular area [R v adams, rv cole]
4. [meaning] the use and occupation of traditional lands by Aboriginal peoples since time
immemorial
a. Use and occupation form the basis for Aboriginal title claims
b. Historical title: Europeans’ arrival [time of contact] – mutual beneficial
trade and knowledge
i. Abo had to adapt to new eco, pol and legal realities
ii. Growth of colonies and increasing demandsconflicts with Abo
iii. British attempt to consolidate its hold its North American colonies
1. Included rein its right to pruhcase Abo lands
2. Royal Proclamation of 1763 asserted domino over all lands in
British N A
a. “indian hunting ground’ to be reserved for the excl use
and benefit of Aboriginal lppl
b. Prohibited any non-Abor person from purchasing land
directly from the Abo
iv. Royal Commission on Abo Peoples (1996):
c. Royal Proclamation of 1763
i. Formal recognition and prot of Abo lands existed at the pleasure of Abo
lands existed at the pleasure the Crown but was never repealedpart
of Canadian Cons
ii. Recognition and affirmation of Abo land rights did not grant new rights
but affirmed pre-existing rights
d. Cons Act 1982
i. Royal
e. The legal Concept of Abo title
i. [doctrine] originated from hist circum arising from competing European
and Aboriginal land interests
ii. Case: St. Catherine’s Milling & Lumber Co. v R [1888]
1. First major pronouncement on the nature of Abo title in
Canadian jurisprudence: personal and usufructuary right
dependent upon the good will of the Sovereign
2. Abo title as a burden on Crown’s underying title; can only be
extinguished by the Crown, after which Crown’s interest
becomes a full, fee simple interest
3. Proess of extinguish Abo title via “surrender” after which the
land in q becomes the property of the province in which it is
located
4. Once the burden is extin, the land in question become the
property of the province which the land is situated
iii. Abo ppl were rarely represented in early cases involving Abo title
iv. Calder et al v Attorney-General of BC
8
1. First modern recognition of Abo title by Canadian courts
v. Guerin v R[1984]
1. Abo title as sui generis (‘of its own kind/class”
vi. Not only in the case of delgamuukw v BC that Abo legal title is
recognized
1. Abo title is a right land and, as such, is more than the right to
engage in specific activites which may be themselves aboriginal
rights”
2. Abo title “confers the right to use land for a variey of activites,
not all of which need be apsects of practices, customes and
traditions which are integral to the distinctive culture of abo
societies
3. Rights must not be irreconcilable with the nature of the
attachment to the land which forms the basis of the particular
group’s abo title
4. Sui generis: characteristics of abo title not completely explained
by ref to common law real property rules or rules found in abo
legal system
5. Idea that abo title is sui generis is the unifying principle
underlying the various dimensions of that title (e.g.
inalienablity; land held communally)
6. Abo title arises from prior occupation of Canada
7. Collective land right – all members of the indivual nation
8. Content of abo title
a. Abo title encompasses the right to excl use and
occupation of the land for a variey of purposes, which
need not be aspects of those aboriginal practices,
customes and traditons which are integral to distinctive
aboriginal cultures
9. Protected uses “must not be irreconcialbe with the nature of
the group’s attachment to the land”
a. They must submit to the Crown – non-title land – not
subject to abor
10. [onus] onus of proving abo title is on the Abo claimants
11.
12.
13. Demonstrating proof abo title [substantial connection]
a. Land must have been occupited prior to soverighty
b. If present occupation is relied on as proof of
occupation pre-soverighty, there must be continuity
between the present and pre-soverightny
occupation(not unbroken change) (substantital
maintencance of the connection between people and
land)
i. **change in nature of the occupation will not
precluded a cliam to abo title
c. Abo occup must have been excl at the time the Crown
asserted sovereignty over the land in q (demonstrated
by Abo claimant’s “intention and capacity to retain excl
control”)
9
d. [RON]Comment from T case:
i. **The three occupation elements should be
considered tgt
e. Affirms idea that Abo title is a burden on the Crown’s
underlying tile (St Catherine’s Milling)
f. Crown’s title did not arise until it declared sovereignty
over the lands in qabo title crystalized at the time
Crown sovereignty was asserted
g. Proof of Abo occupancy must account for both common
law and Abo perspectives
h. Is occupation suff to ground title?
i. Group’s size, manner of life, material resources,
technological abilities, character of lands
claimed
ii. “Connection with the piece of land… was of a
central significance to their distinctive culture”
iii. Possibility of finding a joint title shared between
two or more Abo nations left open
f. Tsihqot’in Nation v. BC [2014] - Ron
i. Facts: [related facts in establishing]
1. the parts of the land to which he found title were regularly used
by the Tsilhqot’in
2. archeological evidence, historical evidence, and oral evidence
from Aboriginal elders indicated a continuous Tsilhqot’in
presence in the claim area.
3. The geographic proximity between sites for which evidence of
recent occupation was tendered, and those for which direct
evidence of historic occupation existed, further supported an
inference of continuous occupation.
4. The trial judge found that the Tsilhqot’in, prior to the assertion
of sovereignty, repelled other people from their land and
demanded permission from outsiders who wished to pass over
it.
ii. Issue:
1. What is the test for Aboriginal title to land?
2. If title is established, what rights does it confer?
3. Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157,
apply to land covered by Aboriginal title?
4. What are the constitutional constraints on provincial regulation
of land under Aboriginal title?
5. Finally, how are broader public interests to be reconciled with
the rights conferred by Aboriginal title?
iii. [The test]: [BOP on claimant]Abo “occupation” must be
1. Sufficiency of Occupation – looks to the Aboriginal culture and
practices, and compares them in a culturally sensitive way with
what was required at common law to establish title on the basis
of occupation(which requires an intention to occupy or hold
land for the purposes of the occupant ) -
a. regular use of territories for hunting, fishing, trapping
and foraging is “sufficient” use to ground Aboriginal title
10
if it evinces an intention on the part of the Aboriginal
group to hold or possess the land which establishes title
as in common law
b.
2. Continuous (where present occupation is relied on) and
a. X provide evidence of an unbroken chain of continuity
between their current practices, customs and traditions,
and those which existed prior to contact
b. Just need to provide evidence of present occupation to
establish an inference of pre-sovereignty occupation,
the present occupation must be rooted in pre-
sovereignty times.
3. Exclusivity of Occupation at the time of sovereignty :
a. must have had “the intention and capacity to retain
exclusive control” over the lands
b. other groups or individuals were on the land does not
necessarily negate exclusivity of occupation.
c. Q of F
d. Examples (successful proving title)
i. others were excluded from the land,
ii. or by proof that others were only allowed
access to the land with the permission of the
claimant group.
iii. permission was requested and granted or
refused, or that treaties were made with other
groups, may show intention and capacity to
control the land.
iv. Even the lack of challenges to occupancy may
support an inference of an established group’s
intention and capacity to control.
e. **need to be considered thro both common law and
the Abo perspective
f. ** NOT required specific, intensively occupied areas
can support Aboriginal title
4. [Right conferred] - Delgamuukw
a. Beneficial right
b. collective title held not only for the present generation
but for all succeeding generations.
i. cannot be alienated except to the Crown or
encumbered in ways that would prevent future
generations of the group from using and
enjoying it. ??
ii. Nor can the land be developed or misused in a
way that would substantially deprive future
generations of the benefit of the land.
iii. In other words, Abo title must be reconcilable
with the ability of succeeding generations to
benefit from the land
c. the title holders have the right to
11
i. decide how the land will be used; the right of
enjoyment and occupancy of the land;
ii. the right to possess the land; the right to the
economic benefits of the land;
iii. and the right to pro-actively use and manage
the land.
d. Consent possible under s.35 , 1982 –
i. governments and others seeking to use the land
must obtain the consent of the Aboriginal title
holders.
ii. If the Aboriginal group does not consent to the
use, the government’s only recourse is to
establish that the proposed incursion on the
land is justified under s. 35 of the Constitution
Act, 1982.
iii. To justify overriding the Aboriginal title-
holding group’s wishes on the basis of the
broader public good, the government must
show: (1) that it discharged its procedural duty
to consult and accommodate; (2) that its
actions were backed by a compelling and
substantial objective; and (3) that the
governmental action is consistent with the
Crown’s fiduciary obligation to the group:
Sparrow.
iv. Provincial law of general application do apply
on abo title land
v. Infringement: if limitation unreasonable, undue
hardship, denies preferred means of exercising
the right
e.
iv. Excl right to use, consistent with nature of the interest
v. Crown must act consist with its fiduciary duty
vi. Obligation of proportionality: rational connection, minimal impairment,
proportionality of impact
1. Interjurisdictional immunity does not apply
vii. So provincial regulation of general application applies
Most update decision – on rights
Brown v Canada
Case Name and Citation: Brown v. Canada (Attorney General), 2017 ONSC 251
Procedural History: This is a motion for summary judgement regarding a certified common
issue, the liability of the federal government in the “Sixties Scoop.” There have been six
previous decisions, related to procedural litigation. If the common issue is answered in favour of
the class members, the class action will proceed to damages.
Facts: During the “Sixties Scoop” from 1965 to 1984 (the “class period”), thousands of
aboriginal children living on reserves were removed from their families by provincial child
welfare authorities and placed in non-aboriginal foster or adoptive homes. These children lost
their aboriginal language, culture, and identity. The plaintiffs have suffered psychiatric disorders,
substance abuse, unemployment, violence, and numerous suicides as a result. The federal
government signed the Canada-Ontario Welfare Services Agreement (the “1965 Agreement”) in
12
1965.
Issue: Did the federal government have a fiduciary or common law duty of care to take
reasonable steps to prevent on-reserve Aboriginal children in Ontario placed in non-aboriginal
foster or adoptive homes from losing their aboriginal identity?
Decision: The common issue is answered in favour of the plaintiff, and the federal government is
liable for breaching a common law duty of care to the class members. The federal government
had a common law duty of care to take reasonable steps to prevent on-reserve Aboriginal
children from losing their aboriginal identity when placed with non-aboriginal foster or adoptive
parents.
Reasons: The 1965 Agreement obligated the federal government to pay for the extension of
Ontario’s child welfare programs to reserves, but also reflected the government’s concern that
the extension would accommodate the special culture and traditions of Aboriginal peoples living
on reserves. Under section 2(2), the federal government undertook to consult with the impacted
Indian Band before the services were extended. They could consult alone or jointly with the
Ontario government. No Indian Bands were ever consulted in regards to the extension of the
provincial child welfare regime to reserves. The federal government therefore breached section
2(2) of the 1965 Agreement.
The importance of the aboriginal child’s heritage was well known in the 1960s. If the
federal government had consulted with Indian Bands, the Bands would have suggested that
information about the child’s aboriginal heritage and the availability of federal benefits be
provided to the foster or adoptive parents. This information was finally provided by the federal
government in 1980 in an informational booklet, but there is no evidence that these booklets
were ever distributed to any of the parents.
The 1965 Agreement is analogous to a third-party beneficiary agreement. A tort duty can
be imposed on Canada as a contracting party, who had an obligation to a non-party, the Indian
Bands. The federal government could argue that the duty they owed was not to the aboriginal
children. If this argument is successful, the federal government still owes a common law duty of
care under a novel claim analysis. Under the first stage of the Anns-Cooper test, a prima facie
duty of care is established based on the fiduciary relationship between Canada and aboriginal
peoples. It was foreseeable that a failure on Canada’s part to take reasonable care might cause
loss or harm, given the close and trust-like proximity between them. Under the second stage of
the Anns-Cooper test, Canada has not made any credible policy arguments that would negate the
common law duty of care.
Are Metis and non-status Indians Indians? - See

Daniels v Canada (Indian Affairs and Northern Development)
Formatted: Indent: Left: 0.5"
Procedural History: This is an appeal from the Federal Court of Appeal. The trial judge found
that “Indians” under section 91(24) Constitution Act, 1867 was a broad term referring to all
Indigenous peoples in Canada, including non-status Indians and Métis, based on the historical
use of the term. The Court of Appeal narrowed the scope of the trial decision to exclude nonstatus
Indians and include only Métis who satisfied he three Powley (SCC, 2003) criteria.
Facts: Section 91(24) of the Constitution Act, 1867 gives the federal government the power to
deal with all matters related to “Indians, and Lands reserved for the Indians.” The plaintiffs
sought three declarations at the trial level: That Métis and non-status Indians are “Indians” under
this section, that the federal government owes a fiduciary duty to Métis and non-status Indians,
and that Métis and non-status Indians have the right to be consulted and negotiated with, in good
faith, on issues involving their rights, interests, and needs as Aboriginal peoples. Both the trial
judge and the Federal Court of Appeal declined to grant the latter two declarations. The
appellants are seeking to restore the trial judge’s decision regarding the first declaration, and ask
13
that the second and third declarations be granted.
Issue: Are Métis and non-status Indians considered to be “Indians” under section 91(24) of the
Constitution Act, 1867?
Decision: Appeal allowed in part. Métis and non-status Indians are “Indians” under section
91(24) of the Constitution Act, 1867. The Supreme Court declined to grant the second and third
declarations.
Reasons: For a declaration to be granted, the party seeking relief must establish that the court
has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party
raising the issue has a genuine interest in its resolution. All of these have been met. A declaration
can only be granted if it has practical utility, or a “live controversy” between the parties that the
declaration will address. Granting the first declaration meets this threshold as both the federal
and provincial governments have denied legislative authority over non-status Indians and Métis.
This has resulted in non-status Indians and Métis people not being able to hold either level of
government accountable for an inadequate status quo. Declaring this declaration answers this
jurisdictional question. It also addresses the definitional issue that arises from the Court of
Appeal’s decision. There is no need to determine which mixed-ancestry communities are Métis
and which are non-status Indians.
The Crown conceded that non-status Indians are “Indians” under section 91(24). The
prevailing view is that Métis are also “Indians.” The term has historically been used as a general term
to refer to all Indigenous peoples, and historically the government has frequently classified
persons with mixed European and Aboriginal heritage as Indians. The purpose of section 91(24)
in terms of Confederation also indicates that “Indians” refers to all Aboriginal peoples, including
Métis, as these groups needed to be under federal jurisdiction for the government to meet its
goals of expansion onto lands occupied by Aboriginal peoples. Métis were included under laws
directed at Aboriginal peoples, including those mandating residential schools. Section 35 of the
Constitution Act, 1867 defines Aboriginal peoples as Indian, Inuit, and Métis. The jurisprudence
further supports that Métis are “Indians” under section 91(24), despite having a distinct identity
and history, and mixed ancestry (see Re Eskimo, Canard (1976) from the Supreme Court).
Ratio: “Indians” under section 91(24) of the Constitution Act, 1867 means “Aboriginal peoples,”
and includes Métis and non-status Indians.
vii.
vii.vi. Reconciliation
1. The process of repairing the relationships between the Aboriginals and the British
2. The prov and fe govts have tempted to eliminate abo govt
3. REsid scholls were a mandatory sytm of boarding schools run by Christian churches on
behalf of the fed govt
4. Resid were created to indoctrinate children into Euro-Christian Canadian Society
5. Banning indige languages, cultural …
6. Punishments included: beatings, hunger, bondage and confiment, sexual abuse, forced
labour
7. Conditions were poor, with overcrowding, poor heating, substandard sanitary conditions,
scarce food that results in death
8. Residential schools survivors brought the largest class action in can hist
9. 2006 86000 survivors entered into Indian Res schools settlement agreement
a. Created the Truth and Reco Committed (“TRC”
b. Doc and pres the exp of res school survivors
10. TRC final report, Dec 2015
a. Gather testimony from 6000 survivors
11. Over 150k first nations, metis, and inuit children attended res schools
14
12. >3200 children died while in attendance, true fig uch higher
13. Detrimental effects on survivors, welfare systemslow, high levels of alcohol and drug
abuse, lower life expectancy , high suicide rates
14. Process of recon is underway
b. Aboriginal Treaties – recognizing their customs
i. Gradually changed from informal, unwritten agreements governing peaceful co-
existencerenewing initial commitments and sometimes arranging for the transfer of land
ii. Following Confed, treaties were a means for Crown to acquire land and complete the
transcontinental railway
iii. Treaties also provided land for the Cron to distribute to settelers to encourage expansion
iv. Treaties are found docs in the history of Crown-abo relations
v. Treaties were the primary means by which Br and Abo peoples conducted diplo reations
1. Creation and maintenance of mutually ben rel
2. Growing Complexity of treaties: difficult and vague
3. Treaties as quid pro quo (
4. Abo peoples understood their traditions would continue after treaties were signed
5. Fair exchange and mutual benefit was integral in treating making
6. Abi looks assumed and were assured that the Crown would respect and honour treaties
in perpetuity
7. Chanign face of crown-abo treaties
a. Eco focus by Canada on treaties after Confed: treaties viewed as contracts
as opposed to compacts
b. Br’s vision of treaties changed while Abo view of treaties remained
constant
c. Abo understanding of treaties include oral promises or collateral rep
made during treaty negotiations (“spirit and intent” of agreement)
d. Conflict of cultural views, values, and assumptions
e. Abo understanding of treaties as land conveyances?
f. Written versus oral versions of treaties
8. Jud Interp of Treaties
a. Early jud interpretation of treaties: treaties X binding legal docsCrown
allowed to ignore treaty promises
b. R v White and Bob (1964) – Precursor to the treaty canons
c. Cons Act 1982, s.35(1): Recog of treaty rights at law
9. Canons of Abo treaty Interpretation [logical evo]
a. Abo Treaties constitue a unique type of agreement and attract special
principles of interpretation: R v Sundown, Simon V R, R v Sioui etc
b. Treaties should be liberally construed and ambiguities or doubtful
expressions should be resolved in favour of the Abo Signatories (Simon v
R)
c. The goal of treaty interpretation is to choose from among the various
possible interpretations of common intention the one which best
reconciles the interests of both parties at the time the treaty was
signed[sioui]
d. In searching for the common intention of the parties, the integrity and
honour of the Crown is presumed [Badger]
e. In determining the signatories’ respective understanding and intentions,
the court must be sensitive to the unique cultural and linguistic
differences between the parties: Badger
15
f. The words of the treaty must be given the sense which they would
naturally have held for the parties at the time [Badger]
g. A techinal or contractual interpretation of treaty wording should be
avoided [Badger]
h. While construing the language generously, courts cannot alter the terms
of the treaty by exceeding what “is possible on the lagnuge” or realistic:
Badger, Sioui
i. Treaty rights of Abo ppls must not be interpreted in a static or rigid way.
They are not frozen at the date of signature. The interpreting court must
update treaty rights to provide for their modern exercise. This involves
determing what modern practices are reasonably incidental to the core
treaty right in its modern context[Simon]
j. R v Badger[1996]
k. R v Marshall [1999] – Honour of the Crown is a fundamental element of
interpreting Crown – Native treaties
l. R v Marshall (re-hearing) – SCC accepted consolidation of the canons of
treaty interpretation – commercial logging on Crown lands without
authorization, contrary to statutory regulation
i. “Truckhouse” cl in the commercial logging
1. “And I do further engage that we will not traffick, barter or
Exchange any Commodities in any manner but with such
persons or the managers of such Truck houses as shall be
appointed or Established by his Majesty’s Governor…”
2. Interpretation of “truckhouse” cl
3. R claimed that they used forst products for a variety of
sustenance purposes at the time of the treaties. Logging
represented the modern use of the same products. So they
asserted that the treaties protect the modern incarnation of
their historic use of the treaty right
4. Federal Crown insisted that the truckhouse cl merely granted
the Mi’kmagq the right to continue to trade items they traded
at the time of the treaty. Logging was not simply a modern
incarnation of the Mi’kmq historic trading practices. It is a
completely new and different practict that was not eligible for
treaty protection.
ii. Court held that treaty rights are not frozen in time. But it held that
modern commercial logging was not a logical evolution from the
Mi’kmaq traditional trading activity at the time the treaty was made.
1. Logical evolution means the same sort of activity, carried on in
the modern eco by modern means
m. Conclusion
i. Strict and literal interpretation of treatiesMore Liberal and expansive
interpretation that looks to “spirit and intent” and allows for modern
evo
c. Modern Treaty Process and self-govt Asp
i. Treaties – described as Modern claims agreements
1. Recogn under s.35(3), cons act
2. Resemble self-govt agreements
ii. Self-Government
16
1. Abo ppls exercised powers of governance for millennia prior to the arrival of Europeans
in North America
a. Abo ppl assert inherent right of self-determination
b. The historic interaction between Britain and Abo ppls recognized a nation-
to nation relationship
c. Today Abo sought recognition as nations
d. R v Sioui [1990[ - Court described Abo Can and Canada relations as nation-
to-nation relations
2. Nisga’s Final Agreement
a. Calder et al, v. A-G og BC[1973]
i. Nisga’s historic occupation on lands gave rise to legal rights to their
territories
ii. Led to negotiation and Nisga’s Final Agreement, 1999
1. Expressly recognizes right to self-gvot
2. Campbell et al. v. A.g. bc/AG cad & Niga’s Nation et al
a. Govt challenged the Nisga’a Final Agreement on 3
grounds
i. Violated cons act 1867 s. 91/92 division of
powers
ii. Interfered with Royal assent
iii. Interfered with non-Nisga’a s.3 Charter rights
b. “ the right to abo title” in its full form includes both the
right for the community to make decisions as to the use
of their landand therefore the right to have a pol
structure for making those deci is cons guaranteed
i. Self-govt is a necessary dimension of Abo rights
c. Cons validity of the Agreement upheld by BC CA
iii. Labrador and Inuit Relationship
1. 1973 – Labrador Inuit Asso created to protect cul and improeve
the lives of Inuit people2005 Labrador Inuit Land Claims
Agreement competed
a. Created Nunatsiavut Govt
b. Tran 72500sq/km of land rights and 44040 sq…sea
rights
c. Nuna..govt owns 15800 sq/km and maintains trad and
use rights to remainder
3. Sources of Canadian Law
=Abo+Br common law+Quebec civil law+imperial statutes
Abo law
4. Nature of Common law system
a. Underpinnings
i. Judges do not make law, they simpley declare it
ii. Decisions are considered evi of the law; judges infrer the applicable law from previous decisions
iii. Stare decisis: let the decision stand (courts are bound by the higher court of the same province”
1. Decisions are persuasive, they are highly persuasive when they are targeting at the same
issue
2. The ratio is binding
3. Obiter dicta = not binding
4. Lawyers can argue ratio to be interpreted narrowly or broadly 
17
a. The Ontario Human Rights Code prevents common law actions for
breaches of human rights covered by the Code – Seneca College v
Bhadouria
i. Wide reading: no claim based on a breach of the Code is possible
b. But later case somehow adopted a narrowing meaning
c. Canada Trust Co v Ontario Human Rights Commission
i. Seneca College v Bhadouria distinguished
d. Current issues
i. Impact of the the Charter on precedent
ii. The binding or non-binding nature of obiter from the SCC
iii. How appellate courts treat “horizontal precedent”
iv. Common law and equity
1. Corrective mechamisn
2. Fusion of common law and equitey; applied concurrently in superior courts
3. Recent SCC decisions: possible complexity of coexistence of common law and equity
4. Should equitable and common law remedies differ?
a. Canson Enterprises Ltd v Boughton & Co
b. Hodgkinson v Simms
c. Question whether common law and equity are truly merged
v. Civil Law
1. Based on written legal principles set out in codes; included doctrinal writings and
scholars’ interpretations
2. Deduction reasoning (vs common law inductive reasoning)
3. Understanding interplay between common and civil law is important
4. Quebec system has acquired many aspects of common law jurisdictions (gov’t systems,
appointment of judges, precedent)
5. Implications of Bijuralism
a. 4 audiences when drafting and interpreting legislation (Anglophone and
Francophone, common law and civil law)
b. Federal policy to further access to justice and support for minority
language communities, and harmonization of legislation with common
and civil law
c. Where federal legislation affects civil rights, the common law should guide
interpretation in common law provinces and the civil law should do so in
Quebec – Canada (AG) v St Hilaire
vi. International Law
1. Sources – CIL & Treaties
2. CIL – general and universal state practice undertaken by a sense of legal obligation
(opinion juris)
a. Exception: persistent rejection of practice by state
b. UNHR –
3. Automatically incorporated into Canadian law as part of the common law
(Canada=”monist” jurisdiction)
4. Domestic Canadian leg should be interpreted in a way that is consistent with Customary
international regulations
5. Treaties:
a. Canada is a dualist jurisdiction (treaties are implement only by enactment
of domestic statutes)\?
i. Baker v Canada
ii. Duaist system prevents the exec from effecting changes in prov law
18
iii. Critique: Canada may be agree to be bound by an international treaty,
but the treaty may have no effect domestically
vii. Statutes in the common law system
1. Increasingly important role of statues in Ca Law
2. Stat rules will displace the common law as long as they are suff specific
3. Statutes must comply with cons law
4. Halpern v Canada (AG) - Common law def of marriage found to be uncons –
reformulated to rfer to “two persons” rather than “one man and one woman”
5. Civil Marriage Act enacted
viii. Fundamental Principles of the Canadian Legal System
1.
b.
5. Fundamental Principles of the Canadian Legal System
a. Reference re Secssion of Quebec [1998]
i. Nature of constitutionalism and the relationship between the state and civ soc
ii. Four unwritten underpinnings: (a) federalism, democracy, constitutionalism and the rule of law,
and protection of minority rights
1. Rule of law
a. Exercise of legitimate public power must have a source in law, every state
official or agency is subject to constraint of the law
2. Federalism
a. Leg sovereignty divided between federal and provincial legislatures acc to
division of powers set out in the Cons
3. Constitutional supremacy:
a. The Cons is the supreme law of the society and any ordinary law that is
inconsistent with the cons is of no force of effect
4. Separation of powers
a. Public power is exercised through leg, exec, and jud in federal and
provincial levels and each branch carries out its functions in a distinct way
5. Parliamentary supremacy: Subject to the constitution, leg branch is legitimate holder all
public power; may enact law and delegate powers
6. Judicial independence
a. Jud branch must be sufficiently institutionally independent from
legislative and executive branches
iii. Consider how these underpinnings affect the lives of the ordinary ppl in Canada
iv. Canadian Cons
1. Constitution Act, 1867(BNA Act): Div of powers
2. Constitution Act, 1982: Charter Rights and Freedoms, Aboriginal rights, equalization, cons
amendment prov, legal basis for constitutional supremacy
3. Unwritten Cons [recogniazed]
a. Cons Conventions [preamble – intention to adopt the British cons]
i. Re: Resolution to Amend the Cons: Major conventions and how they
come into existence
ii. Paste more here
iii. Three factors
1. A practice or an agreement between the political actors
2. A recognition by political actors that they are bound to follow
the convention
3. The existence of a normative reason or purpose for the
convention
19
4. Not law, cannot be enforce by courts; breach entials pol (not
legal) consequences, courts may recognize their existence tho
b. Consitutional principles[force of law; fill gaps in written Cons]
i. federalism, democracy, constitutionalism and the rule of law, and
protection of minority rights
4. The rule of law
a. Principle: All exercises of legitimate public power must have a source in
law; every state official/agency is subject to the law
i. The law is supreme over govt’ official as well as private actos
1. Roncarelli v Duplessis[1959]: paste facts here
a. Gov’t official may not act arbitrarily, with untrammeled
power, or infurtherance of personal vendetta;
discretion requires good faith in discharging public duty
ii. Legislation must exist
1. Re Manitoba Language Rights [1985]
a. paste facts hersee facts at page 33e
iii. The re between the state and the individual must regulated by law
(state officials’ action must be founded in law)
5. Limits of the rule of law to impose additional restrictions
a. British Columbia v Imperial Tobacco Canda Ltd (2005)
i. Challenge by tobacco namuf of a law that allowed the BC govt to sue for
health-care costs incurred fromtreating tobacco-reated illness
1. Leg breache unwritten cons principles
ii. Held r o l does not require that leg be prospective only, be general in
character, or avoid conferring privileges on gov’t either substantively or
procedurally
iii. Rule of law is not meant to undermine specific statutory provisions of
the Cons
iv. No prohibition on retroactive legislation except in criminal law
b. British Columbia vChrisite (paste it here
i. I: Whether the r o l provides a right of access to legal counsel in all jud
proceedings
ii. Held: No
iii. S.10(b) of the Charter already allows for a right to legal services in
certain circumstances
iv. Rule of law does not provide for blanket access to legal services
6. Constitutional Supremacy [Cons act, 1982, s52(1)
a. Constitution is the supreme law of Canada (all govt action must comply
with the Constitution)
b. Broader principle that constitutionalism
c. Parl sovereignty (before 1982): any law can be enacted by the prov or fed
d. Additional safeguard for HR and freedoms
e. Cons change requires enhanced majority (minority interest taken into
account)
f. Implications of constitutional supremacy for public law
i. New hierarchy of law
ii. Jud may interpret and apply the Cons, rule on alleged violations or
inconsistencies
iii. Ceck on majoiritian democracy, protection of minority rights and
interests
20
iv. Special amendment procedures ( can be amended in the same way as
ordinary legislations)- Part v of Cons Act, 1982
7. Separation of powers
a. Leg (pre-eminent br, makes the law)
b. Jud (applies and interprets the law)
c. Exec (implements the law)
8. Can law does not apply to a strict separation of powers
a. Minister are also from legis br
9. Doucet-Boudreau v Nova Scotia (Minister of Education) (2003) (paste here)– see facts at
page 32-33
a. Structural injunction requires the Minister of Education to report
b. Court upheld the order. But cautioned that courts must be careful not to
order remedies that usurp the role of an are better suited to other
branches of govt
c. Prerogative power: important common law source of discretionary Crown
power
i. Canada (Prime M v Khadr: SCC declined to order remedy for violation of
cons rights thro exercise of prerogative power; decision left to govt
10. Parliamentary Supremacy
a. Basic cons rule from British cons law; adopted tro the preamble to the
Cons act, 1867
b. Con 1982 converted the Canadiam system from parliamentary supremacy
to cons supremacy (Reference re Secession of Quebec) 1998
c. Notwithstanding cl (Cons, 1982, s.33)
i. Concession to the principle of parliamentary supremacy
d. Crown privilege, as embodied in the Canada Evidence Act, is supported by
parliamentary supremacy ;part of valid federal law
11. Federalism
a. Cons Acct 1867, ss.91 & 92: Federal provincial division of power
i. Federal: Crim law, trade and commerce, banking
ii. Provincial: Hospitals, municipalities, property and civil rights
b. S.91: POGG power (“peace, order and good government”) granted to
federal Parliament
c. Federalism as an unwritten cons principle that recognizes the diversity of
component parts of Confederation and grants degree of autonomy to
provincial gov’t – Reference re Secession of Quebec
d. Private activity that is generally regulated provincially may be subject to
federal law if carried out in federally regulated sector
v.
b.
6. Parliament and its Components
a. Branches of Govt: legis, exec, jud
21
b.
c. Queen is an official part of Parliament
i. Acc. To Acto of settlement Queen cannot be of Catholic Faith
1. Inconsistent with Charter?
2. O’donahue v Canada 2003
a. Crown had to be shared with UK
b. Rules had to parallel other common wealth countries
c. Canada could not unilatieral ly change rules for all
d. Agaisnt the Statue of Westminster
e. Rule concerning fucction of monarchy not subject to Charter scrutiny
3. Mcateer v Canada
a. Naturalizaed Canadians must swear oath to Queen
b. Oath is not to indivudal but to system of govt
c. “an oath to our form of government, as sysmbolized by the queen as the
apex of the Canadian parliamentary system of Constitutional monarchy
4. Appointment of Senate
a. Governed by s.24 Cons Act, 1867
b. By Convention, governor general follows advice of PM on Appointments
c. Appointment process is at the centre of major criticism
i. Brown v Alberta
ii. Samson v Canada (AG), 1998
iii. In both cases, Alberta held elections to create list of “senators in
waiting”
iv. Courts would not force the Prime minister to select from the list
v. Political issue, not one for courts
vi. Ref re Senate Reform [2014]
1. Wanted to :
a. Remove appointments for life
b. Institute the Alberta model
c. Change properly requirements for sentators
d. Possibly abolish entirely
2. SCC: Can’t act unilaterally, govt must follow the rules for cons
amendment
22
3. Review reforming the Senate of Canada: Frequently Asked
Questions
5. House of Commons
a. First past the post system
b. The leader of the party becomes PM
c. Fair Represenation Act (2011)
i. Revised electoral districts to aligb with population distribution
ii. No absolute voter Parity
1. Reference re Prov. Elctoral Boundries (1991)
a. New boundaries set by Sask. Represenation Act did not
violate right to vote (s.3) Charter
b. Does the boundaries should be ensured one ppol one
vote?
c. The evi supplied justified the existing boundary
iii. Figueroa case
1. Restrction of benefits to prties with 50+
2. Violates s.3 Charter, Right to Vote
3. Smaller parties play meaningful role, restriction undermines this
iv. Fair elections in Canada? – some cases
1. Opitz case
a. Candidtate wanted result set aside due to irrgulatireis
i. Relied on s.521(1)(b) of the Canada Elections
Act, which provided that results could be set
aside where “irregularities” that affected the
result of the election
a.b. Held. Challenge failed
i. SCC said public confi in voting legitimacy wil be
undermined if results are overturned due to
minor admin problems
b.c. Irregularities must be serious and undermine the
electoral process
i. Irr=serious administrative errors capable of
underming the electoral process
c.d. Magic Number test
i. Results annulled if rejected votes equal or
greater than the successful candidate’s margin
of victory
2. Mcewing 2013 case
a. FC found that fraud had been committed in a no of
ridings in 2011
b. Robo-calls misdirected voters to the wrong polling
stations
c. Did not prevent voters from placing votes
d. If calls had been effective, would have violated s.3 of
charter
v. Prorogation of Parliament
1. Discontinues session, abolishes pending legislation
2. Does not dissolve parliament
3. Governor General prorogues on advice from PM
4. 2008, PM asked GG to proprgue to avoid no-conf vote
23
a. GG was criticized for following advice
b. Review Constitutional Peace, Political Order, or Good
government? Organizing Scholarly Views on the 2008
Prorogation
vi. Dissolution of parliament
1. Dissolves parliament, abolishes all pending legislation
2. New election must be held every 5 5 years
vii. No cof votes
1. By convention if a no-conf vote is made in parliament, PM must
resign or seek dissolution
2. 2011 conservatives defeated in no-confi vote
a. Went on to win majority in election
7. Functions of Parliament
 Actors and Legi process
1. Political parties
a. Key role in decision making
b. Decisions made by majority vote
c. Individual party members can be required to vote the party line
d. Offical Party Status
i. Party must have 12 elected members in the House of Commons
ii. Party members sit together
iii. Entitled to
1. Speaker of the House=曾鈺成
a. Legal status confirmed by s.44, Constitution act(ss.44-
47. S9)
b. Elected by other MPS
c. Presides over debates
d. Maintain order
e. Can sanction member for for inappro behaviou
2. Parliamentary committeds
a. Study proposed leg
b. Scrutinize policy and programs
c. Can retain expert, professional technical staff
3. Parliamentary law sources
a. Constitution
b. Assorted statutes
c. Order, suages, customes, precdents
4. Parl Privilege
a. Rights and immunites required for leg work
b. Member must estab existence of priviledge
i. Canada v Vaid
ii. F: Chauffeur dismissed, claimed discrim and
harassment under Canadian HR Act
iii. Issue: Can Canadin human rights tribunal
investigate?
iv. Internal affair protected by Parliamentary
privilege
c. SCC: Normal employment/HR law applied
i. Point of privilege is to deal with complaints
within privileged atmosphere
24
d. Privilege did not extend to dismissal
5. Parl law making ability
a. Bound by const division of powers nd the charter
b. As long as law is constitutiona , can make law on any
topic
i. Ill-motivated, carelss statutes are not uncons
(1999)
ii. No entitlement to procedural fairness in law
making process (2012)
iii. Confirmed in Bacon, Turner, Authorson (2003)
iv. Wells v Newfoundland
v. If govt wants to extinguish rights, must explicitly
do so by enacting leg
6. MPs subject to ethical rules
a. Sources: statutotry law, internal procedural rules
b. Conflicts of interest
i. Mp should not act in public capacity where they
have personal economic interest
ii. Review article: Conflict of interest at the Federal
Level : legislative Framework
iii. Governing Legislation: Conflict of Interest Act,
SC 2006
7. Federal Parli legislative procedure
8. The Executive and its Functions

a. Responsible for implementing and enforcing laws
b. Includes
i. Range of institutions and officilas – privy council etc
ii. Arms length entities – eg independent boards and tribunals
c. Govt officials must use powers for public interest
i. Leg can delegate authority to executive bodies[Rule making]
1. Power to mkake regulations can be delegated to Cabinet
25
a. Municipalities have delegated authority to enact by-laws
b. Delegated legislation is determined by and subordinate to present leg, Ie
sub leg
c. Delegated leg raises concerns
i. More streamlined enactment process than statutes
1. Less time-consuming than statutes making
d. Puts authority in the hands of specialists
e. Governing legislation
i. Statutory Instruments Act, 1985
ii. Statutory Instruments Regulations, CRC, c1509
iii. Review: 2012 Cabinet directive on regulatory..XXX
f. Delegated power: Dispute Resolution
i. Admininstrative tribunals similar in function to courts
ii. Adjudiate claims
iii. Cannot initiate proceedings themselves
iv. Procedures can be less formal than on courts
v. Opporunity to include experts on tribunals
g. Administrative tribunal members can be delegated broad discretion
1. Re Cloverdale Shopping Centre Ltd [1966]
a. ON Municipal Board had to act judicially, but could
consider admin policy
h. Most coom decision makes have the power to :
i. Grant benefit (.. social assistance)
ii. Assess penalty
iii. Apply tax or other obligation
iv. Iherent conflict between fairness and administrative efficiency
i. Power to enforce legal obligations can be delegated
i. Ie. Police/prosecutors used to enforce regulations and statutory
obligations
j. One body can carry out many functions
i. Canadian HR Commission
k. Other executive activites
i. Direct provision of services
1. Arme forces, polic, fire depar
ii. Povision of social services – schools and hosp
l. Private secotr servides – waste collection
m. Growth of admin structure is evolutionary vs planned constitutional
development
n. Arise because elected reps can’s supervise everthing
o. Discussion about the use of official began in 19880s
p. Railways Act of 1903 created Board of Railway commissors
q. During WWI numerous administrative reorganizations established new
departments and agencies
r. Similar activity during WWII
s. Rise in the use of Crown corporations, Marketing boards
t. P.E.I Potato Marketing Board v Willis
i. Federal regulatory jursidction can be delegated to boards
ii. Not about delegation to other legislative bodies
2. Def of the Executive
a. S.9, 1867
26
i. “The executive govt and authority of and over Canada is herby decared
to continue and be vested in the Queen
ii. Queen does not exercise authority over public policy
1. Federal repr: Gov Gnernal
2. Provincial rep: Lieutenant Governor in Council
b. PM
i. Powers derive from cons convention
ii. Advises governor general on exercise of powers
1. GG bound to follow the advice
c. Cabinet = PM+Ministers [see Guergis v Novak]
i. Decision making committee
ii. Determine leg agenda
iii. Administer govt dep
iv. Drawn from legislative branch at discretion of PM
v. [novak case]
1. P was removed from her post of minister of the state
2. Result: Claim struck , no cause of action
3. I: P argued that expulsion may be crown prerogative, but PMO
not insulated from tortious conduct
a. Bought actions in defamation, consipary, againast PM
4. H: Doctrine of parliamentary privilege precluede review of this
kind of removal decision
a. Court lack jurisdiction to review PM’s act
vi. Idziak case
1. Issues; M of J oversees prosecution of extradition heaign and
also reuired to make determination on order of surrender.
Inherent bias
2. H: Decision making phase is judicial and has procedural
safeguards, while the 1n phas is political in nature, The Supreme
Court of Can held that there was no concern for biase
d. Civil Servants
i. Employees of ministries of government (part of exec)
ii. Politically neutral, hold positions regardless of elected vo’t
iii. Cabines minister politically accountable for dept
iv. Civil servant must carry out resp without regard to personal pol views
v. Limitations on expressing criticism of govt policies with exceptions
vi. Osborne v Canada
1. Legis restricting civil servant from pol activity was struck down
under 2 (b) of the Charter
1.2. A majority of the Supreme Court judges held that forbidding
political activity was not a reasonable limit on freedom of
expression, even for employees of the federal government. Our
members were finally able to do more than just vote. They
could take an active role in the democratic process.
vii. Executive functions are carried out by independent admin agencies
1. Independence insulates from political expediency
2. Particularly important when govt is party in dispute
3. Provides opportunity to use expers where applicable
4. Creature of leg, i.e. Can HR Commission is created by the Cana
HR Act
27
5. Some required degree of independence for members sitting on
admin tribunals that are empowered to impose penalties
viii. [Ocean Port Hotel Ltd v BC], the degree of indepence required of any
particular govt decision-maker or tribunal is determined by its enabling
statute
ix.
x. [Saska Federation of Labour v Govt of Sas]:
1. Labour relations board in SK had mix of adjucicative and
administrative fucntions
2. Followed Ocean Part, independence defined by enabling statute
3. Statute did not expressly confer indepencend tht was akin to
that of the independence enjoyed by judges of inferior trial
courts. Therefore the constitutional principle of judicial
indepenecne did not apply to it
xi. Crown Corporations
1. Where there is commercial aspect, may requreie decisions
independent of po influence
2. Reuglated arising from direct ownership (vs private agencies)
3. Have public objectives and subject to govt’ directive power
a. Via Rail and Canada Post
e. Enforcement
i. Enforcement mainly falls to police and Prosn
ii. Fed and Prov gvots have prosecutorial powers exercised by aattonery
generals
iii. Police and Prosecutors must exerecise their powers without direction
from pol officials but hey also cannot operate without accountability for
their actions
iv. [Campbell case] – question of accountability
1. I: relationship between the Royal Canadian Mounted Police and
the Crown
2. H: a police officer investigating a crime was not acting as a govt
functionary or as an agent of anybody
a. An officer occupies public office defined by common lw
and statute and exercises public duties. Although the
RCMP does act in an agency relationship with the
28
Crown, the status of an RCMP officer is independent of
the control of the executive government
v. [Krieger case] – 2002 – question of accountability
1. Crown prosr claimed that becuz of his position, the law Soc was
precluded from dealing with a complaint against him
2. SCC: Courts should not interfere with prosecutorial discretions,
but this is distinct from professional conduct
a. Since Prof Resp is involved, LAW SOC have jurisdiction
vi. Muncipalities
1. Not cons recoginized evel of govt
2. Created under prov leg
3. S.92(8) of Cons Act 1867 puts municipalities under prov leg
a. Allocates prov jurisdiction over “municipal instutitions
in the Province
4. Because municipal councils are elected, their democratic
legitimacy is independent from that of provincial legislatures
a. They are responsible for significant policy-making
fucnctions in matters that affect local residences
5. However, municipal powers are subject to the reg qual that
superior govts place on them
6. East York (borough) case
a. H: Ontario Govt did not need to consult with
municipalities bfore amalgamating them into a larger
unit
7. Shell Canada Products LTd cas
a. Held the decision of Vancouver’s city council to direct
staff not to conduct usiness with Shell as long as it
continued to do business with South Africa were held to
be improper because they had an extra-terrritorial
purpose
8. 114957 Canada Ltee case – scope of municipal authoirty
a. Subsidiaraity: Law making and implementation are best
achieved at a level of government that is effective and
closes to the citizens affected, most responsibe to their
need,s, to local distinctiveness and to population
diversity
d. Sources of exec power
i. Prerog power
1. The residue of discreor arbitrary authority exercised by the corwn
a. Power accorded by CL to the Crown
i. E.g. power of appointment, declarations of war, issuing of passports
ii. Leg power cannot be exercised by the prerg
iii. Black v Canada
1. The exercise of a preo power will be justiciable if its subject
matter affects the rights or legitatimen expectation of an
individual
2. Stuatory power
a. Parl sovereignty – as long as leg bodies act according with the cahrter and
the d of p, there are few restraint on legilsaure’s ability to delegate
powers to admin bodies
29
b. Re Gray
i. Parliament can delegate its power to the exec within reasonable limits
c. AG Nova Soctia[1951]
i. Neither the fed Parliament nor the provincial legislature may delegate
legis power to the other
ii. The sole source of power derive s from the statutory delegation and
recipients of delegated authority have no inherent jurisdiction to act
d. Delegated Authority
i. Ust be exercised by the delegate to whom authority is delegated,
cannot be redelegated - Reference as to the Validity of the Regulations
in Relation to Chemicals Enacted by Order in Council and of an Order of
the Controller of Chemicals Made Pursuant Thereto[1943]
1. Exception “merely administrative” matters may be sub-
delegated
ii. In practice, delegated auth has been granted in virtualy every area of
pubic pollicy
1. Rule making (eg power to make regulations connected to
statutes ofen delegated to Cablinet
2. Regulation making
3. The legal effect of delegated legislations is determined by the
parent legislation that authorities the delegated legislation
4. Expansive use of delegated legislation has led to conerns over
the lack of scrutiny of this legislation by elected officials and the
public
a. Delegated legislation does not go thro the same
detailed enactment process that statutes –
5. Quirks: possible essay

questions????
iii. Dispute resolution
a. Admin tribunal members may have broad discre to
determine and apply policy
i. Cloverdale
ii. Ontairo municipal board performed hybrid
funcions
iii. (required to act judicially by giving parties a full
and fair hearing, but it could also take into acc
larger consideration sof admin policy
iv. Benefit or obligation determinations and enforcement decisions
a. Desire for fairness may be in conflict with the need fo
admin efficiency
v. Exec branch delegates authority for issues of compliance with legal
obligations
9. The Courts and the Judiciary – 照抄就得

a. Constitutional framework of the judiciary – Cons Act, 1867
i. S.92(14): prov legisltures granted excl power regarding the admin of j in the province
ii. S.96 – gg shall appoint the judges of superior, district and county courts
iii. S.100 – fed govt responbile for paying superior court judges salaires
30
iv. S.101 – fed govt authorized to create a general c of A for Canada and any additional court for
better admin of laws
1. Supreme Court of Canada, Fed Trial court and federal Court of Appeal, and the Tax Court
2. Cases: Neither the prov nor Parliamnet may enact legislation to encroach on core
jurisdiction of s.96 superior courts????
b. Canadian Court system – Stare decisis – All Courts must follow SCC
i.
ii. Prov and Terr Courts – lower courts
1. Deal with prelim inquiries; most crim offences family law matters (except divorce); young
person aged 12-17 who are charged with an offence under federal youth justice laws;
traffic violations; regulatory offences; and in some provinces, civil cases invoving small
amounts of money
2. Judges appointed by Prov govt
iii. Superior courts (s.96 courts)
1. Inherent jurisdiction: Can hear cases in any area except areas specifically limited to
antoher level of court
2. Most serious crim and civil cases
3. Court of first appeal for the “lower court system
iv. Court of Appeal
1. Appeals from decisions of superior and provincial courts
2. Panels of three judges
v. Fed courts
1. Jurisdiction includes interprovicnai and federal/prov disputes, IP citizenship appeals,
Crown corporations, govt’s departments, and Competition Act cases
2. May review decisions, orders and admin actions of fdereal boards, commissions, and
tribunals
3. Share jurisdiction with prov superior courts in limited areas
vi. Specialized Courts
1. Tax court of Canada – dispute between federal govt and taxpayers
2. Military courts and Court Martial appeals court of Canada
vii. Supreme Court of Canada
1. CFA from all other Can courts
2. Disputes in all areas of law
3. Federally appointed juges (CJ +8 justices)
4. Appeals generally with leave
31
a. Exception: No leave is required in a criminal case where a judge on the
panel of the court of appeal has dissented on how the law should be
interpreted
5. Advises fed govt on cons qs
viii. New Judicial Dispute Resolution Approaches
1. Nunavut Court Of justice: combines power of superior or trial court and the territorial
court
2. Unified family courts: Superior court judges and specialized services [in some provinces]
3. Sentencing circles – used after a finding or admission of guilt has been made
a. Genesis within Abo communities
b. Uusually used at the prov/territorial level in cases involving Abo offenders
and vicitims, after a finding or admission of guilt
c. At that stage, interested community members join the judge, prosr, d, and
community elders to discuss the offences, the factors that may have
contributed to it, sentencing options, and potential re-integration of the
offender into the community.
d. The judge need not accept the circle’s recommendations, but the circles
provide everyone with an opportunity to speak and to suggest creative
sentencing solutions
c. Judicial appointment – diff models for diff juris

i. Diff models
1. Confirmation hearings
2. Nominating committees
3. Direct eelctions
4. All of above used in US
ii. Review Great Britian judicial appointments commission materials
1. Established by statute
2. Selects candidates for judicial office and some tribunals in England Wales
3. Ensures candidates are selected on merit and good character
4. Encourage diversity
iii. Canada- selected by executive branch
1. Ofen following a sshort-listing process involving an advisory committee
2. Provincial court appitments
a. The process differes somewhat amongst the provinces, but the basic
model used is an advisory committee
i. Committee made up of a mixture of members from the legal community
and laypersons, accepts applications and interviews candidates before
submitting a list to prov AG for a final selection
3. Federal court appointments is DIFFERENT than prov court appointments – s.96 courts,
Fed court, tax court
a. Appointed by governor in council (Cabinet) following review by advisory
committee
b. Office of Commissioner for Fed Judicial Affairs
c. Concerns:
i. Govt may have too much discretion
ii. Not enough transparency or accountability
4. Supreme Court justices appointed by governor in council (Cabinet)
a. Given key role of SCC, more open appointement process required
32
b. Some argued that SCC is in effect legislating thro its decision making
5. Democratization of appointments also face crit
a. Judges should not be accountable to constituency
b. They must be free to decided each case in accord with their view of the
law and their own conscience.
c. Moreover, since most Supreme court of Canada judges are chosedn from
appellate courts, appointees already have a track record
6. In 2005 the Liberal govt proposed a four-stage reform process for SCC appointment
7. But in 2006 PM Harper introduced a hybrid selection process, which involved the
nomination of Justice Rothstein from a short list of candidates. Justice Rothstein then
appeared before a special committee of members of Parliament to answer questions
8. A similar approach was used when Justices Binnie and Charron retired, but has not been
consistenly applied
9. Review article by Adam Dodek on appointments process reform
a. Note table of methods of appointments (p.380)
d. Judicial independence – jduges are and must be at rm’s lenth from the other br of govt – Preamble,
ss96-100, Cons act 1867
i. Goals: maintenance of public confi in the impartiality of the judiciary, perception that justice will
be done in indi cases, maintencnace of the rule of law
ii. S.96: Superior courts as a fundamental institution protected by the Cons
iii. S.99 tenure of office for superior court judges
iv. S.100: salaries, allowances, and pensions of superior court jduges (financial security)
v. Range of courts whose independence is protected contains large gaps – Ref re Remuneration os
Judges of the Prov Court of PEI, Ref re Indepence and Impartiality of judges of the prov ourt of
PEI, Ref re Remuneration of jduges
vi. Charter, s.11(d) of the Charter imposes a requirement for judicial independence when one is
charged with a crim offence, it seems to exclude protection of courts exercising civil jurisdiction
vii. Ref re Remuneation of Judges: Judicial independence is at root at unwritten cons principle
1. Preamble to the Cons act 1867, is key to construing the Act’s express provisions
2. Our cons has evolved so that judicial independence has grown into a principle that
extends to all courts
3. Case Ell v Alberta: The SCC confirmed that justices of the peace were “constitutionally
required to be independent in the exercise of their duties”
e. Characteristics of judicial independence – IMPORTANT (START FROM THIS)
i. Measuring Independence
1. Mackin v New Brunswick
a. Actual Independence
b. Reasonable perception of independence (reasonable and well-informed
person
2. Canada (Minister of Citizenship and Immigraton) v Tobiass [1997]
f. Test for appearance of judicial independence: “whether a reasonable observer would
perceive that the court was able to conduct its business free from the interference of
the govt and other judges”
i. Core Characteristics of Independence (Ref re Remuneration of Judges of the Ptov Court of PEI,
Ref re Indepence and impartiality of judges of the Prov court of PEI
1. Security of tenure
2. Financial security
3. Administrative independence
4. Two dimensions of independence: individual and institutional
33
ii. Secutiry of tenure
1. Indiv J may not be dismissed by the exec before the age of retirement exept for
misocnudct of disability: Mackin
2. Jud inquiry and opportunity to beheard prior to removal for cause: Therrien
3. Judges Act, S.69(3) – Removal of judge by governor in council on minister’s
recommendation, after receipt of report by Canadian Judicial Councill
iii. Financial Security - Ref re Remuneration of judges
1. J should be free and appear to be free from monetary entanglements likely to affect the
exercise of their judicial funcitons
2. Financial security portecta against govrnments tht could use their authority to set jduges’
slaries to influence the course and outcome of adjucation
3. Commissions dealing with j remuneration should be (1)independence (2) objective, and
(3) meaningful (3 guarantees: (1) gvot should chaarnge or freeze salaries until they
received the report of the slary commission (2) the commission must convene if a fixed
period of time had elapsed since the last report, and consider the adequacy of judges’
slaries in light of cost of living and other relvant factors (3) reports of the commissions
must have a meaningful effect on the determination of judicial salaries
4. Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice);
Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des
juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General),
[2005] 2 SCR 286, 2005 SCC 44 (CanLII)
a. Commission reports are consultative unless legislature provides they are
binding (govt may depart from recommendations as long as it it justificed
with rational reasons)
5. Administrative Independence
a. Courts must have control of the adin decisions that bear directly on the
exercise of judicial functions
b. Canada (minister of Citizenship and Immigation) v Tobiass
i. Counsel for one party should not discuss a particular case with a judge
except with the knowledge, and preferable, the partiaption of counsel
for the other parties to the case
1. From a reasonable person perspective
10. Constitutional review – Procedural Fairness
a. Justification
i. Constitutional supremacy – Cons Act , 1982, s.52(1)>Parliamentary supremacy
i.1. This foundational document (the Canadian constitution) expresses the desire of the
people to limit the power of legislatures in certain specified ways. JR is politically
legitimate only insofar as it invoves the interpretation of an authoritative constitutional
instrument. [Ref. remuneration of Judges]
ii. Marbury v Maddison – states cons supremacy
iii. What exactly can and can’t be reviewed by the courts?
1. Operation Dismantle v the Queen [1985]
a. Whether the statement of claim disclosed a reasonable cause of action
b. Factual allegations insufficiently linked to gvoeernment’s duty with
respect to s.7 (speculative, too uncertain or hypothetical”
c. Courts should not be too eager to relinquish their JR function simply
becaue called upon to exercise it in relation to weighty matters of state
d. Application to this case: the decision to allow cruise missile testing did not
violate s.7
34
i. Even an independent, substantive right to life, liberty , and security of
the person cannot be absolute
2. Enforcement of Order
a. Doucet – Boudreau v Nova Scotia -2003
i. Requirement for the govt to report on progress of school construction
ii. I: Did the NS sc have the uthotiy to retian jurisdiction to hear reports
from the province as part of the remedy granted under s.24(1) of the
charter
iii. Majority Held: Remedy provisions shoul be interpreted purposively
(courts must craft responsive and effective rememedies). Hearing ev
and supervising cross-examinations on progress reports about the
construction of schools are not beyond the normal capacity of the
courts
iv. Dissent:
1. Trial judes’ remedy undermined the proper role of the judiciary
within the cons order and unnecessary
b. Re Manitoba Language Rights [1985]
i. Legislation had not been enacted in both French & EnglishInvalid
1. Remedy: all english acts deemed temporarily until Manitoba
could comply with its const duty
2. Alternative (i.e. legal vacuum) would undermine rule of law
3. Legitimacy
a. Concerned with judges detrmining the parameter os the charter and
invalidate aws that do not conform to the courts requirements (“rule of
unelected judges”
i. Complaints
1. Courts have usurped power that is properly the domain of
parliament or the provicnes (Cons supremacy)
2. Substantive approach taken by courts to particular rights that
may protect unpopular elements of society
ii. Vriend v Alberta [1998]
1. Omission of sexual orientation in Alberta’s IRPA infringed on
Vriend’s s.15 Charter rights, not saved by s.1, sexual orientation
read into the act
2. Role of the courts in invalidating leg(ss.24 and 52) represent
choices of the Canadian ppl; not an undemocratic intervention
iii. Dialogue concept
4. Exceeding Jurisdiction: Concerns
a. Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re
Independence and Impartiality of Judges of the Prov. Court of P.E.I.,
[1997]
i. Majority : Preamble to the Cons act, 1867 is a source of cons limitation
on the power of legislatures to interfere with judicial independence
ii. Justice LaForest (dissenting view): JR is politically legitimeate “only
insofar as it involves the interpretation of an authoritative cons
instrument. A court’s legitimacy is imperiled when it attempts to limit
the power of legislatures without recourse to express textual authority.
b. Parameters of JR
i. Remember the history of the law is for essay question
ii. If an issue is justiciable, the courts will have jurisdciton to review it on two grounds
35
1. Procedural fairness or substantitve merit
iii. 2 questions
1. Was the procedure used by the decision-maker fair?
2. Did the decision-maker make the right decision?
c. Procedural fairness – procedural, right to hearing
11. Quirks
12. If you are called upon to analyze a procedural fairness question, you should look to the factors from
Baker and compare its facts to those in the case you are considering to determine if a duty of
fairness exists, whatit consists of, and whether it was met on your facts
i. Admin dec-makers (AMDS) are generally required by the cl to act fairly toward those affected by
their decisions
ii. Two elements of natural justice
1. Right to know and answer the case against you
2. Rule against bias
a. The ADM should not be a judge on his cause
iii. Readings – must read: ch.8 (must read)
iv. Threhold for duty of fairness
1. Whether the decision affects the rights, privileges, or interests of the individual (Baker v
Canada)
a. Content (of duty of fairness) is contextual
b. 5 prong test - Baker
c. 1. The nature of the decision being made and the process followed (the more a
decision looks like a judicial decision, the greater the procedural protections)
d. 2. The nature of the statutory scheme and the terms of the statute (final
decisionsgreated procedural protections
e. 3. The importance of the decision to the ind (greater importancegreater procedural
protections) eg.. when a person’s employment+safety affected, greater
f. 4. Existence of legitimate expectations (create only procedural rights, not substantive
rights)
g. 5. Choices of procedures made by the agency itself under its enabling statute, i.e. if
statutes empowers the agency to set its own procedures, or where the agency has
particular expertise in this area, the courts will show great deference
h. Not exhaustive
i. Baker v Canada[1999] – paste facts here
i. F: Facts: Ms. Baker was a citizen of Jamaica who came to Canada in 1981 as a
i. visitor and remained. She had 4 children, who were Canadian citizens. She was ordered to be Formatted: Normal, Indent: Left: 1.38", No bullets
deported and applied for an exemption from the requirement to apply for permanent residence or numbering
outside of Canada based on humanitarian and compassionate grounds (H & C). Her application
was denied. Formatted: Not Highlight
ii. I: (re international law): To what extent was the immigration officer
bound by the Convention on the Rights of the Child in making decisions, given that the Convention Formatted: Normal, Indent: Left: 1.38", No bullets
had not been legislatively incorporated? or numbering
iii. Majority Held; Convention on the Rights of the Child has not been implemented by Parliament.
Therefore its provisions have no direct application within Canadian law. Nevertheless, “the
values reflected in nternational human rights law may help inform the contextual approach to
statutory interpretation and judicial review.” (para. 70) “In so far as possible, interpretations
that reflect these values and principles are to be preferred.” (para. 69) The Majority held that in
this case, the officer did not properly consider the children’s interests.
iv. Cory and Iacobucci J (dissenting in part) (see paras.78 – 81): Disagreed with the majority on the
effect of international law on the exercise of ministerial discretion under s. 114(2) of the
36
Immigration Act. More particularly, disagreed with majority that the reference should be made
to the underlying values of an unimplemented international treat in the course of the contextual
approach to statutory interpretation and administrative law, because such an approach is not in
accordance with jurisprudence concerningthe status of international law within the domestic
legal system.
ii.v. R: Opportunity to put case forward in written form satisfied the requirements of the
participatory rights required by the duty of proc fairness in this case
iii.vi. Duty to give reasons was satisfied by the junior
iv.vii. Reasonably apprehension of bias: Whether an informed person, viewing the matter realistically
and practically, and having thought the mater through, would conclude that it is more likely
then not that the ADM, whether consciously or unconsciously would not decide fairly
1. Perception of bias in the officer’s notes
13. Substantive Review – on substatnce – when can a court disturbs the findings of a tribunal – Dunsmuir (2
standards of review: reasonableness (deference) and Correctness (less deferent)
a. Canada
i. Reviews of administrative tribunal decisona re treated differently than appeals from lower
courts (deference)
1. Traiditonal view – deference to expertise
2. Three standard of review: (1) correctness, (2) patent unreasonableness (3)
reasonableness
3. Threshold issue was jurisdiction
a. If the tribunal was acting within jurisidcion and had some
expertisepatent unreasonable (applied)
b. Courts for quite some time followed a preliminary questions doctrine,
which asked whtehter a tribunal had made a mistake in determining the
scope of its own jurisdiction
i. This fell within the range of decisions on which a tribunal was still
expected to reach a legally correct result, or the court would set aside
the tribunal’s decion
c. Then, three standard of review: (1) patentl unreasonable (most
deferential) (2) reasonable simpliciter (in the middle) (2) reasonableness
(least deferential)
b. 2 standards only now (Reaonableness and correctness)

- “central importance to the legal system +outside the specialized area of expertise” – correctness
standard [Toronto (City v CUPE)
- does not rise to this level +P clause+ specialized reasonablness
b.c.
i. Dunsmuir v New Brunswick (2008)
ii. F: Appellant was a court clerk whose “at pleasure” appointment was
terminated by the Department of Justice. Although there had been concerns Formatted: Normal, Indent: Left: 1.38", No bullets
about the Dunsmuir’s job performance, the department did not allege it had or numbering
cause for terminating his appointment. Dunsmuir grieved the dismissal, and an
adjudicator found that the termination had been improper and ordered his
reinstatement. The department successfully sought judicial review of the Formatted: Normal, No bullets or numbering
ii. decision, and Dunsmuir’s appeal was dismissed by the NB Court of Appeal.A court clerk
whose employement was terminated by the D O J. Dun grieved the dismissal, and an adjudicator
found that the termination had been improper and ordered his reinstatement
iii. I: The question of standard of review related to the court’s review of the
adjudicator’s decions, all the way up to SCC
37
c.d. Two Part test for determining the standard of review
d.e. (1)Determine whether previous case law has set the appropriate standard
- Generally courts have determined that a correctness standard applies to
constitutional questions, questions of general law that are of importance to the legal
system and outside the decision-maker’s expertise, questions about overlaps in
jurisdiction, and questions about the tribunal’s own authority
- The reasonableness standard generaly applies to situations where the tribunal is
interpreting it own statute, OR questions where it has expertise in another area
governed by statute , common law, or civil law
(2) Pragmatic and functional analysis (if previous cases have not determined the standard)
- Existence of privative clause? (will often restrict a court’s abily to review the triubnal’s decision
and signal that a greater degree of deference is appropriate)
Justifications – A P clause is evidence of Parliament or a legislture’s intent that an administrative
decision maker be given greater deference and that interference by reviewing courts be minimized.
- rebuttable
- purpose of tribunal
- Nature of issue?
3 situations where the correctness standard of review is more appropriate (as expounded in Mowat)
1. A true question of jurisdiction where the tribunal must explicitly determine whether its
statutory grant of power gives it the authority to decide a particular matter
2. Where there I a question of general law that is both of central importance to the legal system
as a whole and outside the adjuicator’s specialized area of expertise
3. Where a dterminiation of jurisdiction between 2 competing tribunals is required
- Expertise of tribunal (eg. labour tribunal)

(3) Determining reasonableness: Were the reaons coherent and intelligible ,and does the decision fall
within a range of possible, acceptable outcomes that are defensible in the context of the particular
facts and law at issue?
Application of the standard

The decision of the adjudicator treated the appellant, a non-unionied employee, as a unionized
employee. His interpretation of the PSLRA, which permits an adjucator to inquire into the reasons for
discharge where notice is given and under s.97(2.1), substitute a penalty that he or she determines
just and reasonable in the circumstances, creates a requirement that the employer show cause before
dismissal.
14. Exam quirks

a. Fact-based question
i. Apply these tests systematically to determine the appropriate statndard of review and then
apply it to the decision.
ii. You may find the court’s application of the test in subsequent cases to be helpful, and also to
illustrate how difficutl it can be to determine the appropriate standard of review and apply it.
b. Essay/policy question
i. Draw on the dissenting and minority reasonas in Dunsmuir to illuminate sme of the policy
concerns at issue
Recent case
Canada (Attorney General) v Bri-Chem Supply Ltd., 2016 FCA 257
Procedural History: This is an appeal of three decisions in which the Canadian International Formatted: Font: Bold
Trade Tribunal (the “Tribunal”) upheld the ability of importers to correct certain customs
38
declarations to obtain more favourable tariff treatment. The Attorney General is appealing all
three decisions in regards to the finding that the Canadian Border Services Agency (CBSA)
committed an abuse of process by failing to apply an earlier decision to administering the tariff
regime.
Facts: Goods qualifying under the North America Free Trade Agreement were subject to a tariff Formatted: Font: Not Bold
treatment that was later discovered to be incorrect. The importers had chosen the wrong tariff
classification and relied on section 32.2 to correct the declaration. The CBSA incorrectly
objected to what the importers had done. The Tribunal decided in favour of the importers and
stressed that their earlier decision of Frito-Lay decided all of the issues, and that the CBSA had
re-litigated it without justification.
Issue: Were the Canadian International Trade Tribunal’s decisions reasonable when they
decided that the CBSA had committed an abuse of process?
Decision: Appeals dismissed. The Tribunal’s decisions were reasonable. Formatted: Font: Bold
Reasons: The outcome of the case relied upon, Frito-Lay, was decided properly in both its Formatted: Font: Not Bold
outcome and reasoning. The Tribunal reached an acceptable interpretation of section 32.2
consistent with its wording. The CBSA had committed an abuse of process by failing to apply
the Tribunal’s earlier decision in Frito-Lay. The CBSA did not follow this decision and did not
have a good reason for not doing so. Notably, an appeal of Frito-Lay was discontinued by the
Attorney General, placing a higher burden on the CBSA to demonstrate its good faith and to
offer good reasons for why the case should not be followed.
Tribunals should try to follow their earlier decisions, but are not bound by them.
However, they should not depart from the decisions of earlier panels unless there is good reason.
It is possible for one tribunal panel to disagree with another and still be reasonable. Tribunals are
constrained by the rulings and guidance given by courts that govern relevant facts and issues.
Certainty, predictability and finality are important.
Administrators whose actions are regulated by a tribunal must follow tribunal decisions,
due to tribunal pre-eminence. There are two exceptions. If the administrator is acting bona fide
and in accordance with its legislative mandate, they can assert that an earlier tribunal decision
does not apply in a matte that has different facts. If an administrator feels it can and must act in a
certain way and has a well-founded, bona fide concern that an earlier decision is flawed, they can
act how they think they should and can raise the flaw with the tribunal. A threshold must be met
before the administrator can act: They must be able to articulate with good reasons the specific elements of the
decision that are likely wrong, and the flaw must be significant in terms of the
probable impact on future case and the prejudice that it will cause to the administrator’s mandate
and/or the parties it regulates. The administrator cannot put the same facts, law and arguments in
front of a different tribunal panel to try to get a more favourable result.
i. Formatted: Normal, No bullets or numbering
15. Statutory Interpretation
a. Statutes=integral part
i. Apply to both public and private areas of law
b. SI= goal is to ascertain the enacting gov’t intention in creating a statute
c. Interpretation of statutes is designed to complement the understanding of ROL
d. Interpretitve Process
i. 1st step: Interpretation act
1. Found in every jurisdiction; rule sofr interpreintg stattues in the jurisdciton
2. Defintions of commonly used terms
3. Preferred over ordinary meaning
ii. Preambles – introduce the intended purposes and objects of the statute
iii. Principles of si are not binding – serves as guidleines in interpreting
e. Essential rules of SI
39
i. Plain menaing rule: judges are not to deviate from the plain, or literal inter of the statute where
the meaning of its words are clear
1. Where the words of a statute are capable of only one construction, that construction
must be adhered – Mcintosh case
ii. Golden rule – Courts may depart from the ordinary menaing of words to avoid absurd conseq
iii. Chossing between using the “plain meaning rule” OR the “golden rule” requires attention to the
context in which the statute arises
iv. S.10-21, Interpretation Act
1. The law shall be considered as always speaking
a. S enactment – accourding to its true spirit and intent-s.10
b. Every statutory enactment shall be given fair, large, and liberal
construction and interpretation; every statutory enactment is remedial
v. Equitable construction rule: Interperet statutes in expansive terms to achieve govt’s remedy
underlying the stattue – presumed intent
vi. Modern Principle: Statutes to be read in their entirety, balancing their ordinary construction
with their broader, contextual understanding.
1. This is to be done in light of the legislative intention in creating the stattue, as well as the
object of the Act itself.
vii.
f. 5 rules pertaining to the meaning of statutes
i. Ordinary meaning rule
ii. Technical meaning rule
iii. Shared meaning rule
iv. Original meaning rule
v. Plausible meaning rule
g. Assumptions – p.78
i. Straightforward expression
ii. Uniform expression
iii. No tautology, or no redundancy
iv. Internal coherence
h. Maxims of SI:
i. Implied exclusion
ii. Associated words
iii. Limited class
40
iv. The legislature would have said X
i. Daoust case – facts here
i. For application of the ordinary meaning, “associated words” and “no tautology” rules
1. Ordinary meaning is essentially based on one’s own intutition, putting tgt the actual
words in q withi its immediate context
2. Dictionary defition
a. Not always definitive
j. Purpose and scheme analysis
i. Legislative purpose: attempting to determine the purpose of legislative initiatives
ii. Interpretation Acts: in particular, the use of “such fair, large and liberal construction and
interpretation” to best assure the attainment of legislatve objects
iii. Legislative scheme: understanding how the parts of the legislation work tgt
iv. Ascertaining the purpose of legislation
1. How does the provison modify other elements of the statutes?
2. Does it expand upon those other elements or does it limit them?
3. Does it provide a particular way of understanding what is being said?
v. R v Chartrand
1. Comparisons being made between diff provisions; notation of similarities and
differences; social context in which the statute was amended
2. Statute place within larger context
3. French and English interpretation oft the words or phrase in q may be considered
vi. Mistakes in egislation
1. Corrigible mistakes: legislation does not accurately reflect the intended legislative
purposes
a. Fill the gaps
b. Absent ev, courts will generally not cure gaps in underinclusive legislation
(incorrigible gaps)
i. Court’s reluctance to read in to the legislation
2. Supplemnting the legislation
vii. Approaches to interpretiaon
1. Courts do not always approach legislatve uniformly
a.
k. Presumption of Legislative intent
i. Presumed compiacne with cons lw and values
ii. Presumed comp with international law
41
iii. Presumed continuation of the common law
iv. Presumed compliance with the rule of law
v. Presumed non-interference with common law rights
vi. Presumption against the extraterritorial appl of legislation
vii. Presumption against the retroactive application of legislation
viii. Presumption against interference with vested common law and statutory rights
ix. Presumption against applying legislation to the Crown and its agents
l. Special principles of legis intent may be formualated where necessary
i. Eg. Abo law context (treaty signed between the fed govt and Abo ppls)
ii. Court has to compensate – provide a liberal interpretation to Abo, holding ambiguities in
treaties were to be resolved in favour of abo understandings
16. Applying Statutory interpretations – read pp.391-434 of Craik
a. R v McIntosh
i. Application of the self-defence principle
1. Gap in the Crim Code regarding the provisions applicable to self-defence leaves its
availability unclear
a. Available only for a non-agressor or also to an aggressor who has provked
an attack?
2. S.34(1): Self –defence is availbe where a person is assaulted without having provked the
assault
3. S34(2): contemplates a person who is unlawfully assaulted and says nothing about
provocation
4. Majority held: adopts the “plain interpretation” rule, notwithstanding that its application
creates an abusrd result
a. Issue viewed as one of disputed meaning that needs to be resolved
according to the plain meaning of words
b. “McLachlin J’s dissenting judgment regarding the issue as a “corrigible
mistake” – requires ascertaining Parliamentary intent
b. Rizzo Shoes Ltd case - Plaining meaning rule and modern principle of statutory interpretation
i. Multitutde of interpretive principles and techniques
ii. Issue: Are the employees who lose their employment as a result of bankruptcy are not entitled
to termination or severance pay?
iii. S.10: “fair, large and liberal” construction to ensure the true intent, menaing, and spirit of the
Act
iv. “Golden rule” of statutory construction:
1. Courts may depart from ordinary meaning to avoid absurd consequences
v. Extrinsic ev of legislative internt
1. Minster statement eg
vi. Benefits-conferring legislation is to be understood in a board and generous manner is also
referenced
c. Medovarski v Canad, Esteban – appealing deportation order
i. Construction of the term “stay” as used in the impugned fed immigration statute
1. Two kinds of stays (1) automatic and (2) actively ordered
a. Which “stay provided the right to appeal a deportation order”
2. Intention of the new legislation
3. Appellents had filed notices of appeals and had deportation orders automatically stayed
under the old legislation
4. Insisted that automatic stays qualified as being “granted a stay” under transitional
provisions to new legislation
5. Unaminous – To determine the meaning of “stay” for purposes of the Act
42
a. The prevailing statute
b. The transitional provisions from its predecessor
c. The French and English versions of the impugned sections
d. The legislative context of that section
e. The “golden rule” of statutory interpretation (need to avoid absurd
constructions)
6. Mclachin: Unfiarness to the appellants as a result of the transition from the old
immigration statute to its replacement
7. Statements of the Min in introducing the new immg statute and what it was designed to
accomplish
8. Interpretive techinique for resolving conflicts between English and French
understandings
9. Was the more limited meaning consistent with Parliamentary intent?
10. [Held]”stay” contemplates only actively ordered stays, which appellants did not possess
a. Appellants worse off under the transitional provisions than under either
the old Act or the new Act, but unfairness was insufficient to change the
Court’s interpretation of the impugned legislative provision
ii. Canada (AG) v Mossop
1. Looking to charter values to provide def of family status
2. Majority: Improper to use Charter values to interpret a statute aabsent a Charter
challenge to statute
a. L’Heureux-Dube J.
i. Human rights legislation has a quasi-cons nature; necessary to apply
charter values to provide a “large, purposive const and liberal
interpretation” of HR legislation
ii. Where discrepancy between French and English wording, meaning to be
used is the one that best furthers legislative purpose
iii. Living tree analogy
iii. Conclusion
1. Case law provides context for appreciating how the principles of SI are used to provide
clarity where ambiguities exist or to provide more concrete understandings where terms
are not definitive on their own
2. Priniples of statutory interpretation are not uniformly appreciated or used by judiciary
Short Outline
 Basic Theories of Law
 Indigenous Peoples and the Law
 Sources of Canadian Law
3. Sources of Canadian Law
 Parliament and its Components
o
 Functions of Parliament
 The Executive and its Functions
 The Courts and the Judiciary
 Statutory Interpretation
 Constraints on Legislative and Administrative Action
Sample exam
43
44

Cover Page - Foundations of Canadian Law - Most Update 1013

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cover Page - Foundations of Canadian Law - Most Update 1013

Uploaded by

Copyright:

Available Formats

Ronald Chan Foundations of Canadian Law 2018/09/29

1. Basic Theories of Law

ii. Essay Question:

2. Indigenous Peoples and the Law **

rights have been recognized and affiremed by the Constitution, thus

Read critiques such as John Borrows, “indigenous legal traditions” 2005

a. Aboriginal law – distinctive existence

vi.v. Aboriginal title

Are Metis and non-status Indians Indians? - See

8. The Executive and its Functions

5. Quirks: possible essay

9. The Courts and the Judiciary – 照抄就得

c. Judicial appointment – diff models for diff juris

b. 2 standards only now (Reaonableness and correctness)

- Expertise of tribunal (eg. labour tribunal)

Application of the standard

14. Exam quirks

You might also like