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the belief that law is nothing more than the rules and principles that actually govern and regulate a society. Positivism insists on the separation of law and morality, and, as a result, focuses on describing laws without reference to justness or legitimacy. Re Noble and Wolf (1948) • • Cottage community argued to enforce a restrictive covenant against the sale of property to Jews, African-Americans, etc. Court noted that there were many decisions that stated that judicial tribunals should not roam unchecked in the field of public policy. o Public policy is a vague and unsatisfactory term and calculated to lead to uncertainty and error when applied to the decisions of legal rights. To allow this to be a ground of judicial decision would lead to the greatest uncertainty and confusion. It is the province of the statesmen to determine what is best for the public good. It is the province of the judge to expound the law only from statutes and precedents and upon the principles to be clearly deduced from them by sound reason and just inference and not to speculate on what is best, in his opinion for the advantage of the community. o Noted that to void a restrictive covenant based on public policy is an arbitrary extension of the rules which say that a given contract is void as being opposed to public policy. o Noted that is trite law that common law rights are not to be deemed to be abrogated by statute unless the legislative intent to do so is expressed in very clear language. o Also noted that the law is that one is not lightly to interfere with the freedom on contract, and that to do so under the guise of public policy is a radical departure from established principles. o The proper conception of the judicial function is to expound and interpret the law and not to create the law based on my individual notion or opinion of what the law should be.
o Noted that the court should only be permitted to make up public policy where the legislature was for some reason unable to speak and where there was substantial agreement within the judiciary. o Held that the covenant is valid and enforceable. o Natural Law Theory is aspirational in the sense that laws, properly called, are not simply all those official rules and principles that govern us, but only those that adhere to certain moral truths, most often a universal and immutable nature. Natural law does not deny the necessity of positive law, but where positive law contravenes natural law, the contravening positive rules are held by natural law theorists not to be “true” law in the sense that a citizen or judge owes no allegiance to them. • Re Drummond Wren (1945) o Restrictive covenant against Jews or other nationalities owning land argued against. o Court noted that any agreement which tends to be injurious to the public or against public good is void as being contrary to public policy. While there have been some statements about not creating new heads of public policy, the court also pointed out that the doctrine has been applied whenever the facts demand its application. Also noted that the court can look to various acts and public law as an aid to determine principles relative to public policy. Also noted that Canada is a country of minorities and that it is a moral duty to lend aid to all forces of cohesion and repel tendencies that would imperil national unity. Ontario Reports head note: the covenant was contrary to public policy in that it tends to create or deepen divisions between religious and ethnic groups and is in conflict with prevailing public opinion (as in statues and public documents)
o Held: that the covenant is void because it is offensive to the public policy of this jurisdiction.
o Law is also thought to be easily determined and more or less certain, while morality can be contingent and relative. • Feminist Perspectives o Edwards v AG Canada (1930) The question at issue is whether the words “qualified persons” in the section of the Act summoning to service for the Senate include women, and therefore whether women are eligible to be summoned to and become members of the Senate. Court noted that in coming to a determination as to the meaning of a particular word in a particular act of parliament, it is permissible to consider two points: • 1) The external evidence derived from extraneous circumstances such as previous legislation and decided cases; and o In determining this first point, the court noted that customs about women came about in different times and for different reasons (like the need to bear arms, which women could not do) Because customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reasons for them have disappeared, the court noted that the appeal to history and extraneous circumstances, is not conclusive.
2) the internal evidence derived from the Act itself o The court then went to the internal evidence, including the reasons for the Act, which was to give Canada its own constitution, and therefore the duty of the Brits is not to cut down the provisions of the Act by narrow and technical construction, but rather to give it a large and liberal interpretation so that Canada can be, within certain fixed limits, the mistress of its own country. o Then noted that if Parliament wanted to limit the word persons in this section to males, it would surely have manifested such an interpretation expressly, such as it has done in other sections which state “male persons.”
Furthermore, that there are other qualifications required for the position laid out in this section is an argument not in favor or further limiting the class but rather an argument to the contrary because it should be presumed that Parliament has set out all the qualifications it deemed necessary, and nowhere does it state that one of the qualifications is to be a member of the male sex.
Held that the term persons includes members of both sexes because: • • • • The object of the Act is to provide a Constitution for Canada The word person is ambiguous and may include members of both sexes There are sections of the Act above which show that in some cases the word person must include females That in some sections, the words “male persons” are expressly used when it is desired to confine the matter in issue to males
o R. v Morgentaler (1988) Charged with violating the Criminal Code by allowing a woman to have an abortion without the requirements of a committee of doctors approving such an abortion. Court noted that the issue is the question of whether a pregnant woman can, as a constitutional matter, be compelled by law to carry the fetus to term. Noted that she agreed with the majority which stated that the requirements did not comport with the principles of fundamental justice in the procedural sense and since they cannot be severed from the provision, the entire provision must fail. But noted in her concurrence that the primary issue is not procedural requirements for obtaining an abortion but rather whether a pregnant woman can be forced to carry the fetus to term against her will. The main issue therefore is whether the criminal code section which limits the pregnant woman’s access to abortion violates her right to life, liberty and security of the person within the meaning of the S. 7 of the charter.
Noted that the basic theories underlying the charter where that the state will respect choices made by individuals and to the greatest extent possible avoid subordinating these choices to any one conception of the good life. • The right to make fundamental personal decisions without interference from the state.
Noted that the purpose of the criminal code section is to take the decision about abortion away from the women and give it to a committee, therefore violating her right to liberty, intrinsic in which is the right to reproduce or not reproduce. Also noted that the criminal code section deprives the pregnant woman the right to security of the person as well as liberty. Held that the section was a complete denial of the woman’s constitutionally protected right under the charter and not merely a limitation on it, and therefore cannot meet the proportionality test in Oakes as it is not sufficiently tailored to the legislative objective and does not impair the right as little as possible.
Critical Legal Studies o CLS adherents reject that there is any kind of “natural legal order” discoverable by objective means. CLS not only denies the possibility of discovering a universal foundation for law through pure reason, but sees the whole enterprise of jurisprudence as operating to confer a spurious legitimacy on law and legal systems.
o According to its main precepts, law, far from attempting to symbolize justice, institutionalized and legitimates the authority and power of particular social groups or classes. The rule of law is not a rational, quasi-scientific ordering of society’s norms, but it is indeterminate, full of subjective interpretation and a large degree of incoherency. Therefore Western laws are maintained by a system of beliefs that have their foundation in a liberal, market-driven economy, and so they only reflect the transitory, arbitrary interests of a dominant class.
To state the general proposition that judges should avoid making comments based on generalizations when assessing the credibility of a witness does not lead to an automatic conclusion that when a judge does so. • The Judge must therefore strive to ensure that no word or action during the course of the trial on in delivering judgment might leave the reasonable. v. An appeal was allowed because the crown challenged that the judge’s remarks gave rise to a reasonable apprehension of bias (that she reached her decision on the basis of factors not in evidence). RDS (1997) During the trial of a black youth arrested for unlawfully resisting arrest by a white police officer. where the Crown bears the onus of displacing this assumption with “cogent evidence” Court held that there was no reasonable apprehension of bias in this case. . this does not mean that the judge has to throw out their life history and experiences.o R. are not based on inappropriate stereotypes and do not prevent a fair and just determination of the case based on facts not in evidence. including the presumption of judicial integrity. Thus. a reasonable apprehension of bias arises. Concurrence: the test for reasonable apprehension of bias involves ensuring that the experiences of the judge are relevant to the case. impartiality requires that the judge be free to entertain and act upon different points of view with an open mind. The court noted that whether or not the use of references to social contest is appropriate in the circumstances and whether a reasonable apprehension of bias arises from particular statements will depend on the facts of the case. The court noted that while a judge must be impartial. and overruled the conviction. informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations. the judge made comments about the fact that white police officers have been known to mislead the courts and that they have been known to overreact with non white groups. The comments must be examined in context through the eyes of a reasonable and informed person who it taken to know all the relevant circumstances of the case.
Dissent: Question for reasonable apprehension of bias is whether the judge reached her decision based on evidence presented at trial or whether she relied on something else. Attempts to explain government intervention as a corrective to market failure. act as if they were rational maximizes of their welfare. (state of Pareto optimality) Assumes that human beings are rational actors and have preferences and act in order to achieve those preferences. • No evidence about the police officer’s bias presented at trial. Baddeley (1997) The main issue is whether a claim in tort for loss of future earnings survives the death of the victim and if it does. properly instructed herself on the evidence or was an error of law committed by her and o Whether her comments above could cause a reasonable observer to apprehend bias. • Law and Economics o A traditional law and economics approach applies economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient. o Duncan Estate v. Court noted that the law states that the a cause of action vested in a person who dies survives for the benefit of his estate. how to calculate such a claim. • Two points considered: o Whether the trial judge in her reasons. with the hedge that . A basic proposition of this theory is that diffuse and fragmented groups are less effective than more focused and concentrated groups in achieving success in the political arena and in influencing legislators and regulators. o Public choice theory (economic theory of regulation) applies basic economic theory in an attempt to understand public policy. Efficiency is defined in terms of an ideal where the welfare of each of the relevant parties can no longer be maximized except at the expense of other parties.
Court also noted that the preamble to the OHRCode evidences the public policy for non discrimination and therefore it is appropriate that such rights receive the full protection of the common law and the Code does not . Court noted that while no authority recognized a tort of discrimination. the mere fact the claim is novel will not of itself operate as a bar to remedy and therefore has a claim under common law. whether they give rise to a civil cause of action under the Human rights code.only those damages that resulted in actual financial loss to the deceased or his estate. if it only put value on physical but not intellectual capital would result in situations that where two people died in an accident and one was rich and lost a lot of property and the other poor and lost only his ability to work. the consequences of the proposed interpretation and the presumptions and special rules of interpretation. its compliance with the legislative text o Efficacy. having regard to the purpose of the legislation. She files a breach under the Ontario Human rights Code. meaning one that can be justified in terms of its: o Plausibility. assuming the P could prove the allegations. that is promotion of the legislative purpose and o Acceptability – that the outcome is reasonable and just Noted that the definition of compensation. The issue was whether. • After taking into account must adopt an interpretation that is appropriate. has to consider that courts are obliged to determine the meaning of legislation in its total context. only the rich would be compensated does not seem fair. none has repudiated such a tort and therefore that since the P’s interests are entitled to legal protection against the conduct of the D. Then noted that in determining what is meant by “actual” loss. that is. o Bhaudaria v Board of Governors of Seneca College (1979) Indian professor not hired by college claimed she was discriminated against based on her ethnic origin. the claim gave rise to a cause of action at common law and if they do not.
. and solely on the basis of a breach of statue which itself provides comprehensively for remedies for its breach. and quite a different thing to create by judicial fiat an obligation. o Court held that the respondent’s action for damages does not constitute government action within the Charter. o Bhadauria v. Board of Governors of Seneca (1981 – Supremes) Question of whether to uphold the recognition of a new intentional tort by the lower court for discrimination. to confer an economic benefit on certain persons. one in no sense analogous to a duty of care in the law of negligence. Difference between founding a civil action directly upon breach of a statute. Just because the respondent’s suit was funded by the government. and found a civil cause of action at common law by reference to policies reflected in the statute.contain an expression of legislative intention to exclude the common law remedy. though not encouraged by it. The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts. does not give rise to a civil cause of action. without expressly stating such an intent. with whom the alleged obligor has no connection. o Issue was whether the common law of defamation if consistent with the Charter and whether the jury’s award of damages can stand. Court held that not only did the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of public policy expressed in the Code. does not alter his constitutional status or cloak his personal actions in the mantle of government action. • Hill v Church of Scientology (1995) o P was a Crown attorney who sued the Church of Scientology and their attorney for libel based on false allegations made during a press conference about criminal contempt proceedings being brought against him. as arising from the statute itself. Here the court noted that the Code was comprehensive in its features and therefore the Code. Noted that it is one thing to apply a common law duty of care to standards of behavior under a statute.
This obligation is a manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social conditions and values. But this is different from the proposition that one private party owes a constitutional duty to another. If it is possible to change the common law rule so as to make it consistent with Charter values. It has been held that a cause of action could only be based upon the Charter when particular government action is impugned. a distinction is drawn between private litigants founding a cause of action on the Charter and judges exercising their inherent jurisdiction to develop the common law. o The common law must be interpreted in a manner which is consistent with Charter principles. Therefore the constitutionality of the common could be scrutinized only in those situations where a case involved government action which was authorized or justified on the basis of a common law rule which allegedly infringed on a Charter right. the appellants failed to provide any evidentiary basis upon which to adjudicate their constitutional attack. without upsetting the proper • . in that the common law should develop in a manner consistent with Charter principles.o Even if there were sufficient government action to bring this case within s. the courts should scrutinize the rule closely. 32 of the Charter. Noted that the charter only applies to government action and also that it will apply to the common law however only in so far as the common law is the basis of some governmental action which infringes a guaranteed right or freedom. Dolphin delivery (1986)) • There is a distinction between whether the judiciary should apply and develop the principles of the common law in a manner consistent with the fundamental values of the constitution and therefore the charter is far from irrelevant to private litigants whose disputes fall to be decided at common law. (RWDSU v. However also noted that the common law could be subjected to Charter scrutiny in the absence of government action. Where the principles underlying a common law rule are out of step with the values enshrined in the Charter. The common law strikes an appropriate balance between the twin values of reputation and freedom of expression.
But charter rights do not exist in the absence of state action. It is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter. The charter values will then provide the guidelines for any modification to the common law which the court feels is necessary. it would be necessary for the court to consider whether the common law rule should be upheld as a reasonable limit under S. It is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with charter values but also that its provisions cannot be justified. (R. v Swain (1991). Rather. Salituro (1991)). It if were not possible to reformulate the common law rule so as to avoid an infringement of a constitutionally protected right or freedom. should be weighed against the principles which underlie the common law. • • . the most that private litigants can do is argue that the common law is inconsistent with charter values! o When the common law is in conflict with charter values. o This is not a situation in which one party must prove a prima facie violation of a right while the other bears the onus of defending it. (R. such a reformulation should be undertaken. the party who is alleging that the common law is inconsistent with the Charter should bear the onus of proving both that the common law fails to comply with the charter valued and that. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice. when these values are balance. v. • A charter challenge to common law (a judge-made rule) involves the analysis of somewhat different considerations than would apply to a challenge to a legislative provision. 1 of the Charter.1 framework for justification is not appropriate and the balancing must be more flexible than the traditional s. framed in general terms. Charter values. the common law should be modified. But it is important not to import into private litigation the analysis which applies in cases involving government action.balance between judicial and legislative action. then the rule ought to be changed. a traditional s.1 analysis undertaken in cases involving governmental action.
o Qualified privileges exist and rebut the interference. that they were spoken with malice. o The actual malice rule should not be adopted in Canada in an action between private litigants. o Section 5 of the AAJ and its procedural requirements are applicable to the present matter because the revocation of C’s designation is a decision concerning a permit of license or authorization of like nature and C is a citizen as contemplated by the AAJ. and in delegating to C the power to conduct vehicle inspections. o Issue was whether centre employee entitled to procedural fairness with respect to SAAQ’s decision to revoke his accredditiaon and whether the relationship established by the appendix between the centre employee and the SAAQ precluded the application of principles of public law. o Held that the appeal overturned. The privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or presumed malice or when the limits of the duty or interest have been exceeded. After it was claimed that the employee made a bad inspection his authorization was taken away by the SAAQ without a hearing. which normally arises from the publication of defamatory words. the bona fides of the D is presumed and D is free to publish with impunity remarks which may be defamatory and untrue about the P. which applied to any unilateral decision taken pursuant to administrative authority. The fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Where the occasion is shown to privileged. the SAAQ was granting him the authorization to act on its behalf . o Held that the employees was entitled to procedural fairness and that the existence of a contract could not be used by the SAAQ to aovid the obligations codified by s. • Societe de l’assurance automobile de Quebec v Cyr (2008) o Mechanic working for the Centre of verification mechanical of Montreal signed an appendix as part of a contract between the CVMM and SAAQ which spelled out the requirements of the contract and what was required as to the inspection of automobiles. Delegations of government power are authorizations. 5 of the administrative act justice.o The underlying values of the charter must be sensitively weighed in a particular context against other values of a free and democratic society.
“the law of nations. . international organizations are subject to this system. Only states. Its main focus is the establishment of an elementary minimal legal order on a broad scale.” is a system coordinating the different laws from different countries. That accreditation thus dervices from the police powers of the state. o Two competing effects in various fields: the gain in legal security by the omnipresence of law in human society is compensated by the loss in orientation by the huge mass of norms. “conflict of laws. It is not the charter that is the problem but those who apply and interpret it. • International Law and the Public/Private Law distinction o Public international law.” is traditionally defined as the system of law governing the relations between states. Mainly private persons (natural and moral) are subject to this body of rules and its main focus is to render justice and fairness to individual litigants. the act of authorization has specifically been deemed workty of procedural fairness protection by the legislature. o Private international law. Significant failure of trial and appellate lawyers engaged in race talk in the courts and failure of the judiciary to adopt appropriate critical race standards when invited to do so. • The Charter of Whiteness o Thesis that the Charter has to date had very little impact on the racial injustice in Canada. o Court distinguished between the private and public actions of a public authority with a view to determining whether the public authority is subject to the Act respecting administrative justice.as an employee of CVMM in a manner that would otherwise contravene the law. While not all acts of the SAAQ are subject to public law. And noted that the SAAQ had not insulated itself from the requirements of administrative law by implementing a contract based scheme to meet its statutory duties. It responds to the question of applicability of foreign or domestic law within domestic courts. and more recently .
which came to govern aboriginal rights.SOURCES OF LAW • Law from History. Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty. o The paternalistic nature of the Indian act does not help Mitchell v Canada (2001) • English law. the federal Parliament has power over Indians and lands reserved for Indians. and recognized their continuance in the absence of extinguishment. 35 of the Constitution Act 1982. conquest or legislation. the Inuits and the Metis Connolly v Woolrich (1867) • Held that the assertion of English sovereignty did not annul the territorial rights. Custom and Tradition o Law and Aboriginal Peoples Three groups: the Indians. In 1982. and were absorbed into common law as rights unless: o 1) they were incompatible with the Crown’s assertion of sovereignty o 2) they were surrenderered voluntarily via the treaty process or • • . (Guerin v. Queen (1984) – recognized an obligation to treat aboriginal peoples fairly and honorably and to protect them from exploitation. accepted that the aboriginal peoples. by cession. political organization or the laws and usages of the Indian tribes. possessed pre-existing laws and interests. The provision protects existing aboriginal and treaty rights of the aboriginal peoples of Canada. Still this approach did not follow through in later case law. aboriginal rights were constitutionally entrenched in s. • • By virtue of S 91(24) of the Constitution Act. involving a fiduciary duty. The extent of these rights remains unsettled.
Noted that the content of aboriginal title can be summarized by two propositions: o 1) aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes. customs and traditions which are integral to distinctive aboriginal cultures and o 2) those protected uses must not be irreconcilable with the nature of the group’s attachment to the land. This second requirement is an inherent limit on title and means that this is not held in fee simple. 35(1) to common law aboriginal title. the rights under s. Alienation would bring an end to the entitlement of the aboriginal peoples to occupy that land and would terminate their relationship with it. which need not be to aspects of those aboriginal practices.o 3) the government extinguished them • The common law therefore rendered aboriginal rights extinguishable unilaterly until the Constitution Act of 1982. o At this time. in the pursuit of substantial and compelling public objectives. Delgamuuku v. then the group that successfully claims aboriginal title to that land may not use it in such a way as to destroy its value for such a use (eg. BC (1997) • • • Issue of the nature and scope of the constitutional protection afforded by S. 35(1) could not be unilaterally abrogated by the government BUT the government retained the jurisdiction to limit aboriginal rights for justifiable reasons. Dispute over territory in BC. • So for example. if occupation is established with reference to use of the land as hunting grounds. strip mining) Lands held by aboriginal title therefore cannot be alienated. • .
o BUT this limitation that restricts the use of land is not a limitation to only those activities that have traditionally been carried out on it.o Inalienability is a function of the common law principle that settlers in colonies must derive their title from the Crown grant and therefore cannot acquire title through purchase from aboriginal inhabitants. • Source of aboriginal title arises from Prior occupation of Canda by aboriginal peoples. Rather the approach allows for full range of uses of the land. instead it accorded constitutional status to those rights which were existing in 1982. this should not be taken to detract the possibility of surrender to the Crown for valuable consideration. So if aboriginal peoples want to use their lands in a way that aboriginal title does not permit. which is relevant in two ways: o The physical fact of occupation and One of the critical elements in the determination of whether a particular aboriginal group has title to certain lands. o Occupation means there is a special bond between the land and the peoples o That aboriginal title originates from pre-existing systems of aboriginal law • However. • The Consitution Act of 1982 did not create aboriginal rights. they must surrender those lands and covert them into non-title lands to do so. • Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by a particular group. subject only to an overaching limit defined by the special nature of the relationship of aboriginal title in that land. HELD : Three part test for aboriginal title: The land must have been occupied prior to sovereignty and • .
Staurt (1889) • In discussing whether the rule against perpetuities applied to new south wales. the crown or parliament may by statute declare what parts of common law and statutory law of England shall have effect within its limits but if this is not done. subject to modification by the Crown or Parliament where necessary to operate government and English common law was to have little or no authority. then the law of England must. which in British settlements was either common law or statutory law o Basically. Essetnially. become from the outset the law of the colony and be administered by its tribunals (Cooper v Stuart) And this law must prevail until it is abrogated or modified. • In practice therefore. the problem of determining whether it was settled or conquered was compounded by the aboriginal settlers as well as the French. either by ordinance or statute. there must be continuity between present and presovereignty occupation and At sovereignty. occupation must have been exclusive o Common Law and Civil Law (Bijuralism) The laws in force depended on how the colonies were obtained: • Settled colonies: a legal vaccum existed that must be filled and this meant that some form of law was required. If present occupation is relied on as proof of occupation presovereignty. here the law was instroduced not by statute buty by the silent operation of constitutional principles. • In North America. Cooper v. • Conquered or ceded (by aboriginals): pre-existing laws of the indigenous sovereign remained in force. subject to well established exceptions. . the rule of conquest was applied to central Canada and the rule on settlement everywhere else. noted that it had been settled and therefore all transactions in realtion to it were governed by English law in so fatr as it could be jjustly and conveniently applied to them.
Thus courts became arbiters of settlement dates and determined date of statutory reception to be the date of the institution of a local legislature in a colony. • Common Law o Two fundamental ideas: Judges do not make the law. • Once a decision was made by the Privy Council or the House of Lords on a common law principle. all common law jurisdictions would accept that decision as binding.o The rules of reception dictated that the entire body of English law both statutory and common was imported into the settled colongy. the dates of reception are not clearly demarked betcause there was no obvious statutory source providing for the administration of province ior colony. In the case of common law. the date of reception was important because it was used to determine which English statutory law applied: all statutes passed prior to that date were automatically received (unless clearly unsuitable) and remained in force. decisions operated retrospectively and applied to all colonies equally. they were intended to apply. Local exceptions and variances were allowed where the laws received would be unsuitable to the circumstances in the colony. Each development must be justified sby linking of it to a principle drawn from the preceding casse . In the case of statutory law. Even a statute that was repealed in England after the reception date would still be in force in the colonies unless it was clearly intended to be repealed in a colony. • In Canada. The passed after such a date did not apply unless expressly or by clear implication. o The ratio decidendi of a previous decision is ascertained after which we proceed by way of analogy. merely declare it and All relevant past decisions are considered as evidence of the law and judges infer from these precedents what is the true law in any given instance.
while statutes are viewed as incursions into the common law. it is largely true that cases remain a key source of law. o Adherence to legal principles established on past cases a foundational princinple of common law. v.o In Canada. Stare decisis – precedents are made up of principles from previous cases. leading to a more stable and certain legal structure. . OHRC (1990) Whether the terms of a scholarship trust are contrary to public policy. o Must look at two cases from two points of view: That of the narrowest rule that a subsequent court wil concede has been laid down and The widest rule that a later friendly court could use to support a more novel positions o Canada Trust Co. but the principles may arise from the interpretation of a statute or constitutional provisions • Allows for: o Stability and coherence which mean predictability o Provides fairness in decision making o Promotes efficiency and eliminates sources of error such as judicial bias o Recognizes the relationship between courts and the legilaslature o Two things about cases: Ratio decidendi (reason of deciding): which is a general rule that explains the result in the instant case and will apply to at least some other cases and it is the binding rule for purpose of predecent Obiter dicta (things said by the way): everything else said by the judge and not binding.
The code has laid out the procedures for vindication of that public policy. which means that here the appellant could request a change in the court. Claims that Bhaduria was a situation in which the court was deciding whether to fill in a void of in the common law by creting a new tort of discrimination. o EQUITY Developed in tandem with common law and was meant to prevent the harshness that could come from common law. the law of trust is inherently within the jurisdiction of the courts and furthermore the OHRCommission would not be able to alter the terms of the trust or make it void. rather than resorting to procedures in the actual Code and going through the Commission. The cases are decided according to rules of equity and good conscience and have no abstract formal methodology or strict precedents. . wheras in this case. Note that here there was a question of law not facts in dispute. Distinguishes the rule in Bhaduria – which stated that “the OHRCode not only forecloses any civil action based directly on a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. Usually deals with disputes relating to: • • • • • Property Contracts Procedure Guardianship Commercial matters (like fiduciary duties) The rules of common law and equity are now applied concurrently in all superior courts with equity prevailing in cases of conflict. and so it would have to come before the courts anyway.
and that the relationship between the Crown and the Indians was not a trust. in equity. o Here the wishes of the father were found to be in conflict with the child’s best interests. . and now the biological father was attempting to get the child Catholic because the Infants act stated that nothing shall challenge the authority of the father in respect of the religious faith in which his child is educated. o The nature of Indian tilte and the franworkl of the statutory schement establsihied for disposing of Indian lands places upoin the Crown an equoitable obligation. a principle was established that the court might control or ignore a parental right but in doing so it should act cautiously and should act in opposition ot the parent only when judicially satisfied that the welfare of the child required that the parental right should be suspended or superseded. this did not mean that the Crown. o Court held that while usually a trust is required for a ficuairy relationship. • Re DeLaurier (1934) o Here parents of a child who had been in the care of others for 10 years and raised as a Protestant. • Guerin v Canada (1984) o Question of whether Indians are entitled to recover damages from the Crown in respect of leasing to a golf club Indian land. did not have a fiduciary duty to the Indians. the rules of equity shall prevail. o Court noted that in equity . where the biological parents were Roman Catholic. now making inroads into public law. While typically used in private law. in which there is a conflict between the rules of equity and the rules of common law. o The court noted that the Judiciare Act in questions realting to custody and education of infants.
The crown is not normally viewed as a fidcuairy in the exercise of its legislative or administrative powers. As in political trust cases. • KLB v. it is nonetheless in the nature of a private law duty and therefore held that it is not improper to treat the crown as a fiduciary. the exercise of which required discretion. to deal with the land for the benefit of the Indians. do not typically give rise to a fiduciary relationship. o Court noted that the nhallmark of a fiduciary relationship is that the relative legal positions are such that one party is at the mercy of the other’s discretion. the mere fact however that it is the Crown which is obligated to act on the indian’s behalf does not of itself remove the Crown’s oblgiatioan from the scope of fiduciary duty. While it is neither a private law duty in the strictest sense. The Crown’s obligation with respect to Indian land is therefore not a public law duty. it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect. This obliagiotn does not amount to a trust in the private law sens. and that obligation carries with it discretionary power. o Court also noted that while fiduciary duties generally only arise in the private law context and that public law duties. The indian’s interest in land is a an indepdent legal interest and not a creation of either the executive or legislative banches of gov’t. the party thus empowered becomes a fidcuairy. If however the Crown breaches this fidcuairy duty. Equity will then supervise the relationship by hiolding him to the fiduciary’s strict standard of conduct.enforceable by the courts. one party has an oblgation ot act for the benefit of another. agreemtn or perhaps unilateral undertaking. It is rather a fiduciary duty. Where by statute. BC (2003) .
and includes doctrinal writings and interpretations by learned scholars.o Issue of whether and on what grounds the government can be held liable for the tortuous conduct of foster parents towards children whom the government has placed under their care (sexually assault and abuse case) o Court noted that there was no dispute as to whether the gov’t owed the kids a fiduciary duty. and judges proceed from the general to the specific. • The second source of law is legal scolparhsip (la doctrine) and the third is prior judicial decision. • Civil Law/Bijuralism o Arises not out of cases but out of established laws. written as broad legal principles. o Quebec’s civil law derives from its Civil Code. Instead. Court noted that unlike private law broad duties. but rather what the content of such a fiduciary duty imposes on the government. o Legislation is seen as the primary source of law. and therefore did not require a day to day monitoring. this was closer to a duty with the aboriginals. required loyalty and interest and not betraying that. o Emphasis on the primacy of written laws. o Held that crown not liable. The civil code of Quebec relies on civil law jurisdictions to preserve its civilian integrity but has married into it the common law. where in the case the Crown was negligent and did nto actually betray a fiduciary duty. The theory of civil legal drafting is therefore to enunciate general pricnipels. its provincial statutes and from federal private law. .
is the reason for civil laws existence in Canada. o Federal government is working to ensure that there is not too much discrepeancy between the common law in various provinces and the civil law in quebec and the concepts imparted in federal legislation. Canadien pacifique: at issue in this case was a provision of a federal act wherein the English veriosn provided that carriers were not liable for losses caseud by acts of god. taking into account the context of the legislation. o The division of powers provided for by the Constitution Act 1867 which grants jurisdiction over property and civil rights to the provinces. whereat the French version provided non-liabilyt for force majeure. The Quebec court took into consideration that the civil law system concludes that while the acts of third persons cannot be considered as acts of god in the common . o Civil Code of Quebec in 1994\ o The Constitution Act 1867 and the Charter in the Constitution Act require the use of both English and French in Parliament and both versions of statutes are equally authoritative. Although stare decisis is not part of Quebec law. Gulf Oil Canada v. court decisions are given considerable weight in judicial analysis. including the intent of the legislature that each provision in the ac tbe read cosnisstenly with the others and that the act as a whole be read in light of the legal family or system of law applicable in that particular jurisdiction. regardless sof his or her languge or legal system must be able to find terminology and wordig that are respectful of the concepts and institutions proper to the legal system in effect in the relevant jurisdiction. the reader. o The Policy on Legislative Bijuralism recognizes that when reading federal statutes and regulations. The equal authenticity rule must be applied in court in interpreting federal bilinguial legislation: • The English and French versiosn must be read in klight of each other.
• Quebec North Shore paper v Canadian Pacific: IN an effort at harmonization. they can be considered force majeure in the civil system. o The rule of equal authenticity also requires the courts. o Dore v Verdun: held that a court is free to reject a shared meaning between the two versions of a statute if it appears contrary to the intention of the legislature. in interpreting bilinguial legislation. looking also to the purpose and obkject of the statue. In other words. the Law of Quebec is called upon as the droit commun even with respect to some matters within the federal competence when that jusridiciton has not been exercised by the federal parliament. Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit. to extract the highest common meaning from the two versions that is consistent with the context of the provision.law system. court must examine the legislative history of the two linguistice versiosn of the provision. . The highest common meaning requires that the court read the two versions together and take the highest meaning In reference re Eduaction of Act of Ontario: here the English version refreed to minority language education facilitiles while the French versiou spoke of a guarantee of school managed by francophones – the court therefore found that the highest common meaning required the guarantee of schools managhed by francophones – the stricter standard. Where there is blatant conflict between the French and English versiosn. the court held that there is no general “federal judicially-created common law” which fills the gap where Parliament has not legislated on a certain matter. intent and meanidn of an enactment and that best ensures the attainment of its objectives.
purpose and history. statute law has long been the excepotion and this have given rise to cetain rules of strioct of narrow interpretation of statutes that are considered to be a departure from common law. the court must determine. interpreatation and apoplication take into account both civil and common law traditions. cpontext. not necessarily to achienve one rule to be applied uniformly throughout Canada. from a tex. o Unijural: a situation is said to be unijural when a legislative provision is based on a concept or terminology specific only to the common law in the English and French versiojus. • The need to recognize diversity however should ot inihibt the need for coherence and the need to reduce conceptual nad linguistic incongruence. unless otherwise provided by the legislator. Where federal legislation in relation to property or civil rights is silent and the use of complementary standards is required so as to ensure its application in Quebec.thte intention of the legislature. In common law countries. making the assumption tha the legislature does not contradict itself and is logical. Semi bijural: a situation is considered semibijural when a legislative provision is based on concepts and terminology specifc to civil law in the French language version and concepts or terminology specific to the common law in the English version. at the same time. Bijuralism: where two systems of law co-exist within a single country without interacting with each other. which looks for this intention having tregard ot the text. . Mixed law: where the drafting. federal legislation should not be applied uniformly throughout the country in every respect. While civil and common law complement the private law provisions of federal legislation. the civil law in force in that province is suppletive for the pruposes of interpretation. The objective is legal duality. o o o o Note that in both systems.
that is those that have no particular connection to either of the two legal systems in canda. which requires that all bills are prepared by two drafters – a francophone and an Anglophone. o We have civil francophones and anglophones. • The interpretation Act – proposed amendemnet provision which states that legislation that used both terms belonging to civil law and terms belonging to common law or that uses expressions that have different meaning in each of the two systems must be interpreted in a way that is consisted with the legal system of the province in which the provision is being applied. Neutrality technique: whenever possible. Doublet: A drafting techniqyue that involves stating the as it exists in each of Canad’s two legal systeman. o 1978 brought in co-drafting. . Simple doublet: involves expressing a given legal concept through the terminology of separate legally system. Jurilinguists are responsible for ensuring not only that the meaning of both versions of a piece of legislation are the same but that they are perfectly equivalent from a cultural point of view. • Doublet with paragraphs: sets out in separate paragraphs the fdifferent forms that a rule of law may take as it is applied in different regions of the country. Parlaiment prefers to use neutral terms or phrases. In civil law countries: the code is general law and is interpreted broadly. common law francophones and Anglophones (four different audiences for the law) o Techniques of bijural legislative drafting. • This can take tne form of definitions in which Parliament defined civil or common law concepts and notions to which it wishes to refer by using netural terms in question. o Quebec is subject to both the civil law in the case of its private law and the common law in the case of its public law.
which manslaughter did not require for conviction. In such cases. Hilaire v. a standard foreign to the private law of the province of application makes up for the incompleteness of the gederal legislative standard. because the former are presumed to better represent the thought of the legislator. • As a result. Problem with regards to the fact that she pleaded to manslaughter while the civil code required an attempt at killing the person. thereby ruling out any applcaiiton. . Interpretations favoring harmony between statutes should prevail over discordant ones. theis antimony may be eliminated by applying an interpretive procedure to reconiel them. civil law is applicable when the federal legislative mechanism fails to bring to bear all the necessary elements for its implementation or when the concepts of provate law used by the federal Parliament are not otherwise define. the civil law in effect in that province constitutes the suppletive law to which the interpreter must turn unless otherwise indicated by the Fedearl Parliament. In order to be consistent. of that provinces law. Canada (2001) Respondent killed her husband and then wanted to collect the money from his pension. Where a federal law and the civil law turn out to be antimonial. as a suppletive measure. legislative drafters are expected to respect the principle of uniformity of expression: each term should have only one meaning. o The rule of complemntarity of federal and civil law is subject to exceptions referred to as dissociations. which was intended to require a certain frame of mind. each concept one expression. o St. Where parliamentary legislation relating to property and civil rights remains silent and where recourse to secondary standards is necessary in order to ensure proper application to Quebec.
agreements. An international treaty may require Canada. covenants. Here because the federal statute in question did not define surviving spouse and succession. o Treatises are binding on the states that signed them and no one else. o Negotiated and signed by the federal government. Dualism: considers domestic law and treaty law as two distinct universes. The court noted the different areas where Quebec civil law recognizes the principle that no one should profit from his or her crime. to change its domestic law. that treaty has not direct effect in domestic law . the court had to look to Quebec civil code. charters and statutes. protocols. • The government must ensure that domestic law does not run counter to international law. Canada is bound to comply with it or risk being found in contravention. But in the dualist tradition. as a matter of international law. Once a treaty is signed and ratified. o International Law 2 most significant sources of international law: • Treatises and o Note that treatises include conventions. Civil law can complete federal law by addressing that which federal law did not forsee but which is necessary for its implementation or that which can be added without interefering with Parliament’s purpose. Court first noted the Quebec law is complementary with federal law where the latter is silent and that there has been an attempt to harmonize the effects of federal statues in order to avoid possible inequities as a result of disparities while acknowledging the right to be different where harmonbization proves impossible.
• o There are no clear rules on when a treaty has been transformed or implemented into Canadian law. In many cases. the government’s treaty making power could enable the executive to do an end-run around Parliament’s federal law making monopoly or use it to legislate in provincial areas. • Problematic where Parliament fails to implement treaty law into domestic law because then Canada is bound to follow the treaty as a matter of international law and yet its policy makers need not abide by the treaty under the terms of domestic law. it is the provincial legislatures who must legislate the treaty into domestic law. Therefore. existing statutes already conform to these obligations. but with their role limited to stamping approved on a treaty concluded exclusively by the executive branch. o Solved if the federal government delays ratification until Parliament and the provincial legislatures revise laws to bring them into compliance with the treaty. • This makes some sense because if treatises entered into by the federal executive had immediate and direct effect as the law of Canada. . o In constitutional law. when a treaty deals with provincial matters. Canada requires that treatises be transformed into domestic federal law by an Act of Parliament. They may choose to disregard the international obligation. preserving their supreme law making rold in Canadian democracy at the potential cost of Canada’s adherence to international rule of law or they may implement these international requirements into domestic law.until domestic legislation is passed to transform or implement it into Canadian law. Parliament and the provincial legislatures may face a quandary where the law is not consistent with a treaty.
where a treaty signed actual bans deporation to torture. while motivated by the unimplemented treaty. Suresh v Canada (2002) considered whether deporation to torture violated constitutional law. while it still could speak to Canadian law. o Once a rule becomes recognized as customary law. Canada can meet its international obligations through the formulation of policies. Two ingredients: • • State practice AND Opinio Juris When these two ingredients become sufficiently widespread amond the states of the world (a threshold not clearly defined by international law) the practice is said to become legally binding as customary international law. – (a Monist rather than dualist approach) . • Customary international law o Binds all states. though canada’s law is silent on the subject. Universal Declaration of Human Rights). is not actually in compliance with it. o However. (EG. setting the bar high for what courts accept as implementation can have some strange effects. excepting those that have been sufficiently persistent in rejecting it prior to its emergence as a binding norm. but permitted deportation even in danger of life. meant that Canada could deport to torture only in extreme circumstances – the result that Canada. In other cases. o Formed by general and universal state practice undertaken by states with a sense of legal obligation (called opinion juris). Tehrefore noted that since the treaty had been unimplemented. it is automatically a part of the Canadian common law. even though courts are willing to use unimplemented treatises as important interpreative adis.
Since the court noted that the Convention had not been implemented by Parliament. In so far as possible. interpretations that reflect hese values and principels are preferred. Court took into consideration canada’s ratification of the Convention on the Rights of the Child. its provisions have no direct application within Canadian law o Nevertheless. therefore. So far as possible. Therefore • • • • . Noted that international treatises and convenetions are not part of Canadian law unless they have been implemented by statute. “Customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contract legislation. But directly-incorporated customary international law can always be displaced or overturned by a statute that is inconsistent with it. domestic legislation should be interpreted consistently with those obligations” Ontario court of appeal Baker v Canada (Minister of Citizenship and Immigration (1999) • Canadian resident with Canadian citizen children applied for an exemption under compassionate grounds from the requirement that an application for permanent residency be made from outside of Canada. Court first noted that it would not consider the Charter issues raised because the case could be resolved under the principles of administrative law and statutory interpretation. o Noted that the legislature is presumed to respect the values and principles enshrined in international law both customary and conventional. an international law treaty. immigration officials are bound to consider the values expressed in this convention when exercising discreation. • Court held that even though Canada had never explicitly transformed its obligations under the Convention ont eh Righs of the Child into domestic law. the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
whether implemented or unimplemented treaty or custamry the same. • Courts face a delicate balance in the application of international law – must balance canada’s international commitments. which have been made by the federal gov’t with the legislative supremacy over the laws that apply in Canada. they do not give international norms concrete legal effect in individual cases. as rtelevant and perhaps persuasive but not as determinative or obligatory. o Acutally tend to treat all international law. or inadvertenly grant the executive the power to bind citizens wihtou the necessity of involving the legislative branch. But while courts mention and use international law. o The dissent noted that one should proceed with caution in deciding matters of hthis nature lest we adversely affect the balance maintained by Parliamnetary tration. Three sources of international law: o Treaty • • . because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system. • The dissent however noted that an international convention ratified by the executive branch of the government is of no force or effect within the Candian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation. Hesitant Embrace: The application of international law by Canadian courts • Noted that the Supreme has confirmed that international law is potentially relevant not only to the interpretation of federal. proviing and municipal legislation and regulation but also to the exercise of administrative discreation thereunder. o Did not agree that reference should be made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law.the conventions’ emphasis upon the best interests of the child should have weighed heavily in considering the application.
a state pledges that it will uphold and implement all the provisions of the treaty. In Canada. International treatises are not directly applicable in Canad but require transformation. A state is only bound b y the treaty’s particular terms if it ratifies the treaty according to the particular procedural requirements of its constitution. Under Article 26 of the Vienna Convention. • . treaty obligations must be performed in good faith. The defining features of a treaty are that it is a binding agreement between staes reduced to writing. It is commonly the case that signing a treaty merely commits a state not to do anything to defeat the objects and purposes of the treaty and is not intended to signify consent to be bound by the specific obligations contained in the treaty. o Any legislative transformation must occur within the jurisdictional framework set out by the Constitution Act of 1867 which implies that various legislatures reserve their power to legislate in a manner inconsistent with Canada’s intenaertional treaty obligations. the executive controls both the signature and ratification of international treatises. • Transformation is an explicit legislative act through which Parliament or a provincial legislature adopts the treaty obligation and implements it within Canadian Law. which means that by becoming a party to a treaty. • A treaty is only bidning on the parties when it has entered into force. Transformation generally requires legislation that enacts treaty obligations into domestic law. • Common law principle that Parliament is not presumed to legislate in breach of a traty or in a manner inconsistent with the comity of nations and the established rules of international law.
common law or even administrative policy conformity with the new treaty obliation. the court should not only resort to the relevant treaty to identify ambiguities but must also strive to resolve them . whether in its body or as a schedule. (the authors argue that it would be absurd to require explicit implementation in this case) o Once a Candian treaty has been transformed into Canadian law. the court must adopt an interpretation consistent with Canada’s obligations under the treaty. its provisions should be determinative in the interpreationa of domestic legislation. Or a preambular statement may indicate that a given piece of legislation is passed to fulfill specific treaty obligations.o Howerver. there are many ways in which such implementation can be accomplished: A treaty may be incorporated directly by reproducing all or part of its text within a statute. Can occur as a result of prior statutory. o Where there is uncertainty as to whether or to what extens a statuet is implementing a treaty. Thus unless the legislator’s inetn to deviate from interntional treaty obligations is evident. A court must rely on the treaty to interpret the statute as well as on the international rules of treaty interpretation to interpret the treaty and resolve any textual ambiguities. When the purpose of a statute is to implement an international treaty. courts can resort to vaiorus interpretive presumptions: The treaty text may not merely be relied upon to resovle a patent ambiguity in the domestic legislation but may also be drawn upon by the courts at the very beginning of their analysis to determine whether the domestic legislation is ambiguous. “inferred implementation” occurs through the enactiment of new legislation or throough the amendemnet of existing legislation.
is nonetheless subject to the presumption of legislative intent to act in accoradning with Canada’s international obligations. the presumption of conformity has been rephrased as an obligation to use international human rights law as guidance in interpretation. Courts should therefore make every effort to interpret Canadian law so as to conform with Canada’s international obligations. . With respect to the Charter. This applies as well to ordinairy statutes and the common law. decisions onf international and national courts. opinions of national legal advisors and the practice of international organizations. then the states party to that treaty are bound by the norm both as a matter of treaty law and as a matter of customary law.through an interpretation of the staute that is consistent with intenerational law. and there are no grounds for holding that when customary international law is comprised of rule sidentical to those of treaty law. o Custom Note that if a norm of public international law exists both in custom and treaty. while not bidning on Canada. at least as concerns civil and political rights.. diplomatic correspondence. the latter supervenes the former. The existence of a binding rule of custom is proven with reference to two distinct but inter-related elements: • State practice AND o Can be evidenced in a number of ways. o Authors argue that a treaty that is unimplemented. Non-exhaustive list of forms of state practice: treatises. so that the customary internantional law has no further existence of its own. Most authoritative prounoncement is found in the work of the International Law Commission.
one must consider the consistency and generality of the practice. • Opinio juris o The belief that a practice is required by law is what turns mere usage into custom. Substantial consistency is necessary (if a practice is ambiguous or contradictory. o may be sought in the unilateral pronouncements of states or derived from declarations of intergovernmental organizations. o Hard to prove subjective belief of a state and therefore the option is to infer the opinio juris from the material practice. o Practice can be both psositive or negative: Can be built on positive assertions of right through statements and actions but also can be resisted by contrary practice and rhetocirc. doctrinal writings. then no custom can emerge) Complete universal practice is not required but a general or widespread practice is. o An effort should be made to determine whether or not a practice is supported by states in different regions. o The existence of a binding custom is not predicated on long usage. .o In weighing the normative value of state practice. and public opinion expressed in the media and among opinion leaders. and passage of time is only relevant to an assessment of the consistency and generality of the practice. The ICJ has indicated in two judgments that it expects indepdnent proof of opinio juris.
While soft law may not be directly used to found a causeo f action it has both a legitimizing and delegitimizing direct effect: it is extremely difficult for a state that rejected some instrument of soft law to agure that behavior in conformity withit by those who accepted it is illegimiate. Based upon the premise that certain principles are important and should ideally be used to shape international law and policy even if they are not binding. Finally a third view is that general principles are simply abstractions from a variety of national. em ployed when functionally necessary. o Soft law The most common meaning ascribed is a non binding written instrument setting out international principels (UN General Assmebly resolutions) and can be included in treatises when written as should rather than shall. Another view is that the general principles reflect the underlying natural law. it does not preclude the lawful domestic authorities from legislating contrary to custom. Guzman v Minister of Citizenship and Immigration (2003) . international and doctrinal sources. Even when customary international law operates of its own force. • This means that it is difficult for a state to claim that other are not free to act according to its terms. o General principles Includes the borrowing of rules from national legal systems to supplement the rules found in treaty and custom. alloing decision makers to except conclusions by invoking non liquet) • This way the general principles are derived from the application of a more of less rigorous comparative law mehtoldly. (this helps to ensure that there are no gaps in international law.
f states that the IRPA must be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. 3. when considered in context of the legislative scheme as a whole. If it is. in the absence of clearly expressed legislative intention to the contrary. does not incorporate them into Candian law. Court noted that if Parliament had wanted to given priority to the specified international instruments over its own domestic legislation.• Here woman came to Canada and lied that she only had one child. and after becoming a citizen. which means that she would not have been able to get permancy in Canada had this been known at the time. • • • • o Then determine whether the staute in question should be interpreted as not authorizing the making of the regulation that renders it non-compliant. it is inconsistent with an international human rights instrument to which Canada is a signatory. applied to have the two sons that she had while married. that ends the inquiry. which protect the right of families to live together and the best interests of the child. Argued in part that the immigration paragraph preventing her from bringing in her sons was inconsistent with international human rights instruments to which Canada was a signatory. Court also ntoed that the statute in section 3. Two step analysis: o First determine whether the IRPA is compliant with international obligations. (this step was not necessary because the court found IRPA compliant) o Statutory Law Parliament and legislatures are free to enact new statutes to displace the common law. it could be expected to have said so explicity. . Court noted that because the human rights instruments which are relied upon create legal obligatiosn to which Canada is bound. go to the second step. That is whether. to bring them into Canada and was denied. If it is not. it makes them determinative of the meaning of the IRPA.
ignored or devalued and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. o Complexity in Canadian Law Making Halpern v Canada (AG) 2003 • Issue of whether the exclusion of same sex couples from the common law definition of marriage breaches the Charter of Rights and Freedoms in a manner that is not justified in a free and democratic society under s. A statutory rule will supercede a judge made rule. not excluding the courts but wrapping htem into it.1 of the Charter. • But this may wade into murcky territory where the statutory scheme does not expressly overturn a common law rule or where the common law ventures into new territories. Court noted that human dignity is harmed when individuals and groups are marginalized. Court noted that the definition of marriage is found at common law. Also noted that the common law is subject to Charter scrutiny where government action or inaction is based on common law rules. o Bhaduria v. Therefore the Code excludes any coomon law action based on an invocation of the public policy expressed in the code. Board of Governor’s of Seneca (1981 – Supremes) Court held that the Ontario Human Rights Code had prescribed the procedure to be used for its violation and therefore the public policy underlying it could not be used to create a new common law. This is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime. Board of Governor’s of Seneca (1979 – Ontario Courtof appeal) Court held that the Ontario Human Rights code was public policy which could be used to underlie the new tort of discrimination under common law. o Bhaduria v. • • • .
a differently constituted majority of the court held that there was no legal barrier to the federal government seeking a consistutional amendment without any provincial consent. . o The court noted that this argument is without merit for two reasosn: Whether same-sex couples can marry is a matter of capacity and there can be no issue that parliament has authority to make laws regarding capacity. The respondent argued that marriage is a constitutionally entrenched term that refers to the legal definition of marriage that existed at Confdeeration. AG Canada 1930) • o Held that the term marriage does not have a constitutionally fixed meaning and has the constitutional flexibility necessary to meet the changing realities of Candian society without the need for recourse to constitutional amendments procedures. the federal gov’t having exclusive jurisdiction over Marriage and divorce and the provincial gov’t having exclusive jurisdiction over the solemnization of marriage.• Court also noted that the Constitution act of 1867 divides legislative powers relating to marriage between the federal and provincial governments. where the Parliamant and courts therefore do not have jurisdiction to reformulate its meaning. such authority is laid out in the Consistuation Ac tof 1867. (meaning one man and one woman) and therefore can only be amended through the formal constitutional amendment procedures. amendements to the Constitution require a substantial degree of provincial consent. which marks the constitution as “a living tree capable of growth and expansion within its natural limits. However. And that: To freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country’s jurisprudence of progressive constitutional interpretation. o Conventions Re Resolution to amend the Consitution (1981) • Court affirmed the existence of an unwritten dimension to the Consitution and the majority held that by consistutional convention.” (Edwards v.
rights or privileges of the provinces. • • .• • Court held that the proposed changes to the Constitution would indeed affect the powers. Court also held that the federal government had the legal authority to unilaterally seek the amendment of the Constitution without consent of the provinces. crystallize into law. Cout also held that constitutional conventiuosn existed in Cnaada and a majority found that the federal gov’ts plan to seek the amendment of the constitution without provincial consent did indeed violate such a convention. even through long and rigorous usage. But that the majority also agrued it was not the role of the courts to enforce constitutional conventions. Authority for the proposition that a convention cannot.
Judicial indepdence: the judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional law functions. Constitutional supremacy: the Constitution is the supreme law of the society and any ordinary law that is inconsistent with the Constitution is of no force or effect. Parliamentary supremacy: Subject to the Constitution. Statutory authority: The executive branch of the state derives all its authority to act from statutory grants of power from the legislative branch. the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it deems fit.FUNDAMENTAL PRINCIPLES OF CANADIAN LAW • • Public law concerns the relationship between the state and civil society. and provincial legislatures. or Parliament. save and except for certain powers derived from “royal prerogative” and constitutional convention. Federalism: Legislative sovereignty in Canada is divided between a national legislature. o o o o o . Six principles of public law: o Rule of law: all exercises of legitimate public power must have source in law and every state official or agency is subject to constraint of the law. according to a division of law-making powers or jurisdictions set out in the consistitution.
a principle enforceable by the judiciary. meaning that even the most powerful state organs and officials are subordinate to the law and must therefore act in compliance with law. o The Constitution serves as the law to make a law and therefore sets the ground rules for law making and governance. including the Constitution.52(1) of the Constitution Act 1982. Here a bar owner had his liquor license taken away because he gave bail to some Jehovah’s Witnesses. Canada (2003) Here the public wanted documents that the privy council stated where.• The Prinicple of the Rule of Law o Requires that society should strive to operate on the rule of law rather than the rule of men and women. (necessary prerequisite to constitutionalism and broader than it) o Roncarelli v. which was his legal right to pay their bail. Dupleiss (1959) A pre-Charter case in which the court rejected the idea that any statute could delegate such untramalled power to a government official. under the Canada Evidence Act s 39. o Singh v. which provides that the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with it has no force or effect. The rule of law principle requires that all government action must comply with the law. o The supreme court has noted that the constitutionalism principle bears considerable similarity to the rule of law although they are not identical. Statutory power must be limited to the express or implied purposes for which they are granted. Requires that all government action comply with the Constitution. undisclosable because they contained confidences of the Queen’s counsel and prevents the court from examining them to determine whether the privy council clerk is correct. which he did for no other than reason than to get back at the bar owner for helping the Jehovah. and because the license was statutorily able to be taken away at the Minister’s discretion. . The essence of constitutionalism is embodied in s. or tha thte premier could manipulate his own powers to pursue a vendetta.
Then noted that s. All this of course must be done within the conficen of S. o BASICALLY: the relationship between the state and the individual must be regulated by law. Court noted that if the on law for all actually required that all the laws be the same. . Trial court concluded that s. 39 is intra vires and therefore the principles of the Constitution were not applicable. and that the rule of law is not actually a guarantee of the paramountcy of common law and that in fact. to fashion a content of laws appropriate to the different persons and bodies they regulate.. Court noted that the elements of the rule of law have been confirmed to be (Quebec Secession): • • • That the law is supreme over the acts of both government and private persons (one law for all) That an actual order of positive laws be created and maintained to preserve “normative order” The exercise of all public power must find its ultimate source in the legal rule. The rule of law does not mean that the law must produce the same results in respect of every citizen and institution in this country: differently situated persons and public bodies require different treatment and it is part of the art and science of the lawmaking. to deterien whether it was an arbitraty action. the actual order of positive laws in our system makes valid legislation paramount over the common law. that would reduce the supremacy of Parliament by suibjecting it to the scrutiny of judges ot be sure it did not offend the rule of law and if it did. for long standing reasons based on constitutional principles such as responsible govenremnt. 39 is a law. have been dterated differently than would those in a private commercial law suit. Court held that the rule of law does not preclude a special law with a special result dealing with a special class of documents which. 15 of the Charter.Argued that this was unconstitutional and inconsistent with the fundamental and organizing principles of the Constitution. both by legislature and the courts.
Reference re Secession of Quebec (1998) • • Court stated that unwritten principles have the force of law and impose substantive limits on the power of government. the Supreme court has also confirmed that the Constitution includes unwritten principles. • • • Primarily known for the Canadian Charter of Rights and Freedoms. equalization and constitutional amendment.• What Comprises the Constitution of Canada o Canada’s Constitution is embodied in two documents: The Constitution Act of 1867 and • The principle achievement here was the federalism – the division of legislative powers between a national Parliament and the legislatures of the provinces. But also deals with aboriginal rights. o These supporting rules and principles include constitutional conventions and the workings of Parliament. While this act notes that the Constitution includes written text. Court noted that the Constitution includes texts which have a primary place in determining constitutional rules. • Noted that there were four fundamental and organizing principles of the Constitution (which is not exhaustive but especially applicable to the case at bar) o Federalism o Democracy o Constitutionalism . they are not exhaustive because the Constitution embraces unwritten rules as well as well as the global system of rules and principles. the Constitution Act of 1982. which guarantees a set of individual and minority rights.
nor does any one principle trump or exclude the operation of any other. The Tobacco companies argued that the legislation breached the unwritten constitutional principles of judicial independence and the rule of law.o Rule of law • Noted that the historical context of the Constitution informs is underlying principles and that these principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based. But they can only be used to supplement the text and cannot be used to override it. (2005) • The BC legislature enacted a retroactive statue which created a civil cause of action for the BC gov’t against tobacco manufacturers with respect to health care costs incurred by BC as a result of illness resulting from tortuous or other misconduct by tobacco manufacturers. • • • • . These principels are not merely descriptive but are also invested with powerful normative force. That several features of the statute violated substantive norms of the rule of law principle. o Note that this means that unwritten principles can be identified and elucidated only by the courts. because it promotes legal certainity and predictability and provides a foundation for the exercise of judicial Constitutional review. However. o But that the preamble incorporated certain constitutional principles by reference and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of the gaps in the express terms of the Constitution. • These underlying principles have full legal force and give rise to substantive legal obligations which constitute substantive limitations upon government action. BC v. Noted that the four principles were symbiotic and no single principle can be defined in isolation from the others. and are binding on both the courts and the governments. noted the primacy of the written Constitutional text. Imperial Tobacco Canada Ltd.
o The rule of law constrains gov’t action. Conventions represent accepted understandings of how organs of the government operate. and in terms of the legislative branch. erquires that they must comply with legislated requirements as to manner and form (follow the procedures by which legislation is enacted. • Constitutional conventions are another species of constitutional unwritten law. that it requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order (means that legislation must exist) o And requires that the relationship between the state and the individual be regulated by law (means that state officials’ actions be legally founded. legislation that conforms to that text. including government officials. by whatever its terms. • Then stated that the rule of law does not have any principles which speak directly to the content/terms of legislation. etc.• • Court unanimous in its decision. to whom it by its terms applies) o Seocndly. including all the branches. Held that the Act did not implicate the rule of law in the sense that the Constitution comprehends the term and that therefore the Act is not unconsituttional by reason of interference with it. • Resolution to Amend the Constitution o Court made several findings about the nature and effect of conventions of the Consitution: . Court first noted that the rule of law embraces three principles: o That the law is supreme over officials of the government as well as private individuals.) • Then noted that the rule of law is not a tool by which to avoid legislative initiatives of which one is not fond and actually it requires that courts give effect ot the Consitution’s text and apply. and thereby preclusive of the influence of arbitrary power (basically that legislation be applied to all those.
o The court located a normative reason for a convention of “substantial provincial agreement” in the federal nature of the Canadian democracy. o Essentially noted that conventions are rules and principles of responsible government. o Stated that a lack of precision could not prevent a principle from acquiring the statue of a conventional rule. o The court noted that the reason for the rule of having substantial provincial consent required for amendment is federalism. They acquire and retain their binding force by agreement. entrusted with the exlcusive administration of . Conventions come into existence on the basis of three factors • • A practice or agreement developed by political actors (What are the precedents?) A recognition by political actors that they are bound to follow the convention (did the actors in the precedents believe they were bound by a rule?) The existence of a normative reason (purpose) for the convention (is there a reason for the rule?) • Conventions are not law. o They are not enforced by the courts because they are not judge made rulez. and ultimaley in the realm of politics. because the candaidna constitution’s object was neither to weld the provinces into one nor to subordinate provincial governments to a central authority but to create a federal gov’t in which they should all be represented. o The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values and principles of the period. rather they are based not on judicial precedents but on precedents established by the institutions of government themselves. and as such cannot be enforced by the courts. However. Baed on custom and precedent. courts can recognize a covnetion.
affairs in which they had a common interest. . o The purpose of the rules is therefore to protect the federal character of the Canadian constitution and prevent the anamoly that the House of Commons and the Senate could obtain by simple resolutions that which they could not validly acoomplish by statute. o Then noted that the federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities. each province retaining its indepdence and autonomy.
Noted that the constitution binds the federal and provincial government. The Government cannot transgress constitutional provisions and their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution and can come from no other source. A constitution may provide for a division of political power that allocates political power amongst different levels of government. It is predicated on the idea that the political representatives of the people of a province have the capacity and power to commit that province to be bound into the future by the constitutional rules being adopted. including the executive branch. That all government action must comply with the Constitution. Therefore amendements require some form of substantial consensus. including the Constitution. • • • o Hierarchy of Law Constitutional Law Ordinary Law: . A Constitution must be entrenched beyond the simple reach of majority rule for three reasons: • A constitution may provide an additional safeguarad for fundamental human rights and freedoms which mist otherwise be susceptible to government interference.• The Principle of Constitutional Supremacy o Reference re Secession of Quebec (1998) Constitutionalism principle effecitvely provides that the Constitution of Canada is the supreme law of the society. A constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. while the rule of law principle requires that all government action must comply with the law. Noted that democracy in Canada is not simply majority rule.
the power for judicial review should be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature and whose members are usually vulnerable to removal with every change of government. Martin (2003) o Court observed that the relevant question is whether the tribunals’ mandate includes jurisdiction to rule on the constitutionality of the challenged provision. This question is answered by applying a presumption. • o Adjudication The judiciary has the authority to interpret and apply the Consitution (which makes sense because cannot vest the power to make laws and also to test them against the constitution in the legislative authority) This requires judicial indepdendence to make sure that the interpreters of the constitution are free from political interference in their decision making. Recently. . • Cooper v Canada (1996) o Held that as a matter of constituitional principle. argument about whether administrative tribunals should be entitled to interpret and apply the Charter to invalidate legislation. (This view contrary to the dominant jurisprudence and expressly rejected by the court in the case below) • Nova Scotia (Workers Comp Board) v. based on the principle of constitutional supremacy.• • Statute law is primary (and binding so long as not inconsistent with the constitution) Common law is secondary (note that recent developments to earlier limits on the degree to which the common law could be measured against the charter – now the charter has farther reach to influence the development of common law) The doctrine of parliamentary supremacy stands for the proposition that a rule of common law can be overridden or amended by express statement of the legislature in the form of a statute.
Held that the AB legislation was unconstitutional and the appropriate remedy was to read in to the list of grounds protected from employment discrimination in the AB legislation the phrase “secusal orientation” so that the AB statue could comply with the Constitution. o Constitutional Supremacy and Human Rights Law The Supreme court has described human rights law as quasi-consittuional in nature.that all legal decisions will take into account the supreme law of the land. Vriend challenged the Alberta legislation as unconstitutional under the Charter. • • . human rights statutes deserve and broad and liberal interpretation and can be used to interpet provisions in other legislation. an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether the law is constitutionality valid. which had determined sexual orientation to be analoguos to the grounds enumerated for equally deserving of constitutional protection. • This means that human rights and anti-discrimination laws are important to individual rights in Canadian society and closely related to other civil liberties protected in the constitution and Due to their significance. • Vriend v Alberta (1998) • Guy got fired from private Christian college becaue he was gay and he could not sue because the Alberta legislature specifically by policy had left sexual orientation out of its human rights law. Thus as a rule.
• The Exercise of Public Power in Canada o Separation of Powers Doctrine Refers to the division of governmental functions between the legislative. • So that the prime minister and members of his Cabinet who comprise the executive council advising the head of state are elected members of the legislature. executive and judicial branches of the state. The parliamentary system also contemplates an overlapping of personnel between the legislature and the executive. judicial and executive functions and does not insist that each branch of government exercise only its own function. Canada (2003) • Here the public wanted documents that the privy council stated where. Each branch is defined by its relationship to law: • • • Legislature (making of the law) Executive (implementing the law) Judicial (interpreting and applying the law) Different than American separation – Canada gives pre-eminence to the legislative branch. to which the executive is made subordinate. Singh v. Court has noted that there is no general separation of powers in Canada and that the Constitution does not separate the legislative. But the distinction is important to public law in Canada because it serves two principle purposes: • • A functional purpose of identifying the institutional homes of each of the three major forms of public power and A normative purpose in providing general boundaries for the operation of each institution. under the Canada Evidence Act s 39. undisclosable because they contained confidences of the Queen’s counsel and prevents the court from examining them to determine whether the privy council clerk is .
Noted that if our government must conform to some concept of separations of powers. executive can’t force a judge to testify as to how and why he or she arrived at the conclusions reached in the judgment) Noted that it is fundamental to the working of a government as a whole that all these parts play their proper role. it should embrace a mutual respect amon the various branches so as to reflect and enhance their respective roles. • • • • • . Appellants argue that there is a doctrine of separation of powers which prevents Parliament from giving judicial function to the executive. does not necessarily require a separation of powers. (ie. It is equally fundamental that no one of them oversteps its bounds. Parliament and the provincial legislatures may properly confer other legal functions on the courts. and may confer certain judicial functions on bodies that are not courts. Court noted that the preamble. 39 does not actually interfere with separation of powers. 39 is intra vires and therefore the principles of the Constitution were not applicable. the issuance of a s. which prescribes for a constitution similar to that of the UK does. • • Trial court concluded that s. Argued that this was unconstitutional and inconsistent with the fundamental and organizing principles of the Constitution. the Canadian constitution does not insist on a strict separation of powers. Furthermore. given that the UK does not actually have one. 39 cetificate as judicial in nature because it involves the determination of whether a court should have access to certain evidence. They characterize the issuance of a s. that each show proper deference for the legitimiate sphere of activity of the other. Even so.correct.
s. Canada’s federal and provincial legislatures were understood to be the sole sovereign holders of state authority.o Legislative Power Divided between the federal legislature. a compromise was reached with the federal government wherein it included an override provision. This was meant to reassert parliamentary sovereignty in an attenuated form. which allows either Parliament or a provincial legislature to enact legislation in contravention to certain charter rights if the legislation contains an explicit declaration pursuant to s. and the elected legislature in each province. comprising the elected House of Commons and an appointed Senate. Prior to the Charter.33 in the Charter. Principle of Parliamentary Supremacy • Court has noted that with the adoption of the Charter. • • • . Applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear statutory statement to the contrary. 39 (with regards to disclosure) as the provision is ultra vires Parliament because of the unwritten principles of the Canadian constitution. o The court noted that the unwritten principles must be balanced agisnt the principle of Parliamentary sovereignty. o The respondents in this case challenge the constitutionality of s. When the charter was being drafted. despite the docs having already been disclosed. o Noted also that federal Crown privilege is part of valid federal law over which Parliament had the power to legislate. 33 (known as the notwithstanding clause). Canada AG (2002) o The government of Canada sought to rely on a statutory right of non-disclosure of Cabinet docs. or parliament. Babcock v. the Canadian system of government was transformed to a significant extent from a system of parliamentary supremacy to one of constitutional supremacy.
o Court noted that the grundnorm with which the courts must work in this context is that of the sovereignty of Parliament. Canada (2003) o Here the public wanted documents that the privy council stated where. applying and enforcing its statutes.o Court held that it is well within the power of the Legislature to enact laws as long as it does not fundamentally alter or interfere with the relationship between the courts and other branches of government. o Court noted that both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution. Argued that this was unconstitutional and inconsistent with the fundamental and organizing principles of the Constitution. While the courts must determine the meaning of statutory provisions. The ministers of the Crown hold office with the grace of the House of Commons and any position taken by the majority must be taken to reflect the sovereign will of Parliament. o The appellant’s argument was that parliamentary sovereignty is not one of the principles of the constitution. • Singh v. o One must look at the specific requirements of the Constitution to determine whether in a given case Parliament has infringed a constitutional limit (express or implied) on its power. under the Canada Evidence Act s 39. o Issue whether section 39 is ultra vires Parliament. undisclosable because they contained confidences of the Queen’s counsel and prevents the court from examining them to determine whether the privy council clerk is correct. o Trial court concluded that s. 39 is intra vires and therefore the principles of the Constitution were not applicable. . they do so in the name of seeking out the intention or sovereign will of Parliament. o It is the prerogative of the a sovereign parliament to make its intention known as to the role the courts are to play in interpreting. or ceased to be in 1982.
it is not appropriate for the court to intervene by virtue of the simple fact that Parliament has directed they must not. it necessarily follows that they can make the privilege absolute. the legislation is valid and effective. noted that legislation cannot be presumed to be unconstitutional simply because it alters the common law. which would allow a judge to review the documents. o • In a federal system of gov’t such as Canada’s. this appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-established and well-accepted principles of Cabinet secrecy. Reference re Secession of Quebec (1998) o Court noted that our policital and consittutioanl practice has adhered to an underlying principle of federalism. political power is sahred by two orders of gov’t – federal and provincial and each is . saying that Parliament cannot make the privilege absolute amounts to a denial of parliamentary supremacy. o Once it is admitted that Parliament and the provincial legislatures have the power to legislate. In my view. and has interpreted the written provisions of the Constitution in this light. o Even though this is a different policy than the common law. and to denying parliament and the legislatures their sovereign power to legislate in their respective fields of jurisdiction. o Held that prima facie. Principle of Federalism • Court recognizes federalism as an unwritten principle of the Canadian Constitution which is the means of recognizing cultural diversity at the founding of Canada. o Court held that the principle seems well established that such legislation is clearly within the legislative power of Parliament and the exercise of its supremacy. In the absence of some clear and compelling constitional imperative to the contraty.o As a constitutional matter. absent any clear constitutional limitation to the contrary.
Slowly. POGG was only a source of federal jurisdiction to circusmtnaces of national crises and emegerncy. scuh as occurred in wartime. o Also noted that the national and provincial legislatures have been understood as coordinate authorities with equal sovereign status derived from the Constittuion. And this principle has been codified by the Charter. • • . This implies an exhaustive distribution of legislative powers between the two levels of legislature. which palces the same limits on both legislative levels. the Suprem Court has modified this understanding and incrementally expanded the scope for federal authority and overlapping powers between the two levels of government. • The opening paragraph of s 91 (which sets out the subjects matters of both national and provincial legislatures) grants a residual law-making power to Parliament under the phrase “peace. (POGG). During Britains’ rule. o Noted that it is up to the courts to control the limits of the respective sovereignities.assigned its respective spheres of jurisdiction by the Consittuion Act of 1867. provincial legislatures have been unable to enact laws dealing with discrimination in these areas. Federalism and Human Rights Legislation o Because there are certain private law areas in which the sectors of the economy fall under Federal power. and therefore the federal gov’t enacted the Canadian Human Rights Act to deal with these areas. order and good government of Canada.
It may include staturily created bodies that carry out largely governmental functions. o By consittutuonal convention. legislators delegate elements of their sovereign power to executive actors.o Executive Power The executive branch replicate the duality created by federalism wiuth executives at the federal and provincial levels. This is the essential meaning of responsible government in the parliamentary tradition. • The realtionshop between the legislative and executive branches in Canada has two important ffeatures: o Subject to the relatively minor source of power found in the royal prerogative and the Constitution. the executive branch is subordinated to the legislature. • But in this case. The delegation is made on the terms of the statute and can always be revoked by the legislature by amdenemden or repeal. • This means that the exeuvite is almost wholly depdenent on and subordinate to the legislative branch for its authority to act. the armed forces and Crown corporations. where the control of an entity is derived more from the private sources than from ministerial sources. By way of statutes. . the executive is responsible to the legislature. In law. we are no longer dealing with the executive but with an entity belonging to civil society. Covention requires that the prime minister or his ministry command the support (or confidence) of a majority of elected legislatores. the executive branch derives any power it has solely from the laws or statutes passed by the legislature. at some point. It must locate any authority it has to act in Canadian society from a statuory source. The executive includes all ministries of the government and their employees.
members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy tha tare or have the potential to come before the courts. it has enacted the Federal courts act. It insulates judges from retaliation by other branches of the gov’t for hteir decisions and guarantees that the power of the state is exercised in accordance with the rule of law and the provisinsion of our Consittution. Also preserves the separation of powers between the three branches of gov’t by depoliticizing the raltionship between the judicial and other branches. it is the provinces. which establishes the trial level Federal Court of Canada and the Federal Court of Appeal. The Courts have held that judicial review of executive power (administrative bodies usually) is a hallmark of s. exert political pressure on the judiciary. Under this authority. county and district courts.o Judicial Power Section 96 of the Constitution Act of 1867 provides that the federal executive shall appoint the justices of the country’s superior. • This section also authorizes Parliament to create a general court of Appeal for Canada. that are the subject of • . Parliament is accorded the authority to create courts for the beter administration of laws in Canada – understood to mean laws passed by Parliament itself. 92(14 of the Consitution Act of 1867 that establish these courts in their respective jurisdictions. Under s. as arbiters of disputes. because the executive and the legislature cannot. 101. While the power to appoint judges is assigned to the federal gov’t. and this is the Supreme Court Act. and conversely. exercising their authority under s. The jursdiciotn of these courts is statutory and not inherent. Each province also has a system of non-section 96 courts to which the province has authority to appoint judges. 96 jurisdiction and so cannot be withdrawn from those courts by provincial legislature. which creted the Supreme Court of Canada. and cannot appear to. are at complete liberty to decide individual cases on their merits without interference. • Judicial Independence • Ensures that judges.
can’t interefere with an arbitrator’s decision). are . o Court held that this did not constitute an interference with independence as measured by the now well-established rules in Valente v The Queen et al. Section 39 in no way interferes with the security of tenure. 39 is intra vires and therefore the principles of the Constitution were not applicable. • Singh v. o Also noted that the essential constitutional limitations on the assignment of certain functions to non-courts. the financial security or the administrative indepdnence of judges. Canada (2003) o Here the public wanted documents that the privy council stated where. under the Canada Evidence Act s 39. this is a form of a privative clause . o Essenitally. such as the privy council int his case. and thus withdrawing them from the courts. it is not appropriate for the court to intervene by virtue of the simple fact that Parliamnet has directed they must not. with which courts have been familiar for a long time (eg. o Trial court concluded that s. precluding them in certain instances from engaging in the review of government decisions is a violation of a constitutionally guaranteed indepdenece of the judiciary. undisclosable because they contained confidences of the Queen’s counsel and prevents the court from examining them to determine whether the privy council clerk is correct. Argued that this was unconstitutional and inconsistent with the fundamental and organizing principles of the Constitution. Underlined that the law can be used for an against the government. o Held that as a constitutional matter.political detbat and which do not relate to the proper administration of justice. o Appellants position is that any limitation on the jurisdiction of judicial bodies. This section is a public law enacted by Parliament applicable in a variety of circumstances not for the purposes of interefereing with a particular acase before the court.
inter alia. 11 (d) of the charter restricts the manner by and the extent to which the provincial governments and legislatures can reduce the salaries of provincial court judges. • Reference re Renumeration of Judges of the Provinccial Court (1997) o Issue: Whether and how the guarantee of judicial independence in s. o And also: broader question of whether the constitutional home of judicial independence lies in the express provisions of the . o It held that for individual judges to be independent. o Taken to stand for the proposition that salary reductions which are non-discriminatory are not unconstitutional. Ths issuance of such certificates cannot be characterized as a traditional and necessary function of a superior court of any kind contemplacted in 1867 and thus within section 96. – this is not a trial of anyone’s guilt. Nor can it be seen to be integral to the conduct of a trial within the contemplation of 11d of the charter. of financial security for the courts and tribunals that come within the scope of that provision. their salaries must be secured by law and not subject to arbitrary interference by the exectivie. • Valente v The Queen (1985) o Held: that s. • Beauregard v Canada (1986) o The court rejected a constitutional challenge to federal legislation establishing a contributory pension scheme for superior court judges.to be found in section 96 of the constitution act 1867 and paragraph 11d of the Charter.11 (d) encompassed a guarantee. Only turned its mind to the nature of financial security which is required for individual judges to enjoy judicial independence.
But the court then noted that. 52(2) o But also noted that there is the supremacy of a definitive written constitution.96-100 of the Constitution act 1867. notwithstanding the presence of s. The maintenance of the rule of law.11(d). do not speak to judicial independence.11(d)’s limited scope. s. While court noted that the appeals were argued on the basis of s. the court stated that: • The Constitution embraces unwritten as well as written rules on the basis of s. in that it is exterior to the particular sections of the constitution acts. Noted that judicial independence had two important social goals: • • The maintenance of public confidence in the impartiality of the judiciary. . Because of these serious limitations. Court stated that there are serious limitations to the view that the express provisions of the Constitution comprise and exhaustive and definitive code for the protection of judicial independence: • • 1) the range of courts whose independence is protected by the written provisions of the constitution contain large gaps 2) some of the provisions. the charter’s guarantee of judicial independence and impartiality – which the court noted from its express terms is a right of limited application – it only applies to persons accused of offenses. there is not doubt that the appeals can and should be resolved on the basis of that provision. and that the specific provisions merely elaborate the principle. judicial independence is at root an unwritten constitutional principle. But despite.Constitution Acts (1867 and 1982) or exterior to the sections of those documents. by their terms. 11(d) and ss.
It is important because it provides a guide to courts and citizens on how to reconcile seemingly inconsistent legal obligations. o The preamble therefore is not only a key to construing the express provisions of the Constitution Act 1867 but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. o The doctrine asserts that where both the Parliament of Canada and one or more of the provincial legislatures have enacted legislation which comes into conflict. o The preamble articulates the political theory which the Act embodies.• These unwritten rules can be explained by the preamble to the Consitution act 1867 – “with a constitution similar in principle ot that of the UK” o Note that preamble does not have an enacting force – but under normal circumstances preambles can be used to identify the purpose of a statute. . • Doctrine of paramountcy: One example where the court inferred a basic rule of Canadian constitutional law. It is the means by which the underlying logic of the Act can be given the force of law. and also as an aid to construing ambiguous statutory language. Court noted that it can also follow from the desire of the confederating provinces “to be federally united into One Dominion” – the preamble. the federal legislation shall prevail. o Not actual found in the express language – but it has been said that it is necessarily implied in our constitutional act. It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act 1867.
• . Independence: focused on the status of the court or tribunal. • And that another implication of it has been an appreciation of the interdependence between democratic government and freedom of political speech. far from indicating that judicial indepdence is constitutionally enshrined for provincial courts only when those courts exercise jurisdiction over offences. 92(14) of the Constitution act 1867 contains within it an implied limitation that the independence of those courts cannot be undermined. Noted that other courts had drawn a line/distinction between impartiality and independence: • Impartiality: defined as a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. Defined in terms of the relationship of the court or tribunal to others. the jurisdiction of the provinces over courts. Court noted that one implication of the preamble’s recognition and affirmation of Parliamentary democracy is the constitutionalization of legislative privileges for provincial legislatures and Parliament as well. Then stated that section 11(d). It was tied to the traditional concern for the absence of bias. as that term is used in s. actual or perceived. Also noted that the constitution must be read as a unified whole. Noted that a unanimous court had held that the preamble and its reference to a similar constitution to the UK was textual recognition of the principle of judicial indepdence. is proof of the existence of a general principle of judicial independence that applies to all courts no matter what kind of cases they hear. particularly the executive branch of the gov’t.\ By implication. The preamble identifies the organizing principles of the Constitution Act 1867 and invites the courts to turn those principles into the premises of constitutional argument that culminates in the filling of gaps in the Constitutional text.
their historical background and the traditions surrounding them. This ensures that not only is justice done in individual cases but also ensuring public confidence in the justice system. 11 (d) is the independence of the judiciary from the other branches of government . who was informed of the relevant statutory provisions.o The independence protected by s. Question: whether a reasonable person. held by a reasonable and right minded person applying themselves to the question and obtaining thereon the required information. The objective guarantees must be viewed as those guaranteed necessary to ensure a reasonable perception of independence. o Independece was premised on the existence of a set of objective conditions or guarantess whose absence would lead to a finding that a tribunal or court was not independent. 3 core characteristics of judicial independence (which can be both collective and individual) • Security of tenure o Two requirements for provincial court judges: . The apprehension of bias must be a reaosnble one. The perception must be that of the reasonable and informed person. He went on the supplement the requirement for objective conditions with a further requiremenet: that the court or tribunal be reasonably perceived as independent. and bodies which can exercise pressure on the judiciary through power conferred on them by the state. after viewing the matter realistically and practically would conclude that the court was independent.
in . • Financial security o That the right to salary of a provincial court judge is established by law. and there is no way in which the Executive could interfere with that right in a manner to affect the independence of the individual judge. and court lists as well as matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. Those judges could only be removed for cause related to their capacity to perform judicial functions and After a judicial inquiry at which the judge affected is given the full opportunity to be heard. o Initial appointment of where judges are designated to sit have their residence are okay. o Cannot allow executive/legislature to designate when the court will sit. sittings of the court. BUT note that the statute allowing the executive/legislature to designate this are okay ONLY if the statue is limited ot the initial appointment – anything else could create a reasonable apprehension of punishment if judge decides incorrectly. • Administrative independence o Defined as control by the courts over the administrative decisions that bear directly and immediately on the exercise of the judicial function: Assignment of judges. o Cannot choose when the court will be closed. The 2 dimensions of judicial independence: (The relationship between these two aspects of judicial indepdence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he presides is not independent of the other branches of government.
he or she cannot be said to be of an independent tribunal) • The individual independence of a judge and o Historical core of judicial independence and defined as the complete liberty of individual judges to hear and decide the cases before them • Fair and necessary for a fair and just adjudication of individual disputes. o Collective/institutional dimesion of financial security: 3 components (all flowing from the constititonal imperative that. While judicial independence flows as a consequence of the separation of powers. judicial indepdennce also operates to insulate the courts from interference by parties to litigation and the public generally. the salaries of provincial court judges can be reduced. either as part of an overall economic measure which affect the salaries of all or some persons who are renumerated from public funds or as part of a measure which is directed at provincial court judges as a class. The institutional or collective independence of the court or tribunal of which that judge is a member o Arises out of the position of the courts as organs and protectes of the constitution and the funacal values embodied in it o Emerges from the logic of federalism – because this requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. to the extent possible. the relationship between the judiciary and the other branches of government be depoliticized) • As a general constitutional principle.which is essential to its function. o Also under the Charter – because those rights are proctes as rights against the state. . increased or frozen.
o However: ANY changes to judicial renumeration require prior recourse to a special process. not political expediencies. o Must be objective and This means they must make recommendations on renumeartion by reference to objective criteria. for determining judicial renumeration. Must have some king of security of tenure (serve for a fixed term which may vary in length) But not constitutionally required (htough good) if their membership stood apart from the three branches of gov’t (ie. • Needs an independent body to set or recommend the levels of judicial renumeration. appointments to the commission were not made bny any of the 3 branches of gov’t) But does require that the appointments must not be entirely controlled by any one of the branches of govt’ – better to split between all three. these commissions must be independent. to avoid the possibility of. political interference through economic manipulation. Commissions must: o First and foremost. effective and objective. if the commission is fully informed before delibrrating and making its recommendations (this means that it receives recommendations from the executive. or the appearance of. legislature and judicial branch) o Must be effective . which is independent. but not required. This can be helped. Goal is to present an objective and fair set of recommendations dictated by the public interest.
(this model does not meet the standards of s. This should be guaranteed in a number of ways: 1) constitutional obligation that the government not to change or freeze judicial renumeration until they have received the report of the salary commission. Court noted that across-the-board . 11 d on its own because it requires no response to the comission’s report at all) Therefore what is constitutionally required is that the executive or legislature (whichever is vested with determining salaries of judges) must formally respond to the contents of the report within a specified amount of time. whereby report laid before the legislature but need not be adopted by it.. Before it can set judges salaries. Or iii) affirmative resolution procedure. If one of the recommendations in the report is not accepted. the commission must convene if a fixed period of time has elapsed since its last report in order to consider the adequacy of salaier’s in light of the cost of living and other factors and issue a recommendation in its report. the executive/legislature must be prepared to justify the decision in a court of law and an unjustified decusion could potentially lead to a finding of unconstitutionality. The standard of justification is one of rationality – it requires the gov’t to articulate a legitimate reason for why it has chosen to depart from the recommendations of the commission and if applicable why it has chosen to treat judges differently from toher persons paid from the public purse. 2) to prevent against gov’t inanction leading to salary decreases through inflation. Or ii) negative resolution procedure – where the report is laid before the legislature and its recommendations are implemented unless the legislature votes to amend/reject them. 3) the report must have a meaningful effect on the determination of judicial salaries (which can be done in a number of ways: i) make the report of the commission binding. bmust issue a report in response.
But court noted that a salary cut for superior court judges which is part of a measure affecting the salaries of all persons from the public purse helps to sustain the perception of judicial indepdnence precisely because judges are not being singled out for differential treatment. o Need an indepdent body – like a judicial compensation commission . the burden of justification will be heavy. But also noted that there is a plausible different view point – that far from securing a perception of independence.measures. 100 clearly permits identical treatment (Beauregard) I am driven to the conclusion that it is illogical for it to prohibit differential treatment as well. Since s. it is not required in all circusmtnaces. . which agfgfect substantially every person who is piad from the public purse are prima facie rational.to be interposed between the judiciary and other branches of gov’t o Reductions that are enacted for an improper or colorable purpose are prohibited by s. • When the gov’t proposes to single out judges as a class for a pay reduction. salary reductions which treat judges in the same manner as civil servants undermine judicial indepednnet because they create the impression that judges are merely public employees not independent of the government.100 – but it does allow reductions. o Court then noted that this debate illustrated that judicial independence can be threatened by measure that treat judges either differently from or identically to other persons paid from the public purse. o Although identical treatment (non-discrimination) is preferable.
however. including provincial courts. along with the rest of the judicature provisions. o Also noted that under the next issue that arises from the Beairegard case is whether the danger of political interference though economic manipulation can come from increases and freezes in judicial renumernatipon.11(d) does not. 100 is of no assistance in shaping the contours of judicial independence as it is protected by 11(d) Rather. 100 and superior coyurt judges are . which doe snto applyu to provincial) But this does not stand for the propostion that jurisprudence under s. 11 (d) Noted that s.11(d) gurantees the independence of a wide range of tribunals and courts. o In Valente. court held that s.100 of the Constitution act to the interpretation of s. which jthe judge held it can. can only by dismissed by a resolution of the House of Commons. In particular circusmtancves. But the risk of political interference thorugh economic manipulation is clearly greater when judges are treated differently from other persons paid from the public purse. automatically provide the same level of protection to provincial court judges as s. 100 Concluded therefore that the requirements laid down in Beairagard and developed in tehese reasons with respect to s. all that valente held is that s. as a matter of principel. 11 d may in fact provide the same level of protection as s. guarantees the indepdennce of superior couert judges while s.100.11(d) did not entitle provincial court judges to a number of protection which were constitutionally guaranteed to superior court judges (ie. o Court then questioned the applicability of the jurisprudence under s. s.100.
Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation. o Collective bargaining a no/no (too political – a give and take would put the court in bad position – or at least would look bad) o But this does not preclude expressions of concern or representations by chief justices and organizations that represent judges. o This is because negotiations are: Indelibly political The crown is almost always a party to a criminal prosecution in provincial courts – and negotiations would therefore put the judges in a conflict of interest – because negotiating with a litigant. to the gov’t regarding the adequacy of renumeration. . 11 d to provincial court judges. • Under no circumstance is it permissible for the judiciary – not only collectively through representative organizations. but also as individuals – to engage in negotiations over renumeration with the executive or represenatitevs of the legislature. What the link b/w s. cannot take those salaries below a basic minimum level of renumeration which is required for the office of a judge. including de facto reductions through the erosion of judicial salaries by inflation.equally applicable to the guarantee of financial security provided by s. The two have a shared commitment to judicial indepdence. 11 d and the judicature provisions means is that certain fundamental aspects of judicial indepdnence are enjoyed by both provincial and superior corut judges. • Any reductions to judicial renumeration.
increase or freeze the salaries of provincial court judges. outbreak of war or pending bankruptcy. court dismissed the concern that discretionary benefits undermined judicial indepdencne (so when the executive controls benefits like sabbatical or absence due to illness – this does not touch on judicial indepdencne) o Discussing location of courts – found that being in the same building as other branches. . either as part of an overall economic measure which affects the salaries of all or some persons who are renumerated from public funds or as part of a measure which is directed at provincial court judges as a class.o Essentially this is required to prevent judges from deciding cases a certain way in order to secure a higher salary. o Final note before summary: s. o Not administering own budget is not a problem fromt eh administrative perspective because does not ouch on the exercise of judicial function. o But this does not protect the courts from the effects of deficit reduction. o COURT held that: That gov’ts are free to reduce. o Also a protection against ersion of judicial salries through inflation. o Then talking about the Valente case. Court noted that the components of collective/institutional dimension of financial security need not be adhered to in cases of dire and exceptional financial emergency precipitated by unusual circumstances – ie. does not touch on judicial indepdencne because the courts are sepearte and apart fromt eh other offices.11 d requires that judicial independence be secured by objective conditions or guarantees – objective guarantees are the means by which the reaosbel pecetiopn of indepdencen is secured and hence any legislative provisions which does not contain those objective guarantees is unconstitutional.
. by allowing judghes’ real wages to fall because of inflation. according to criteria laid down in the decision. Any changes to or freezes of judicial renumeartion require prior recourse to the independent body which will review the proposed reduction or increa to or freeze in judicial renumeration. Provinces are under a constitutional obligation to establish bodies which are independent. In order to guard agains the possibility that gov’t inaction would be used as a means of economic manipulation. Under no circusmtnaces is it permissible for the judiciary to engage in negotiations over renumeration with the executive or representative of the legislature. Howeber that does not preclude the chief judges or bodies representing them from expressing concerns of making representations to the govts regardin gijudicial renumeration. The recommendations of the independent body are non-bingind however if the executive or legislastyure chooses to depart from those recommendations it has to justify its deciusion accprding to a standard of rationaltlity – if need be in a court of law. Any changes ot or freezes in judicial renumeration made without prior recourse to the indepdnent boyd are unconstkitutional. and in order to protect against the possibiloity that judicial salaries will fall below the adequate minimum guaranteed by judicial independence the commission must convene if a fixed period of tiem (eg. effective and objective. 3 to 5 years) has elapsed since its last report in order to consider the adequacy of judges’ salaries in light of the cost of living and other relevant factors.
O’Donahue v.PARLIAMENT AND THE LEGISLATIVE PROCESS • Structure and Operation of Parliament o Section 17 of the Constitution Act. o The Queen and Governor General The Constitution Act 1867 vests the Executive government in the Queen as well as making her a part of Parliament (so the Queen is Canada’s official head of state) • Section 10 – provides that the Queen’s powers are to be exercised by the Governor General. o Court then noted that the determination of whether a matter is justiciable is first and foremost a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or instead deferring to other decision making institutions of the polity. o • • Then noted that if the impugned portions of the Act of Settlement 1701 have constitutional status. Selecting the Monarch • The identity of the monarch is determined in the UK according to the rules of heredity and antiquated laws of succession (especially the Act of Settlement 1701) The Settlement Act 1701 has been challenged in the courts because it bars a Catholic from assuming the Crown/marrying the monarch. then the matter is not justiciable as . The Queen (2003) o Roman Catholic challenged the Act of Settlement 1701 as certain provisions be given no effect as they discriminate against Roman Catholics in violation of the equality provisions of the Charter of Rights and Freedoms. 1867 – creates a Parliament of Canada consisting of 1) the Queen. o Court noted that it would have to first determine whether the matter was justiciable. 2) an Upper House styled the Senate and 3) the House of Commons.
this would clearly be contrary to settled intention. o Court then noted that the Statute of Westminister 1931 (UK) provided that the UK would no longer impose British statutes over the dominion but that the British monarch would continue to be their monarch. This can be seen as a treaty among the Commonwealth countries to share the monarchy under the existing rules and not to change the rules unless all signatories agree. it states that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well as of the Parliaments of all the Dominions as of the Parliament of the UK. o Court then noted that the Statute of Westminister is part of the Constition of Canada by virtue of its being listed in the schedule to the Constitution.it is well settled that the Charter cannot be used to amend or trump another part of our constitution. 41(a) of the Constituion Act 1982. o Then noted that in light of the preamble’s clear statement that we are to share the Crown with the UK. In the preamble. o Also noted that according to s. o Court noted that Canada was established as a Constitutional monarchy and that the preamble to the Constitution Act 1867 (which can be used to fill gaps in the express terms of the text) confirms this and also confirms that Canada is united under the Crown of the UK. o If we were to reanimate the debate regarding the heir of the throne. as demonstrated by our written Constituion and would see the courts changing rather than protecting our fundamental constitutional structure. o Court held that the rules of succession and the requirement that they be the same as those of Great Britain are necessary to the . the office of the Queen is such a fundamental part of our constitutional structure that amendments to the Constitution in respect of that office require the unanimous consent of the federal and provincial governments. it is axiomatic that the rules of succession for the monarchy must be shared and in symmetry with those of the UK as one cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected. which was resolved by the Settlement Act 1701.
proper functioning of our constitutional monarchy and therefore the rules are not subject to Charter scrutiny. by Constitutional convention. Alberta enacted a senatorial selection act. o Held that the case was not justiciable. • • o The Senate Canada has an unelected senate. Court noted that this was not challenging either the constitutionality of the statute or assert any violations of the charter. as required by constitutional convention. One such elected senator (senator in waiting) was not recommended by the Prime Minister and brought this suit. the Queen follows the Canadian Prime Minister’s recommendations in appointing the governor general. providing for the direct election of senatorial candidates. senators must be appointed in a manner consistent with the provisions of the Alberta statute. In exercising that power. No legal criteria constraining the prime minister’s choice. the Queen (after being consulted in advance) takes her direction from an instrument of advice – a personal letter from the prime minister. Appellant requests an order declaring the provisions of the Consittuion Act 1867 providing for the appointment of senators by the governor general in council to be contrary to democratic principles and requests that to conform with these principles. as Section 24 of the Constitution Act 1867 expressly anticipates the appointment of senators by the governor general. Brown v Alberta (1999) • Having problems with the unelection of senators. So essentially. • • . Selecting the Governor General • While in practice. the governonr general follows the advice of the prime minister. Convention probably now dictated that only Canadians may now be appointed and Candain practice strongly favours alternaiting Anglophone and francophone representatives. the monarch appoints the Governor General.
appeal dismissed. Court then noted that in order to make such a stataement. Therefore since the appellant has not raised a legal issue based on the nature and extent of the relief he requests. and make a statement on whether that process is democratic or not. Court held that the Quebece Secession Reference did not change the law on the scope of the court’s jurisdiction to grant declaratory relief nor does it overrule existing authorities that set out what constitutes a legal issue. AG of Canada (1998) • A applied for an interlocutory injunction to restrain the governor general from appointing to senate a qualified person from Alberta unless that person was elected pursuant to Alberta’s Senatorial Selection Act.• Trial court – held that the underlying purpose of the application was to bring public attention to the issue of senatorial selection and put pressure on the governor general to appoint him as senator and that therefore in light of this purpose. it must have jurisdiction to do so and it only has jurisdiction where there is a legal issue. and noted that that power was purely discretionary. Court then noted that the appellant was in essence asking the court to be an arbiter of the democratic process of senatorial appointment. • • • • Samson v. Court noted that section 24 and 32 of the Constitution Act 1867 expressly confers on the Governor general the unfettered discretion to appoint qualified persons to the Senate. as there are no procedural or other limitations restricting the exercise of the GG’s discretionary constitutional power of appointment. • . it would not be appropriate for the court to intervene because there was no justiciable or legal issue (no rights of the parties would be affected) Court noted that the appellant was relying on the Quebec Secession reference case which noted that our political institutions are based on the democratic principle and so an expression of the democratic will of the people carries weight.
Each riding elects one member to the House of commons. The party with the second most representatives is the official opposition. The party with the most elected representatives is the ruling party and that party’s leader becomes PM. by means of a constitutional amendemnet.absolute majority) wins a set in the House of Commons and represents that riding as an MP. a requirement anticipated by s. sphere. not legal. constituencies or ridings). Each candidate can only run in one district and each party may only endorse one candidate per riding. which means that in every district. while in the present case express and unequivocal provisions govern the appointment process of the Senate. . 37 of the Constitution Act 1867. New committees every ten years (after the census) and the process of redefining electoral boundaries is called redistribution. Ridings are established through a formula set out in the Constitution. Elections to the House of Commons run by constitutional and statutory law. the candidate with the most votes (does not have to be over 50% . Therefore held that the claim was political not legal and therefore the relief sought could only be obtained in the political. Canada’s electoral system is known as a single-member plurality or firstpast-the-post system. established by committees taking into account population and social and economic links. • The precise manner is governed by Canada Elections Act. • • o House of Commons Members of the House of Commons are elected. Court also noted that the Quebece Seccession Case dealt with a situation involving involving a constitutional void. Representation is based on geographical divisions (known as electoral districts.• Therefore noted that this means that a limitation could only be imposed on that power by means of a constitutional amendment effected in accordance with the procedures prescribed in Part V of the Constitution Act 1982.
3 of the Charter? o In order to determine this. 1 of the charter. Canada (2003) • Canada election act had certain sections which required that a registered party run candidates in at least 50 districts in order to accrue the benefits of registration (ie.2) • Section 3 of the Charter – every citizen of canada has the right to vote in an election of members of the House of Commonsor of a legislative assembly and to be qualified for membership therein.3 of the charter. tax-free donation vouchers. court must define the purpose of the charter and Court noted that on its terms. etc. • . 3 seemed very narrow. granting only the right to vote and to run for office. Noted that in order to determine the scope of s. the right to transfer unspent election funds to the party and the right to list their party affiliation on the ballot papers o and if so whether that infringement is reasonable and demonstrably justified under s. the court must first ascertain its purpose and in interpreting the scope of a charter right.o This Act defines a political party as an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election (s. Figueroa v. But then noted that Charter analysis requires courts to look beyond the words of the section. s.) The issue is o whether sections 24(2). • 1) Does the 50-candidate threshold violate s. the courts must adopt a braoad and purposive approach that seeks to ensure that duly enacted legislation is in harmony with the purpose of the charter. 24(3) and 28(2) of the Canada Elections Act infringe on Section 3 of the charter by withholding from candidates nominated by political parties that have failed to satisfy the 50-candidate threshold the right to issue tax receipts for donations received outside the election period.
• A complete view of the purpose. . Two questions: • Do the members and supporters of political parties that nominate fewer than 50 candidates play a meaningful role in the electoral process? o Court noted that the ability of a political party to make a valuable contribution to the electoral process is not dependent on upon its capacity to offer the electorate a genuine government option. whether large or small. 3 of the charter.3 is to promote and protect the right of each citizen to play a meaningful role in the political life of the country. o All political parties. is the right of each citizen to play a meaningful role in the electoral process. Absent such a right. according to the court. Therefore. The purpose is effective representation. • This means that each citizen must have a genuine opportunity to take part in the governance of the country trhough participation in the selection of elected representatives. o Signifies that the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society and suggest that s. the court found that the fundamental purpose of s. 3 should be interpreted in a manner that ensures this right of participation embraces a content commensurate with the importance of individual participation in the selection of elected representatives. • o Evaluate the 50-candidate threshold in light of the definition to determine whether it violates s. ours would not be a true democracy. are capable of acting as a vehicle for the participation of individuals in . The court then noted that the issue was whether the 50Candidate threshold interferes with the capacity of individual citizens to play a meaningful role in the electoral process.
irrespective of its outcome on an election. o A vote for a candidate nominated by a particular party is an expression of support for the platform or policy perspectives that the party endorses. . does the restriction on not being registered party interfere with the capacity of the members and supporters of political parties that nominate fewer than 50 candidates to play a meaningful role in the electoral process. Therefore they do play a meaningful role in the electoral process. by bringing issues to the debate that are better presented in a representative rather than individual capacity. a vote for a particular candidate is an expression of support for a particular platform or approach therefore. The participation of political parties therefore enhanvces the capacity of individual citizens to express an opinion as to the type of country that they would like Canada to be through the exercise of the right to vote. o Participation as a voter is not only about the selection of elected representatives. o Noted that it is better for an individual to have his or her ideas and concerns introduced into the open electoral process by a political party with a limited geographical base of support than not to have his or her ideas and concerns introduced into that debate by an political party at all.the public discourse that animates the determination of social policy. the capacity of a a political party to provide individual citizens with an opportunity to express an opion on governmental policy and the proper functioning of public institutions is not dependent upon its capacity to participate in the governanace of the country. o Court herefore held that there is no reason to think that political parties that have not satisfied the 50-candidate threshhoold do not act as an effective outletfor the meaningful participation of individual citizens in the electoral process. • 2) And if so.
• Court then noted that in order to justify the infringement of a Charter right under s. withholding the benefits of registration from candidates of parties who have not met the 50 threshold rule undermines the right of each citizen to meaningful participation in the electoral process. o Therefore. • There held: that the 50-candidate threshold does infringe on s.o Court noted that the effect of the 50-candidate threshold is to extend the benefits of registration only to those parties that have nominated candidates in 50 electoral districts. the threschold requirement is inconsistent with the purpose of s.1. Two step process throughout which the burden rests on the government: • 1) Governmnet must first demonstrate that the objective of the legislation is sufficiently pressing and substantial to warrant violating a charter right. that it minimally impairs the Charter right in question and that the salutary benefits of the legislation outweigh the deterious effects. • 2) Once the above has been established. namely that the legislation is rationally connected to the objective. o The objective must be neither trivial nor discordant with the principles integral to a free and democratic society. 3 of the Charter. the government must demonstrate that the limitation is reasonable and demonstrably justifiable in a free and democratic society. and it undermines both the capacity of individual citizens to influence policy by introducing ideas and opinions into the public discourse and debate through participation in the electoral process and the capacity of individual citizens to exercise their right to vote in a manner that accurately reflects their proefenses.3 of the Charter – ithe preservation of the right of each citizen to play a meaningful role in the electoral process. . the gov’t must then demonstrate that the infringement is proportionate. Therefore.
• Court held that: the 50-candidate threshold does not meet the proportionality branch of the Oakes test.Note: the privilege of freedom of speech means that anything said in the Senate. • • Bringing the Constituten Elements of Parliament together o Elections to the House of Commons take place in the period after dissoloution of the old Parlaiment and the summoning of a new parliament. Formal opening of the first session of parliament is distinguished from the opening of subsequent sesscion by two prelim proceedings: • • 1) the taking and subjscring of the Oath of Allegiance by members and 2) the election of a Speaker Claiming of the privileges . By Constitutional convention. o Summoning S. Speech from the Throne – the GG reads the speech imparting the causes of summoning Parliament. the governor general calls parlimanet to seesion on the advice of the prime minister. While preserving the integrity of the electoral process is pressing and substantial concern in a free and democratic state. • • However this apparent discretion is greatly constrained by constitutional convention and the charter. there is no connection whatsoever between the objective and the threshold requirement. .3 charter right and the gov’t failed to justify the violation. enacted as Schedule 1 of the Canada Elections Act. House of Commons or in committee as part of parliamentary business is not actionable in the courts. prior to which declaration neither House can proceed with any public business. this objective provides no jusitification for the restrictions in the legislation. This convention is codified in the Writ of Election. Therefore held that this is a violation of a s.38 of the Constitution Act 1867 empowers the governor general to summon and call together the House of Commons.
causing the govt to fall. Aas the motion itself si relativiely unspecific. o Prorogation Once summoned. who may conclude by proposing an amendment to add words to the original motion.. 5 of the charter provides that there shall be a sitting of Parliament and of each legislature at least once every twelve months. providing one of the few opportunities for private members to speak on topics of their choice – the normal rules of debate apply: o 20 minute speeches to all members followed by 10 minutes Q&A o On the first of the six days of formal debate (so called Leader’s day) the first speaker is the leader of the opposition. the proceedings which result in the House of Commons’ response to the throne speech – the address in reply to the speech from the throne –begin whena gov’t member not of the ministry moves that an addres be presented to the gg. debate is very wideranging. acting on the advice of the PM. • On that specified day. The PM speaks next. separated by a prorogation • A prorogation is the prerogative of the GG. who may offer a subamendment. a given parliament is divided into several sessions.• This formally opens the first session and any subsequent sessions of Parliament and markes the first occasion of Parliament Assmbled in its three constituutent parts: the sovereign/their representative. o Cannot last forever: S. . followed by the leader of the second largest party in opposition. the Senate and the House of Commons. • Note that opposition amendments to the address in reply to the speech from the throne constitution direct questions of confidence in the gov’t – thus a failure by the govt to carry an unamended address in reply likely constitutes a vote of no confidence. there is a routine motion by the prime minister that the throne speech be considered either that day or on some future day. After the speech from the throne.
But Prorogation (like dissolution) abolishes all pending legislation and quashes further committee activity. there is no dissolution of Parlaiment so every still retains their positions and privileges. in order to be proceeded with. any outsntaidn Orders or address of the House for retrune or papers are bhorught down during the following session withoy renewnal of het Order.• • Note that during a prorogation. 4. o Thus no committee may sit after a prorogation and any bill of a previous session. Unlike prorogation – adjournment does not quash all pending proceedings. • On occasion. The House is said to be in recess. Parliaments normally do . • Parliament can be prorogud through a speech by the GG in the Senate chamber. o Dissolution the Constitution act 1867 (s. o It can also be prorogued by proclamation published in the Canada Gzette. must in principle be introduced again as a new bill. although this is merely convention and nto reqreuid by any standing order or statute.1 of the Charter limit the duration o fa commons to five years.5) and s. except in times of war or insurrection. gov’t bills have also beein resinstated by way of a motion in the same way. Adjournemnt – technically termination by the House of its own sitting (by motion or pursusnat to Standing or special orders) for any period of time within a session. • • Between a prorogation and the next session of the same Parliament. However. with the agreement of the House. • This means that Parliament must be dissolved and elections must happen at least every five years. However Standing Order 86 makes special provisions for reinstating Private member’s bills at the same stage they had reached at the end of the previous session. o However..
conduct unbecoming requires resignation The responsibility of the ministry collectively to the House. • There are instance where a PM might be forced by constitutional convention to seek a dissolution from the GG at a time not of his choosing. that het public service be under the control of political leaders responsible to the legislature and that both the executive and legislakture be responsible to the people. If the confidence of the House is lost. This form of gov’t requires that the cabinet be responsible for its actions to an elected legislature. Confidence of the House . • Begs the question of when a minister should resign –eg. • Responsible gov’t – at the heart of this is the confidence of the House of Commons in the governing party. precedent and common sense. Constitutional conventions requires a PM to resign his gov’t or seek parliamentary dissolution after a no confidence vote by the House.. o Without such a no-confidence vote. it is unlikely that the GG has the power to dissolve Parlimen when opposed by the Pm. o Ministerial responsibility is a distinguishable feature of responsible gov’t. The rules regarding this feature are not in the Consitution but instead are governed by convention. This dissolution prompts a new election cycle governed by the Canada Elections Act. o 3 parts to the Ministerial responsibility: The responsibility of a minister or the Queen or the GG The individual responsibilyt of a minister to the House. It implies necessarily that there be a policy-making body of ministers bound to provide unanimous advice to the sovereign.not last five years. and the GG acts at a time of the PM’s choosing in dissolving a Parliament. it spells the end of the ministry unless the gov’t is granted a dissolution and is sustained by the electorate.
As a rule. A gov’t that has lost a vote in the House on a matter of confidence faces the choice of resigining or asking for dissolution. • • • 3 categories of gov’t defeats: o 1) A government defeated on a vote of confidence is expected to resign or seek a dissolution. the GG accepts the advice of the PM. A gove’t that has lost a vote on some other matter mau remain in office nad may choose to ask for a vote of confidence.• The standing of a government in the House and the passage of its legislative program have come to be regarded as essential parts of responsible government. whether this person comes from the opposition or from within the governing party. The gov’t may declare that if defeated on a particular . it is not ture that a gov’t that loses a vote in the House can simply have the House dissoveled. but in certain cases the GG is justified in refusing an immediate request for dissolution. Indeed the GG may have a constitutional duty to exercise this power of refusal. better for the question of gov’t leadership to be decided by the people in an leection. use of the reserve power to refuse dissolution is less appropriate if exercised several years into a parliament. • In comparison. The exercise of this reserve power is likely most legitimate where a gov’t seeks a dissolution soon after an election. o Constitutional convention: a GG may refuse a dissolution in the wake of the resignation of (at least a minority) gov’t. Three types of votes can be termed confidence votes: i) Explicitly worded votes of confidence – which expressly state that the House has or has not confidence in the gov’t/ ii) Motions made votes of confidence by a declaration of the gov’t. Since not ever vote in the House is a matter of confidence. at a time near its natural expiry. In those circumstances. where another PM-apparent is able to command the confidence of the Commons.
\ iii) Implicit votes of confidence. It should confine such declarations to measures central to its administration. this would make the lost vote one of confidence retrospectively. even though not declaredto be so by the prior statement of the gov’t. elimination or reduction of an estimate can be accepted.motion before the House. If a gov’t wishes. The gov’t in this case can either seek an explicit vote of confidence from the House or resign or request a dissolution.\ • Observations (from the Special Committee on the Reforem of the House of Commons Report): o A gov’t should be careful before it declares or designates a vote as one of confidence. . it will resign or seek a dissolution. given the vagariesof this. it can designate a succeeding vote as a test of confidence or move a direct vote of confidence. that it could also fall into the area of defeats that are not votes of no-confidence) o 2) Lost votes on items central to government policy but not made matters of confidence before the vote. • If the gov’t opted for resignation or asked for dissolution. a lose on ore of more of the many divisions during the committee and report states would usually fall within this classification. o 3) Items not at the heart of gov’t policy – although a lost vote on second reading of a major bill might fall within the second category. whether directly or on some procedural or collateral motion. o While a defeat on supply is a serious matter. o Defeats on matters not essential to the gov’ts program do not require it to arrange a vote of confidence. Failure to grant supply is regarded as the established means for the House to demonstrate its lack of confidence in the gov’t. where traditionally certain matters have been deemed to involve confidence. even one that is not an explicitly worded vote of confidence. (but could actually argue. • Falling within this is the granting of supply.
49 of the Constitution Act – requires a majority in the House without speaker’s vote unless there is a tie S. Thus. the individual commanding the congfidence of the Commons (that is. • Key Actors In Parliament o Political Parties Parties are the product of two legal aspects of parliamentary democracy: o 1) decision making in Parlaiment depends on swaying a majority of votes in each chamber and the success of a motion is determined by whether it attracts a majority of votes. o The manner of his election and his powers are set out in the standing orders of the House. Now there was a standing order change. then the decision is negative.o Temporary loss of control of the business of the House does not call for any response from the gov’t whether by resignation or by asking for a vote of confidence. Eg. 36 – Senate requires a majority and speaker votes. 44 of the Consittution Act 1867 requires that a speaker be elected. the speaks is an MP elected to the position by other MPs. so that now the election of the speaker is by secret ballot. S. o S. Noted that official party status is reserved for parties possessing a minimum number of members in the Commons – need 12 members. o 2) a second constitution motivation for parties stems from the congidence convention – by constitutional convention. . its majority) is appointed PM. o The Speaker Speaker in the House of Commons • In the commons. a party with control of a majority of the House brings with it executive power. if there is a tie.
The election of the speaker is presided over by the Member with the longest period of unbroken service and who is not a member of the Cabinet nor holds any office within the House. Party leaders and cabinet members are prohibited from psing thei candidacy for speakership.
o The speakers duties are: 1) the Speaker acts as a spokesperson of the House in its relations with the Crown, the Senate and authorities outside of parliament. 2) the Speaker presides over the sittings of the House and enforces the observance of all rules for the preservation of order and and the conduct of business • Presiding over the debate is now seen as the primary role. o All debate is addressed to the speaker. • • • Because the speaker must always appear to be neutral, therefore never participates in a debate. The authority of the speaker in preserving order is wide ranging. Strongest penalty by a Speaker is to name an MP who has been breaking the ruloes and continues to break them after warnings – the result after naming is either that: o The Speaker may immediately order out the offending member to withdraw from the Chamber for the balance of the day’s sitting or o The Speaker may simply wait for the House to take whatever action it deems appropriate. If the speaker chooses this, another member, usually the gov’t house leader, will imeediately porpose a motion to suspend the offending member, and such a motion is neither debatable nor amendable.
3) the Speaker has extensive responsibilities relating to the administration of the House.
o Parliamentary Committees The house of commons delegates most of the detailed study of proposed legislation and the scrutiny of gov’t policy and programs to its committees. Types of committees: • Committees of the Whole House o Established by standing orders and examine appropriation bills or sometimes other bills referred by the House • Standing Committees o Adopted for the life of Parliament to deal with subjects of continuing concern to the House. • Legislative Committess o Created on an ad hoc basis to examine bills in detail and may report only the bill, with or without amendements, to the House. • Special Committees o “task forces” appointed on an ad hoc basis to study specific matters. Each created by motion specificyin it spurpose and powers/ • Joint Committees o Comoposed of members of the House and Sneate. o May be appointed by: • Under the standing orders of each house (Standing joint) or Created by special resolutions of the two houses (special joint)
Subcommmittes o Subgroups created by committees for specific tasks/duties.
Sources of Parlimanetary Law
o Parliamentary law, that is the rules determining Parliamentary procedure – flows from an array of sources: the Constitution, assorted statutes, standing orders, and usages, customs and precedents as assessed by the Speaker. o Constitutional and Legislative Basis – Parlimentary Privilege Constitution incorporates British parliamentary traditions via its preamble “same as the Uk….” Parliamentary Privileges – are those rights necessary to ensure that legislatures can perform their functions free from interference by the Crown and the courts. • Privilege in this context often means the legal exemption from some duty, burden, attendance or liability to which others are subject.
Canada (House of Commons) v. Vaid (2005) • Here a former speaker was being sued by a chauffeur whom he fired for reasons that amount to workplace discrimination and harassment. The House of commons along with the speaker are arguing that the hiring and firing of House employees are internal affaris which may not be questioned or reviewd by any tribunal or court outside the House itself. Court noted that the purpose of the privilege is to recognize Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity. That the proper focus Is not the grounds on which a particular privilege is exercised but the prior question of the excistence and scope of the privileged asserted by Parlaiment in the first place. Court then noted that it is a wise principle that the courts and Parlaiment strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule and the courts, for their part, are careful not to interefere with the workings of parliament. Parliamentary privilege is therefore one of the ways in which the fundamental constitutional principle of separation of powers is respected.
o So it would be intolerable for example, if another member of the House could invoke investigatory powers of the Human Rights Commission with a complaint that the Speaker’s choice of another member during a debate discriminated against him. This is truly a matter internal to the House to be resolved by its own procedures. • Court then noted that in resolving conflicts such as this, it is important that both Parliament and the courts respect the legitimate sphere of activity of the other. Then stated various propositions accepted by the courts respecting Parliamentary privilege: o 1) legislative bodies created by the Constitution Act 1867 do not constitute enclaves shielded from the ordinary law of the land. The tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities of legislative assemblies. Privilege does not embrace and protect activities of individuals, whether members or non members, simply because they take place within the precincts of Parliament.
o 2) Parlimentary privilege is the sum of privileges, immunities and powers enjoyed by the House, Senta and provincial legislative assemblies, and by each member individually, without which they could not discharge their duties. o 3) Parliamentary privilege does not create a gap in the general public law of Canad but is an important part of it, inherited from the parliament as Westminister by virtue of the preamble eot the Constitution Act 1867 and iin the caswe of the Canadina Parliament, though s. 18 of the same act. o 4) Parliamentary privilege includes the necessary immunity that the law provides for MPs and for members of legislatures of each of the provinces in order for these legislatures to do their legislative work. The idea of necessaity is thus luink to the autonomy required by legislative assmebleis and their members to do their jobs. o 5) The historical goundation of every privilege of Parliamnet is necessity. If a shphere of the legislative body’s acitivity could be left
to be dealt with under the ordinary law of the land without interfereing with the assembly’s ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist. o 6) When the existence of a category or sphere of activity for which inherent privilege is claimed (at least at the provinvial level) is put in issue, the court must not only look at the historical roots of the claim but also determine whether the category of inherent privilege continues to be necessary to the funcioting of the legislative body today, Parlimentary history, while highly relevant, is not conclusive. o 7) necessity in this context is to be read broadly. The time-honored test, derived from the law and custom of Parliament at Westminister, is what the digintiy and efficiency of the House require. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive judisiction of the legislative body.
o 8) Proof of necessity may rest in part in shewing that it has been long exercised and acquiesced to. The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence. o 9) Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category or spehere of activity is esatblishied, it is for parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and the manner of its exercise and such exercise is not reviewable by the courts. Each specific instance of the exerice of a privilege need not be shown to be necessary.
o 10) Catogeories include: Freedom of speech
that outside interference would undermine the leval of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. Therefore. including the asmebly’s work in holding the gov’t to account. the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body. in order to sustain a claim of parlimanetary privilege. • • Court noted that parliamentary privilege si defined by the degree of autonomy necessary to perform Parliament’s constitutional function. not everything that is said or done within the Chamber during the transacton of business forms part of proceedings in Parlaiment. Concluded that authority did not establish that the House is immunized from proviiegel in the conduct of ALL labor relations with ALL • • . Control by the Houses of Parliament over debates or proceedings in Parlaiment included day to day procedure in the House The power to exclude strangers from proceedings Disciplinary authority over members And disciplinary authority over non members who interefere with the discharge of parliamentary duties Immunity oif members from subpoenas during a parliamentary session o 11) The role of the courts is to ensure that a claim of privilege dcoes not immunize from the ordinary law the consequences of conduct by parliament or its officers and employees that exceeds the necessary scope of the category of privilege o 12) Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than those which involve matters entirely internal to the legislature. Court noted also that while there is a general recognition that proivilege attaches to proceedings in Parliament.
• Then ntoed that the issue was whether it could be said that immunity from outside scrutiny in the management of all service employees is such that without it the House and its members could not discharge their functions? Court noted that it did not dioubt that privilege attaches to the House’s relations with some of its employees. • Therefore. • • o Standing Orders Courts have held that Canada’s legislatures have the power to administer that part of the statute law relating to its internal procedure as well as to determine the content of such things as standing orders without any intervention from the courts. procedural questions shall be decided by the speaker or chair. order 1 of the standing orders provides that where the orders are silent. whose decisiosns shjall be based on the usages. but that in this case. forms. so far as they may be applicable to the House.meployess irrespective of whether those cateogires of employees have any connection or nexus with its legislative or deliberative functions or its role in holding the government accountable. that would require the broadest possible coverage without leading any evidence to justify such sweeping immunity. Their m eaning sometimes requires interpreationa because cannot cover every possibility. • Parliamentary Law Making o The Scope of Parliament’s Law-Making Jurisdiction Parliemantary supremacy means that Parliament and the provicnical legislatures are the only true sovereign body in Canadian constitutional . Standing orders are rules of procedure adopted by at least a simple majority vote of the members. Held that failed to establish the privilege in the board and all inclusive terms asserted and could be discposed of by the courts. customs and precedents of the House and on parliamentary tradition in Canada and other jurisdictions.
law. Supremacy means that Parliament is the source of all power and Parliament has the jurisdiction to make and unmake any law whatever. In Canada, there is no full federal parliamentary supremacy. Parliamnet is subordinated to other constraints in the constitution, most notably the division of powers between the federal and provincial gov’ts in the Constitution Act 1867 and constitutionally protected individual rights and liberties found in the Charter. But so long as it I falls within these constitutional bounds, Parliamnet may make any law on any topic it wishes, as an exercise of its parliamentary supremacy.
o The Power to Pass Bad Laws Parlaiment is free to pass careless, unwise, or ill-motivated statutes so long as these flaws do not also constitute consituttiona violations. Bacon v. Saskatchewan Crop Insurance Corp. (1999) • Legislation was passed by legislature which essentially changed the contract rules and extinguished the right to sue for the govt’s breach of an earlier contract. As contende the gov’t had no authority to pass this legislation as govt’s, like anyone else, are subject to the law. The rule of law is a concept or principle so fundamental that even govt’s are not exempt from its application. This meant that the law of the land, including those realting to contractctualy obligations, are as binding on the gov’t as upon the public. The gov’t argued that the tolr of Parliament is supreme when acting within its constitutional limitations. Court noted that courts had previously acted to prevent the arbitrary use of power by a public official which was unsupported by legislative authority, even if that official was of the highest rank (eg. Premier and AG) Court then noted that the statement that the law is supreme over the acts of both gov’t and private persons (rule of law statement from re secession of Quebec) is nothing more than an acceptance that the law as it exists is applicable to both govt’s and private persons.
o However, the court noted that the law, including the common law, is subject to change by legislation and when changed, it is this changed law law which is the “one law for all” o The protection we treasure as a democratic country with the rule of law as a fundamental postulate of our constitution is two fold: 1) protection is provided by our courts against arbitrary and unlawful actions by officials and 2) protection against arbitraty legislation is provided by the democratic process of calling our legislators into regular periods of accountability through the ballot box. Noted that these were separate and distinct threats to our freedom and have separate and distinct protections.
Then noted that this concept of the rule of law is not restricted by the Supreme Court’s statement that nobody, including the gov’t is beyond the law, as this statement is a reference to the law as it exists from time to time and does not create a restriction on Parliament’s right to make laws, but is only a recognition that when they are made, they are applicable to all, including govts.
PSAC v. Canada (2000) o At issue was the justiciabiliyt of a union’s complaint about a statue oredering striking workers back to the job. The union argued that the legislation was contrary to the rule of law because it was arbitraty and passed in bad faith. o Court held that on the basis of the conventional view that Parliament’s sovereignty is limited only by the division of powers in the Constitution Act 1867 and the enumerated rghtis int eh Charter, there is no cause of actin arising from the breach of the rule fo law.
Turner v. Canada (1992) o Here the A was engaged in a lawsuit when an amendment was passed which had retroactive effect and therefore deprived him of his defence in the action, leading to an unfavorable settlement.
A claimed that the Ministers through their negligence and outright connivance tricked Parliament into enacting the legislation which abridged his rights and wanted damages. Alleged that Parlaiment was tortuously misled to enact the retroactive amendement and that he was denied a fair hearing by surreptitious procedures adoped by Parliament. Complaint was about the tortuous way in which the process was done, rather than the actual law itself.
o Court first noted that procedural fairness is not required in a legislative process. o Then noted that the Bill of Rights and the Charter, while they may affect the vailidty and construction of legislation do not bear on the process of legislation. o Parliamentary sovereignty involves various elements: 1) It involves that the courts in this country have no power to declare enacted law to invalid. 2) that the Houses of Parliament enjoy certain privileges, which are vouchsafed so that parliament can fulfill its key functions in our system. • And one of these privileges is the exlusive right to detemrie the regularity of their own internal proceedings.
3) a further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, parliament might well wish to conduct its own inquiry.
o Therefore held that an action against the Crown based on allegations that Parliament had been induced to enact legislation by tortuous acts and omissions of the Ministers of the crown is not justiicable. • Note: even if parliament is competent to pass bad (but constitutionally valid) laws, it is not presumed that it means to do so. Parliament may strip away contractual rights, but to do so it must be emphatic. Wells v. Newfoundland (1999)
o Here minister in a cabinet lost his job (and his rights to sue under the contract) when the legislature changed the status of the committee. o The court dealt with the issue of whether office holders were owed compensation in the event that their posisitons were eliminated by the legislature, and noted that while parlaimnent has the authority to structure the public service as they see fit and thereby alter or eliminate positions in the process, they cannot escape the financial consequences of doing so without explicitly extinguishing the rights they have abrogated. o Court noted that while there was no question that the gov’t had the authority to restructure or eliminate the board, there is a crucial distinction between the Crown legislatively avoiding a contract and altogether escaping the consequences of doing so. o Noted that while the legislature may have the extraordinary power of passing a law to specifically deny compensation to an aggrieved individual with whom it has broken an agreement, clear and explicit statutory language would be requied to extinguish existing rights previously conferred on that party. o The gov’t was free to pass a bill which would have explicitly denied the respondent compensation but since no such bill was passed, A’s basic contractual rights to severance pay remain. o Noted that in a nation governed by the rule of law, we assume that the govt’ will honour its obligatins unless it explicitly exercises its power not to. o In the absence of clear intent to abrogate rights and obligations those rights remain in force. o The doctrine of the separation of powers is an essential feature of our constitution., It maintains the separation of powers between the judiciary and the other two branches. The gov’t however cannot rely on this formal separation to avoid the consequences of its actions.l While the legislatiure retains the power to expressly terminate a contract without compensation, it is disingenuous for the executive to assert that the legislative enactment of its own agenda constitutes a frustrating act beyond its control.
o Held that the Crown had a contractual obligation to the A which it breached by eliminating his position, as his right to seek damages for that breach was not taken from him by the legislature, he is entitled to compensation. o The Power to Follow Unfair Procedures In reviewing the process by which Parliament makes it laws, courts are reluctant to impose standards on the legislative branch. While the Constitution Act 1867 does specify some requirements for the legislative process: • • • • • • Matters are to be decided in both the Senate and the commons by a majority of votes The quorum of the Sneate is 15 senators, including the speaker The quorum of the Commons is 20 members Money bills must originate in the Commons and Bills must be in French and English Bills must get royal assent
So long as these prerequisites are met, courts have no role in querying the procedure Parliament selesct in passing its law. Any effort by the courts to scrutinize the procedure by which laws are passed by Parliament would quickly trench on parliamentary privilege. The intenral procedure immunized from external court scrutiny included the manner in which Parliament passes acts. So parliament is free to act unfairly, perhaps by pasing a law without nay notice to those implicated by it. Wells v. NFLand – legislative decision making is not subject to any known duty of fairness. Legislatures are subject to consistutioanl requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject onlyt o review by the electorate. The rules governing procedural fairness do not apply to a body exercising purely legislative function.
o Due process cannot interfere with the right of the legislative branch to determine its own procedure. prohibited expropriation without coempsantion (due process) Court noted that governmental expropriation of property without compensation is discouraged by our common law tradition but is allowed when Parliament uses clear and unambiguous language to do so. Authorson v. making it different than the UK (which is what the pramble wants) o Coyurt heldt aht the due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. would effectively amend the Canadanian Constitiiona. For the Bill of Rights to confer such power. alleging this to constitute a breach of fiduciary duty. Canada (AG) (2003) • In tis case a group of disabled veterans sued the federal gov’t for payment of interest on pension monies held and managed b y the government on their behalf over many years. They do confer certain rights to \notice and an opportunity to make submissions in the adjudication of individual rights and obligatiosn. A parliamentarian induced by the prospect of financial gain to vote one way or another in performing his or her lawmaking functions is subject to sanction. The gov’t argued that even though they did breach this duty. effectively expropriating the claim without compensation. . The submission that a court can compel Parliament to changes its legislatve procedures based on the Bill of Rights must faile. parliament had passed legislation denying such claim for monies owed prior to a cetain year. • • • • Ethics in Law Making • Parliament may be sovereign but indivudal parliamenterians are not. Veterans argued that the Canadian bill of rights ( called quasi constitutional) applied to this legislation and obligated Parliament to engage in a fair process before adopting the legislation and as a matter of substantive law. but no such rights are at issue in this appeal.
fishing) with the constitutency electing them.• Real conflict of interest: situation in which the minister has knowledge of a private economic interst that is sufficient to influence the exercise of his public duties and responsibilities. A decision maker cannot be perceived as being impartial and acting with integrity if he could derive a personal benefit from a decision. yet must be stringent enough to deter unetichal practices and maintain the good reputation of parliament and its members. Balance . Potential conflict of interest: exists where a minister finds himself in a situation in which the extisence of some private economic interest could influence the exercise of his public duties and responsibilitiles (could become a real conflict if not acted upon – ie. withdrawal) Apparent conflict of interest: which exists when there is a reasonable apprehension.m which reasonably well-informed persons could have. Techniques of control: o Disclosure o Avoidance – getting rid of conflict o Withdrawa/recusal • • • • • • • • Types of interests o Investemnta (though unlikely if government bonds. in reality. guaranteed investment certificates and open-ended mutual funds) o Debst – laibilitlies and assets .the rules must not be so stringent as to discourage perons of ability and experience from entering public life. homeowner) – low risk of adverse consequence Representative interest conflict: which arises when Members share peronsla interests (ie. that a conflict of interest exists *(even if. there is no conflict whether real or potential) The principles underlying the conflict of interest rules are impartiality and integrity. An inherent conflict arises out of ht position of the parliamentarian as an individual in society (eg.
Can’t engae in outside acitivies (ie. a member is given leave of the House to introduce the bill Need 48 hours written notice and by motion obtain leave to introduce the bill . own a company. do a profession).o Corporate positions o Outside employment – cabinet members prohibited from such activities o Lobbying o Government contracts and activities o Gifts and honoraria o Inside information o Spouse and depdendent children • Staturoty and Parliamentary rules o The public office holder’s code requires that on appointment to included office. the office holders are to arrange their private affairs so as to prevent real. • Conflict of interest Ciode for Members of HIOuse pon page 209 o Parliament’s Law Making Procedure Public bills • • Concerned with matters of public policy Two types of public bills o Government public bills and o Private members public bills sponsored by a private member • In order for a bill to become law it must: o 1) Once the appropriate notice has been given. be a director. potential or apparent conflicts from arising.
The \clauses of the bill are not discussed in detail at this stage Three types of amendement may be processed to the motion for the second reading: • Six month’s hoist o Be not read now a second time but rather be read a second time in six months – if the amendment is adopted. o Normally a minister introducing the public bill doies not speak at this time o 2) the bill is read a first time and printed Follows immediately the first step and is automatically adopted without debate. . The order for pinting the bill is included in the motion.• This motion is automatically adopted without debate. amendment or question put. amendement or question put. o 3) the bill is read a second time Most important stage Here the principel and object of the bill are debated and either accepted or rejected. then the bill is withdrawn for the remainder of the current session • Reasoned amendment o Erxpresses specific reasonas for opposing a second reading • To refer the subject matter to a committee before the principle of the bill is approved NO amendments can be made to the bill at this stage o 4) the bill is referred to a committee Amendemnts to the bill are considered at this astage.
the committed usually hears form wtitness (eg. minister sponsoring the bills) Can make amendements to any part of the bill but the amendments must be in keeping with principle of the bill as agreed ot in the second stage o 5) the bill is considered in committee and reported back to the house (report stage) Further consideration in the house Members not part of the committee can propose amendments after giving notice ot the text of the bill as it was reported by the committee There is not debate at this stage unless notice of amendment are givne At the end. Before beinging a clause by clause study. motion made that the bill with any amendemntes be concurred in. must communicate this to the House – 24 hours notice o 9) the bill receives royal assent . If not amendments at this a report and third reading stage can be done in the same day o 6) the House concurs in the bill at the report stage (third reading) The basic principles of amendments at this stage are that they be strictly relevant to the bill and do not contradict the principle of the bioll as passed at second reading. as wellk as an emendemtn to send it back to the committee o 7) the bill is approved by a majority in the house o 8) the bill goes through stages in the Senate that are the same as those in the House Sentae looks it over and if it makes any amendements. Same amendements as allowed at a seconding reading can be made at a third reading.
Can be doen through formal ceremony or written procedure Private bills • • Relates to mattes of a particular benefit of interest to a person or persons. the bill must be passed in identical form by both Houses.\ . Most originate in the Seante and have very special rules to govern them. Constitution act 1867 states that the approval of the Crown is required for any bill to become law. including corporations. Before this can happen.
must acocunt to Parliament for governmental action under their control. o The practice has reamined that any new department or agencies have to be established by statute and. in the interest of cooperative federalism) Executive Branch Defined o The Crown S.EXERCISE OF EXECUTIVE AUTHORITY The executive refers to those institutions in government that are responsible for implementing and enforcing laws. The legal rules that have developed have arisen so as to constrain the exercise of administrative discretion in ways that respect the intentions of the legislative branchand promote outcomes that take the public interest into account. Willis (1952) Held that regulatory power within the jurisdiction of the federal government could validly be delegated to boards created and operated by the provincial governemtn. Administrative Law o Administrative Law: a coherent set of legal principles establishing the boundaries of exective powers and the manner by which executive powers are to be exercised. at least as a matter of courtesy. 9 of the Constitution Act 1867 stated that the Executive gov’t and authority of and over Canada is hereby declared to continue and be vested in the Queen” The Crown is a legal entity that bears legal rights and obligations: . to the creation of yet more independent and administrative agencies. o Ours is a responsible system of governemnt which is based on the concept that the government collectively. by implication. and ministers of the Crown individually. (This led. or in the case of the common law. o PEI Potato Marketing Board v. and vice versa. whether those laws are formlulated by the legislature. by the judiciary. major reorganizations of existing departments have been ratified through legislation.
the GG and LGs for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet and their respective government. In turn. o By Constitutional convention. and the right to sue and be sued. o Prime Minister and Cabinet . notwithstanding the identification of each with the same Monarch. 13 provides that references to the GG in Council in the 1867 Act shall be construed as referring to the GG acting by and with the advice of the Queen’s Privy Council for Canada. o While all Cabinet ministers are privy councillors. legal obligations attaching to one level of govt cannot be attributed to another level of govt by virtue of their respective executive powers being rooted in a common monarch. • • Under s. the GG is to exercise all powers and authorities lawfully belonging to the monrach in respect of Canada. • Queen’s Privy Council: s. not all or even a majority of privy councillors are sitting Cabinet ministers. “Crown in the right of Ontario. only those privly councillors who are also presently in the Cabinet are entiteld to exercise the powers of the privy council. the Crown is divisible in the sense tha the govts of the provinces and the federal govt are each themselves distinct legal entities. • The Queen appoints the GG and lieutenant governors to act as her representatives although by constitutional convention these appointments are now made on the advice of the prime minister. etc. Not technically the same thing as the Cabinet. 11 of the 1867 Act.” By Letters Patent in 1947. Note that in the context of federalism. the Privy Council is a body to aid and advice the Government in Canada. whose adivce the Queen is bound to follow. because the GG often sweras in other people to be privy councillors. The GG swears in privy councillors for life.• • Right to own property and enter into contracts. Therefore. “Crown in the right of Canada” v.
almost always the House of Commons in federal Ministers may hold office pending election to the Commons or while a senator but all ministers are expected to also be members of the legislature. Canada (Minister of Justice) (1992) . Individual ministerial responsibility requires that each minister be answerable in Parliament for the activities of his or her department. Ministry and Cabinet are used interchangeably. Collective responsibility requires that the ministry maintain the confidence of Parliament. The question of who obtains a set in the Cabinet table (not all ministers do) is a political matter for the PM to decide. In addtion to their Cabinet responsibilities. the PM also possess the authority to exercise personal prerogatives – (eg. Ministers and the PM comprise the ministry (the gov’t). cabinet ministers have adminsitrative responsibility for depts under tehir charge. The constitutional convention of responsible government lies at the foundation of Canadian governance: • Two key elements of responsibel govt should be noted: o Cabinet members are drawn from the legislative branch. • All ministerial appointments are at the pleasure of the PM – unfettered discretion By constitutional convention. Appointment that are tecnically supposed to be made by the GG are made by the PM – like chieg justices and the Senate) Cabinet is the supreme executive authority. Idziak v. o The ministry is accountable to the legislative branch both collectively and individually. which may often include specific piowers to make decisions affecting the rights of the individual.
. The minister of justice. there is a hearing before a judge in order to determie whether tehre is sufficient factual and legal basis to support extradition. in his capacity as the head of the Justice Departmetn. • • o The Public Service Three principles that structure the relationship between the civil service and political officials within the government: • Ministerial responsibility o Requires that the presiding minister be held politically accountable for all matters arising within that department. Supreme Court rejected the claim of bias and emphasized the distinct nature of the competing ministerial roles. Before a suspect can be extradited. oversees the prosecution in the extradition hearing and is persoanlly required to make a determiantion on the order of surrender. • Political neutrality o Requires that civil servants carry out their responsibilities loyally to the governemnt in power without regard for the civil servant’s own political views o Traditionally understood as contitutional convention – therefore acting as political not legal constraints o The loyalty owed by civil servants is not boundless but requires that civil servants refrain from public criticism of governemtn policies o Fraser v Canada (Public Service Staff Relations Board) (1985) Employee of Revenue Canada was discharged after repeatedly criticizing the govt’s policies regarding metrification. including policy decisions by civil servants. and a further determination made by the minister as to whether that person must be surrendered.• • Argued that minister of justice’s involvement in a two-step extradition proces raised questions of bias.
Appellant argued that the duty to refrain from criticism only extends to areas related to the civil servants’ direct responsibilites. he displayed a lack of loyalty to the gov’t which was inconsistent with hjis duties as an employee of the gov’t. In conducting himself the way the appellant did. Fraser’s criticisms were therfore job relatesd because of the importance and necessity of an impartial and effective public service. its fundamental task is to administer and implement policy. the public service must employ people with certain important characteristics. • The fdereal public service in Canada is part of the executive branch of government. As such. 1) knowledge 2) fairness and 3) integrity 4) loyalty. Court statedf that a public servant must not engage in sustained and highly visible attacks on major government policies. Court then noted that Mr. In order to do this well. Court then noted that a public servant simply cannot be allowed under the ruberic of free speech to cultivate distrust of the employer amongst members of the constituency whom he is obliged to serve. . not the political party in power at any one time. But court noted that a job in the public service has two dimensions: • • First relating to the employee’s tasks and how he performs them and The other relating to the perception of a job held by the public. o The loyatly is owed to the Governemnt of Canada. Court noted that the criticisms were agaisnt two policies which did not bear upon his departmetn’s polcies or his job.
Court noted that the MacDonnell commision described well the benefits that flow from restrictions of this kind (study of UK public service) • If these restrictions on the political activities of public servants were withdrawn. o OPSEU v Ontario (AG) (1987) Ontario legislation restricting provincial civil servants political activities. Of particular concern to the court was that the legislation. which applied to all civil servants. o Also note that other constraints include restrictions on the kinds of political activities that certain beauracrats can participate in. two results would follow: o The public might cease to believe. Court held that a person entering public serivce should be prepared for certain constraints and tehrefore accept the restraint that the employee must exercise caution when it comes to making criticisms of the government. as we think they do now. Cannot actively campaign for a political candidate/party and Cannot run as a candidate themselves. but the legislation was not up to charter scrutiny in this case. including activities in federal politics. was overinclusive because it failed to make distinctions between the kinds of work the employee may be involved in and hir or her level of responsibility wihtin the civil service. o Osborne v Canada (Treasury Board) (1991) The question of whether such restrictions were consistent with the Charter and resulted in federal statutory restrictions being struck down as contrary to the right of free expression. in the impartiality of the permanent Civil service and o Ministers might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates. . was upheld as valid provincial legislation.
including the civil service. Immigration and refuge board of Canada . the reasons for establishing administrative bodies will determine the structure and form of the body created. the scope of cases heard is limited to a defined subject area. The legislature may determine that certain decuisions are best made on a principled basis and tehrefore should be insulated from considerations of political expediency. in the case of administrative tribunals. Here the role of the administrative body approaches that of the judiciary. the government may create a specialized tribunal to adjudicate individual cases free from direct government oversight. • Public service anonimity o Provides that beaureaucrats should be held accountable to their political overseers. • This is often the case where decisions affect the legal rights of many individuals and there is merit in having those rights determined in a consistent manner. o Eg. However. • Although. the federal and provincial cabinets and the system of governmental departments and ministries that are overseen by individual ministers. o In this regard. executive functions are extensively carried out by a variety of bodies that have a measure of independence from the government.o The restrictions on political activities now apply to seniro members of the beauracracy. o Independent Administrative Agencies As a matter of express constitutional recognition and constitutional convention. While there is no single answer to why we need these bodies that are independent from the governmetn. but are not answerable to Parliament. the formal executive bodies are limited to the GG and LGs.
27. Independent is also established through the assignemnt of powers under s. often economic matters. insulation from political forces is seen as desirable to ensure that long-term goals are not compriosed by short-term political interests or the undue influences of interest groupds. with the commissioners themselves beign appointed by the governor in council (the Cabinet) The independence of the commission is established through the provision of security of tenure to the commissioners. some public services requrieing closer cooperation and coordination between different jurisdictions can be delvivered by multijurisdictional agencies. • Finally. 239 lays out some of the act) • • Is a creation of federal parliament. • In other. Canada Humanr Rights Commission: (pg. • . there will be a need for a particular kind of expertise that is best undertaken by a specialized body staffed by experts. An administrative body is the product of the legislative instrumetn that creates is. o Eg. which miliatete in favour of an independent and impartial decision maker.• A similar justification underlies the creation of independent agencies to administer government entitlement disputes. In this regard. o This section confers on the commission broad powers to carry out its statutory mandate. there are few restrictions placed on legislators who want to create an administrative boyd and delegate powers to it. which can be exercised wihtout political oversight. o Here one of the parties to the dispute is the govt itself. o In this case. who may only be removed upon the address of both houses. as opposed to a government department. Bank of Canada • In other cases. independence may faciliatate specialization because of the restricted mandate of an administrative agency.
which are protected by the constitutional principle of judicial independence. Bell Canada v. as emanations of the executive that must take their policy direction from the legislature and the courts.• S. including the minister of jusitice. liberty or security of the person in the absence of fundamental justice. v. o This tribunal acts in a quasi-jusiical capacity and the Commission has the auhtority to appear before it and in doing so is required to represent the public interest. o In this way. BC (GM Liquor Control/Licensing Board (2001) o Court drew a sharp distinction betwwen administrative tribunals and decision makers. absent consittutional constraints. 7 of the Charter bars deprivation of life. who is responsibel for the Act. by virtue of the Canadian Bill of Rights. Energy and Paperworkers Union (2003) o The court agreed that. o Issue was the degree of independence required of members sitting on administrative tribunals empowered to impose penalties. adjudicative administrative bodies do not need to be independent. • The committee also has the authority to develop policies and procedures largely unfettered by senior political officials. except in certain circusmtances: • • S. • Ocean Port Hotel Ltd. 61 requires that the commission submit an annual reprot in Parliament detailing their activities. the Canadian Human Rights Tribunal must have at least some independence guarantees. Communications. This Act also creates a further independent body called the Canada Human Rights Tribunal which has the responsibility of holding inquiries into human rights complaints. the commission has some direct accountability to Parlaiment. o Court noted that it is well established that. the degree of independence required of a particular . • As a constitutional matter.
So while they may seem quasi-judicial. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question. it is properly the role of the legislatures to determine the compotiion and . one of the fundamental principles of natural justice. • Indeed. a statutory regime prevails over common law principles of natural justice. It is the legislature or Parliament that determines the degree of independence required of tribunal members. and in particular on the language of the stuate under which the agency acts. administrative tribunals may be bound by the requirement of an independent and impartial decision maker. although the precise standard of independence required will depend on all circumstances. courts generally infer that Parliament or the legislature intended the tribunal’s process to comport with principels of natural justice. o Confronted with silent or ambiguous legislation. It is not open to a court to apply a common law rule in the face of clear statuory direction. In such circumstances.govt decision maker or tribunal is determined by its enabling statute. The statute must be construed as a whole to determine the degree of independence the legislature intended. Ultimately. Based on a fundamental principle of law that absent a constitutional challenge. the nature of the taks it performs and the type of decision it is required to make. courts will not lightly assume that legislators intended to enact procedures that run contrary to this principle. the degree of independence required of tribunal members may be ousted by express statutory language or necessary implications. it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. like all principles of natural justice. given their primary policy making function. o Administrative tribunals lack the consitutional distinction of independence required by the courts. However. They are created precisely for the purpose of implementing govt policy.
These tribunals separate and apart from the courts. o Court threw out the argument that the preamble to the Consitution Act 1878 and discussions of judicial independence by the courts mandate a degreee of independence. They are not courts and do not occupy the same constitutional role of courts.structure required by a tribunal to discharge the responsibilities bestowed upon it. o In each instance. as a general rule they do not. o Court held that there was no basis upon which to extend the constitutional guarantee of judicial independence from the Constitution as applied ot the courts because the administrative body (licquor board) is not a court nor does it approach the consittutional role of the courts. . under the mandate of the legislature. o Thus. they ultimately operate as part of the executive branch of govt. there is no room to import comon law doctrines of independence. o Court therfore noted that the legislature’s intention that Board members should serve at the pleasure of the executive is unequivocal and as such does not permit the argument that the statute is ambiguous and hence should be read as impsing a hire standard of indepednnce to meet the requirements of natural justice. It is fist and foremost a licensing body and the exercise of power here at issue falls squarely within the exective power of the provincial gov’t. the choice mut be respected. the degree of independence required of a particular tribunal is a matter of discernign the intention of Parliament or the legislature and. Where the intention of the legislature is unequivocal. The reason for this is that while they may possess adjudicative functions. howveer intiviting it may be for a court to do so. o While tribunals may sometimes attract Charter requriements of independence. absent constitutional constraints. the court must ask the question of what the legislature intended.
it may required that decisions be made free from political influences tha tmay unduly interefere with commercial objectives. where such action is in the public interest (called “directive power”). Canada Post) Note that the gov’t can decide that the justification for providing a service through a Crown corporation can no longer be maintained. Air Canada) The private and public objectives of a crown corporation require the govt to balance the operational benefits of independence and the need for accountability. such as controls on the expenditure of public funds and the management of debt. A distinct form of regulation that arises from direct ownership. • The primary vehicle for accountability is the Financial Administration Act. Bank of Canada) or The crown corporation may deliver services that are considered to be of public importance (eg. as opposed to the imposition of regulatory controls on private entities. A Crown corporation will have public objectives: • • The crown corporation may have an express regulatory mandate (eg. the commerical nature of some activities may be ill-suited to govt departmental structures and the related rules respecting financial matters. o The gov’t has in many cases the authority of appointment over corporate directors and key corporate officers. (eg. Can also interevene in the management by directing the board of directors to follow a particular course of action. which imposes standardized accountability requirements on listed Crown corporations.o Crown Corporations The principle justification for the creation of Crown corporations is that where there is a strong commercial aspect to the governemnt service. Additionally. • This is an extraordinary power and requires the appropriate minister to consult with the baord of directors in advance of . which would result in privatization.
• Court also noted that since 1896. a power that is geernerally exercised through the enactment of municipal bylaws. their demoractic legitimacy is independent from the provincial legislature. courts can only provide remedies for the public’s greivances if those grievances violate legal. when altering municipal institutions. o Municipalities Municipalities are created funder provincial legislation and have policymaking function in matters that affect local residents. o Court then noted that there was no evidence of the existnece of a constitutional nor or of convention restricitng the provinces from making changes to the municipalities iwhtout their consent. when the Privy Council confirmed that s. Rather. Ontario (AG) (1997) • A decision by the Ontario govt to amalgamte a number of municipalities into a single municiple gov’t was challneged on the basis that such a radical alteraion required the consent of the affected local govts.the issuance of the directive and to table the directive in both Houses once issued. This • . While municipalities operate independently from the provincial govts that created them. as opposed to political proprieties. However. o Noted that s. there are undoubtedly sound political reasons for a provincial govt to exercise great care in the process of consultation and reform. 91 and 92 of th Consitution allocated responsibility over municipal institutions to provincial governments. and because they are elected. Court rejected this and was unequivocal about the inferior status of municipal govts. 92(8) gave provincial legislatures the right to create legal bodies for the managemetn of municipal affairs a right which included the right to amalgamate such bodies and establish their geographic boundaries. hoever they are not a distinct level of govt and municipal powers are subject to the regulatory qualifications superior levels of gov’t place on them. East York (Borogugh) v.
While the majority agreed with the dissent that the clause permits vancouver city council to enact measures for het benefit or welfare of the inahabitants of the city.resolved any ambiguity about whether a constitutional norm restricted a province from making changes to municipal institutions without municipal consent was resovled at that time. Vancouver City (1994) • Legal procceding that arose out of an application by Shell to quash resoltuions passed by the Vancouver City Council that directed staff not to conduct busines with Shell so long as Shell consitnued to do business with South Africa (apartheid). o Of particular concern was the open-ended nature of the authorizing provision releid on by the City of Vancouver in support of its action. The municipality argued that a provision stating that the “council may provide for the good rule and governemtn of the city” authorized the resolution. the court asserted that the city’s resoltuions effect a purpose wihtout any identifiabel benefit to its inhabitants and deal with matters external to the inteersts of the citizens. Shell Canada v. The public policy in favor of restricting a municipality to its statutory powers exists as much for the minority as for the majority. o But holds that the Resoltuons must fall because they are based on matters external to the interests of the citizens of th municipality. o Noted that: the suggestion that the only remedy is at the polls is of no value to the minority. only the power of th City to pass them. who would be left with no rememedy. • The court sees the purposes of municipal govt to relate more directly to matters within the boundaries of the local areas. • • • . Noted that the reasonableness of the Resolutions is not in issue. The majority held that municipal authority can only be exercised in relation to activities that fall within municipal purposes and therefore held that the extra-territorial pourpose of the resolution was improper. and Council could continue to enlarge its statutory powers as long as it was able to retain its majority support.
which could be taken to confer an almost limitless authority if not checked by the courts. Primary responsibility for deciding the welfare of the community belongs . courts must be prepared to adopt the benevolant construction refereed by this Court in Greenbaum and confer the pwoers by reasonable implication. they must not be used to usurp the legitimate role of municiple bodies as community representatives. Generous apprach to municipal pwoers is more in keeping with the true nature of modern municipalities. that is in the public interest. The iobject of judicial reviwe of municiapl powers should be to accord municipalities the autonomy to undertake their activities without judicial interference unless clearly warranted. Excessive judicial intereference in municipal decision-making can have the unintended and unfortunate result of large amounts of public funds beign expended by municipal councils in the attempt to defend the validity of their exercise of statutory powers. o As commentators have noted. Whatever rules of contrustion are applied. A generous approach to municipal powers will aid the efficient functioning of municipal bodies and avoids the costs and uncertainty attendant on excessive litigation. • DISSENT: o In cases where powers are not expressly conferred but may be implied. it is not the court’s function to makes these decisions. Municipal council should be free to define for themselves as much as possible the scope of their statutory auhtority. o This approach is good because: It adheres to the fundamental view tha tcourts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them. Excessive judicial interference will have the effect of confining modern municipalities in the straitjacket of tradition. the council is entrusted with the responsibility of governing not just in the interest of htose who elected them but in the interest of the community generally.
but also closest to the citizens affected and thus most reponsive to their needs. to local distinctiveness and to population diversity. under such boradly worded provisions. There is an implicit • • . is in the best position of all parties to determine whatis or is not in the public interest. It appears to be sound legislative and administrative policy. not a member of the broader polity. such a provision cannot be construed as an open and unlimited grant of provincial powers. they as a body having no connection with local inhabitants. by democratic process ont eh council. they msut have a positiev justification for going so and that justification mut relate to their own peculiar nature and function. Spraytech v. o Stated that upon the question of the public interest.to the municipal corporation. familiar with the local conidtions. courts have reciognized the municipal council. It must be closely related to the immediate interests of the community within the territorial limits defined by the legislature in a matter where local governments may usefully intervene. Hudson Town (2001) • • Sought to draw a line between the kinds of popular concerns that could porperly become the subject of municipal legislation. The principle was relied upon in this case in support of an expansive approach to the interpretation of municipal powers. Introduced the concept of subsidiarity into governance related disputes: subsidiarity is described as the porposition that law-making and implementation are often best achieved at a level of governemnt that is not only effective. usurp the choice which the inhabitants conferred. to grant local governments the legislative authority to deal with the unforeseen or chanigng circumstnaces and to adderss emerging or changing issues concerning the welfare of the local community living within their territory. It is not enough that a particular issue has become pressing concern in the opinion of a local community. Ths concern must relate to problems that engage the community as a local entit. Neverhtless./ • if the courts are to interfere in this process. If the courts take upon themselves the judgment of the rightness or wrongness of council’s decision in these matters.
o Enforcement Bodies: Police and Prosecutors The enforcement duties of the executive fall primarily on the police and the prosecutors. R. where questions arose about the legality of RCMP conduct. including those employed by municipal forces. have the authority to investigate matters in relation to both provincial and federal criminal laws. Need balance betwwen accountability and independence. The Crown argued that any illegal activity should be subject to Crown immunity. • Provincial police. In common law. has the authority to: o police federal statutes (although provincial policing bodies have primary enforcement responsibility for offences under the Criminal Code) o police the federal territories and o provide police services in provinces under contract. Both the federal and provinical govt have prosecutorial power exercised by their respective AGs. v. police and prosecutors have been distinguished from other civil servants in that in their enforcement duties they are not subject to political oversight in the sense that they must exercise their powers without direction from political officials or in furtherance of partisan political activities. Campbell (1999) • Criminal case involving a narcotics sting. Policing functions are the responisbility of both the provincial and federal governemnt. the RCMP. Court noted that this attempt to identifyt the RCMP with Crown for immunity purposes misconceives the relationship between the police • • . The federal police force.emprirical assumtpion with the principle of subsidiarity that local govts are more democratically responsive.
. the office of the AG is one with constitutional dimensions recognized in the Consittuiona Act 1867. the Act provides for the • . Law Society (Alberta) (2002) • Crown prosecutor sought to prevent the Law Society from reviewing a complaint against him on the basis that it would interfere with his prosecutorial discretion. • McCleave v Moncton (1902) . Also noted that the High Court of Australia stated that a constable. Court noted that while for certain purposes the Commissioner of the RCMP reports to the Solicitor General. important values in any society. o But currently only concerned with the status of an RCMP officer in the course of a criminal investiagtion and in that regard. the police are independent of the control of the executive govt. • • A police officer investigating a crime is not acting as a governemtn functionary or as an agent of anybody. Although the duties are not enumerated. It is the duty of the Commissioner to uphold the law of the land but in all these things he is not the servant of anyone. The commissioner is not subject to political direction. Their duties are of a public nature. and the general law of agency has no applicaion. but an original authority. engaged in duties connected with the maintenance of public order and preservation of the peace. save the law itself. While the RCMP has many roles apart from investigation of crimes and it is therefore possible that in one or other of its roles the RCMP could be acting in an agency relationship with the Crown. is not exercising a delegated auhtority. Affirmed that we are dealing with the holder of a public office. the Commissioner is not to be considered a servant or agent of the govt while engaged in a criminal investigation. when acting as a peace officer. • • • • Krieger v.and the executive governemnt when the police are engaged in law enforcement.Police officers can in no respect be regarded as agents or officers of the city. Court note dtha tin Canada.
Prerogative powers are those granted by the common law to the Crown that are not shared by the Crown’s subjects. The power to bring. • • The AG is also the Minister of Justice and is geenrally responsible for drafting legislation tabled by the governemnt of the day. This side of the AG’s independence finds further form in the principel that the courts will not interfere with his exercise of executive authority. Under the doctrine of seperation of powers. . • Membership in Cabinet therefore makes the principle of independence in prosecutorial functions more important. It is a constitutional principle in this country that the AG must act indepdenetly of partisan concerns when supervising prosecutorial decisions. as relected in the prosecutorial decision-making process.extension of the authority and duties of that office as exisitng priior to Confederation. This appear clearly to stem from the respect of seperation of powers and the rule of law. defined as the residue of discretionary or arbitrary authority residing in the hands of the Crown at any given time. and in that role holds a position with partisan political aspects. this concern about independence is important as the AG is not only a member of Cabinet but also Minister of Jusitce. o Court noted that it is manifest that as a matter of principle. courts should not interefere with prosecutorial discretion. • o Court also noted that mot prosecutorial pwoers derive from the royal prerogative. manage and termiante prosecutions which lies of the heart of the AG’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of govt o In Canada. criminal law is the domain of the executive.
is beyond the legitimate reach of th court. or to judicial supervision.• But prerogative powers are subject to the supremacy of Parliament. supervising one litigant’s decision making process. o The court’s acknowledgement of the AG’s indepdennce from judicial review in the sphere of prosecutorial discertion has its strongest source in the fundamental principle of the rule of law under our Constitution. To subject such decisions to political interference. If the court is to review the prosecutor’s exercise of his discretion. could erode the integrity of our system of prosecution . Subject to the abuse of process doctrine. the court becomes a supervising prosecutor and it ceases to be an independent tribunal. o The quasi-judicial function of the AG cannot be subject to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. o Then noted that it is fundamental to our system of jutice that criminal proceedings be conducted in public before an independenat and impartial tribunal. since they may be curtailed or abolished by statute. rather than the conduct of the litigant’s befor ethe court.
prerogative powers are those powers that have remained with the Crown. the Crown is restricted to executive acts. the statue has the effect of superseding the prerogative powers. Consequently. • The ability of the legislature to abolish prerogative powers derives from parliamentary supremacy. flows from the royal prerogatives and statutory delegation. In exercising prerogative powers. Chretien (2001) • • • Considered the question of who could exercise prerogative powers and whether prerogative powers can be subjected to judicial oversight. Black v. Black was denied honours award of Canada because Chretien told the Crown not to give it to him. Prerogative powers are residual in the ssene that the power of the Crown pre-existed that of the legislature and as a result. except the limited authority existing in the Constitution Act 1867 or by virtue of constitutional convention. Court noted that the definition of prerogative powers adopted by the Court is that the Crown prerogative is “the residue of disrectionary or arbitraty authority. Where the legislature enacts a stattue in relation to a matter previously exercised through prerogative powers. o Prerogative Powers Prerogative powers are thosse powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown. Source of Executive Power o All executive power. nor can it exercise judicial powers. the Crown cannot exercise legislative powers pursuant to its prerogative. . which at any given time is left in the hands of the Crown” o This is very broad definition • The prerogative is a branch of the common law because decisions of the courts determine both its existence and its extent.
. the doctrine is that the prerogative goes into abeyance. o Once a statute occupies ground formerly occupied by the prerogative. The Crown may no longer act under the prerogative. The Letters Patent empower the GG to exercise all powers and authortities lawfully belogning to the monarch in respect of Canada. Court then noted that the granting of honors has never been displaced by statute in Canada and tehrefoer continues to be a Crown prerogative. but must act under and subject to the conditions imposed by the statute. As members of the Privy Council. Who can exercisse prerogative power? o Court did not accept the idea that only the GG can exercise the prerogative power. prerogative consists of the powers and privileges accorded by the common law to the Crown. • Althought the GG retains discretion to refuse to follow this advice. the GG exercises her powers on the advice of the PM or Cabinet.o In short. the PM and other Ministers of the Crown may also exercise Crown prerogatives. and the 1947 Letters Patent is the instrument by which the Queen delegates her prerogative powers for applciation in Canada. can be displaced or limited by statute. the prerogative goes into abeyance. • • Even where a statute merely overlaps it. • o Nothing in the Letters Patent or the case law requires that all prerogative powers be exercised exlusively by the GG. • Despite its broad reach. in Canada that discretion has been exercised only in the most exceptional circumstances. By convention. o Noted that while the GG is the Queen’s represetnative in canada.
giving advice to the Queen or communicating to her Canada’s policy on the conferral of an honour on a Canadian citizen – is not justiciable. • Even if the advice were wrong or given carelessly or negilgentyly it is not reviewable in the courts. o This narrow view has been modified by the Charter. • . even whether the procedures used were fair. Most courts have affirmed the view that the Crown prerogative is an instrument of govt. the court could determine whether a prerogative power existed and if so what was its scope. The underlying rationale for this narrow review of the prerogative was that exercises of prerogative power ordianrily raised questions coiurts were not qualfied or competent to answer. o Until the 1960s. • Is the Prerogative Power reviewable by the Courts? o Court noted that the source of the power – whether statute or prerogative – should not determine whether the action complained of is reviewable. S. The courts insisted that the source of the power – the prerogative – precluded judicial scrutiny of its exercise. o HELD that the PM and the Government of Canada can exercise the Crown prerogative. once a court established the existence and scope of a prerogative power it could not review how that power was exercised • The appropriateness or adequacy of the gournds for its exercise. were not reviewable. However. But noted that the action complained of in this case. 32(1)(a) of the Charter applies to parliament and the government of Canada in respect of all matters within the authority of Parliament. and whether it had been superceded by statute. The Crown prerogative lies within the authority of Parliament.
if an individual claims tha the exercise of a prerogative power vioaltes that individual’s Charter rights. Essentilally. So if the subject matter of a prerogative power is amenable to the judicial process.. o Apart from the Charter. Where the rights and legitimate expectation of an individual are affected. the court has a duty to decide the claim. if the power were exercised under a statutory power and were reviewable. If not. the court is both competent and qualified to judicially reviwe the exercise of the prerogative. then it makes sense that the same power exercised under a prerogative power affecting the rights of the citizen should be likewise reviewable. o The exercise of the prerogative power will be justiciable. etc. Test of Reviewability: the exercise of the prerogative power will be amenable to the jduicial process if it affects the rights of individuals. or amenable to the judicial process. Sign a treaty. not its source. public policy and public interest considerations far outweigh the rights of individuals or . declare war. o Two ends of the spectrum of prerogative powers: Executive decusion of high policy (eg. the expanding scope of judicial review of Crown liability make it no longer tenable to hold tha the exercise of a prerogative power is insulated from judicial review merely because it is prerogative and not a stuttory power. it is reviewable. it is not.Therfore. if its subject matter affte4s the rights or legitiamte expectations of an individual.) – Where matters of high policy are concerned. o The preferbale approach emphasizes that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter.
Even if the advice/procedure was wrong. – apart from Charter claims. o In Canada. even if the motives were questinable. these are not judicially reviewable Decisions like refusal of a passport or the exercise of mercy – administrative decisions affecting the rights of individuals and their freedom to travel . no Canadian citizen can cklaim a a legitimate expectation of recevien an honour. o Court then held that once the exercise of the prerogative is found to be beyond review by the courts.their legitimate expectations. how the prerogative was exercised is also beyond review. It involves moral and political considerations which it is not within the province of the courts to assess. it gives no substantive rights. The kind of decision/discertion that is not reviewable by the court. Court held that the refusal to grant an honor is one where no important individual interests are at stake. Real adverse cosnequences for the person affected. which lies entirely withihn the discretion of the honouring body. and rights are not affected because no Canadian has the right to an honour. careless or negligent. o Statutory Powers Most executive power originate from a delegation of authoirty by the legislature by statute. they cannot be challenged by judicial review. the doctrine of legitiate expectations informs the duty of procedural fairness.Common sense dictates that a refusal to issue a passport for improper reasons or wihtout affording the applicant procedural fairness should be judicially reviewable. But even if the doctrine of legitimate expectations could give substantive rights. • And no Canadian citizen can have a legitimate expectation of receiving an honour. .
be it Cabinet or an independent administrative body. Unlike prerogative powers which are restricted to executive functions) o It is common for the legislature to delegate even extensive legislative and adjudicatory functions to administrative bodies. • • Therefore. Canadian law impioses another. S. Roncarrelli v Dupleis – liquor licensign power in broad terms quashed when exercised wrongly by the executive) • • Where s. The principel of parliamentary sovereignty recognizes that the ability of parliament to enact legislation delegating the exercise of authority to some other body. like the Human Rights Commission. There are few restraints on the legislature’s ability to delegate powers to amdnistrative bodies.• In the case of commissions. the legislature cannot in law delegate powers that exceed the legislature’s own powers. no delegate can be authorized to exercise an absolute discretion (eg. • There are no functional restrictions on delegated powers (eg. the commission has no inherent powers. o The legislature is incapable of delegating power that is not bounded by the purpose for which the statute is enacted. is qualifed only by constitutional considerations. further limit on the power of executive govt and other entities delegated sttautory power. 7 of the charter applies (life. Essentially. such as the constraints found in the Charter and those relating to the division of powers. liberty or security of a person is imperiled) the doctrine of “consitutional vagueness” may invalidate a statutory provision either because that provision either . Pursuant to the rule of law principle. 32 of the Charter – actions of the executive which breach charter rights can and will be set aside. the authority of the cmmission is determined solely by the statutory grant because as an adminsitrative body. whether or not they are mandated by statute.
under its delegated authority. Note that the provinces have also been found to possess a simialr wide authority to delegate legislative functions (Hodge v Queen) (1883) o Another principle that constrains the ability of the legislature to delegate authority requires that neither the federal Parliament nor the provincial legislatures may delegate legislative powers to the other. must fall within the ambit of the legislative pronouncement by which its authority is measured. Court also held that this was not a compelte abdication of its power by the legislature. o While therefore no court has rejected the existence of a constitutional principle that denies the legislature the power to fully divest itself of its legislative powers. it is difficult to conceive of a delegation. indeed. in light of the wide scope of the delegation permitted. Such powers must necessarily be subject to determiantion by any time by Parliament and the acts of the executive.o 1) fails to give those who might come within the ambit of the provision fair notice of the consequences of their conduct or o 2) fails to adequately limit law enforcement discretion • Another agurment is that a delegation must not amount to a complete abdication of legislative auhtority: o Re Gray (1918) Court held that Parliament cannot. Court held that even though this granted a broad power to the executive (war measures act) parliament did it on purpose and Parliament was the delegating authority and it was for them to put any limitations on the power conferred on the executive. abdicate its function but within reasonable limits at any rate it can delegate its powers to the executive govt. short of one that purports to be of a permanent nature. . that would offend this principle.
PEI Potato Marketing v. Here the objuect of the scheme was to confer comprehensive regulatroy authoerity to market potates from PEI to the provincial marketing board. • • • • Court held that such delegation would be too disruptive and did not allow it. the local legislature is supreme as has the same authority as of Parlaiment. Court also noted that since neither was a creature or suboridnate body of the other. The basis of this rule is that an inter-delegation would upset the constitutional division of powers contained in s. yet as has been noted by the coruts. o Delegation implied subordiation. Court first noted that it is incontreveritble that the domionion cannot give jurisdiction or leave jurisidction with the province and vice versa. except in this case. the question is not only whehter one can delegate. Court noted that this would be unfair and such a power shift would imply the substance of a transfer. Novia Scotia Inter-delegation Case (1951) • Court was required to consider the constitutionality of a scheme by which provincial powers regarding employment matters would be delegated to the federal Parliament and certain taxation powers would be delegated from Parlaiment to Nova Scotia legislature in order to facilitate an unemploymetn insurance scheme. but whether the other can accept.s. the delegations were made not directly from one legislature to anotehr. Wills (1952) • Court was presented with another inter-delegation scheme. but from Parliament to a provincially created administrative body. which required the Federal Parlaiment to . wihtin its limits and subjects. 91 and 92 of the Constitition Act 1867. which would affect the people of other provinces.
delegating powers relating to export and interprovincial trade in PEI potatoes to the marketing board. • Court found this type of inter-delegation unobjectionable on the basis that the inter-delegation was to an adminsitrative body, as opposed to the legisltature itself. The pinciple policy basis behind the distinction between invalid legislative inter-delegation and valid administrative inter-delegation relates to the democratic expectations of the legislature, which must be seen to be acting free from the allegiances to other bodies, as opposed to those of an administrative body, where the recipient of auhtoity is expected to exercise power in accordance with the erquirements of the delegating body.
One further constitutional restriction that may intrude on the power of a legislative body to delegate auhtority to an administrative body concerns whether the conferral judicial fucntions to an administrative tribunals intereferes with the jurisdiction of the superior courts. • In the absence of a general seperatrion of powers doctrine in Canada, there is no overarching prohibition against adminsitrative tribunals exercising juridical functions, Instead the prohibition is against bodies that are not constituted in accordance with the erquirements of s. 96 to 100.
Nature and Function of Delegated Powers o Administrative law commentators ususllay discuss administrative powers in terms of legislative, judicial and adminsitrative functiosn. o The approach to procedural rights has beconme an approach that recognizes that a general duty to be fair is owed by a broad range of administrative decision makers and is related to matters beyond simply the identity of the decision maker, such as the type of interest affected and the nature of the decision itself. o Rule Making The most pervasive form of administrative rule making is the regulationmaking power that is delegated to cabinet through the governor in council.
The legal effect of delegated legislation is determined by the parent legislation. In the caes of regulations and municipal by-laws, these instruments are as effective as legislation in the sense that they give rise to legally enforceable obligations. • However, delegated legislations is considered inferior to statute, a conflict between a staute and a delegated legislation is always resolved in favor of the statutory provision. o Delegated legislation is often referred to as subordinate legislation in recognition of its inferior status. In this context, a conflict is said to arise: • • only in cases of direct conflict, that is where compliance with both enactments is not possible. No conflict arises where delegated legislation, such as a municipal bylaw, imposes more onerous regulatorty requirements than those enacted by a superior legislative body.
o Because regulations are “delegated” legislation, they must always fall within the scope of the power delegated to the excutive by the legislature. Otherwise, they will be ultra vires the executive’s power. Benefits of resorting to delegated legislation revolve around the fact that the statutory process is much more cumbersome and time consuming than the process for enacting regulations and regulations are, consequently, preferred to in situations that require ajudstment of the rules over time or detailed consulatioatn with a specific stakeholder group. • Eg. note that the Canada Human Rights Act grants powers to the Canadaina Humand Rights Commission and the commission is granted the authority to issue bingind guidelines. This power allows the commission, the body that is most familari with the Act, to create more specific rules respecting the application of the Act in order ot better guide the commissions’ decision making process.
Regulations can also be enacted by Cabinet without prior notice or consulations, unlike statutes which require a lengthy process.
Courts have not generally been willing to extend administrative law procedural obligations relating to notice and the opportunity to be heard to the exective’s rule-making functions. • It should be noted that courts have been more willing to impose procedural obligations in rule-making processes where the legislative outcomes have a particular impact on specific individuals.
Eg. where land-use bylaws particulary affect the property rights of individual homeowners, the courts look to past the formal legislative nature of the decision in making procedural oblaitions on municipal councils (Homex Realty v. Wyoming (1989))
Regulations are a form of law, often areferred to as delegate or subordinate legislation. They have binding legal effect and usually state rules that apply generally, rather than to specific persons or situations. Not made by parliament, instead made by persosn or bodies to whom Parliament has delegated the authority ot make them.\ • Authority to make regulations must be expressly delegated by an Act. o Acts that authorize the making of regulations are called enabling Acts.
A regulation making authority does nto have a free hand in making regulations. • Number of legal constraints including the Consittuion and other laws: o Statutory Instruments Act (SI Act) and the Statuatory Instruemnts Reigaltions (SI Regulations) which set out three basic legal requirements for making regulations: 1) Legal examination • Note that regulations are not invalid because they have been made without examination, but the Clerk can reguse to register or the Minister of Justice can repeal them
2) Registration 3) Publication in the Canada Gazette
Failure to publish does not make a regulation invalid,but it prevents conviction for an offence contravening the regulation. o One exception: someone who has contravened an unpublished regulation can be convicted if the regulation is excempt from publication
o Enabling acts also give additional constraint as regulations must stay within the scope of authority that the Enabling Act grants and must not conflict with it or restrict or extend the scope of its application.
The Regulatory Policy of Canada provides the policy framework for making regulations and its oibjective is to ensure that the use of govt’s regulatory powers results in the greatest net benefit to Canadians. • It states that regulatory authorities must ensure that: o Canadians are consulted and have an opportunity to participate in the developing or modifying of regulations o They can demonstratae that a problem or risk exists, federal gov’t intenrvetion is justistified and the regulation is the best alternative. Must assess all the possible solutions for achieveing its objective
o The benefits outweigh the costs to Canadians, their govts and businesses. That limited resources are used where they do most good
o Adverse impacts on the capacity of the economy to generate weatlehr and employment are minimized and no unnecessary regulatory burden is imposed. This involves regulatory authrotiies ensuring that: • Information and administrative requirements are limited to what is absolutely necessary and they impose the least possible cost
The special circumstances of a small businesss are addressed Parties proposing equivalent means to conform with regualoarty requiremens are given positive consideration
o International and intergovernmental agreemests are respected o Systems are in place to manage regulatory resources effectivty. Must ensure that: The Regualtory Process Management Standards are followed Compliance and enforcement policies are articulated Resources have been approved and aare adequate to discharge enforcement responsibiltiees effectively and to ensure compliance where the regulation binds the govt
Summary of Regulatory Process: (pg 275) o Development of a regulatory proposal by a dep’t responsible for an enabling Act or an administrative agency or other body that has regulation making authority o Central agency review (Privy Councio Office, Treasury Board Secretaeriat, DOJ) o Pre-publication Required to be pre-piublcised in the Canada Gazette
o Making or approval Made when it is officially established by the regulation making authority. Done through a separate document called an executive order. That eregulation is attached as an annex to the order.
o Registration Requires that regulations be transmitted ot the Clerk of the Privy OCunsilo within 7 days after they are made so that they can registered.
o Publication o Distribution All regualtiosn made avaioable to the public 2 days after they have been approved by the GG o Parliamentary scrutiny • The regulatory process applies to most regulations. Uder the SI Act. orders and regulations governing the practice or procedure in a proceeding before a judicial or quasi-judicial body established by or under an Act o Statutory instruments made in the exercise of a legialtive power conferred by or under and Act and o Statutory instruemtns for the contravention of which a penalty.1 of the amended SI Act. they are wholly or partially exempted by their enabling Act or by the SI Regulations. If such a motion is introduced. which is an analysis of the expected impact of each regulatory initiative. fine or imprisonment is prescribed by or under an act • Some regulations are not subject to the regulatory process.o Coming into force Registration is crucial because it determine dhwne the regusltion takes effect. • • . A regulatory Impact analaysis must be done. a minister files with the speaker of the hosue a motion to the effect that the resoltuoin not be adopted. four tuypes of documents are regulations: o Documents described as reagultions in an Act o Rules. Note that pursuant to s. the matter is then debated. the Joint Committee may make a report to the senate and the House of Commons containing only a resolution that all or any portion of a regulation that stands permanently referred to the committee be revoked. This resolution is deemed adopted unlesi within 15 sititng days. 19.
welfare benefits to be received or giving obligations people nto happy wiht o Enforcement Decisions Those decisions and activities that are required to promote compliance with legal obligations. unlike courts. be designed such that the tribunal members have broad discretion to determine and apply public policy. . the Board is required to act judicially but not beyond the sense that they parties are to be accorded a full and fair hearing and their submissions considered. welfare and conveience of the public in the municipoality affected and in doing so. In doing so. except in limited circumstances. Canada Human rights commission o Overlapping Functions It should be apparent that any one adminsitratrive body may carry out a variety of functions. o Benefit or Obligation Determination Self explanatory – but see page 283 • Eg. the board can exercise the same plocy discretion as the original decision maker. • Eg. • Eg. Administrative tribunals can. the Ontario Municipal Board – landowners who are dissatisfied with their planning decisions taken at the minicpal or provincial level may appeal those decisions to the Ontario Municipal Board but the board considers the matter as a hearing de novo – that is the board does not review the adequacy of the prior decisions but hears the matter afresh. the administrative decisions are not open to review by the court. • Therefore.o Dispute Resolution While some administrative triubunals are almost identical to courts. Note that courts have held that that the person deciding has to consider the safety.
Limits on the Exercise of Deelgated Authority o While the constraitns on the ability of the legislative branch to delegate authority are minimal. the agency may nevertheless act without proper legal basis due to a failure to abide by the requirements of procedural fainres or abuses of discreation. o Essentially. an administrative agency may embnark on an inquiry properly within its statutory mandate. but there also exixts a set of rules that dictates how delegated power must be exercised. o Controlling Jurisdiction: Substantive Ultra Vires The rule that a delegated authority can exercise only those powers that are granted to it is straightforward. Their sole source of power (excepting those bodies that exercise prerogative powers or powers under the Constitution) derives from the statutory delegation. and tends to turn on the questions of the interpretation of the authorizing legislation. The overarching principel that governs the exercise of delegated authority is that it must be exercised within the confines of the delegation itself. Consequently. • The supervisory role of the courts raises complex issues concering the conditions under which the judicial branch should interfere with decisions taken by the executive branch. . • Recipients of delegated authority have no inherent jurisdiction to act. the law imposes a rigorous set of limitations on the exercise of power by the recipient of the delegated authority. any act done outside the boundaries of the statutory grant is without legal authority and unlawful (ultra vires) • Jurisdiction in this sense rlated to what powers are exercised. The determination of legality of the exercise of administrative authority is the function of the courts. but in carrying out the inquiry. These latter rules are also jusirictional in the sense that a deleageted authority is only authorized to exercise powers in ways that conform to these rquriemetns. once the authority is delegated to an administrative actor.
A realted jurisdictional rule requires that delegated authority must be exercised by the specific delegate to whom the authority is granted • Reference re Regulations in Relation to Chemcials (1943) o The maxim “delegates non protest delegatare” involved This is the principel that a delegated authority cannot be redelegated.• Determining whether an administrative act is properly cloaked with jurisdiction may require consideration of whether the decision maker has complied with applcaible statutory conditions or whether a certain set of required factual circumstances is present. constitute another person his servant or bailiff. o Therefore. the rule as to delegated functions must be understood with this necessary qualification that no power to re-delegaate such functions has been given. . o Altough a deputy cannot transfer his entire powers to another. for the purpose of doing some particular act. The commissioner’s power over discrimination matters were in relation to a self-contained dwelling unit. • One agent cannot lawfully appoint another to perform the duties of his agency. and the commission could not proceed in circumstances where that preliminary condition was not established. In deciding that the commission was properly prevented from initiating proceedings. in may cases. Such an auhtooryt to employe a deputy may be either express of impleud by the recognized usage of trade. the Supreme Court held that the commission’s jurisdiction was dependent upon the preliminary finding that the allegation of discrimination was in relation to a self-contained dwelling unit. a deputy possessing general powers may. provided that such act be within the scope of his own legitimate authority. o Bell v Ontario (Human Rights Commission) (1971) At isse was whether the OHRC could exercise its authority in relation to a discrimination complaint involving the renting of accommodation.
Knight v. Indian Head School Division No. subject to qualifications. the auhtoryt cannot be delegated to another person or ody. o Merely administrative matters are those that do not involve the exercise of substantial amounts of discretion. and in the absence of express power so to do. • One qualification to the rule against subdelegation is that matters that are merely administrative are those that may lawfully be subdelegated. then it is allowed. the duty to be fair refers to the procedures adopted by the decision maker. as opposed to imposing a substantive obligation of a fair outcome. 30 of the Immigration Act to prohhiit the landing of immigrants of a specified class could nmot be delegated to the Minister of the Interior. • Gregharty v Porter o Held that a delegated power of legislation must be exercised strictly in accordance with the powers creating it. The essence of this rule is captured by two maxims: • • The right of a person to know and answer the case against him and The requirement that a person not be the judge in his own case o Basically that an administrative decision maker cannot be biased. This maxim is a rule of construction. o Controlling Procedures: The Duty to Be Fair Administrative decision makers are generally required by the common law to act fairly toward those persons affected by their decisions. • In this context. o Held that the power conferred on the GG by s.• Re Behari Lal et al. • And also note that where subdelegastion is specifically provided for in the statute. 19 (1990) .
Court noted that not all administrative bodies are under a duty to act fairly. . • The finality of the decision will also be a factor to consider: o A decision of a preliminary nature will not in general trigger the duty to act fairly. • • • Whenever those elements are found. • Court noted that the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. o Courts have noted that a high standard of justice is required when the right to continue in one’s profession or employment is at stake. there is a general duty to act fairly. o Decisions of a legislative and general nature can be distinguished from acts of a more adminsirative and specific nature which do not entail such a duty. whereas a decision of a more final nature may have such an effect. Court noted that the existence of a general duty to act fairly depends on the consideration of three factors: o 1) the nature of the decision to be made by the administrative body o 2) the relationship existing between that body and the individual and o 3) the effect of that decision on the individual’s rights There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. • Loss of employment agaisn the office-holder’s will is a significant decision that could justify imposing a duty to act fairly on the administrative decision making body.• Contract employee dismissed when would not agree to longer term for renewal and claimed that he was owed a duty of fairness prior to being dismissed.
Also noted that it has long been recognized that the duty of fairness applies to H&C decisions. privieelges or interests of an individual is sufficient to trigger the application of the duty of fairness. comes the inherent difficulty of differing notions of fairness amongst those called upon to determine if the duty to act fairly was complied with. Court first noted that the fact that a decision is administrative and affects the rights. the statutory provisions and the nature of the matter to be decided.o Other courts have stated that both the rules of natural justice and the duty of fairness are variable standards and their content will depend on the circumstances of the case. All of the circumstances must be considered in order to deermine its content. Canada (minister of Citizenship and Immigration) (1999) • The appellant was a citizen fo Jamaica siubejct to a deportation order and who was not given reason for the denial of her humanitarian and compassionate grounds refusal except for notes of one immigration officer. Factors Affecting the Content of the Duty of Fariness o Court noted that the concept of procedural fairness is eminintely variable and its content is to be decided in the specific context of each case. Court noted too that the closeness of the administrative process to the judicial process should indicate how much of the governieng principles of fairness should be imported into the realm of administrative decision maing. and depends on an appreciation of the context of the particular staute and the rights affected. Baker v. o Then court noted that with this flexibility. o Although the duty of fairness is flexible and variable. • • • . which disclosed a lack of concern regarding the interests of her children. there is criteria that should be used in determining what procedural rights and the duty of fariness require in a given set of circumstances.
with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision maker. o The role of the particular decision within the statutory scheme and surrounding indications in the staute help determine the content of the duty of fairness owed when a particular administrative decision is made. the function of the tribunal. The more important the decision is ot the lives of those affected and the greatr its impact ont ha . Several considerations have been recognized as relevant: • The nature of the decision being made and the process followed in making it o The closeness of the administrative process ot the judicial process should inidacate how much of those governieng principles should be imprted into the realm of the administrratve decision making. the more likely it is that procedural protections closer to that of the trail model will be required by the duty of fariness. Underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decision are made using a fair and open procedure. and the determination that must be made to reach a decision resemble judicial decision making. the nature of the decision making body. institutional and social context. Greater procedural protections will be required whn no appeal procedure is provided for within the statue or when the decision is determinative of the issue and further requests cannot be submitted. The more the process provided for. appropriate to the decision being made and its statutory. • The nature of the statutory scheme and the terms of the staute pursuant to which the body operatioes. • The importance of the decision to the individual or individuals affected.
Nevertheless. Similarly.or when the agency has expertise in determine what procedures are apprortiate in what circumstances. • The legitimate expectataions of the person challenging the decision may also determine what procedures the duty of fairness requires in given circusmtnaces. If a legitimate expectation is found to exist. • Should take into account and respect the choices of procedures made by the agency itself. the doctrine of legitimate expectation cannot lead to substantive rights outside the procedural domain. the more stringent the procedural protections that will be mandated. . o Noted that the courts have held that this doctrine is part of the doctrine of fairness and odfes not create substantive rights.tperson or persons. fairness may require more extensive procedural rights than would otherwise be accorded. particularly when the staute leaves to the decision maker the ability to choose its own procedures. this will affect the content of th duty of fairness owed to the individual affected by the decision. this procedure will be required by the duty of fairness. If the individual has a legitimate expectation that a certain procedure will be followed. The doctrine is based on the principal that the circusmatces affecting procedural fairness take into account the premises or regular practices of administrative decision makers and that it will generally be unfair for htem to act in contravention of representations as to procedure. if a claimiant has a legitimate expectation that a certain result will be reached in his case. or to backtrack on subsatnive premises iwhtout according significant procedural rights.
insitutaion and social context of the decision. since it involves the exercise of considerable discretion and require the consideration of multiple factors. those whose interests were affected had a meaningful oporitunity to present their case fully and fairly. Therefore there is no legitimate expectation in this case affective the content of the duty of fairness. nor did it suggest that any rights beyond the participatory rights below would be accorded. o 2) Second. • Legitimate Expectations o Court noted that the Convention on the rights of the child was not the equivalent of a government represetantion about how H&C applications would be decided.• This list is not exhaustive and other factors may also be releavent. and have decisions affecting their rights. itnersts or privileges made using fair. o 1) Court then noted that an H&C decision is very different from a juridicial decision. These factors militate in favor of a more relaxed requiorfements under the duty of fairness. It is all about the values underlying the duty of procedural fairness which relate to thte principle that the individual affected shoud have the right to present their case fully and fairly. impartial and open process. The procedure in this cae consisted of a wirten application with supporting documentations. considering all the circumstances. • Participatory Rights o Court then noted that another issyue was whether the failure to accord an oral heaing and give notice to A was inconsistent with the participatory rights requied by the duty of fairness in these circusmtnaces. o At the heart of this analysis is whether. which was summarized by a junior officer and a recommendation being made by that officer. its role is also an exception to the general principles of Canadian immigration law. . appropriate to the statutory.
However.o 3) On the other hand there is no appeal procedure although judicial review may be applied for with kleave of the Federal court. • HELD: Taking all the factors relevant to determining the content of the duty of fairness into account. The insituttional choices made by the Minister are significan factors. o Court therefore held that an oral hearing is not a general requirement for H&C decisions. this is a decision that in practice has exception importance to the lives of those with an interest in its result and this leads to the duty of fairness being more extensive. o 4) In addition. o 5) the statute accords flexibility to the Minister to deciced on the proper procedure. considering the fact that several of the the factors pointed toward more relaxed standards. Bcause the immigration officers had all the releventa information before them an oral hearing was not re quired. the Federal court has held that procedural fairness does not require an oral hearing in these circusmtnaces. the lack of an oral hearing or notice of such hearing diod not consituttion a violation of the requirements of procedureal fairness to which A was entitled in the circusmtnaces. o Court then held that the circumsntaces require a fiull and fair consideration of the issues (not like decided by Shah that all required awas a minimal duty of fariness) and the claimiant and others whose important interests are affe ted by the adecision in a fundamental wasy must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. considering the third factor. • Therefore. . court also noted that it cannot be asiad that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved.
And that it ahs alos been held that the case history notes prepared by a subordinate officer are not to be considered the decision maker’s reasons. But courts have emphasized the usefulness of reasonas in ensuring fair and transparent decision making. o And those affected may be more likely to feel they were treated fairly and appropriately.o The opportunity. • Provision of Reasons o Court then discussed the issue of whether duty of fairness requires the provision of reasons by the decision maker. • The process of writing reasons for a decision by itself may be a guarantee of a better decision. • “reduced to a considerable degree the chances of arbitrary or capricisious decision making” Reasons forster better deicison making by ensuring that the issues and reasoning are well articulated and therefore more carefully thought out. that reasons be provided for administrative decisions. which was accorded to produce full and cpompelete written documentation in realtion to all aspects of her application satisfied the requirements of particparoty rights required by the duty of fairness in this case. o Also noted that a traditional position at common law has been tha thte duty of fariness does not require. . o Court ntoed that the Fedearl court has previously held that reasons are unnecessary. o But thee have also been concerns. for example the concern that a reasons requirement may lead to an inappropriate burden bering imposed on administrative decision-makers that it may lead to increased cost and delya and that it might in some cases incude a lack of candour on the part of the administrative officers concernded. as a general rule.
in cases such as this where the decision has important significance fo the indiviudla. some form of reasons should be required. o Court ntoed that the duty toa ct fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all imiigration officers who play a significant role in the making of decisions kwhether thye are subordinate reviewing officers or those who make the final deiciosn. The strong agumennts demonstrating the advantages of a written reasons suggest hat. when there is a a statuory right of appeal. • Acepting these documents atre sufficient reasons is part of the flexibility that is necessary when courts evalueate the requirement of the duty of fairness with recognition hat day to day realities of administrative agencies and the many ways in which thes values underlying the principles of procedural fairness can be assured.o Court ntoed that any concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility jto decision makers by accepting various types of written explanations for the decision as sufficient. o But court held that the reasons requirement was fulfilled in this case by the immigration officer’s noted beiung provided to A. o Court therefore held that it is appropriate ot recognize that in certain circusmtnaces the duty of procedural fairness will require the provision of a written explanation for a decision. provided when her counsel asked for reasosn. Because of this and because no other record of the reasons for making the decision exist. the notes of the subordinate reviewing officer should be taken as the reasons for the decision. . o Held that the notes satisfy the requirements ofr reasons under the duty of procedural fairness and will be taken as the reason for the decision. • Reasonable Apprehension of Bias o Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision maker.
Improper Purposes and Irrelevant Considerations There is no legal requirement that a delegation of authority be narrowly defined and it is not uncommon for the powers to be delegated with little or no statutory guidance as to how the decision maker’s discretion should be exercised. o The test for reasonable apprehantion of bias is that is must be a reasonable one. A subordinate officer plays an important part in the process and if a person with such an important part does not act impartially. whether consciously or unconsciously. conclude. Immigartion decisions: • • They are individualized v. decisions of a general nature They require special senstiviely o Court held that a well informed member of the community would perceive bias when reading the officer’s comments. o Noted that the standards for reasonable apprehension of bias may vary depending ont eh context and the ytpe of function performed by the administrative decision maker involved. Would he think that it is more likely thatn not ath the decision maker. The test is “what would an informed person. o Held that his notes therefore demonstrated a reasonable apprehantion of bias. the decision itself cannot be said to have been made in an impartial manner. held by a reasonable and right-minded person applying themselves to the question and obtaining thereon the required information. His notes and the manner in which they are written do not discloses the existence of an open mind or a weighting ot he particular circumstances of the case free from stereotypes. would nto decide fairly. . o Controlling Discretion: Bad Faith. viewing the matter realistically and practically and having thought the material through.
Where administrative actions are attacked on the basis of bad faith. • Equity Waste Management v. stuatory decision makers are nevertheless bound to exercvise those powers with a rational appreciation of the statutory intnetn and purpose and not with an importper intent or for an alien purpose. In many cases. o Bad faith goes beyond unreaosnableess and amounts to jusriidciotnal error since it is implied tha thte legislature would not have intended for a delegated authority to act for some improper and ulterior purpose. It inlcudefds arbitrary or unfair conduct and the exercise of power to severe private purposes a thte expense of public interest. a purpose that was alleged to amount to bad faith. The benefit of conferring broad discreation on administrative decision makers is that discretion allows the decision maker to fully account for the particular facts and context of the question before it. in that what is at issue is the substance of the decision maing process. The concern with broad discretion is that it is open for deicison makers to exwericse that discretion in ways that were not contemplated by the legislature and for the purposes that do not reflect the public interest. • Important distinction because the discreation fo the decision maker included the right to make deiciosns that may be unreasonable. what kings of considerations were takin into account and the motivations of the decision makers themselves. • Concerns over the exercise of discreation are distinct from procedural fairness questions. it is not necessary for the aggrieved person to show tha the decision maker acted with mal fides. o Bad faith connotes a lack of candour. the determinations to be made under a statutory scheme are too complex to be reduced to a set of generalized rules in the abstract. Noted that in the exercvise of borad discrationry powers. . frankness and impartiality. Halton Hills (Ontario CA 1997) o Municiapl land-use bylaw attached by the affected landowners on the baiss that the bylaw was passed for reasonas of political expediencey and not for land-use planning purposes. On the other hand. bad faith should be distinguished from unreasonableness.
fewer than a majority. is not open to review by the court. influenced by their constitutiedns.llots.o Court ntoed that the courts are phirbited from quashing a by-law on the ground of unreasonabless. had their reloection prospects in mind when they voted on the by-law. the court noted that appeasing a group of residents out of self-interst may support a finding of bad faith but that such cases must be rare. But it is to say in the factual situation of the case that the Council acted unreasonably and arbitrarily without the degree of fariness. but the unreasonableness of the bylaw may be given in evidence to establish want of good faith in the council who passed it: The powers of the ocunsil must be exercised bona fide. provided that the counsil in passing it acted in good faith. oppression or improper motives: • And as to refusal to hear interested parties: o A by-law may be quashed if the counseil in passing it was not using its power in good faith in the interst of the public byut simply to seubserve the interests of private persons o What is or is not in the public interst is a matter to be detmerienin gby the judgfment of the municipall counsil. the evidence shows that a few council. o To say that counsil acted in what is characterized in law as bad faith is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members. openness and impartiality required of a municipal government. and the action of its members must not be founded on fraud. express strong views against a prohject. This evidence falls short of a showing bad faith. o Court then noted that just because the council was elected and it was claimed they wer appeasing a portion of the electoratre. real or asupposed. if in reaching its conclusion it acted honestly and within the limits of its powers. A court should not be quick to find bad faith because members of a municipal council. what it determines. At its highest point. • A further way that courts seek to control the exercise of discretion is by reviewing the nature of the considerations that he decision maker .
Court distinguishes between a variety of different considerations: o Mandatory considerations are those that the decision maker must take inot account and a failure to do so will be a reviewable error. Irrelevant considerations are those that are extraneous to the exercise of discretion and if considered. • In most cases mandatory considerations will be set out in the statutory schement. o Baker v Canada (Minister of Citizenship and Immigration) (1999) Court first noted that the elgialtions and regulations delegate considerable discreation ot the minister. These consideration are not necessary determination in that a decisiokn maker is still free to decide the matter on sme other bass. o o An important consideration in determining whehte ran admibnistrative decision maker has improperly exercised his or her discretion will be the amount of deference a reavieing court gives an adminsitriagev tieicison. The Minister SHALL consider. the decision maker commits a reviewable error. The concept of discretion refers to decisions where the law does not dictate a specific outcome or where the decision maker is given a choice of options within a statutorily impoed set of boundaries. (eg.. but they are not permitted to ignore the consideration altogether.) o Relevant considerations are those that may properly be considered by the decision maker but a failure to do so is not fatal to the decision.takes into account in arriving at its decision. Errors of this nature are jurisdictionsal eorrs because it is considered implicit by the courts that the statutory delegations is conditional on the decision maker taking into account only those matters that are relevant ot the deiciosn at hand. Court noted that the rule of judicial review of amdinisrative discretion if the decisions classified as discretionary may only .
with certain decisions being enitled to more deference and others to less. • These doctrines recognize that it is the intention of the legislature. the exercise of discreation for an imporoper purpose and the use of irrelevant considerations. Court ntoed tht the doctrines incorporate two central ideas: • 1) that discretionary decisions. and 2) but that considerable deference will be givne to decision makers by courts in reviewing the exercise of that discretion and dermeinign the scope of the decision makers jurisdiction. like all other administrative decisions. such as the bad faith of decision makers. discretion must still be exercised in a manner that is within a reasonable interpretation of the margne of maneouvre contemplated by the legislature in accordance with the principels of the rule of law. that courts should not lightly interfere with such decisions and should give considerable respect to decision makers when reviewing the manner in which discretion was exercised. • A general doctrine of unreaqosnableness has also sometimes been applied to discretionary decisions. in line with general principles of adminsitraitve lawy governing the exercise of discretion and consistent with the Charter. Hence 3 standards of review: • • • 1) patent unreasonableness 2) reasonableness simpliciter and 3) correctness . Cour thten noted that the pragmatic and functional approach recognizes that standards of review for errors of law are appropriately seen as a spectrum. when using statutory language that ocngeres road choices on admnistraitve agencies. must be made within the bounds of the jurisidciton conferred by statute.be reviewd on limited grounds. • However.
the explcit contemplation of judicial review by the federal court. • Yet the absenf of a privative clusse. could presumably be in the evidentiary foundation itself or in the logical process by which conslucrions are sought to be drawn from it. the fact hta the decision maker is the Minister and the considerable discretion evidencen by the statutory language. . if there is one. o Court therefore held that weighing all the factors. Court then ntoed that an unreasonable deicison is on that. The defect. H&C decisions should be judged under the statndard of review of reasonabless simplicityer. the langhuiage of the provision and the surrounding legislation. a court revieing a cnslusion on the reasonabless ostandard must look to see wherhter any reasonass suppose it. the nature of the decision being made. is not supported by any reasons that can stand up to a somewhat porbing examination. in the main. Court ntoed that het pragmatic an dfunctional approach takes into account considerations such as the expertise of the tribunal. • Also includes factors such as whether the decision is poly centric and the intention revealed by the legislature. its role within the statutory scheme as an exception. Court hten thoted that the factors must be balanced to arrive at the appropriate standard of review and concluded that considerable degfeence should be accorded to immigration officers exerciseing the powers conferred by the legislations – given the fact specific nature of the inquiry. Accordingly. The examination of this question should focus on the issues arising from the serious question of general importance. The amount of choice left by Parliament to the administrative decision maker and the nature of the deicison being made are also improtnat considerations. and the individual rather than polycentric nature of the deicison also sugges that the standard should not be as defernatal a spatente unreaosnbless.
• The values reflected in international himan rights law may beld inform the contextual approach ot statutporyu interpretation and udicial review. o Court held that the failure to give seriuosu weight and consideration to the interests of the children constitutes n unreaosnble exercise of the discretion conferred by the section notwithstanding the ipioratnt deferdnce that should be givne to the decision of an immigration officer. In so far as possible. Court noted that the legislature is presumed to respect the values and principles enshrined in intenational aw both customary and conventional. interpretations that reflect these values and principels are preferred. • Court then ntoed that since the focus was on the interests of the children and the officer did not indicate in his reasonas consideration of this. the decision was an unreasonable . Immigration officers are expected to make the deicisonss that a reasonable person would make with special consideration of humanitarian values such as keeping cponnections between family members and avoiding hardship be sending people to places where they no longer hav econncetions. Court also note dtha thte guidelines inssued byt eh Min ister to the I migaion officers recognized na dreflect eh cvalues and appraoich above.• Court then noted that the approach taken ot the childner’s interest by the suibnoridnte officer shows that this decision was unreasonable. The officer was completely dismissive of the interests of A’s children. Court then discussed the objectives of the Act and International law. Court hel that the reasonas of the immigration officer show that his decision was inconsiste4nt qith the values underling the grant of discretion and that a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of the children. These constitute a part of the the leagal context in which legislation is enat ed and read.
The decision kaker should consider children’s best interests as an impportnat factor. attentivensss nad sentitivy toth e importance of the rights of children. o While the court agreed that the Act gives the applicant NO right to a particular outcome or to the application of a particular legal test. the decision must be made folliwng an papraoch that respect hiumanitarian and compassionate values. and that the doctrine of legitimate expectations does not mandate a result consitese with the wording of any international instrument. 114(2) jusidicla review applications. • Noted that he workding of the section and reugloations shows that the discreation granted is confined within certain boundaries. . Therefore. Hiwle deference should be given to immigration officers on s. decisions cannot stand where there manner in which the decision was made and the approach taken are in ocnlfict iwht huimanitarian and compassionate values. to their best interest and to the hardshoip that may be caused to them by a negative deiciosn is essential for an H&C decision to be made in a reasonable manner. which stated that the s.11492) decision were wholly a matter of judgment and discretion. give them substnaiak weight and be alert and sensitive to them..exercise of the power conferred byt eh legislature which must be overturned. Diagreed with Shah.
92(14) the provinces have the legislative power in relation to the administration of justice in the province but this power is subject to subtraction of ss.101 also allows Parliament to create any additional courts for the beeter administration of law in canada These s.” S. district and county courts in each province • • These s. o Court then noted that under s. including the Constitution. Provinces can also create courts that are not s. 96 to limit provincial powers to strip jurisdiction from superior courts.101 – the federal government created the Supreme Court as the general court of appeal for Canada. 92(14) gives exclusive power to the the provincial legislature with respect to the “Administration of Justice in the Province.96 courts. • • S. Maintenance and organization of the provincial courts.THE COURTS AND THE JUDICIARY Structure of The Canadian Court System o Constitution Act 1867 (divides power between the federal and provincial levels of government) S.101 courts created by federal statute. . • In re Residential Tenancies Act (1981) o Supreme Court has employed s.. 96 provides that the GG shall appoint the judges of the Superior.96 and 100 in favour of federal authority. this means that the provincial government creates s. 96 courts but the federal government appoints the judges and pays their salaries S. but they have to pay their salaries and are also limited in how many they can create. 96 courts are are known as superior courts (provincial superior courts) The federal government is responsible for paying the salaries of the judges as well All told.
powers shared with inferior courts at Confederation fall outside the area addressed in this first question and can be validly exercised by a provincial tribunal. one must ask whether the power in question is to be exercised in a judicial manner. which have established tha the superior courts are a fundamental insitution . 96 judicial powers and thereofre as implicilty limiting proivnical competence to endow a provincial tribunal with such powers. • Consequently. o The intended effect of s. 96 has come to be regarded as limiting provincial competence to make apppointment to a tribunal exercising s. 96 court at the time of Confederation. appiont memebers thereto and then confer on the tribunal the jurisdicition of the superior courts. that is. as opposed to policy. o Three part test for determining whether the provincial grant of power is valid: 1) requires consideration of whether the powers exercised by the impugned provincial tribunal conformed to those that were the exclusive jurisdiction of a s. district and county courts in each province. 96 – the GG has the power to appoint the judges of the superior. o Thus. do the tribunals proceedings concern a lis (a dispute) that is to be determined solely on legal. grounds? 3) Finall. o Only where a tribunal is found not to be ancillary to an administrative shceme will the tribunal’s authority be found to be unconstitutional o This test has been modified by further cases.96 would be destroyed if a province could pass legislation creating a tribunal. 96 court at Confederation. 2) If the powers were found to fall under the exlusive jurisdiction of te a s. • Here the inqury looks at whether tribunal is ancillary to a braoder administrative scheme. Under s. the third part of the test requires consideration of whether the institutional setting itself is fundamentally judicial. s.
• . • Provincial Judges reference (1997) o S. 96 has coem to guratnee the core jurisdiction of the courts which come wihtin the scope of that provision. Hearings to determine if there is enough evidence) take place here Note that some provinces have created special courts (ef. 96 restricts not only the legsiltive competence of theprovincial legislature. s. Therefre. through a process of judicial interpretation. The provinces cannot enact legislation to encraoch on their core jurisdiction and entierh can the fedearl Parliament. 313) Provincial/Territorial Courts • Each province and territory. district and county courts. has a provincial/territorial court and these courts hear case involving eaither federal or provincial/territorial laws. 96. s. but of Parliament as well. which are known by various names (superior cour of justice. supreme court. 96 courts) • Each province and territory has superior courts. It is a staffing provision and is once again a subtraction of the power of the provinces under s. 92(14) However. All preliminary inquiries (eg.protected by our Constitution through the interpretation of s. with the exception of Nunavut. and the court of queen’s bench) Superior courts have inherent jurisdiction. which means that they can hear cases in any area ecept those that are specifically limited to another level of court. 96 seems to do no more than confer the power to appoint judges of the superior. Organization of the Courts o Four levels of Courts (breakdown on p. Youth or DV court) • • Provincial/Territorial Superior Courts (S.
Tax Court of Canada and Military Courts • • • • The Supreme Court of Canada • • Final court of appeal from all other Canadian courts. intellectual property proceedings. Since the courts were created by an act of Parliament. all appointed by the federal government. Consists of a Chief Justice and eight other judges. they can only deal with matters specified in fedearal statutes. orders and other adminitrative action of federal boards. . citizensip appeals. competititon act cases and cases involving crown corporations or departemnt of the gov’t of canada. Jurisdiction over disputes in all areas of the law. Only these courts have the judisiction to review decisions. commissions and tribunals. Courts of Appeal • Each province and territory has a court of appeal or appellate divinsion that hears appeals from decisions of the superior courts and provincial/terriorial courts. Specialized federal courts o Created by statute and can only decide matters that fall within the jurisdiction Eg. Also hear constitutional questions • The federal courts • Federal court and the Federal court of appeal are essentially superior courts with civil jurisdiction. The court’s jurisidiction involves interprovincial and fedearl-provincial disputes. The fedearl court is the trial-level court.• Deal with most serious criminal and civil cases and acts as a court of first appeal. and appeals from it are heard by the federal court of appeal.
ir if the matter is. o Note that in certain situations. . raises an important issue of law or mixed law and fact.o At least 3 judges mut come from Quebec (according to the Supreme Court Act) • • Sits in Ottawa for 3 sessions (winter. leave to appeal is automatic (eg. get a circiel of interested members of the commitnity to join with the offender and victim and talk about options. especially with aboriginal offenders or victims. • Sentencing Circles o After a finding/admission of guilt. spring and fall) Court must grant permision or “leave” to appeal before it will hear a case. New Approaches • Nunavut Court of Justice o Combines the power of the superio or trail court and the territorial court so the same judge can heal all cases that arise in the territory. for any other reason. Criminal case where a judge has dissented on how the law is to be applied) • Can also act as adviser to the federal govt – that is the govt can ask the Court to consider questions of any important matter of law or fact. significant enough to be considered by the court. o Often used. o Judge is not bound to accept the circle’s recommendations. especialy those concerning the interpretation of the Constitution. o Restorative justice is popuar. o Only granted if the case involves a question fo public importance. • Unified Family Courts o Permit all aspects of famuily law to be dealt with by a single court with specialized judges and services.
often following a short listing process involving an advisory committee. o Appointments to a provincial superior court are made only from members of the bar of that provicne. Canadian judges are selected by the executive branch. In Ontario: • Ntoe that the Judicial Appointments Advisory Committee must reflect the diversity of Ontario’s population 7 lay members and 6 legal member. • Supreme court justices – simply appointed by the governonr in council. Vacanices on the bench advertised in the Ontario erprots. as requierd by the Constitution Act 1867.• • Administrative Tribunals ADR Systems o Special proceedings – either mediation or arbitration Judicial Appointments o Without exception. federal court and tax court judges are appointed by the governor in council (eefectively the Cabinet) usually following a review of candidates by an advisory committee. or a combination of 10 years at the bar and in the subsequent exercise of pwoers and duties of a judicial nature on a full time absis in a position held pursuatn to a law of Canada or of a province or territory. the Federal Courts Act and the Tax Court of Canada Act. 96 courts. . The statutory qualfiications for appointment are set out in the Judges Act. • o Federal Judicial Appointment Process S. Page 322 has all the requirements for Fedearl Judicial Appointmnets Judge cannot retire with a full penerion untiley have served 15 years in office and the total of their age and years in office equals at least 80 or have compelted at least 10 yearz in office and reached the age of retirment (75). • Generally require 10 years at the bar of a province or territory.
The recommendation for appointment as a judge is made to Cabinet by the miniter of justice. And would provide an unranjked short list of 3 candidates . On Oct 25. it should be more accountable to the public through the appointment porcess. • Basic criticism is that the pool or recommended or highly recommended – as deterined by the committee – is so large that the recomendatiosn to Cabinet may be influed by considerations other than merit. The initiative include: o Code of ethics for committee members o Releasign the guideleines that govern the advisory committee member’s particiaption in the process o Tabling the mandate letter provided to committtee member o Publishing on an annual basis a list of the current committee members. • New proposal in the works to amend the process. including 4 steps o The Minister would conduct consultaitons under the current process o An advisory committee would be establsihed as each vacancy arise to relect the regional anture of the appointments. 101 courts. Questions and debates about the political influence on the selection process. 2005 – a series of initiatives was announced by the miniter of justice to enhance transparency. • Supreme Court appointments have even further controversy – because in effect the Supreme Court is legislating. Some want Parliament to have hearings like the US – other says this would make it worse. Ultimately. Etc. accountability and public underesatning of the judicial appointemnt process. 96 of the Constitution Act 167 or the statutes governeing the s. apppointments mut be made by the governor in council as requeds by s..
Appointment made from the lsit in all byut e most expectional circumtaces o Miniter would appear before ht Justice Comitte to explain the porcess and the reason for the choice .o The minister would complete such further consultations as considered necessary that would be proivdfed to PM who would provice to Cabinet.
(2005) Judicial Independence consists essentially in the freedom to render decisions based solely on the requirements of the law and justice. shall cease to hold office upon attainging the age of seventy-five years. o Sources and Scope Judicial Independence is a constitutional concept. 99 specified the tenure of superior court judges as follows: 1) … the judges of the superior courts shall hold office during good behaviour. has been interpreted to be a breach of good behaviour. o BC v. • Ss. . o S. o S. Imperial Tobbacco Canada Ltd. tenure and renumeration of federally appointed judges. whether appointed before or after the coming into force of this section. o Physical and mental incapcity – that is the inability to act as a judge. 96-100 provide for the appointment. but shall be removable by the GG on address of the senate and the house of commons and 2) A judge of a superior court. federally appointed superior court judges are removable only for breach of “good behaviour” until the mandatory retirement age of 75. Judicial Independence o Judicial independence is the notion that judges are at arm’s length from the other branches of govt. It requires that the judiciary be left free to act without improper interference from any other entity – that the executive and the legislative branches of governemtn not impinge on the essential authority and function of the court. 96 has be interpreted by the courts as not merely indicating who has the power of appointment but also establishing the superior courts as a fundamental institution protected by our constitution. • In other words.
distrit and county courts” Provincial Jugdes reference (1997) o The Consittuion Act 1867 priovisions apply only to superior courts. 11(d) of the Charter imposes a requirement for judicial independence in certain circumstances: o 11) Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fiar and public hearing by an independent and impartial tribunal • Since most criminal cases are tried by provincially appointed judges. 11 (d) o The meaning of an independent and impartial tribunal under section 11 (d): Court developed institutional independence referring to those requirements that must be in place in order for the judiciary to be sufficiently independent of pressures from other branches of the state in order to meet this standard. o Otherwise. • But S. this Charter provisiion requires that these courts and the individual judges are appointed to provincial courts be independent and impartial. an accused person facing trial before such a court would be entitled to a stay of proceedings for the denial of the Charter right under s. allowances and pensions of superior court judges shall be fixed and provided by the Parliament of Canada.o S. • Three requiremetns identified by the court: o Security of tenure o Financial security and o Administrative control or independence with respect to the management of court business . This provision has been interrpeted by the Supreme Court as guaranteeing the financial security of judges of the superior.100 indicates that the salaries.
by its express terms. Judicial indepdennce serves important societal goals: • The maintenance of public confidence in the impartiallity of the judiciary. • Noted that from its express terms.• Unwritten principle of judicial independence in the Constitution: o Reference re renumberation of judges in provincial court (1997)_ Issue of whether and how the guarantee of judicial independence in s. 11 (d). The court ntoed that there are serious limitations to the view that the express provisions of the Contitution comprise an exhaustive and definitive code for the protection of judicial independence. one aspect of which is the consittuional principel that the exercise of all public power mut find its ultimate source in a legal rule. the gaps in the scope of protection provided by ss 96-100 are offset by the application of s. which applies to a range of tribunals and courts. o However. . But the court stated that judicial indepeendence is at root an unwritten constiotutional principle and the existnce of that principle is recognized and affimred by the the preamble of the Constitution Act 1867. And the manitnenace of the rule of law. 11(d) is a right of limtied application – it only applies to persons accused of offences. it is limtied in scope to bodies which exercise jurisdiction over offences. The first and most serious problem is that the range of courts whose independence is protected by the written provision of the Consittuion contains large gaps. which is essential to the effectiveness of the court system. so that the specific provisions of the Consittution Act 17867 and 982 merely elaborate that principle in the insittutional apparatus which they create or contemplate. • To some extent. 11 (d) of the Charer restricts the manner by and extent to which provincial govts and legislatures can reduce the salaries of provincial court judges. including provincial courts. s.
not protect from economic manipulation. by their terms. 100 for example provides that Palriament shall fix the salaries o On its face. The only way to explain the interpretation of the above sections (96 and 100) is by reference to a deeper set of unwritten understandings which are not found on the face of the Constitution itself. Has been expressed as a logical inference from the express terms. do not appear to speak to this objective. appoint members thereto and then confer on the tribunal the jurisdiction of the superior courts. • S. that the Constitution constittuionalized those priviciles and that the . The second problem with reading the express provisiosn as an exhaustive code of judicial independence is that some of those provisions. 96 does no more than confer the power to appoint judges and is a staffin provision. it has come to guarantee the core jurisdiction of the courts which coem withitn the scope of the provisiion. 96 was the creation of a unitary judicial system. • The proposition tha the Constitution embraces unwritten norms was recently confirmed in NB Broadcasting v. only places parlaiment under the oblgiation to proivde salaries. • S. NS (Speaker of the House) which held that it was consitutional for the NS House of Aseembly to refuse the media the right to record and broadcast legislative proceedings. that goal would have been undermined if a province could pass legislation creating a trubinal. As assumign the goal of s. The media used the Charter to argue free press but the court held that the refusla of the Assembly was an exercise of that Assembly’s unwritten legislative privileges. o But through judicial interpretioatn.
1867. It is the means by which the underlying logic of the Act can be given the force of law. which states that the prioncinves: o “have expressed their Desire to be federally united into one Dominion under the Crown of the United Kingdom. but also invites the use of those ortanzing principles ot fill out gaps in the express temrs of the consittuional scheme. the premable has important legal efect. It is not a source of positive law. The preamble articualtes the political theory which the Act embodies. Those provisions merely elaborate those organizing principles in the insittutional apparatus they create or contemplate. and also as an aid in construing ambigous statutory language. It recognizes and affirms the basic principles which are at the very source of the substantive provisiosn of the Constitution Act.consittuional status of those privileges therefore precluded application of the Charter. • Many of the unwritten ruels of the Consittution can be explained by reference to the preamable o f the Consitution Act. preambles can be used to identify the purpose of a statute. • The premable identifies the organizing principles of the Constitution Act 1867 and invites the courts to turn those principles into the premises of a constituional atrgument that . o However.” • Although the preamble is clearly part of the Constitution. with a Consittion similar in principle to that of the UK. it is equally clear that it ahs no enacting force. As such. Under normal circumstances. the preamble is not only a key to construing the exdpress provisions opf the Constituon Act 867.. in contras to the provisions that follow it.
it can be understtod in this way since the Constitution is to be read as a unified whole. By implication.culmiantes in the filing of gaps in the exrepss terms of the Contitutional text. • Even though 11(d) is found in the newed part of the constitution. o Beauregard Court held that the preamble to the Consittution Act 867 and its reference to a Constitution simialr to the UK was textual recognition of the principle of judicial indepednnce. Judicial indepdnnce is an unwritten norm. recognized and affirmed by the preamble to the consittution act. 11(d) is also an experss provision which protects the indepenence of the provincial court judges onlyu when those courts exercise jurisdiction in relation to offences. It folliows that the sma econsittutional imperaive – the preservation of the basic structure – which led courts before to limti the power of legislatures to affec tht eoperation of policitcal iostitutions also extends protection to the judicial institution of our contitutional system. unwritten and organzing principles ofound in the preamble ot the Contition Act 1867. the jurisdiction of provinces over courts as that term is used in section 92)14) of the Constitution Act 1867 contains within it an emplies limtation that the indepedncne of those courts cannot be undermined. Section 11(d) far from indicating that jduicial independence is consittuioanlly enshirned for provincial courts only when those courts exercise juridsiction over offences is proof to the existence of a genral pricnipel of judicial independence that applies to all courts no matter what kind of cases they hear. In fact it is tha . • Courts are equally definition to the Candain understanding of the constitutionalism as are political insittuions. The express provisions of the Consitution shjould eb understood as elaborations of the underlying. S.
its extension to the office held by respondencts depende on whehte rthey exercise judicial function that relate to the bases upon which the principle is founded. But it extends beyond the scope of these provisions. • The reforms in this case reflect a good faith and considered decision of the Legisltuare that was intended to promote thjoe intrests. Alberta (2003) The pricniple of judicial indepdnnce must be interpreted in light of the public interests it is meant to protect: A strong and independent judiciary capacble of upholding th erule of law and our constitutional order and public confidence in the adminsitration of judisct. o Assessing Independence The general test for the presence or absence of independence consists in asking whether a reaosnble person who is fully informed of all . It requires objective conditions that ensure the jduiciary’s freedom to act iwhtout interference from any other entity. o Ell v. the legislation does not undermine the perception of indepdncen in the mind of a reaonsble and informed person. Judicial independence has been recognized as the lifeblood of consittutionalism in democratic societies. In this appeal. The scope of the unwritten principle of indencepence must be interpreted in accordnace with its undelrying purposes. and is respectful fo the principle of judciial indepdennce. The principle finds explicuity constitutional reference in ss96-100 and 11(d). As a result. It is now accepted that all courtsfall within the principle’s embrace. tha thte true source of our commitment to this foundational picniple is located. that the justices of the peace were constituionally required to be indepent in the exercise of their duties.tpreambel which serves as the grand entrance to the castle of the constitution. HELD.
thecircumstances would consider that a particular court enjoyed the necessary independnent status (Mackin v. Tobiass (1997) • Supreme court considered whether judicial indepdnence had been impaired by a private meeting between a senior DOJ official and the chief jusitice of the federal court in relation to a delay in hearing of certain cases in which the DOJ was a lititant. The court noted that the appeal posed 3 issues. o Though it is important that the judiciary should actually remain independent. • The court concluded that the meeting and the subseuqne conduct of DOJ officials did indeed cause damage to the appearance of judicial independence. o 2) the second bein gwhetherh judicial independence or the appeared of it suffered as a result of the metting and o 3) the third being whether if any damage was done to the appeaerance of judicial independencne. Canada (Minister of Citizenship and Immigration v. It is the personal aspect of judicial indepence that is at issue here. it is equally important that the judiciary should be seen as independent. Ntoed that the court has preiovcusly stated that the word independent is s11(d) of the Charter is to be understood as referring to the status or relationship of judicial independence as well as to the state of mind or attitude of the tribunal in the actual exercise of its judicial function. Noted that the independence of judges has two aspects: an institutional aspect and a personal aspect. the trial judge properly exercised his discretion to enter a stay of proceedings. • • • • . NB (Minister of Finance) (2002) • Thus. independence includes both a requirement of actual independence but also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and wellinformed person.
no outsider – be it the govt. • What emerges from all of this is a simple test fo rdetemrine whether the appearance of judicial independence has been maintained: 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. individual or even another rjudge – should interfere in fact or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decisions. o Dimension and Core Characteristics Provincial JMudges Reference (1997) • The three core characteristics of judicial independence – security of tenure. • The essence of judicial independence is freedom from outside intereference. This core contined to be central to the principle of judicial independence. Noted that the overall objective of ghuarantteeing judicial independence is to ensure a reaosnbale perception of impartiality. • The test for determining whether the apperaence of judicial indepenencen has been maintained is an objective one: o The question is whether a well-informed an dreasonabel observer would perceive that judicial indepencne has been compromised. the evidence does compel us to conclude that the appareance of hjudicial independencen suffered significantly as a result of what happened. pressure group. There is not sufficient evidence to support that the conclusion that the Chief Justice and Associate Chief Justivce did not in fact remain independent. However. financial security and administrative independence – should be contrasted with the two dimensions of judicial indepencne – the . o The generally acceptec core of the principle of judicial indepdennce has benn the complete liberty of the individual judge to hear and decide the case that comes before them.
Thus. Arbitrary removal is prohibited. o The relationship between these two aspects of judicial independence is that an individual judge may enoy the essential condition of judicial indepencne but if the court or truibunal over wchih he presides is not independent of the other branches of govt. • The conceptual distinciotn between the core characteristics and the dimension of judicial iondepedncne suggest that it may be possible for a core characterisitic to have both an individual or collective dimension. o While indivudla indepencne attaches to individual judges. Seucriyt of tenure. • The core characteristics of judicial indepednnce and the dimensions of judicial independence are two very different concepts. collective indepencne ataches to the court or tribunal as an institutional entity. in what is essential to its function. o Individual security of tenure means that judges may not be dismissed by the executive before the age of retirement except for misconduct or disability. financial secuirity and administrative indepednecn come together toc onsittute judicial indepcenec.individual independence of a judge and the institutional/collective indepdnence of the court or tribunal of which that judge is a member. he or she cannot be said to be an indepdent tribunal. the dimensions of judicial indeopencen indicate which entity – the individual judge or the tribunal or ocourt to which he or she belongs – is protected by a particular core characteristic. a judge mayt only be removed from office for a reason relating to his or her capacity to perform hi sor her judicia duties. o The core characteristics of judicial indepednnce are distinct facets of the defeition of judicial indepcence. o By contrast. Security of Tenure • Constitutionally protected security of tenure has both an individual and an instituinal dimension. .
• Canadian Judicial Council o On Page 348 for rules o The main objective of the CJC is to promote efficiency and unfirmoity and to improve the quality of judicial service in superior courts and the tax courts of Canada. and then studied in more detail and the judge and chief judge are sent a copy and asked for their comments. who may introduce a motion before Parliament. which is then reviewed by a member. before a judge may be removed for cause. at which the judge affected must be afforded an opportunity to be heard. S. o Complaint can be made to CJC. • In 1971. Requires that recommendation only after recept of a CJC report. 69(3) of the Judges Act.o Institutionally. there must be a judicial inquiry to establish that such a case exists. o If the council concludes that the removal of a judge is warranted. then compalitn is referred to a panel of fgive members for further review. it maeks a report to the minister of justice. o Authority to recommend removal is fouind in s. the Judges Avct was amended to establish the Canadian Judiciak Council (CJC) as the body responsible for investingating complaints about the conduct of federally appointed judges. Superior court judges are only removable by a joint address of the House of Commons and the Senate per. 99 of the Consitution act 1867. the pael can establish an inquiry committee and after considereing the report of the inquiry comitte. . the counsil may recommend removal. • Report of the CJC as to Justice Bienvenue (1996) o Majority of council was of the opinion that the judge has become incapacitatec or disable from due execution of the office of judge and recommended removal.
(pg. we believe that if the judge were to preside over a case. and therefore only addressed the provisions of s.o In combining the test used buy the CHC in the Marhsall case and that applied by the Supreme Court to assess judicial impartiality and independence. o CJC found that the judge has shown an almost complete lack of sentitivity to the communities and individuals offended by his remarks. that is bad. It protects against an unscrupulous govt that could utilize its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication. 352) o Dissent noted that any restriction that inspires judges to keep their reasons to themselves. 99 is a matter for Parliament. as it does not auger well for the administration of justice. Financial Security • Financial security relates to the pay judges receive for performing their duties. . o Noted that the consideration of whether Judge breached the duty of good behaviour in the Consittuion under s. viewing the matter realisitallcay and practically – and having thought the matter through – would have a reaosnble apprehension that the judge would not execute his office with the ibjectivity and impartiality and indepencne that the public is entitled to expect from a judge. 65 of the Judges Act. o Noted that it was essential to the integrity of the administration of judisec tha the public have confidence in the impartiality of ht ejudiciary and that they can no longer have such confidence in this judge. (pg 353) Good for litigants to know as many reasons for the decision so they can appeal – and if judges keep silent because scared. should be discourage. a reasonable and well informed person. the gournds must be powerfully persuasive. o And also ntoed that the jUdge did not intend to change his way. generally speaking. o Concurrenec: noted that the standard of proof is a vivil standard of a balance of probabilities and because of the importance of the issues.
which all flow from the constitutional imperative that. o Independence of the judiciary implies not only that the judge should be free from executive or legislative encroachment and from political pressures and entaglements but also that he should be removed from financial or business entanglement likely to affect or rather to seem to aff4ect him in the exercise of his judicial functions. the relationship between the judiciary and the other branches of govt be depoliticized. or as part of a measure which is drected at provincial court judges as a class. This imperative demands tha the courts both be free and appare to be free from political interference though economic manipulation by other branches of the gov’t and that they not become entageld in the politics of renumeration from the public purse. o Financial security for the courts as an institution has three compoenents.• Reference re Renumeration of Judges (1997) o Proposed that financial security has both an individual and an institutional or collective dimension. effective and ibjective. increased or frozen. Simialry. 11 (d) because it could reasonably lead to the perceptionthat those individuals might alter their conduct tdurin ga hearing in ored rot favour the military establishment. either as part of an overall economic meansure wihich affects the sdalelers of all or some persosn who are renumerated from the public purse. Generaux held that performance-related pay for the conduct of judge advocates and members of a General court Martial during the court martial violated s. any changes or freezes in judicial renumeration require prior recourse to a special process. which is independent. Noted that Valente only talked baou the individual dimension of financial seuciryt when it stated that salaries must be established by law and not allow for executive intereference in a manner which dould affect the independence of the individual judge. • HOWEVER. to the extent possible. for determinein gjudicial . 1) the salaries of provincial court judges can be reduced.
it has to justify this decuision. though the recommendations are non-binding. Govts are constitutionally bound to go through thte commission rporcee and the recommendation of the commission would not be binding on the executive or the legislature. or appearance of . they should not be set aside lightly and if the exectuvei of legislature chooses to depart from them. o What judicial independence requires is a indepdenent body to set or recommend the levels of judicial renumeration. political interference through economic manipulation.. . not political expediencies. if required in a court of law. • The commissions charged with responsibility must meet three general criteria: o 1) The commissions must be indepentdent (They serve as an institional sieve to prevent the setting or freexing of judicial renumartion from being used as a means to exert policitcal pressure through economic manipulation. nevertheless. It would undermine the goal if the indepedence commissions were under the control of the executive or the legislature. The goal is to present an objective and fair set of recommendations dictated by the public interest.) This means that they: the members of these bodies must have some kind of security of tenure: (i) serve for a fixed term which may vary in length (ii) the appointments are not entirely controlled by any one of the branches of government.renumeration to avouid the possibility of. so members appointed by all three branches o 2) the salary commission must be objective This means that they must make recommendations on the judge’s renumeration by reference to objective criteria.
the commission must convene to consider and report on the proposed change or freeze. ii) in order to guard against the possibility that govt inaction might lead to a reduction in judge’s salaries because of inflation. 3 ways (a) make the report binding (as in Ontario) – not required. (b) negative resolution where by the report is laid before the legislature and its recommendations are implemented unless the legislature votes to reject or amend them (BC) and (c) affirmative resolution procedure whereby a report is laid before but need not be adopted by the legislature. this can be promoted by ensuring that the committee is fully informed before delibaerating and making its submission (ie. in order to consider the adequacy of judge’s salsiers in ligh of the cost of living and other relevant facts. By requiring that the commission receive and consider submission fromall three branches of govt) Also recommended that this objectivity be ensured by by including in the enabling legislation or regulations a list of relevant factors to guide the comission’s deliberations. (Manitoba) . – any done without this process are unconstitutional . A good length would be btw 3 and 5 years. the commission must convene if a fixed period of time has elapsed since its last report. and that inaction could therefor ebe used as a means of economic manipulation. iii) the reports of the commison must have a meaningful effect on the determination of judicial salaries. Though not required. and issue a recommendation in its report. (which need not be exhaustive) o 3) The commission must be effective. which can be guaranteed in a number of ways: i) constitutional obligation for govts not to change or freeze judicial renumeration unless they have received the report of the salary commission.
2) Under no circumstance is it permissible for the judiciary – not only collectively through representative organizations but also as individuals – to engage in negotiations with the executive or representatives of th elegsialture. • Provincial Judges v. . Reasons that are complete and that deal with the commission’s recommendations in a meaningful way will meet the standard of rationality. cannot take those salaries below a basis minimum level of renumartion which is required for the office of a judge. 3) any reductions to judicial renumeartion. o Court noted that a commission’s report is consultative. the govt retains the power to depart from the commission’s recommendations as long as it justifies its decision with rational reasons. o The govt can reject or vary the commissions’ recommendation provide that legitimate reasons are given. Note that this does not preclude expressions of concern or representations by chief justices andchief judges and organizations that represent judges. • • Any such negotiations would be fundamentally at odds with judicial independence. • Public confidence in the independence of the judiciary would be undermined if judges were paid at such low rate that they could be perceived as susceptible to political pressure through economic manipulation. including de facto reductions through the erosion of judicial salsaioes by inflation. NB (2005) o Court noted that the earlier Refrence renumeration case held that independent commissions were required to improve the process deisgned to ensure judicial independence but that the commission’s recommendations need nto be binding. to govts about the adequacy o fjudicial renumeration. Unoless the legislature provides that the report is binding. The govt may turn it inot something more. These rational reasons must be included in the govts response to the commission’s recommendation.
They must preclude any suggestion of attempting to manipulate the judiciary. The reasons must reflect the underlying public interest in having a commission process.o Legitimiate reasoans must be compatible with the common law and the Consittuiions. The reasons should reveal a consideration of the judicial office and an intention to deal with it properly. The govt must deal with the issues at stake in good faith. They must state in what respect and to what extent they depart from the recommendations. Bald expression of rejection or dissaporval are inadequate. the reasons must show that the commnission’s recommendations have been taken into account and must be based on facts and sound reasoning. beign the depoliticiation of the renumeration process and the need to preserve judicial independence. . Instead. articulating the grounds for rejection or variation.
This requirement is generally met in the statute’s creating the vaiorus courts. • • o Secondly. which assigns to the judges themselves these administrative roles. Administrative Independence • Administrative independence requires that court themselves have control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. and court lsits – as well as the realated matters of allocation of court rooms and direction of the administrative staff engaed in carrying out these functions. violated this rule and was highly inappropriate even considering that there was merit for the reason behind the meeting. o Court first noted that as a general rule of conduct. Canada (Minister of Citrizenshp and Immigration) v. sittings of the court. and may at times be obliged to correct such tardiness. • Thus. an action that might have been inncoucous or even obligatory under other circusmtaces acquired an air of impropriety as a result of the events that preceded it. counsel for one party should not discuss a particular case with a judge except with the knowledge an dprefereably with the participation of cousenl for the other parties to the case. . the court noted that a judge should not accede to the demans of one party without giving counsel for the other parties a chance to present their views. The meeting ion this case. such as assignment of judges. the circumstances in this case shows that the chief’s actions were more in the nature of a response to a party than to a proble. Cour tntoed that while a chief justice is uslaly responsible for dealing with 4the expeditious progress of cases and tardiness. Tobiass (1997) o Supreme court was asked to consider whether judicial independence (or at least the perception of that indepdncen) had been impaired by a private meeting between a senior DOJ official and the chief justice of the federal court.
. the grievances taken to the Chiej Judge were legisilat. There is eveidence that suggests that this threat carried some weight with the chief justice. this fact does not excuse what happened. o As a senior counsel in the DOJ.o Court stated that there was ample evidence that might lead a reasonable observer to conclude that the judge was not able to conduct the appeallant’s case free from itneresfere onf the federal DOJ and the Chief Justice. o It is therefor ereasoanbel to suppose tha the threat of appeal to a higher authority influeded the chief justice an dthe judge to act in a way tha twoudl otherwise have been unpalatable to them. does not sever the limprorper link between the govt and the judge in the case. the Federal court would face the embarrassment of having the gov’t go over its head to the tSupreme Court. and therefore may have propriety of intentions. Thompson approached the chief justice and told him that if the associate chief did not pick up the pace. o An informed person would conclude that thie decision. arranging to speakl privately with the Chief Justice without opposing counsel present is inapprorpirat. . by which the haring of all preliom motions and the trials would be compressed in a relatively short time period would redound to the disadvantage of th eindivudl respondents an dwas taken so as to avoid a ference to the Supreme Court. o Therefore. To interfere with the scheduling of cases because o fdelay is one thing. Mr. This is because the Chief Justice was not able to exercise his administrative function entirely free from outside intereference. btu to pledge to take all reasonable steps to avoid a reference to the SUpree court is quite another.in that the DOJ assuredly gave an imopermsisible means of presenting ghis grievance. o Court noted that the respondent’s attempt to offer the Chief Justice as an intermediary. who was bound to look into the matte rwhen he heard about it. It is wrong and improper for a judge to give such an undertaking.
• Supreme Court therefore require that the proceedings be consudted by a trial division judge not tained by the uimpropre communications (but did not uphold th etrial jkudges’ stay). nor is there anuy solid evidence that the independence of the judies in question was actually ocmprose. . there is no persuasive evifednce of bad faith on the part of any of the actors of his drama.o Held that the evicence supportsthte conclusion that the appearance of jujdicial independence suffered as a result of this meeting. o A reasonably observere approsed of all the workings of the feewderal court and of all the circumstances would perceive that the Chief Justice and the Judge were improperly and unduly infleucen by a senior officer of the DOJ. Howvere.
Along with this practice of direct review. These constitutional review function argue for the premse that Canda is a democracy resting on a de facto system of judicial supremacy. courts do two things: o First. o Second. there is a threshold in Canadian consittuional law – a point at which parliamentary supremacy gives way to “constitutional supremacy. courts often engage in indirect review when they interpret legislation in light of common law contitional values. Like the legislature. such as respect for individual autonomy and private property rights. • Here. they provide a reemdy – which is normally to declare the offending legisdlation invalid with no force or effect. did not intend to violate established consittional values or authorize its delegates to do so.” So long as Parliament or its provincial counterparts observe the binding consitutional limits on their jurisdiction. Essentially performed a constitutionalized interpretation role. in enacting a particualr provision. However. they determine the exact nature and scope of the consittutional limits. the exectuive is constrained by the Constitution and policed by the courts accordingly. they are suprem and the courts must simply interpret and carry out their dicataes as expressed in their act. by interpreting the written Consituttion and sometiems by discerning unwriten constitutional principles by which the legislature must abide. • In such cases the court presumes that the legislature. it must be subordinated by the courts to the Constitution.STATUTORY INTEPRETATION While Parliamentary supremacy is an important element of Canadian law. if a legislature wanders beyond its constitutional limits. they must decide whether a given statute has exceeded the constitutional limits determined throught interpretation. If it has. .
application provisions. Application sections indicate the scope of the legislation in terms of space (territorial application). The courts are charged with ensuring that the executive does not stray beyong the scope of those powers. at the beginning of the statute. 379 for provisions) 2) Interpretation Rules in Acts and Regulations Individual acts and regulations often contain definitions. time (temporal application). Her Majesty) and subject matter (some things might be excepted). 381 for interpretative provisions) • • 3) Common Law Rules Stutatory interpretation is also rooted in the common law – in a body of principles. Canada Human Rights Act (p. Every Canadian Jurisdiction has an interpretation act that containes various rules applicable to statutes in general. Preambles and purpose statemetns. primarily those delegated to it by the legislature by statute. • Federal Interpretation Act (p. the role of the legislature is to make law. The executive has only limited legal powers. Sources of Interpretation Law: (3 sources) 1) Interpretation Acts Under the seperation-of-powers doctrine. persosn affected (eg. presumptions and conventions known as the “rules of statutory interpretation” . while the role of the judiciary is to interpret law. indicuate the reasosn for the new legislation. test its validity and apply it to particular facts. • • Definitions tell interpreters how particular words used in the legislation are to be understood. it is open to a sovereign legislature to issue intructions on hwo particular legislation or legislation in genreal is to be interpreted. • Howvere. purpose statemetns and the like.
o This rule permits courts to depart from the ordinary meaning of a text to avoid absurd consequences “the grammatical and ordinary sense of the words is to be adhered to. unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument.• Strictly speaking. these rules are not binding in the way that other rules are bidning. o Accordingly. the golden rule can be applied. in which case the grammatical and ordinary sense of the words . cure any over or under-inclusion in the implementing provisions and suprress attempts by citizens to avoid the intended impact of the legislation (suprress subtle inventions for continuances of the mischief) Strict construction/Literal construction • Plain meaning rule o A court is obliged to stick to the literal meaning of the legislative text in so far as that meaning is clear. If the words of a legislative text are clear and unambiguous. legislation is construed so as to promote the legislative process. Equitable construction/mischief rule • The words of the legislative text are less important than achieving Parlaiment’s actual intentions. • This is because: o the words themselves best declare the intention of the law giver and o the need for certainty and predictability in the law • Golden rule o Where the consequences of applying the plain meaning rule are found to be intolerable. They operate as guidelins. the court must apply them as written despite any contrary evidence of legislative intent and regardless of the consequences.
Textualists – see the text as the best indicator of legislative intent and they see sticking to the plain meaning of the text as the best guarantor of the rule of law. Although the legisltuare is sovereign. This may be done by departing from the rules of grammar. most judges are pragmatists – that is when confronted with an interprettation problem. by giving an unusual meaning to particular words. . or by rejecting them altogether. Actually. a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. • Though there is an inconsistency between these two rules – judges will often rely on both. The willigness to modify meaning or sentence structure in order to avouid absurd results smees to be an unavoudable aspect of interpretation. in its ordinary and grammatical construction. leads to manifest contradiction of the apparent purpose of the enactment.may be modified so as to avoid the absurdity and inconsistency. intention. they form impresions of what the statute says.” o This rule is grounded in the supervisory and mediating roles of the courts. Today. Intentionalists – see the interpreter’s job as to give effect to the intentions of the legislature as revealed not only by the text but by other evidence as well. or to some inconveneience or absurdity which can hardly have been intended. on the groudn that th elegislature could not possibly have intended what its words signify. but no farther. Normativists – point out that extra-textual norms play a significant role in derermining the meaning and purpose of legislation and they acknowledge the legitimcay of relying on such norms to test the acceptibility of interpretations. cannot provide for every possible application. textual meaning and aceptability of consequences are all legisimate concerns and each has a role to play in every interprattive effort. it is not omnisicent. inclduing extrensic aids and presumed intent. o Where the langugae of a statute.
o The weigth accorded to the text is also affected by factors such as the following: How the text is fradt and in particular how detailed it is. giving each the weight that seems appropriiate in the circumstances: • If the legislative text seems clear. whether the public in general. how concret and precise the language is The audience to which it is addressed. there are not competing intention and the implications for the facts of the case seem clear. it appropriately receives even greater weight. • Similarly. a pragmatic judge will assign it significant weight. if its meaning appear to be plain. a narrow and specialzied section of the public. The clearer it is. if the legislator’s intention seems clear and relevant to the problem at hand. then a pragmatic judge assigns significant weight to this apparent meaning.what the legislature intended and what would be a good result having regard ot the relevant legal norms. then the apparent meaning of the text appropriately receievs significant weight. . then this factior receives considerable weight. Take all impressions into account. o How much weight depends on: Where the evidence of legislative intent comes from and how cogent and compelling it is How directly the intention relates to the circusmtances of the dispute to be resolved o If the intention is set out in a relaible source. or those chaged with the admnistartion of the legislation and The importance of certainity and predictability in the context o If a text is precise and addressed to a specialized audience that would understand it in a certain way and reaosnably rely on that understanding. the greater the weight it receives. its formulation is fairly precise. If the consequences of rejecting that meaning would create serious and harmful uncertainty.
Range of Interpretation Issues Disputed meaning argument Occurs where there is ambiguous. or incomplete text Here the interpreter claim that. On the other hand. dynamic interpretation argument Occurs where there is an evolving context The interpreter claims ta the text should be interpreted as it would have been when the text was first enactied (static interpretation) or interpreted . Perrier Group of Canada v. vague. Must establish that this preferred meaning is the ordrinary meaning. If the legislation is bilingual. this factor recieves more weight. coherence. this factor receives less weight.• Finally. the provision in question has a particualr preferred meaning. if the vioaltion is serious and there are no competing norms. o The weight attaching to this factor depends on considerations such as: The cultural importance of the norm engaged Its degree of recognition and protection in the law The seriousness of the violation The circusmtances and possible reasons for the vioaltion The weight of competing norms o If a possible outcome appears to violate a norm that is wellestablsihed and widely shared. properly interpreted. judges are concerened by vioaltions of rationality. if there are equally important norms that point in a different direction. fairness and other legal norms. Static vs. Canada (1996): Court held that the term bevergae included any liquid fit for human consumption rather than only a manufactured drink produced by mixing ingredients. an intended technical meaning or at least a plausible meaning. the interpreter must address bnoth lanuage versions.
National Fronterie Insurance Co (2003): Court here held that. this requirement was absurd and should be linmited to applicants who have the same surname as the spouse. the court has no jurisdiction to fill a gap in a legislative scheme or otherwise englarge the scope of legislation. even though it was clear that the legislature had itnended to deny benefits . was preferable when dealing with genetically altered mice. it probably should apply.in light of current understanding of language and social conditions (dynamic interpreation) Harvard college v. Therefore such a radical departure should not be effected through interpretation but rather requierd legislative intervention. which was defined as any new and useful art. who had not taken on her husband’s name. Incorrigible gap argument Occurs when there is under-inclusive text Essentially this mjeans there is an incorrigible gap in the legislative scheme The interpreter claims that the legislation as drafted cannot be applied to the facts even though. it would otehrwise apply. given its purpose. Re Vablis (1983): Court held that where change of name act required that a married woman. and so the court narrowed the scope of the provision by adding this liitation. Non-application argument Occurs where tehre is over-inclusive text The interpreter identifies a reason not to apply a provision to the facts even though. to avoid absurdity. Parliament had not contemplated the patenting of higher forms when drafting the definition of invention. Beattie v. to promot legislative purpose. or to comply with the presumptions of legislative intent. process. Whether this ommission is deliberate or inadvertent. given its ordinary meaning. which could be considered a composition of matter. wanting a name change would be forced to make her husband change his name to her new name. Of Patents) (2004): Court held that a static interpretation of invention. machine or composition of matter. Canada (Com. A provision may be read down in this way for any numebr of reasons.
to a guilty party, there was a gap in the legislative scheme, which techincally allowed a guilty party to collect post conviction benefits, and the court stated that this was the case as there was nothing prevetning this from occurring in the legislative scheme Supplemenation argument Ocurrs when ther eis under-inclusive text The interpreter concedes that the legislation as drafted does not apply, but claims that the common law does apply so as to supplement the underinclusive legislation. Supplemenation arguments are generally successful when the court relies on its parens patriae jurisdiction or its inherent jurisdiction to control its own process. Beson v. Director of Child Welfare for NF (1982): Court acknowledged that alhtough the province’s Adoption of Children Act ctreated various appeals to the Adoption Appeal Board, it appreantly did not provide for an appeal in the circumstances of the case and therefore the court held that if the party has not right of appeal under the statute, there is a gap in the scheme and the court can fill it as an exercise of their parens patriae jurisdiction.
Corrigible mistake argument Occurs when there is a contradictory or incoherent text The interpreter claims that the provision in questyion contains a draft ing mistake, which must be corrected before determining whether the provision applies to the facts. Must establish what the legislature clearly intended and what the text would have said had it been properly drafted. •
This problem arises quite often in interpreting bilingual legislation when the two verisons say different things.
Morishita v. Richmond (1990): Court had to interpret a privision in a municipal bylaw that referred to s. 4 of the bylaw. Since the reference to s.4 was incoherent, while the reference to s.5 made good ssense, the court conluded that the law maker had intended to refer to s.5 and it interpreted the bylaw accordingly
Exhaustive code argument /Paramontcy argument
Occurs when there is overlapping provisions In the absence of conflict, if two or more porvisions apply to the sam facts, each is to be applied as written. • Although not articulated as such, the courts work with a presumption of overlap. o Any law, whether common law or legislation, which could apply is presumped to apply in the absence of evidence to the contrary.
Exhaustive Code Argument • The interpreter conceded that the overplac betwwen the legislative provisions or bettwen legislation and the common law does not create a conflict, but claims that a particular Act or provision was meant to apply exhausstively, to the exclusion of other law whether statutory or common law. Gendron v. Supplyu & Services Union of PSA (1990): the issue was whether a union member could bring an action agains the union for breachin gteh common law duty of fiar representation. The court ruled that the duties owed by unions to union members were sout in the Canada Labor Code and, on this issue at least, the statute was meant to be an exhsutive code, displaing recourse ot the common law
Paramountcy Argumetn • Interpreter claism that there is a conflict between two provisions or between a provision and the common law and that one takes precedence over the other on the basis of some principled reason – eg. Legislatiion prevails over the common law or the specific prevails over the general Corporation of BC v. Heerspink (1982): R challenged the sutatotury right of an insurance company to terminate an insurance contract upon gfiving 15 days notice wihtout establishing any cause. The BC’s Human Rights Code provied that persons could not be denied a serivce cutomarily avalable to the public unless a reaosnable cause exists for such denial. Court held that: o “where the subject matter of a law is said to be the comprhenesive statement of the “human rights” of thepeople living in that jurisdiciton, then there is no doubt in my mind that the people of
that jurisdiction have thorugh their legislatiure clearly indicated that they cionsider that law, and the values it endeavours to buttreesd and protect are, save their constituional laws, more important than all others. Therefore, short of that legislature speaking ot the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all toher laws when conflict arises.” Rules of Statutory Interpretation Rules about meaning The first thing an interpreter must do is read the text and form an imperssion of its meaning. • Ordinary meaning rule o Ordinary meaning is the meaning that spontaneously comes to the mind of a competent reader upon reading a legislative text. This is presumed to be the meaning intended by Parliament. •
However, the presumption can be rebutted by evidence suggestign that some other meaning was intended.
R. v. Daoust (2004): court supported its understanding of transfer by claimign that it is the ordinary meaning of the word. Relied on the presumption in favour of ordinary meaning. To reject ordinary meaning, the court would have to establish that there were cogent grounds to believe that some other meaning was intended.
o The ordinary menaing of a word or phrase is not its dictionary meaning, but rather the meaning that spontaneoulsy comes to mind when the word or phrase is read in its immediate context. The immediate context conists of the other words in the sentence plus the complex store of knowledge, impression, assumptions and values the reader brings to the text. • Potentially – ordianry meaning could not be the same for everyone.
To determien the ordinary meaning of language, courts rely on their own linguistic intuitions.
Since personal intuition is an unsatisfactory basis for establishing matters of fact in a lawsuit, it is common for litigants and court to appeal to dictionaries. o However, dictionaries can only indicate a range of meanings a word is capable of bearing – cannot indicate what a word means in a particular context.
Technichal meaning rule o It is presumed that legislatures use words in their popular, nontechnical sense. However, when legislation deals with a specialized subject and uses language that people governed by the legislation would understand in a specialized way, that specialized way is preferred over ordianry usage.
o Re Witss and AG for BC (1982) A bought horse at a claim race which he thought was a colt but then after he found out it was a gelding and thereofer could not be bread. He objected to the race stewards, who dismised him because they could not decide claims bcased on the sex or age of a horse. A argued that the stewards made an error because while age is defined in the Horse Racing Rules and Regulations, sex was not and therefore sex only meant whether the horse was male or female, as the ordinariy meaning, because statutes are presumed to use words in their popular sense, not whether it was colt or gelding, which is not sex but rather misrepresentation with respect to the presence or absence of reproductive organs, so the stewards were not precluded from considerting the action. The other side argued that in the world of horse racing, the sex of a horse is either a stallion, colt, gelding, ridgling mare or filly and no one talks about horses as male or female. Court noted that the word sex was able to be used in two ways, but that the reason for the regulations was to prevent transfers of title to be questioned on any ground other than fraud.
HELD: court held that the case was about the sex of the horse as the term is understood in the racing fraterntiy and therfore was barred in being decided by the stewards, and so the A would have to sue for damages in antoher case in court.
o A person who claims that legislative text has a technical meaning different from its popular, non-technical meaning has the burden of establsihing: The technical meaning of the word or expression and • Evidence of this is offered by experts in the relevant field through testimony or affidavit evidence.
That the technical meaning was intended in this context.
o Legal term of art are considered technical terms. If a word or expression has both a popular meaning and a legal meaning, the former is presumed. • • The courts do not require expert testimony on the legal meaning of a word or expression.
Shared meaning rule o If one version of a bilingual text lends itself to two interpretations while the other versiojn can plausibly only bear one of those interpretations, the interpretation that is shared should be adopted.
Original meaning rule o The meaning of the word used in a legislative text is fixed at the time of enactmetn, but its application to facts over time is not fixed. In static interpretation, the text is applied as it would have been when the legislation was first enacted. • Language that is technical, concrete and specific tends to attract a static interpretation.
In dynamic interpretation, the text is applied in light of circumstances and assumptions existing at the time of application.
Plausible meaning rule o If the ordinary meaning of a text is rejected to give effect to the actual or presumed intentins of the legislature. • Straightfoward expression o The legislature chooses the clearest. • Internal coherence o All the provisions of a legislative text fit together logically and work together coherently to achieve the puprose of the legislation. This rule is sometimes (perhaps most often) honoured in the breach.• • Language that is general or abstract attract a dynamic interpretation. Presumptions relied upon to analyze the meaning of a text Courts make a number of idealized assumptions about the way legislation is draftedm which influence the way the finished product is interpreted. • No tautology or redundancy (the legislature does not legislate in vain) o There are no superfluous words in legislation. the meaning adopted must be one that the text is capable of bearing. every feature of the text is there for a reason and plays a meaningful role in the legislative scheme. and mot direct way of stating its meaning. simplest. These presumptions are the basis of a number of maxims of interpretation: • Implied exclusion (“expressio unius est exclusio alterius) o If something is not mentioned in the circumstances where one would expect it to be mentioned. • Uniform expression o The legislature uses the same words and techniques to express the same meaning and different words and techniques to express different meanings. every word. it is impliedly excluded. .
and other sports” may be read down to include only sports that are played in winter. v. In the phrase “hockey. knowing that it was obtained as a result of the commission of an enterprise crime offence. This court agreed. Daout (2004) (pg. • The legislature would have said “x” o A legitimate basis for rejecting a proposed interpretation is to point out that had the legislature intended the proposed interpretation.• Associated words (“noscitur a sociis”) o The meaning of a wordd or phrase is affected by the other words or phrases with wchich it is linked in a sentence. the general term may be read down to include only other things wihtih the identifiable class. • Limited class (“ejusdem generis”) o When a list of things that all belong to an indetifiable class is followed by a more general term.” The issue was whether “transfer of possession” of property in the context of laundering proceeds of crime if one buys the property with the intention of converting it. carries out any of the prohibited activities with the prohibited knowledge. 395 for actual legislation) • Ds bought stolen items from an undercover and where charged with having “transferred the posession of property with the intent to conceal or convert it. Court of Appeal held that read as a whole. Noted that the section contains a list of acts that are essentially unilateral ones. skiing. it would have framed the legisaltion in a different way. as it did eleshwere in the Act or Regulation or elswhere in the statute book. the section appears to be aimed at the person who. havign the control and possession of the procceds of the crime. o The transfer of possession is the act of the person who has the control or possession of the object and tries to pass it on to another. Eg. • • • . R.
o However. which also in the same list criminalizes the act of delivering to any person or place. . and that a beneficiary of that transfer is an essnetial element of carrying it out. exchange. be given a large and liberal interpretation. • Noted that the appellant also argued that both versions (english and french) of the section show an unequivocal intent to encompass all positive acts in realtion to criminall obtained property for the purposes of converting/concelaing it. the offence is not aimed at the beneficiary. dispose are all simairl to the words in the section which include “dispose of” “transmit” “alter” etc. but “purchase” has a totally different meaning. rather than both parties. But court stated that the words do not add to the number of activities cosntitutign transfer of possession. • Noted that the word transfer must be given its ordinary meaning.” o The appellant arues that the inclusion of this expression demonstrates Parliament’s intent that the terms in the section.• Although the word transfer necessarily implies a relationship between two persons. • rather they qualify the mehtods by which it is possible to execute the transfe. o The court states that this was demonstrated by the same section. including the word transfer. This clarifies that Parliament intended that this provision apply only to the party originally having control of the property. but the manner in which this element is carreid out is unimportant. o Basically this term only means that one of the elements of the actus reus enumerated in the section must be present. the court noted that all the acts listed are of the same nature and category and apply to the person with control over the peroprty Sell. leaving unasnwered the question as to whom this provision is to be aplied. give. despite the presence of the words “in any manner and by any means.
o That provision is aimed specifically at persons who recive or accept property despite knowing it to be of illicit origin. adopt an interpretation that promotes or is at least consistent with those purposes. It must be presumed that this section criminalizes other behaviors. since Parliament does not speak in vain. the meaning of a term may be revealed by its assocition with other terms where the latter may not be read in isolation. It would thus be reduant to interpret the word transfer as including the act of purchasing/possessing stolen proeprty where anotehr provision of the act prohibits it. Purpose and scheme analysis All legislation is enacted for a purpose. o Therefoer buying and receiving stolen property do note conittution the elements of this offence – laundering the procees of crime.• The court could not interpret a series of terms including that word when it does not share their common meaning. in so for as the text permits. . Court ntoed that it was applying the associated words rule. HELD: that transfer of possession does nto eqaul purchasing/buying. • Court also noted that this interpretation was supported by another section which already prohibits the possession of stolen property. • Legislative purpose o Interpreter must always try to determine the purposes of legislation and. accoording to which. that is to achieve a particular outcome by imposing new oblgiations or prohibitions or creting new rights and privileges.
o The vaguer the language of the legislatiev text. • Legislative scheme o The provisions of an Act are presumed to work together as parts of a coherent scheme designed to implement the legislature’s goals. large and liberal construction and interpretation as best ensures the attianment of its objects.” In other words. o To determine how a particular provision contributes to the scheme. an interpretation that promotes the purpose of legislation is to be preferred over strict construction • However. and the graeter is the importance of purpose in adopting an appropriate interpretation. the presumption is rebutted by persuasive evidence that the text does not accurately reflect the rule the legislature intended to enact. headings and subheadings and at the sequence of marginal or sectional notes to get an indiciation of the scheme. It is often helpful to look at the titles. when legislation has been drafted in an overly broad fashion. ask yoruself why the provision was included. • Interpretation Acts o The Interpretation Act of every Canadian jurisdiction includes a provision that directs interpreters to give every enactment “such fair. v Chartrand (1994) Mistakes and gaps in the legislative scheme Corrigible mistakes • Although the legislature is presuimed not to make mistakes.o Interpretation that would tend to defeat legislative purpose are considered absurd. The courts . the more discretion is conferred on the tribunal or court that applies it. a narrow interpretation will be the one that best ensures the attainemnt of its objects. o R.
it must often adress the difficult question of the relationship between statute and the common law. general terms are read down. it can rely on supplemental sources of law to complement what the legislative shcmee provides. as opposed to reading down. which is generally consdered a form of judicial legislation. Supplementing Legislation by reliance on civil law (or the civil code) • Although the courts cannot cure underinclusive legislation by expanding its scope beyong what the text allows. When legislation is strictly cosntrued. which is not. conditions of application are fully enforced.have jurisdiction to correct such mistakes. One of the recurring issues in stauttory interpretation is whether the courts should apply the same rules and techniques to all legislation. and ambiguities are resolved in favotr of non-applicant. the emphasis is on the wording of the text. o Legislation that cures mischief or confers other benefits is considered remedial and attracts a liberal construction. Presumtpions of Legislative Intent The presumptions of legislative intent are the formal expressions of evolving common law norms. Curing an underinclusive scheme or provision amounts to reading in. reghardless of its subject matter or purpose. . courts have distinguished between legislation that takes away freedom and legilation desigend to cure mischief: o Legislation that interferes with individual rights or freedoms is consdered penal and attracts a strict construction. Incorrigible gaps • The courts almost always deny jurisdiction to cure a gap in a legislative scheme or to otherwise cure underinclusive provisions by making them apply to facts outside the ambit of the language of the text. • Hitorically. unless the mistake amounts to a gap in the legislative shceme. In doing o.
If doubts or ambiguities arise. while exceptions and qualifications are strictly interpreted. they are resolved in favour of the person seeking the benefit of the statute. the focus is on achieveing the benevolent purpose of the legislation. General principles are applied as fully as their wording permits. When legislation is liberally construed. called presumptions of legislative intent • • • • • • • • • • • • • • • • Strict construction of penal legislation Stirct consturction of legislation that intereferes with individual rights Stricti construction of exceptions to the general law Liberal construction of human rights codes Liberal construction of remedial legislation Liberal construction of social welfare legislation Liberal construction of legislation relating to aboriginal peoples Presumed compliance with consittuional law and values Presumed compliance with rule of law Presumed compliance with international law Presumed continuation of common law Presumed non-interference with common law rights Presumption agaisnt the extra-territoral application of legislation Presumption agaisnt the retroactive application of legislation Presumption against interference with vested rights (both common law and statutory) Presumption against applying legisltion to the crown and its agents Avoiding Absurdity . The courts control legislative initiative by imputing to the legilature an intention to abide by norms that the courts consider important.
The greater the absurdity that flows from a particular interpretation. It is presumed that the legislature does not intend to produce absurd consequences. Forms of absurdity that the legislature is presumed to avoid: • • • • • Irrational distinctions (treating like things differently or different things the same way) Irrational. o The clearer and more precise a text seems to be. • Therefore. contradictory or anamolous effects Defeating the purpose of the legislation Undermining the efficient application of legislation and Violating important norms of justice or fairness . the more justified an interpreter is in rejecting it. an interpretation that avoids such consequences is preferred over one that does not. the greater the absurdity required to depart from its ordinary meaning.
Statute book . • Related legislation (statues in pari material) • Statutes dealing with the same subject matter must be read together and are presumed to poffer a coherent and consistent treatment of any subject. This possibility must not be taken away through interpretations. o Sometimes such statutes form a single. • Regulations • Regulations must be readin in light of their enabling provision and their enabling legislation as a whole. any interpretation that renders legislation valid is preferred over one that does not. Relation to Other Legislation and Other Sources of Law Consittutional law • It is presumed that legislatures intend to enact consituttioanlly valid law and in particular to comply with any limitations on their jurisdiction set out in the various Constitution acts. sometimes they create distinct but overlapping schemes. The regulations and enabling legislation ar presumed to constitute an integrated scheme. Interpretation provisions in the enabling legislations (such as definition or application provisions) are presumed to apply to regulations and other instruments made under the enabling legislation. o However. Intepretations provisons in one statute are presumed to apply to related statutes. this presumption must not be used to defeat the clear intentions of the legislature.1. integrated scheme. For this reason. Legislatures sometimes do intend to restrict a Charter right or freedom in order to achieve an important goal and they are entitled to do so if the restriction can be justified under s.
• Legislation may also codify common law rules or prionciples – that is give statutory form to pre-exisitng common law. but with respect to defences it is not. Howver. the criminal code is a complete code. Common law • Provincial legislation sometimes incorporates common law concepts or terms. o This presumption operates most strongly in the case of implementing legislation. resort to common law or civil law sources may be appropriate to determine the meaning of the concept or term. with respect to offences. that is legislation enacted for the prupose of making an international agreement an effective part of domestic law. o Legislation that is intended to displace or preclude further resort to common law is often labeled a “complete code” Eg. . both customary and conventional.• Even if statutes do not realted to the same subject. the similarities and differences among provisions can form the basis for inferring legislative intent. International law • It is presumed that legislations. limitations of action provisions or search and seizure provions. sometimes the purpose of the legislation is to modify or displace the common law. the presumption has also been applied to help resolve ambiguity in non-implementing legislation. intends to comply with international law. • However. it is often useful to compare provisions in different enactments that deal with a particular matter – for example. proivincial as well as federal. o In these cases resort to common law sources may be appropriate. o In such cases. and federal legislations sometimes incorporates bothe common law and civil law concepts or terms. o Given that drafters are presumed to be consistent in their use of language.
recorded debates and tabled background material Legislative evolution • Consits of the successive amendments and re-enactments a provisions has undergone from its initial enactment to the time of applkication. The rules regarding the admissibility of these amteriasl are in a state of flub • Howver. v. McKintosh (1995) . o Appellate courts have not gone out of hteir way to establish clear principles and guidelines in this area. including ministerial statements. admnistriative opeiniona dn scholarly legal publication as wella s expert testi. o Note that subseuqnet evolution is not considered a legitimate aid. provided it is relegvant to the issue before the court and will not take the toher party by surprise. Expert opinion • Consists of precedent. R. the court tend to accept wheatver meatreial is offereced. Extrinsic Aids Legislative source • Consist of agreements that the legislatioan in question is intended to implement or of legislation (whether domestic or foreign) on which the legislation has been modeled in whole or in part.orny. Courts will sometimes decline to look at this material if it contradicts what appears to be the plain meaning of the legislative text. Legislative history • Consist of material formally brought to the attention of the legislature during the legislative process. commitmee reports.
section 34 (2) does not and taken in isolation is therefore available to the initial aggressor. legislative history and related Crmininal Code provisions. o That ais where the language of the satautte is plain and admits only one meaning. as an initial aggressor raising self-defence. o While the Crown argued that taking into consideration the common law. Here criminal D claimed that when he went out to confront the dead guy with a knife and during the oral fight. 34(2) of the Criminal Code avaioable where an accused is an initial aggressor having provoked the assault against which he calims to have defended himself. the task of interpretation doe snto arise o Court then noted that while section 34(1) hads the unprovokled statement. The issue is therefore whether the respondent. parliament could not have intended that section 34(2) be available to initial aggressors. then its clear words should be given effect. a struggle ensured and the dead guy tried to kill the accused and so he stabbed him and claimed self defense. may availk himself of 34(2) or whether he should be instead required to meet the more onerous conditions of section 35. Court made two issues: Section 34(2) is not ambiguous and • Court first noted that it was starting with the proposition that where no ambiguity arises on the face of a statuory provisions. Section 35 also explicitly applies where an accused ahs without justification provoked an assault. Another stuattue. Here the issue was whether the self-defense justification in s. This was an oversight by Parlaiment and the court should read in the words from 34(1) o Court then noted . The problem was the distinction between 34(1) – which allows self defense only in cases of someone who has been “unlawfully assauoted without having provoked the assault” whereas 34(2) being “unlawfully assaulted” and excludes the phrase without having provoked the assault.
based on its past legislative actions. • . there is a compelling argument that Parliament intended this section to be available to initial agrresros. anything is enacted by the legislature it must be enforced however harsh or absurd or contrary to common sense the result may be. whether such a priovison is. margin note and the realtionshp to other stautes and ntoes that it would be absurd to make the easier section available to initial aggressors but not part 1 of the same stuate. one of which is more favorable to the accused. then it is not the job of a court to engage in the interpretative process for the sole purpose of narrowing the provisions and making it less favourable to the accused. Even though section 34(2) may lead to absurd results. then the court should adopt this favorable interpretations.o Court ntoed that the argument could also be. The court looked at the history and determined that. By the same reasoning. The fact that Parliament did not choose to include a provocation requirement in the section is the best and only evidence of legislative intent. Reading words into the statute that are not there would be tantamount to amending the statute. by the use of clear and unequivocal language capable of only one meaning. which is not a judicial function. favorable to an acuces. on its face. that Palriament’s oversight was in notaking taking those words out of 34(1). the cronw’s interpretation cannot be adopted • Court ntoed that there was no ambiguity on the face of the staute and so the Crowns argument that the proviosns is ambiguous relies on legislative hislotry. Court held that where. public polity. given section 35. the common law. o Court then noted that a principle of statutory interpretation is that where two interpretations of a priovision swhich affects the liberty of a subject are available.
Appeal by former employees of a now bankrupt employer from an order disallowing their claims for termination pay and severance pay. . Court then agreed that while the end result may be absurd. assuming that this does not raise constitutional concerns. Issue of whether. Clash between the textualist and internationalist approaches to interpretation.• The fact that a provision gives rise to absurd results is not sufficient to declare it ambigupus and then emabr upon a braod-ranging interpreative analysis. as Parlaiment has the right to legislate illogically. o If parliament is not satisfied with its illogical enactments. Re Rizzo and Rizzo Shoes Ltd (1998) Leading case on statutory interpretation and sets out the preferred approach of the Supreme Court of Canada. 412) – court found the point of departure should nto be plaim mening but rather intent of the legislature. under the relevant legislation in effect at the time of the bankruptcy. employees are entitled to claims termination and severance benefits where their employment has been terminated by the bankrupctyyu of their employer. ithen Parliament can amend them. o Court noted that this kind of interpreative analysis was confusing for the court. as inferred not only from the language of the text but also from aids such as the evolution of the legislation from common law to the current formations. so a regular citizen would not be abel to engage in it and since this is the criminal alw where people must know what it is. such consideration should not lead this court to narrow a statutory defense. Majority – (textualist) – court should give effect to the plain menaing of a staute even it this leads to absurdity Dissent (intentionalist approach) – court should give effect to Parliament’s intent. then the palin meaning os available. • • DISSENT (pg.
But the court hten noted that this analysis was incomplete. its object or intention of the lesialture. meaning and spirit. Felt that the consequences of the lower courts decision were incompatible with the object of the Act and with the object of the actual provisions themselves. the object of the Act and the intenation of Parliament. Furthermo. Court then noted that the lower court has looked to the plain meaning but they did not pay sufficient attention to the scheme of the ESA. The statutory obligation upon employers to provide both termination pay and severance pay is governed by ss. The noted that it is a well-established principle of statutory interpretiona that the legislature doesnot intent to produce absurd consequences. .40 and 40a of the ESA. And that there is only one proinciple or approach. The plain language of the provision suggests that termination pay and severance pay are payable only when the employer terminated the employment. the employment can said to be terminated by the employer. as it has been recogniozed that statutory interpration cannot be founded on the wording of the legislation alone. s. So the question is whether when bankruptcy occurs. large and liberal construction and interpretation as will best ensure the attainment of the ibject of the Act according to its true intent. nor was the context of the words in issue appropriately recognized. bankruptcy does not fit comfortably into this interpreationa. namely that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act. Court first noted that the plain meaning of the words of the provision appear to restrict the pbligation to pay termination and severance benefits to those employers who have actively terminated the employemnet of their employees and that at first blush. 10 of the Interpration Act provides that every act shall be deemed remedial and directs that every act shall receive such fair.
Then noted the absiurdity of a consequence where employees fired the day before bankruptcy get fiull protection but theose not fired but ending their temrianation after bankruptcy don’t get anything at all. it can be characterized as a benfits conferring legislation. if it is extremely unreasonable or inequitable. An intepretion that did not allow for this would deafeat the tru mening. it ought to be interpreteted in a borad and generous manner. you can look at the scheme of the legislation. it can play a limited role in the interpretation of legislations. Court then noted that using the braod and kgeenrous approach to interpretation appropriate for benegits=-conferring legilstyion. Court then noted that the use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise and one which has often been employed by the courts. Especially absurd in a unionoized workplace. Court noted that while Hansard evidence (debates and comments during the lesgtilations) has many frailities. and as such. A consequence can be considered absurd if it leads to ridiculous of frivolous consequences. as the lower courts interpretation would require. intent and spirit of the ESA. . Finally. Transitiotnal proviiosn indicate that the Legislature intended that termiantiona nd serverance provisions should airse upon an employer’s bankruptcy. according ot severl court decisions. where iut will be the most seniir employees who get hired last and therefore get fired through bankruptcy and lose their entitlement to this payment. Any doubt arising from the difficulties of language should be resolved in favor of the claiminat. would arbitrariuly deprive some employees of a maens to cope with the conomic dislocation caused by unemployment. The protections of the ESA would be limited rather than extended. thereby defeating the intended workings of the legislations. Distinguishing between employees merely on the basis of the timing of their dismissal. which is a Mechanism for providing minimum benefits and standards to portect the interests of employees. if it is illogical or incoherent or if it is incompatible with other priovisions or with the object of the legislative enactment. the words can bear that construction that bankruptcy is part of termination by the employer.
it is therefore givine effect ot the legislature. . Usually courts refuse to read in. on the grounds that it amounts to amendment rather than interpretation. • The court is giving effect to limitations or qualifications that are impliclity in the text or the scheme fo the legialtions. the additional words natrrow rather than enlarge the scope fo the priviiosn and are means to reflect the legislature’s intent. 196 (a transitional porivsion of the Immigration Act) removes the right to appeal an order for removal in the case of persosn deemed inadmissible for serious criminality. words of limitation or qualification are effectively added to the text. In each case. Court first ntoed that the words of a statute must be interpreted having regard ot the object. it expands the scope of a legislative provision or fills in a gap in legislative scheme. Medovarski v. thus making the legislation apply to facts that it would not otherwise encpompass given the limtiats of the language used in the peovision or scheme. for one of the following reasosn. Reading down Refers to accepting an interpretion of a provision that is narrower in scope than the ordinary meaning of the text would support. • • • Reading in When a court reads in. text and context of the provision. When a provision is read down. considered together. Problem with the transition and changes made to the Immigration statutes. it is therefore refusing to exceed the legislature’s intent or The court is relying on a presumption of legislative intent. Canada (2005) Core ise is whether s.s intent The court is regfusing to apply the legislation to situations that are outside the mischeilf the legislation was meant to address. One way to read in is to ignore words of limnitation or qualifications in the Act Another is to add words of expansion to the act.
196. although again admitting of ambiguity. (especially when said transitiaionl privision explicitly references s. the court considered the terms of s. although admitting of ambiguity and o A French versiuon which arguable applies to all stays. Court then considered: Purpose of the Sec. the French version is broader and more passive than the English verison. • The principles of French and English statutory interpretations • • . Therefore the ocurt noted that they were dealing with o An enldihg veriosj which arguably applies only to actively granted stays. was to efficiently remove criminals senteded to prison terms over 6 months from the country and the transitional privions in question should be interestpreted in light of these legislative ibkectives. Howver. whether statutory or granted. 64( barring appeals) • • Text of the section • • Next. In summary. Voiced the concern that those who pose a security risk tpo Canada be removed from our country as quickly as possible. and the specific section. so the enlgish version implies that applies only to stays actively granted. Court note dthat the enlish term granted indicates an avitevely odered stay beased on dictroney defitnios. found tha thte provisions of the IRPA and the Minister’s comments indicate the purpose of enacting the IRPA. 196 transitiotnal provisions • • Cout first considered the purpose of the IRPA and its transitional provisions Then ntoed that in introducting the IRPA. The iobjectie is to proioriztie seucirty. the Minister emphasized that the purpose was to remove the right to appeal by serious ciriminals.
o Two-part procedure to the interpretation of blingual statutes: 1) one must apply the rules of statutory intepreation to determine whether ror not there is an apparent discordance and is so whether there is a common meaning betwener the two versions. the common meaning would gfavour the more restricted or limited meaning.o Court noted that in interpreting bilingual stautes. but both lend themselves to a single. each equally in accordance with the inteation of the staute. the statutory interpretation should be gin with a serach for a shared meaning between the two versions.(not the case here) Bilingual legislations: In cases of discrepancy there is a range of possibilities: Version A is ambuiguous while version B lends itself to only on ef the possible meanings = version B is the shared meaning Both verision sare ambiguous. it would essentially be redudnat. the common meaning is mormally the narrower version • • 2) one must determine whether the common meaning is consistent with Parliamnet’s itnention Avoidance of redundancy • Court also noted that if the section applied to all stays. particular meaning = this is the shared meaning Both versions are clear but say different things – there is no shared meaning . Other Arguments • Court noted that charter values only inform statutory interperatin where genuine ambiguity arises between two orr more plausible readings. or if they both are. The common meaning is the veriosn that is plain and not ambiguous If netiher veriso is ambuougou. • Where one of the two versions is braoder tehn athe other.
Canada (AG) v. Court held that Parliament’s clear intent through the Canada Human Rights Act was to not extend anyone protection from discrminiation based on sexual orinetnations (otherwise absurd results that those married in common law would have more protection than those who were single). One version is borader in scope than the other. Absent a charter challenge of its constitutionality. v. If there is some ambiguity to its meaning or scope. Siued in the human rights tribunal. couerts and administrative tribunals are not empowered to do anything else but apply the law. using the usual rules of interpretations. the shared meaning must be tested against other indicators of legislative intenet. Court also acknowledged that the shared meaning is merely presumed and can be rebutted. o that which is in more conformity with the Charter should prevail Absent a charter challenge. purposiove and liberal interpretation . In every case. both actual and presumed. Daoust (2004) the supreme court of Canada held that where one veriosn of bilingual legislation is braoder in scope than the other. seek out the purpose of the legislations and • if moe than one reasonable interpretation consistent with the purpose is available. either rhte narrower verison is the shared meaning or the two versions say ddiferetn things so there is no shared meaning Note that in R. the charter Cannot be used as an interpretative tool todefaeat the purpose of the legislation or to given the legislation an effect Parliament clearly intended it not to have DISSENT (end of the chapter) Noted that human rights legislation has a unique. where Parliamentary intent is clear. then the courts should. Mossop (1993) Gay men refused bereavement benefits for family status for the funeral of his common law husband. the narrower verison represents the shared eamning and should prevail unless there is evidence that the legislature intended the braoder meaning. quasi constitutional nature and is to be given a large.
• Juxtaposed “family stiate” and “maritual status” . Therefore the intepreatigve rules should be used. but with this purposive approach in mind.
o Court held that in order to proceed. 7 of the Charter to refrain from permtitin gthe testing of the cruise missile. Principle of constitutional supremacy is enshrined in the s. to the extent of the inconsistency.” o The limitations of judicial review the issues of justiciability • Operation Dismantle v. 7 of the Charter and that the causal link between the actions of the gov’t and the alleged violation of the As rights is simply too uncertain.Constraints on Legislative and Administrative Action The role of Consitutional Judicial Review in a democratic society o Justification for constiotutional judicial review The distinction between a govt with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed and if acts prohibited and acts allowed are of equal obligation. (Marbury v Madison) The judiciary pl. of no force or effect. and the govt bears a geenrl duty to act in accordance with the Charter’s dicatate. the As’ statement of claijm would have to disclose facts wihih if taken as true would show tha thte action of the gov’t could cause an infringement on their rights under the s. o Court noted that although the decisions of the federal cabinet are reviewable by the courts under th Charter. the Queen (1985) o Challenge under section 7 of the Charter to the decision of the Fedearl Cabinet to permit the testing of cruise missiles by the US in Canadian territory. .ays a rol in ensuring that the written Constitution prevails over ordinary legislation. no duty is imposed on the govt’ by s. speculative and hypothetical to sustain a cause of action. 52(1) of the Consittuion Act 1982: • “the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is.
o CONCURRENCE: o Court noted that the issue of justiciability. etc. It cannot substitute its opinion for that of the executive to whom the decision making power is given by the . o Must consider whether a constitutional matter is appropriate or obligatory for the courts to decide. a doctrine qwhich is founded upon a concern with the appropriate role of the courts as the forum for the resolution of diff’t types of disputes. And that disputes of a political or foreign poloicy may be properly cognizable by the courts. o Court should not be too eager to relinquish their judicial review function simply becaue they are called upon to exercise it in realtion to weight matters of state. • • The first step is to determine who as a constitutional matter has the decision making power The second step is to to determine the scope (if nay) of judicial review of the exercise of that power. It is not about the ability of the judicial tribunal to make a decision on the questions presented but the appropriateness of the use of the judicial tenchnique for such purposes. o Court noted that if it were being asked to express its opnion ont eh wisdom of the executive’s exercise of its defense powers. o Court noted that it has been held by courts for a long time that issues about nuclear testing. o The underlying issue is the separation of powers in the sense of the proper role of the courts vis-à-vis the other branches of govt’. Equally however. the court would have to decline. are to be treated as nonjusiticiable not simply because of evidentiary difficulties but because they involve moral and political considerations which are not within the province of the courts to assess. it is important to realize that judicial review is not the same thing as subsntituion of the ocurt’s opinion on the merits for the opirnion of the person or body to whom discretionary decision-making power has been committed.
the rights not being absolute. was never intedwed to be caugh by s. 7 even though such action may have the incidental effect of increasing the risk of death or injury to that individuals generally have to face. including speration of powers. 1. responsible govt and rule of law. their content and scope kust be discerned quite apart from any limitation sought to be impsed on them by the govt iunder s.Consittution.. 7 (eg. IOt obviates the need for a political . • Notedf that not saying that every governmental action that is purpodetdly taken in furtherance of national defence would be beyond the reach of s. it is tempting to say that the court should in the same way refuse to involve itself. Because the effect of this action is to challenge the wisdom of the gov’t defence polkiy. But the court noted that the question before it was not whether the gov’ts defence policy is sound but rather whether or not it violates the As’ rights under s. Therefore. • Must note that there is a difference between asking whether it is appropriate for the courts to second guess the executive on matters of defence (not appropriate) However. • o Court noted that the section 7 right to life libery and the secutiy of the person is not absolute. if what we are being asked to do is decide whether any particular act of the executive violates the rights of citizens. then it is not only appropriate but it is the obligation of the courts to do so. At the very least. 1 of the charter is the uniquely Canadian mechanism through which the courts are to determine the justiciabiliyt of particular issues that come before it. therei must be a strong presumption that governmental action which concerns the realtions of the state with other states and which is therefore not directed at nay member of the immediate politicl community. It embodies through its reference to a rfree and democratic society the essential feature of our constitution. if it posed a direct threat to some specific segment of the popultioan then reviewable) o Court then noted that s. 7 of the Chater.
• . Doucet-Boudreau v. 24 (1) of the Charter. o Court noted first that the requirement of a generous and expansive interpretative approach heold equally true for Charter remedies as it does for Charter rights. the issues of enforcement • while Canadian judges accept the proposition tah the Consitution is asupremen and the corraloary that it is their duty to interpret the COnsitutions and invalidate any legislation that is inconsistent with the consititution. 24(1) of the Charter for a breach by the executive branch of a positive Charter right. o Issue: having found a violation of s.questions doctrine and permits the court to deal with what might be termed purdenital considerations in a principled way without renouncing its consitutiaonlly mandated responsibility for judicial review. 24. did the NS Supreme Court have the authority to retain jurisdiction to hear reports from the province on the staute of these efforts as part of its rememdy under s. 23 minority language provisions and required that the govt provide him with periodic reposts on its progress in this regard) as a remedy under s. the practical reality is that court normally have to rely on the executive and legislative branches of gov’t for the enforcement of their decision. Nova Scotia (2003) o Note that this split the court: the issue was over the scope of judicial power to grant a form of structural injunction (trial judge told NS to use its best efforts to buiold french language schools and comply with s. o Five justice majority held that this remedy came within the superior court’s authority under s. o Minority argued that such an injunction usurped the roel of the executive by placing the judiciary in a position of directing the implementation of law and governmental policy. 23 of the Charter and having ordered that the Province make its best efforts to build French language schools by a particular date.
a pruposeve approach to remedies requires two things: • • The purpose of the right beign protected must be promoted: courts must craft responsive remedies and The purpose of the remedies provision must be promoted: courts must craft effective remedies o Court ntoed that in the context of constitutional remedies. 2491) of the Charter which envisions more than declaration of rigfhts. The power of the court to issue injunctions against the executive is central to s. Thefore. . 24(1) of the Charter. effective and meaningful rememdy for Charter violations since a right.o Purposive interpretation means that remedies provision must be interpreted in a way that provides a full. 24 of the charte is that the flexibility inherent in an equitable remedial jurisdiction may be paplied to orders addressed to gov’t to vindicate constitutionally entrenched rights. courts of equity have long since overtime this difficult where the problems required such a remedy. is only as meaningful as the remedy provided for its breach. • The court then noted that determining the boundaries of the court’s proper role cannot be reduced to a simple test or fourmal and that it will vary according to the right at issue and the context of each case. Then noted however that deference ends where the constitutional rights that the courts are charged with protecting begings. no matter how expansive in theory. courts must be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or boides are better suited. o Court then notexd the while the difficulaties of ongoing superviusion of parties by the courts is a problem. o The change announced by s. o Court then held that it is clear that a court may issue an injunction under s.
A reviewing court should only interfere where the trial judge has committed and eror or law or pirnicple. Therefore. 471 • Reference re Language Rights under S. 23 of the Manitoba Act (1985) o Here at issue was Manitoba regulation which was constantly being challenged and the orders of the ocurt were constantly being ignored even though Manitoba was not enacting bilingual legislation and kept ignoring their requirement to do so. multiple appeals about the laws of manitobna since they are not in French as required by the Charter. o Court ntoed that though the province is sovereign and it is not for the courts to pass upon the policy of wisdom of the legislative will. o DISSENT – page. courts should be mindful of their roles as constitutional arbiters and the limits of their insistutional capacities.o HELD: the order in this case was in no way inconsistent with the judicial function. Hearing evidence and supervising cross-examinatins on progress reports about the construction of the schools are not beyond the normal capacities of the courts. The remedy crafted by the trial judge in this case vindicated the right so fht eA parents by encouraging the Province’s promiot consturciton of school facilities. o In doin so. • A superior court may craft any remedy that it considers appropriate and just in the circumstnaes. . There was never any suggestion in this case that the court would for example improperly take over the detailed management and coordination of the construction projects. Reviewing courts should show considerable defefrence to trial judges’ choice of remedy and shouwl refrain from using hindsight to perfect a remedy. Enforcemnet of charter rights may in some cases require the introduction of novel remedies.
In order to ensure the rule of law. because almost all the laws in Mnaitoaba were unilingual and declaring them of no force or effect would essentially cause chaos. the court noted that its taks what to recognize the unconstitutionality of Mantioba’s unilinigual laws and the legislature’s duty to comply with the supreme law of this country. o Court then struggled with what to do. • Given this. o Court htefore noted that the unilingual enactments of the Manitoba legislature are inconsistent with the constitutionally required manner and form for their enactment has not been followed and they are therefore invalid and of no force or effect. By it the boudns of sovereign are defined and supremacy circumscribed. while avoiding a legal vaccum in Manitoba and ensuring the contintuity of the rule of alw. It is the high duty fo the courts to insure that the legislatures do not transgress the limits of their constitutional mandate and engage in illegal exercise of power.. Therefore held that the only appropriate solution was to declar the in order to uphold the rule of law. Noted that the support for these measures can be found in cases which have arisen under the doctrine of necesaity. Necessity in the context of governmental action provides a justification for otherwise illegal conduct of a governemtn during a public emergcny.the constitution in a federal state requies that at some point requires that this yield. • • . Rule of law – court noted that part 2 of the rule of law requires the creation and maintenance of an actual order of poisitive laws which preserves and embodies the more general principle of normative law. obliations and other effects of the invalid laws whill continue to have the same force and effect they would have had if they had arisen under valid enactments for that period of time which it would be impssobel bor Manitoiba to comply with its constitutional duty. those rights. couets will recognize as valid the consituttionally invalid acts of the legislature.
obligations and other effects which have arusen under these laws and the repeaed and speant laws of the provision prior to the date of this judgment which are not saved by the de facto or some other docritne. and the legislatiore is unmable to immediately reenact these unilingual laws in both languages. All acts of the laegislates purportedly repealed. The courts have expanded their proper role of interpreting the constitution an dhave thereby unduly shrunk the zone of parliamentary supremacy. the province of Manitoba is in a state of emergency. are and always have been invalid ans of no force or effect.o HELD: because of manitoba’s legislature’s perisiteent violation of the constitutional dicaates. courts have usurped power that is properly the domain of Parliament and the provinicial legislatures. spent and current. are deemd to termporarily have eben and continue to be effective beyond this challenge. the rule of law may become subtly transformed into the rule of unelected judges. Alberta (1998) . Criticism of the substantive approach to particular rights. and that thte rights. Since the Consittuion siwll not suffer a province without laws. the issue of legitimacy • the most immediate concern for Canadina judges in exercising their mandate to uphold the Consitutiosn is to identify principles that appropriately shape the exercise of this authority. thus the Constituiona requires that termporaty validity and force and effect be given to the current Act of the Manitoba legialture from the date of this judgment. Obnly in this way can chaos be avoided and the rule of law preserved. Two cristicmis of constitutional judicial review: o Unde rhte banner of constitutional supremacy. The concern is that when judges give concrete shape to these and other ideas set out in the Charter. and then invalidate laws that do not conform to their interpretation of these requirements. rights that may protect unpopular elements of society • • • Vriend v.
the notwithstanding provision. The parliamentary safeguards reamin. The majority also concluded that the remedy for this violation was to read in sexual oritentation as a prohibited gorudn of discrimination for the purposes of the act. 33. • Drawing from this. .o Court held that the AB’s failure to include sexual oritentation as a prohibited ground of discrimination in the AB Individual Rights Protection Act violated the appellant’s right to equality as protected by s. despite the court’s reading in approach – gov’ts are free to modify the amended legislation by passing exceptions and defences which they feel can be justified under s. Or they can turn to s. 1.1 provides that rights contained therein are guaranteed but are then subject to such reaosable limtias prescribed by law as can be demonstrably justified in a a free and democratic society. 15 of the Charter and that this action was not justified under s. o Noted therefore that ourts in their trustee or arbiter role must perforce scrutinize the work of the legailture and executive not in the name of the courts but in the interest of the new social contract htat was democratically chosen. o Noted that with the enactment of the Charter. the courts have articlauted a compelx justification test that may excuse a viuoaltion of a substantive Charter right should its conditions be met. Courts are not to second guess the legislature in this role but rather to enforce the Consittuion. canad went from a system of Parliamentary supremacy to one of Constituional supremacy. S. 1 of the charter. whichi s the ultimate parliamentary safeguard. o Dialogue model discussed (page 485) • Built in deference o The Consitution does preserve a huge swath of parliamentary sovereignty. o Court discussed the dialogue version of court interaction with the executive and legislature.
If the answer is yes. Canadian telephone Employees Association (2003) • A sought to invoke the principle of judicial independence in support of its argument that the Canadian Human Rights Tribunal was insufficiently independent and impartial to provide a fair hearing of the pay equity dispute before it. the nothwistnading clause. allows Parliament to expressly declare in an Act of parliament that the Act or a provision thereof shall operate notwithstanding these Charter rights. The matter then goes back to the legislature for the appropriate remedial action. it was necessary for the A to use a consituational or quasi-consitutional argument to attach the legislation rather than simply advance an argument that adjuciation by the tribunal would not satisssfy the common law requirements of procedural • . (book notes) Notice that because of the causes of the tribunal’s alleged lack of indepencne or impartiality were embedded in the Cnaadaian Human Rights Act itself. S. • Dialogue model – first the legislatures have to examine any legisltiaon they are ciontemplating to ensure that they have discharged their rresponsibility of Charter compliance. • Different sorts of judicial review of legislative action o Unwritten constitutional principles Bell Canada v. and is called into wuestion. If no. Then if that legislation is passed. then the courts are obliged to strike diown the legislation. there is no problem. For a discussion about the roel fo the courts and the various critcismss about judicial legislation – see page 490 o For a dissenting opinion gabotu cthe boundaries of the courts in constitutional adjustication see 493 disseitng opinion in reference re renumaeration. 33. though in doing so they must identigy its vitiating aspects as clearly as possible so that the legislature will be in a position to correct them. the courts must ask themselves: did the legislature discharge its responsibility to comply with the charter. • Abundantly available to the legislature and does nto require a super majority – can be enacted through the regular process.
• Court noted that the tribunal was part of a legislative scheme for identifying and remedying discrimination. but nevertheless supprotin I by safeguards adequaatre to its function. o Esenitally bell is ibjecting to the fact htat Parliament has placed in one and the same body the function of fourmatling guidelines. Court nmtoed that the content of the requirements of proceuddal fairness applicable to a given tribunal depends not only on upon the enabling statutes but also upon applicable quasi-consittutional and consittuioanl principles. Court noted that the same test applied to impartiality as applies to indepencnce: o Would a well-oinfomred person viewing ht ematter reaslistaillcayu anmd practically have a reaosnble apprehension of bias in a susbatntial number of cases. It is crucial for this polyc that any acmbiguioties in the act be interpreted by the tribunal in a manner that furthers rather than frustrates the Act’s objectives. The legislature has conferred a high degree of independence on the Trubunal stopping short of cosnittuoina it as a court. 96. Court then tnmoted that Bell was ibjecting also to the fact that the COmissions power to sisue bidning guidelines respecting the porpert interpretation of the Act undermines the tribunal’s impartiality.fairness. as doesn’t any tadmibsitrativa tribunal subject to the supervisory powers of the courts under s. the larger purpose behind its adjudication is to ensure that governamtal policy on discrimination is implemented. Court then note dthat the tribunal did not have to replicate all the feature of a court. Also note that there is considerable overalp between the common law and consitutiaonl principles of independence and impartiality and the court’s riuling is ultimateye based on the conclusion that the scheme established by the Act is not unfair to the A. As scuh. • A agured that the power of the Canada Human rights Commission to issue guidelines binding on the Human Rights tribunal compromises the tribunal’s independence because it places limits upon how the tribunal can interpret the act and undermines the trubnal’s impartiality because the commission is itself a party before the triubunal. • • • • .
Noted also that the commission’s guideliens. Loke all powers to make subordinate legislation. and hence that it would be interpreted by the Trbunal in a way that best furthered the aims of the Act as a whole. atre subject to the presumption against retroactivyt and tehfeore this is a significant bar to atemptin gto influence a case that is currently before the Triubunal by promulagating a new guideline.line son the basis that it was issued byt eh commission in bad faith or for an improper purpose and no guideline can purport to poverridet he requirements of procedural fairness that govern the truibunal. Court held that this overlapping of functions in a single adminsitratigve agency is not unsual and does not on its own give rise to a reasonable apprehension of bias. Therefore. like other bodies to hwom the power to make suborindate leisaltion has been delegate4d. this can best be accomplished by giving the commission power to make interpretive guildeines that bind the Tribunal then the overlapping functions in the Commission play an important role. cannot exceed the power that has been given to it and is subject to strict jusidicla review. As well. it helps to ensure tha thte Truibunal applies the Act in a manner most likely to fulfill the Acts ultimate [purpose. any part before the Trubunal cal challenge a guide. Parliament’s choice was obviously that the commission should exercise a delegated legislative function. the comission’s . Rather than result in a lack of impartiality. like all subordinate lesgialtion. as the act suggests.investigating complaints and acting as prosecutor before the tribunal. • If this was the aim of parliament and if. Court then noted that the guideline power is contractined and the commission. And noted that placing the guidelines power in the hands of the Commission might have been Parliament’s way of ensuring that the Act would be interpreted in a manner that was sensitive to the needs of the public and to developments across the country.
o The effect of a finding that Parliament or a provincial legislature has exceeded its legislative jurisdiction is that the legislation. • In other instances. though the matter to apprehend a real likelihood of bias. The most important feature of the constitution act 1867 are the provisions of s. viewing the matter realistically and ptractically. o The constitution act 1867 The Constitution Act 1867 estaqblishes the basic institutional structure of the federal and provincial levels of government and assignes the respective role of the federal and provincial courts and the appointment of judges to these courts. • Division of powers litigation often involves arguments that a piece of legislation or some part of it falls outside the jurisdiction of the legislature that enacted it.guidelines power is strictly contrtaing and so then cannot see how the guildeline power under the Act would lead an informed person. 91 to 95 that distribute legislative power between the federal and provinicial levels of government. or the offending part of it. the issue is not the validity of a particular piece of legislation but whether a particular situation falls within the federal or provincial sphere of authority and therefore is governed by the relevant federal law on the one hand or provinvial law on the other. is invalid. Court first notd that the matter of labour relations is usually considered to fall within the provincial realm of legislative . Issue was whether the complaint at issue could be heard by the Canada Human Rights Tribunal where the tribunal’s mandae could only give effect to those laws under the legislative authority of parliament. The school claimed that it was not governed by the federal legislation. Canada (human rights tribunal) (1988) This was an employment discrimination action against a school which was led by the Canada Human Rights tribunal. o Qu’appelle Indian Residential School Council v.
The exception comprosies. pusrsuant to section 92(13) of the Constitution Act 1982. having regard to the function test of the nature of the operations and their normal activities. 91 or 2) in respect to Dominion Government employees or 3) in respect to work and undertakings under ss. at issue is the character or nature of the activity concerned. as being in relation to property and civil rights. where the activity is taking place or who is funding the activity. . serives or businesses. Rather. o Therefore. o Previous cases (Four B case (1980)). the focus should be not on who the employer is. in the main. exlusive provincial competence is the rule. services and business which. where labour/labour relations are: • • • • 1) an integral part of or necessarily incidental to the headings enumerated under s. o The functional test is a particular method of applying a more general rule. namely that exclusive federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisidcition over some other federal objective. ther are four exceptions to this rule. undertakings. o The question in this fourth part is whether this emabraces the operations of a municipal corporation. 91(29) and 92(10) and 4) in respect of works. who the employees are. can be characterized as federal undertakings. or businesses in Canada but outside of any province. However. had held that with respect to labour relations.competence. in deciding jurisdiction of labour relations in a particular case. labour relations in undertakings. exclusive federal competence is the exception.
rights and privileges of band Indians). enrolment limited to Indians. regis band council (who were responsible for the administration of education. Therefore held that the nature and the function of the Council can and should be characterized as forming an intergral part of primary federal jurisdiction over Indians and Indian lands. which unquestionably concerned the status. (employees involved in the total administration of the Band. The school is designed and operated for Indians. governed solely by Indians. (Francis v. is part and parcael of the general operation as a whole of th band council and cannot properly be removed from the whole and viewed as an ordinary industrial activity. the Court held that the nature of the activity (sewing soles onto sport shoes) had nothing to do with Indian status or privileges and could be characterized as merely an ordinary indiustrial activity – thus labour relations would be dealt with under provincial law. and that gov’t funding. (commercial enterprise which did not affect the rights and status of the employees as Indians) In another case. etc) were so directly involved in activities realted to Indian status and privileges. the labour relations were an integral part of priomary federal jurisdiction over Indians and Lands reserved for Indians. So in one Indian case (Four B). Indian lands and estates. in the circumstances. did not matter. etc. • Noted that this was a residential school and for most of time. stated objects • . court held that because the employees of the St. Indian schools were actually under the jurisdiction of the federal gov’t and run by the Minister. CLRB (1981). Court renoted that the key was all about how the characterize the nature and the functions of the plaintiff. Final Cae (Whitebear Band Council – Sask CA 1982) – Court held that the construction of houses on the reserve.
Taylor (1990) • The issue was whether a section of the Human Rights Act which restricted the communication of certain telephone messages (which would expose a person to hatred or contempt on a identified ground of prohibited discrimination) violated s. The section 2(b) right is infringed if it can be shown that either: • 1) the purpose of the impugned government regulation is to restrict expressive activity or • . which guaranteed freedom of expression. Finally retierrated that the employees here are so directly ionvolved in activities relating to Indian status. 1 of the Charter Canada (Human Rights Commission) v. 2(b) of the Charter. o The Canadian Charter of Rights and freedoms 2 steps in the process: • • 1) defining the substantive right protected by the relevant provision in the Charter and 2) the relationship between substantive rights and the justification of limits on those rights under s. Two steps for the court: o 1) Court noted that the intial step in determining whether the secton infringes on the Charter is to decide whether the sphere of the freedom entrenched in the Charter extends to telephone comunciations likely to expose persons to hatred or contempt by reason of identification on the basis of race or religion. rights and privileges that their labour relations should be under federal jurisdiction. Court noted that an activity which conveys or attempts to convey meaning is generally considered expressive content within the meaning of 2(b).are to promiote Indian traditions and the curriculum includes Indian languge.
Court held that the regulation here satisfied both standards – that it was an expressive activity and that it was enacted to restrict such expressive activity. 2 (b) freedom and the gravamen of this approach is the refusal to exclude certain expressions because of content. court noted that the whole basis of the Human rights act is to ensure that people have the right to be happy and live their lives and that the idea of hate speech and its effect. This section of the charter protected all content of expression irrespective of the meaning or message sought to be conveyed. There are two aspects to this portion of the analysis: • 1) ask whether the objective of the challenged measure is sufficiently important to warrant limiting a Charter right or freedom. .1 of the charter. • Court also ntoed that there needs to be a large and liberal interperation of the s. the question becomes whether the provision can be justified under s.• 2) the regulation has such an effect. Then the determination must be whether the impugned section is a reasonable limit demonstrably justified in a free and democratic society. 1 requires that a limit on a Charter right or freedom be prescribed by law. o In this case. S. and therefore the government objective in this case is sufficiently important. and discrimination is terrible. and the activity in question supports the principles and values upon which the freedom of expression is based. o The only exclusion is violence or threats of violence – which speaks only of physical forms of violence • o 2) having determined that the charter section has been infringed.
the arguments about the vagueness of the terms hatred or contempt. • • o ii) the measure impairs the Charter right at stake no more than is necessary and Court noted that in considering this. unfair or irrational court noted that once it is accepted that hate propaganda produces effects deleterious to the guiding principles of s. make it too subjective. Here the cide is sufficientl precise to purevent the unnacpetable chlling of expressive acitivyt. were nto tenable because of the well established principle that the principle so fhte Human rights code should be read as fundamental law and therefore given effect through a large and liberal interpertaion. 2 of the Human Rights Act.• 2) if the answer to the above is yes. An impugned measure is seen as proportionate only if the state shows that: o i) a connection exists between the measure and the objective so that the former cannot be said to be arbitrary. . Court noted here that an important consideration with regards to hate speech is that content neutrality is an important part of free expression doctrine but that the unusually extreme extent to which the expression at stake in this appeal attacks the rationale for secion 2(b) of the charter requires that proportionality anyaliss be carried out with the recognition that the suppression of hate propaganda does not severly abridge free expression values. the second aspect of proportionality arises. This requirement is met where an impugned measure is well-suited to carry out the objective and its impact upon an entrenched right or freedom is not needlessly or unaccetapbly severe. there remains no question that the impugned provisiosn is rationally connvected to the aim of restricting activities antithetical to the promotion of euqlaity and tolerance in society.
The section further a government objective of great significance and impinges upon expression exhibiting only tenuous links with the rationale underluying the freedom of expression guarantee. Court held that this section’ seffects upon the freedom of expression were not so deleterious as to be intolerable in a free and democratic society.o iii) the effects of the measure are not so severe as to represent an unacceptable abridgement of the right. .
reasonableness is concerned mostly with the existence of justification. referring both to the process of articulating reasons and to outcomes. transparency and intelligibility within the decision making process. A court conducting a review for reasoanblessnes inquires into the qualities that make a decision resaosnble. The analysis will bring the court to decide whether it agrees with the determination of the decision maker – if not. In judicial review. cannot be determinative. . But it is also concerned with whether the decision falls within a range of possible. the court will substitute its own view and provide the court answer. Also noted that a privative caluase. acceptable outcomes which are defensible in respect of the facts and the law. it will undertake its own analysis of the question. Deference imports respect for the decision making process of adjudicative boideds with regard to both facts and the law. rather. while providing strong indiciation of legislative intent. NB (2008) • Court noted the importance of judicial review to upholding the rule of law. Judicial Review of Administrative Action o Standards of Review Dunsmir v. a reviewing court will not show deference to the decision maker’s reasoning process. • • o 2) Reasonableness This is a deferential standard. while at the same time still sustaining legislative supremacy by determining the applicable standard of review thougth establishment of the legislative intent. Concluded that there must be two standards of review: o 1) Correctness When applying the correctness standard. the court musk ask whether ther tribunals’ decision was correct. From the outset.
Deference in the context of the reasonableness standard therefore implies that courts will give due consideration ot the determinations of decision makers. silence on the question of review is neutral and does not imply a • • . no court review of decision) With regards to a privatice clause. adjudication in labour law) Noted that consideration of three factors will lead to the conclusion that deference should be given and reasonableness standard applied: o A privative clause (Parliamnent’s statutory direction indicating the need for deference – eg. deference will usually apply automatically. discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness. o Court noted the method for sletcing the appropriate standard in individual cases: First – questions of fact. o And also where the legal and factual isues are intertwined and cannot be easily separated • Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function. discretion or policy. (court noted that you can still look to relevant case law for help) • A privative caluse gives rise to a strong indication of reasonableness review o But note that it is not determinative • Where the question is of fact. with which it will have particular familiarity Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in realtion to a specific statutory context (eg.
Q) o The nature of the question of law. o A discrete and special administrative regime in which the decision maker has some special expertise Greater deference will be called for only where the decision-making body is in some way more expert than the courts and the questions under consideration is one that falls wihitn the scope of this greater expertise. A question of law that is of central importance to the legal system and outside the specialized area of expertise of the adminsitraivtive decision maker will always attract a correctness standard. Adminstrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. College of Physicians (2003)). 2) must consider its expertise relative to that of the tribunal and 3) identify the specific issues relative to this expertise (Dr. In other words – true jurisdiction questions arise where the tribunal must explicitly determine whether its stattory grant of power gives it the auhtorioty to deiced a • . Otherwise – a question of law that does not rise to this level mya be compatible with a reasonableness standard where two of the above factors so indicate. o Jurisdiction is intended in the narrow sense of whether ore not the tribunal had the authority to make the inquiry. (Dr. Q v.high standard of review (Dr. Second – questions of legal issues typically attract a standard of correctness (but not always) • Correctness review applies in constitutional questions regarding the division of powers between Parliament and the provinces. Q) Thihs review has three dimensions: 1) the court must characterize the expertise of the trubiunal.
o This must be contextual and dependent on te application of a number of relevant factors including: 1) the presence or absence of a privative caluse 2) The purpose of the tribunal as determined by interpreationa of the enabling legislation 3) the nature of the question at issue 4) the experites of the tribunal. o Questions that require uniform and consistent answers because they impact the administration of justice as a whole. courts must poceed to an analysis of the factors making it possible to identify the proper standard of review. • Quesitons of of general law that is both central importance to the legal system as a whole an doutside the adjusdicator’s spexialized are of experites. Court herefore noted two steps to the process: • 1) courts must ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of aquestion. • o Note that no standard of review naalysi is necessary in procedural fairness analysis because common law rules governing fair procedure already build in . (page 531 goes through some of it) 2) where the first inquiry provided unfruitful.particular matter – the tribunal must interpret this grant of authority correctly or its action will be found to be ultra vires. Complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process • Question regarding the jurisdictional lines between two ore more competing spe\cializes tribunals.
o Some examples: Dr. • MacLean v Human Rights (Federal Court 2003) • See page 531 . Q (2003) • Court noted that the standard was (higher reasonableness) when reviewing a decision to revoke a license of a doctor who had sex (but denied) with his patient.a degree of flexibility that takes into account the insituttional setting in which the decision was taken. Then noted that the reviewing judge’s question should have been whether the Committee’s assessment of credibility (which is all fact judgement) and application of the standard of proof to the evidence was unreasonable in the sense of not being supported by an reasons that can bear somewhat probing examination.
This requirement. gives the Crown the right to decide the Aboriginal interest. o R. section 35(1) provides that “existing aboriginal and treaty rights of the aboriginal people are hereby recognized and affirmed” o R. o Wewaykum Indian Boiard v. abnd transform its obligation into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group. 91(24).Relationship of Aboriginal Poeples to the Canadian States Generally o Under the Constitution Act 1867. Adams (1996) In light of the crwon’s unquir fiduciary obligioatn towards abroginina peoples. v. Guerin (1984) Held that the fiduciary relationship is rooted in the concept of aboriginal titled coupled with the requirement that the aboriginal interest in land may be alienated only via surrender to the Crown. and Lands reserved for Indians” o Under the Consittuion Act 1982. they come into play to facilitate supervuision of the high degree of discretionary control gradually assumed by the Crown over the lives of the aboriginal peoples . v. Parlaiment has exlcuvie Legislative authority over “Indians. Parliament may not simply adopt an unstructured discretionary adminsitraitve regime which risks infrinign aboriginal rights in the absens of some explciity guidance. Canada (2002) A non-section 35 decision in which the court sought to further clariy certain aspects of Crown-Aboriginal fiduciary relationship and the scoep fo obligations arising under it Confirmed that: • Fiduciary obligations are not restricted to section 35 rigfhts or to existing reserves. which places the Crown between the Aboriginal group and tthird parties to prevent explitations. section.
depending ont eh context.• The fiduciary duty does not exist at large. • • o Two principle categories of fidcuairy obligations for government managers to take into account (as indentified by the federal gov’t) 1) Guerin-type obligations which arise in siatutaion where the Crown has a duty to act in the interests of the an aborignhal group and has discretionary power in the ametter (egh in connection with the surrender of reserve land) 2) Sparrow=type opbligations which arise when the crown msut respect constitutionally protected Aboridinal or treaty rights and justiy interferences with those rights. The crown is not an ordinary fiduciary and is obliged. not just the aboriginl interest. to have regard ot the interest of many parties. Rather than providing genral indemnity. the focus should be on the particular obliagion or interest in dupsute and whether or not the Crown had assumed discretionary control sufficient to gorund a fiduciary obligation. . Because not all of the obligations between the parties to a fidcuairy relationshop are neccessairly of a fiduciary nature. the content of the Cronw’s fiduciary duty varies with the nature and importance of the interest sought to be protected.
Court ntoed that section 35(1) applies to rights in existence when the Consitutioan Act 1982 came into effect and does not revive existinguished rights. The justificatory standard to be met may place a heavy burden on the Crown. while inquires such as whether the infringement has been minimal. v. An existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. Aboriginal Rights o R. The Crown failed to discharge its burden of proving extinguishment: • An aboriginal right is not extinguished merely by its being controlled in great detail by regulations. He defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band’s license was invalid because inconsisten with section 35(1) of the Constitution Act 1982. The realtionshop between the government and aboriginals is trust-like rather than adversarial. whether fair compensation has been available. .ay also be included in the justification test. Sparrow (1990) Determined that: • The general guiding principle for section 35 is that the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time. whether the affected Aboriginial group has been consulted m. • • Facts: appellant was charged in 1984 under the Fisheries Act with fishing with a drift net longer than that permittedby the terms of his band’s Indian fishing food licence. and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship. The honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationshop and the respoinsibility of the govt’ vis-à-vis aboriginals must be the first consideration in determining whether the infringing legislation or action in question can be justified.
The section provides a solid constitutional base upon which subsequent negotiations can take palce and affords the aboriginal peoples constitutional protection against provincial legislative power. A generous liberal interpretation is demanded given that the provision is to affirm aboriginal rights. The approach to its interpretation is derived from egeneral principles of constitutional interpretation. 91(24) of the Consittion Act 1867. Any law or regulation affecting aboriginal rights will not automatically be of no force or effect by the operation of s. o Federal legislative powers continue. The provision is not subject to section 1 of the Charter. in itself. 35(1). 35(1). including the right to legislatt with respect to Indians pursuant to S. delineat that right. Section 35(1) is to be construed in a purposive way. not of defining underlying rights. The words “recognition and affirmation” incorporate the gov’ts responsibility to act in a fiduciary capacity with respect to aboriginal peoples and so import some restraint on the exercise of sovereign power. • • • • • • . 52 of the Constitution Act 1982. principles relating to aboriginal rights and the purposes behind the consittuitonal provision itself. The nature of governmental regulations cannot be determinative of the content and scope of an existing aboriginal right. but must be raed with respect to to s. Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized an daffirmed under s. Historical policy on the part of the Crown can neither extinguish the existing aboriginal right without clear intention nor. • The permits were simply a manner of controlling the fisheries. Govenrment policy can however regulate the exercise of that right but sich reguloation must be in keeping with section 35(1).o Nothing in the regulation in question demonstrated a clear and plain intention to extinguish the Indian aboriginal right to fish.
it is crucial to be sensitive to the abordingal perspective itssself on the meaning of the rights at stake. o The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. • The test for jusitification requires that a legislative objective must be attained in such a way as to uphold the honour of the Crown and be in keeping with the unique contemporary relationship. grounded in history and policy. between the Crown and Canada’s aboriginal peoples. • Fishing rights are not traditional property rights but rather they are rights held by a collective and are in keeping with the culture and existence of htat group. o 1) The first question to be asked is whether the legislation in question has the effect of interfereing with an existing aboriginal right. • To determine whether the fishing rights have been interfered with such as to constitute a prima facie infirngment of s.o Federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the jusitification of any gov’t regulation that infringes upon or denies aboriginal rights. The inquiry begins with a reference to the characteristics or incidents of the right at stake. o While it is impossible to give an easy definition of fishing rights. 35(1) certain questions must be asked: o 1) is the limitation unreasonable? o 2) does the regulation impose undue hardship? • . The gov’t is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. Courts must be careful to aovid the application of traditional common law concepts of property as they develop their understanding of the sui generis nature of aboriginal rights. 35(1).
o The justification of conservation and resource management. This test involves two steps: a) is there a valid legislative objective? • Here the court would inquire into whether the objective of Parliamnet in authorizing the department to enact regulations regarding fisheries is valid. b) If a valid legislative objective is found. the analsysi proceeds to the second step. which deals with the honour of the Crown in its dealings with Aboriginal peoples. o The issue does not merely require looking at whether the fish catch has been reduced below that needed for reasonable food and ceremonial needs. however. the analsysi moves to the issue of justification. o Rather the test involves asking whether either the purpose or the effect of the restriction on the net lengtrh unnecessarily infringes the interests protected by the fishing right. o 2) If a prima facie interference is found. • The public interest justification is so vauge as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights. Here the regulation would be found to be a prima facie intereference if it were found to be an adverse restriction on the exercise of the natives’ right to fish for food. • The special trust relatiosnhop and the responsibility of the gov’t vis-à-vis aboriginal peoples must be the first . o The objective of the department in setting out the particular regulations would also be scrutinized. is uncontroversial.o 3) does the regulation deny the holders of the right of their preferred means of exercising that right? • • The onus of proving a prima facie infringement lies on the individual or group challenging the legislation.
in a situation of exprorpaoin. Within the analysis of jsuticition. depending on the circumstances of the inquiry. 35(1) because of one simple fact: when Europeans arrived in North America.consideration in determiengn whether the legislation or action in question can be justified. it is this fact. The justificatory standard to be met may place a heavy burden on the Crwon. • • There must be a link between the question of justification and the allocation of priorities in the fisher. fair compensation is available And whether the aboriginal peoples in question habve been consulted ith respect to the conservation measures being implemented • o R v. Guidelines are necessary to resolve the allocational problems that arise regarding fisheries. The consittuoinal recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others given the limtiated nature of the resource. (the following list is not exhaustive) • • • Whethere there has been as little infringement as possible ion order to effect the desired result Whethere. there are further questions to be addressed. aboriginal peoples were already here. Van der Peet (1996) Court noted that the doctrine of aboriginal rights exists and is recognized and affirmed by s. above all others which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal and constitutional status. living in communities on the land.. o Any allocation of priorities after valid conversation measures have been implemented must given top priority to Indian food fishing. .
Section 35(1) provides the constitutional framework through which the fact that aboriginals lived on the land in disctinctive societies with their own practices. • The court must take into account he perspective of the aboriginal peoples byut that perspective must be framed in terms cognizable to the Canadain legal and constitutional structure. This purposive analysis is not to be limited to an analysis of why a preexisting doctrine was elevated to constitutional status. This relationship is a fiduciary one and a generous and liberal interpretation should accordingly be given in favour of aboriginal peoples. an activity must be an aleemant of a practice. custom or tradition integral to the distinctive culture of the aboriginal group claiming that right. 35(1) but subsequent to it. To be an aboriginal right. customs and traditions. 35(1) must take place in light of the general principles applicable to the legal relationship between the Crown and aboriginal peoples. is acnkwoledged and areconciled with the sovereignty of the Crown. • • Any ambiguity as to the scope and definition of s. • The can however be regulated or infringed consistent with the justificatory test laid out in Sparrow. Court first noted that a purposive analysis of s. . they cannot be extinguished. 35(1) must be resolved in favour of the aboriginal peoples. A number of factors must be considered in applying the “integral to a distinctive culture” test. • The substantive rights which fall within the provision must be defined in light of this purpose. a court must first identify the nature of the right being claimed in order to determine whether a claim mets the test of being integral to the distinctive culture of the aboriginal group claiming that right. Here the appellant was charged with selling 10 salmon caught under the authority of a BC Indian food fish licence contrary to a regualatin that prohibited the sale an dbarter of fish caught under such a license. Aboriginal rights existed at common law and were not created by s. 1) In assessing a claim to an aboriginal right.
o The evidence simply needs to be directed at demonstrating which aspects of the aboriginal community and society have their origins pre-contact. custom or tradition being reliedupon to establish the right. o Conclusive evidence from pre-contact times about the customs. a practice. eating to survive) or at those aspects of ther aboridinal society which are only indicidental or occasional to that society. a court should consider such factors as: o The nature of the action which the applicant is claiming was done pursuant to an aboriginal right o The nature of the governmental regulation. statute or action being impugned and o The practice. • The practices. • A court cannot look at those aspects of the aboriginal society that are true of every himan society (eg. customs and traditions which consituttion aboridnaly rights are those which have a continuity with the practices. that is one of the things that made the culture of the society distinctive. practice and traditions of the community in question need not be produced. o The concept of continuity is a means by which “frozen rights” approach to s. • • The activities must be considered at a general rather then specific level They may be an exercise in modern form of a pre-contact practice. . custom or tradition must be of central significance to the aboriginal society in question. customs and traditions that existed prior to contact with European society. 35(1) will be avoided.• To characterize an applicant’s claim correctly. custom or tradition and the claim should be characterized accordingly 2) to be integral. o It is those distinctive features that need to be acknowledged and reconciled with the sovereignty of the Crown.
and interpret the evidence that exists. . o The practice. It does not require an unbroken chain between current practices. • Courts considering a claim to the existence of aboriginal rights must focus specifically on the customs. Claims to aboriginal rights are not to be determined on a general basis. customs and traditions that constitute aboriginal rights recognized and affirmed by s. customs and traditions engaged in. to the aboriginal culture in question. Incidental practices. • A court should approach the rules of evidence. practice or tradition to be recognized as an aboriginal right need not be distinct. custom or tradition cannot exist simply as an incident to another practice. a court must ensure that the practice. and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices. customs or traditions cannot qualify as aboriginal rights through a process of piggybacking on integral practices. custom or tradition relied upon in a particular case is independently significant to the aborigninal community claiming that right. • A practice existing prior to contact can be resumed after an interruption. o The courts must not undervalue the evidence presented by aboriginal claimiants simply because that evidence does not conform precisely with evidentiary standards applied in other contacts. practices and traditions of the particular aboriginal group claiming the right. customs and traditions and those existing prior to contact. conscious of ht wspecial nature of aboriginal clai s. customs ad traditions • • A custom. 35(1). custom or tradtion. unqiyue. IN identifying those practices. o The aboriginal claimiants must simply demonstrate that the custom or tradition is a defining characteristic of their culture.
o European arrival and influce cannot be used to deprive an aboringal gourp of an otherwise valid claim to an aboriginal right. the appellant claimed that the practices. o The claim must be based on the actual practices. a practice custom or tradition will not meet the standard for recognition as an aboriginal right where it arose soley as a response ot European influences. . Howver. • The relationship between aboridnal rights and aboriginal titlte (a sub category of aboriginal rights dealing solely with land claims) must not confuse the analysis of what constitutes an aboriginal right. • The significancfe of the practice. o In considering whether a claim to an aboriginal right has been made out. but cannot itself constitute the claim to the aboriginal right. Can’t fiocus on relationship with the land so much that they lose track of other factors. • The first step in the application of the integral to a distinctive culture test requies the court to identify the precise nature o the appellant’s claim to have been exercising an aboriginal right.• The fact that the custom. but they also arise from the prior social organization and distinctive cultures of aboringnal peoples on that land. practice or tradition conintued after the aarrival of the Europeans and adapted in response to their arrival is no trelaven to determination of the claim. o In this case. here the custom of echanging fish for money. o Aboriginal rights arise from the prior occupation of land. courts msut look both at the relationship pof an aboriginal claimiant to the land and at the practices. customs and traditions of his people included as an integral element the exchange of fish for money or other goods. customs and traditions related to the fishere. custom or tradition is relevant to the determination of whether rhtat practice. customs and traditions arising from the claimiant’s distinctive culture and society. cusom or tradition is integral.
R. • • This right so characterized has not commeerical dimension and the harvested wood cannot be sole. etc. and exploitation of the fishery was not specialized. The right is also site specific such that its exercise is necessarily limited to the Crwon lands traditionally harvested by the First nations. Gray (2006) Appellants charged with unlawful possession of or cutting of Crown timber from Crown lands. Note that they didn’t do barter before the HBC came to town. which was taken from lands traditionally harvested by the First Nations to which they belonged. furniture and community firewood and did not intend to sell the timber. Used for construction of hosue. Court noted that aboriginal rights were founded upon practices. v. • Courts must be flexible and prepared to draw necessary inferences about the existencfe and integrality of a practice when direct evidence is not avialble. the aboringial people in question had wood to fulfill the communiteees needs and that the relevant practice in the rpesetn case must be characterized as a right to harvest wood for domestic uses as a member of the aboriginal community. Sappier. o R. It is a communical right and cannot be exercised bhy any member of the community independently of the aboriginal society it is meant to preserve. an aboriginal right can be based on evidnce showing the importance of a resource to the pre-contact culture of aboridinal people. The appellant failed to make out hat the exchange of fish for money or toher goods was an integral ppart of the discitncitve culture which existed prior to contact. and the trade while significant was not typical of their culture. v. suggesting hat the exhnage of fish was not a central part of their culture. Court ntoed that the record showed that prior to contact. . customs or traditions integral to the distinctive pre-contact culture of an aboriginal people. • Although very little evidence was led with respect to the actual harvesting process.
. The right to harvest wood for the construction of temporary shelters must be allowed to evolbve inot one harvest wood by modern means to be use din the construction of a modern shelter. legal systems and potentially trading habits. o The nature of a right cannot be frozen in its pre=contact form but rather must be determined in ligh of present-day circusmtnaces. A practice of harvesting wood for domestic purposes undertaken in order to survive is direclthy rlreated othte pre=contact way of life and mets the integral to a distinctive culture threshold. o The qualifier distincitiv incorporates an alement of aboriginal specificity but does not mean distinct. The notion of aboriginality must bno tbe reduced to racialzied stereotypes of aboriginal peoples o A court must ehrefore first inquire into the way of life of the precontact peoples and seek to understand how the particular pre=contact practice relied upon y the rights claimiants realtes to that way of life. • Held that the Crown did not discharge its burden of provin that the baoridnial right had been extinguished by pre-Confedeartion statutes. socialization methods. The nature of the practice which founds an aboriginal right claim must be considered in the context of the pre-contact distinctive culture.o The evidence in these cases established that wood was critically important to the first nations in question pre contact and it cabn be inferred from the evidence that the practice of harvesting wood for domestic puprupsoes was significant. Culture is an inquiry into the pre-contact way of life of a particular aboriginal community. including means of survival. o The site specifc requirement was also metn. o A practice undertaken for survival puporses can be considered integral to an aboriginal community’s distinctive culture. The crown concereded in the case that the harvesting of trees occurred within crown lands traidionally used for this activity by members ofhte peoples. though undertaken primarily for survival purposes.
a nd exercisable by virtue of an individual’s ancetrasaly based membership in the present community. o R. Sualte Marie. living together in the same geographical area. Court noted that a metis community was a gourp of metis with a distinctive collective identity. and sharing a common way of life. the legislation relied yupon by the Cown as proof of extinguishment was primarly regulatory in nature. Aboriginal rights are communoca grounded in the existence of a hitroic and present community. 35 entitlements. The aboriginal right claimed to in this case ist he right to hunt for food in the environs of St. Powley (2003) The appellants are metis who were acquitted of hunting moose without a hunting license. . In applying the Van der Peet test. The purpose of section 35 is to protect practices that were historically oimportnat features of these distinctive communities and that perisit in the present day as an integral element of the Metis culture. o In any event. • A pre-control test estabslihing when Europeans achieved political and legal control in an area nad focusing on the period after a particulare Metis community arose and before it came under the control of European laws and customs is necessary to accommodate this hirsoty.The power to extinguish aboriginal rights in the colonial period rested with the Imperial Crown and it was unclear whether the colonial legislature had ever bneen granted legal auhtoriy to do so. v. to determine s. The regulation of Crown timber thougha licensing chement does not meet the high standard of demoinstrating a clear inetn to extinguish aboriginal right to harvest wood for domestic purposes. the precontact aspect of the test must be adjusted to take inot account the postcontact ethnogenesis and evolution of the Metis.
• The view that Metis right must find their origin in the pre-contact practices of their aboriginal ancestors must be rejected as this view qoul deny the Metis their full status as distinctive rights-beraing people whose own integral practices are entitled to constitutional protection.• To support a site specific abroigingal rights claim. courts will have to ascertain identity on a case-by-case basis taking into account: o the value of community self-definition. The verification of a claimant’s membership in the relevant contemporary community is crucial. • o the need for the process of identification to be objectively verifiable and o the purpose of the constitutional guarantee • Court noted that residency on an Indian reservbe for a period of time by A’s ancestors did not. as well as demographic evidence. since individuals are onkly entiled to exercise aboriginal rights by virtue of their ancestral connection to and current membershop in the group. Abnsent formal identification. • Self-identification. absent collective adhesion by the Metis comaunity to the treaty. transitions and colelvtive identity. ancestral connection and community acceptance sare factors which define the identity for the purpose of claiming the righst under s. Ontario’s lack of recognition for any Metis right to hunt for good and the application ofhte challenged provisions infringes on the aboridinal Metis right and conservation efforts do enot justify the infringement. negate A’s metic identity. o An individual decision by a Metis’ persons ancestors to take treaty benefits does not necessarily extinguisnh hat person’s claim to Metis rights. an indentifiable metis community with some degree of continuity and stability must be established through evidence of shared custom. 35. in the circumstances of this case.s • .
real or constructive. the Crown. o Haida Nation v. of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. acting honorably cannot run roughshod over Aboridinal interests where claims affectring those interests are being seriously pursued in the processs of treaty negotiation and proof. • The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title and to the seriousness of the potentially adverse effects upon the right or title claimed. challenged the granting of a tree farm license and then this was transferred to a third party without consulting the haida. who claimed title to all their lands. While asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary. • The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the crown has knowledge. Court noted that the govt’s duty to consult with aboriginal peoples and accommodate their interest is grounded in the principle of the honour of the crown. the Metis would still be entitled to a priority allocation to satisfy their subsitnence needs. the difficulty in identifiy members of the Metis community should not be exaggerated so as to defeat constitutional rights. BC (2004) Here Haida people.o Even if the moose populatin in that part of Ontario were under threat. Further. which must be understood generously. Consulttation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourabl eprocess of reconciliation that s. . The duty to consult and accommodate is part of a process of fair delaing and reconcilitation that begins with the assertion of sovereignty and continues beyond formal claims resolution. 35 demands.
The honour of the Crown cannot be delegated and te legal responsibility for consultioatn and accommodation rests with the Crown. • This does not mean howvere that third parties can NEVER be laibale for aboriginal people. Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate. License decisions reflect strategic planning for utlilzation of the resource and may have potenitlaly serios impacts on aboriginal rights and title. . The harida’s clams to ttile and righ to harves red cedar were supported by a good prima facie case and the province knew that the potential aboriginal rights and titled appliued to the piece of land. Held that the Crowns obligation to consult the Haida on the replacement of the license was engaed in this case. Finally .the province took thie interest in land subject ot any interest othe rhtan that of the province in the same. o The effect of good faith consultion may be to reveal a duty to accommodate. the duty to consult and accommodate applies to the prpovincial government. o The content of the duty varies with the circumstances and each case must be approached individually and flexibily. Since the duty to consult and accommodate here at issue is groudend in the assertion of Crwon sovereingly which pre-dated the Union. At the time of the Union . Where accommodation is required in maeking decisions that may adversely affect as yet unproven aboriginal rifhts nad title claims. • The controlling question in all situations is what is required to maintain the Honour of the Crown and the Aboriginal people with respect to the interests at stake.• The crown is not under a duty to reach an agreement. and could be affected by the decision to replace the license. the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other social interests. rather the commitment is to a meaningful process of consultation in good faith. the province took the lands subject to suchj duty.
o Furthermore. The consultative process must be fair an dhonourable but at the end of the day. The court unanimously ruled that the federal government had not properly consulted the First nations before approving construction of a road through traditional loands in Wood Buffaloo National Park. o Instead. the strength of the case for both the Haida’s right and title coupled with the serious impacr of incremental strategic decisions on those interests suggests that the Honour of the Crwon may also require significant accommodation to preserve the Haida interst poendin gesoltuion of hteir claims. Furthermore. • • Ruled that the goverenmnet has a duty to consult and accommodate aboriginal interste ven where title has not been proven. This duty arises from the need to deal with aboriginal rights in the interm prior to those rights beign addressed through treaty or court decision. govt’ is entitled to make decisions even in the absence of consensus. The court stated that govt’s msut consider the modern day tenstions between the first nations and governemnets. the goal of treaty making is to reconcile aboringl rights iwht other right and interests. it must take palce at the stage of anting or renewing licfense. The level of consuitlation required will depends on the potential impact of the rights in question.• If consultation is to be meaningful. . And first nations doe not have a veto over what can be done with land pending final proof of claim. court put tp rest the notion of extingushment of aboriginal rights and finality in agreements. • • o Mikisew Cree v. and that it is not a process to replace or extingiugh rites. The aboriginals argued that the road impaired their traditional trapping and fishing rights granted in a treaty. Canada (2005) Court extended the Crown’s obligation to consult and acocmodate aboriginal interests to include existing treaty rights.
of the potential existence of aboriginal right or title and contemplates conduct that might adversely affect it. BC (2004) Here a mining company sought permission from BC to re-open an old mine and the aboriginal peoples (taku Riveer Tlingit First Nation) participated in the environmental assessment procvess but objected to the paln to build a road. The duty to consult varies with the circumstances: • It arises when a crown actor has knowledge. supported by a prima facie case. as sastested to by its inclusion in the Province’s treaty negotiation process. This in turn may lead to a duty to accommodate aboriginal concerns. and to the seriousness of th epotenitally adverse effect upomn the right or title claimed. The scope of the duty to consult is proportionate to a preliminary assessment of the strength ofhte case supporting the existenve of the right or title. (The claim is relatively strong. which derives from the Crown’s assertion of soverreingty in the face of piror Aborignial occupation. Court noted that the Crown’s duty to consult and accommodate aboriginal peoples even prior to proof of asserted aboriginal rights and title is grounded in the principle of the Honour of the Crown. • The province was aware of the TRTFN’s title and rights claims and knew that the deicison to reopen the mine had the potential to adversely affect the substance of the native claims._ . o Taku River v. The crowns honour cannot be interpreted narrowly or technically but must be gien full effect in order to promote he process of reconciliation mandated by section 35(1). o Responsiveness is the key requirement of both consultiation and accomodaotion. real or constructive.Howver. consultiaotn will not always lead to accommodation. an accommodation may or may not result in agreement. • The crown’s oblgiaiton to consult with the aboriginal peoples was engaged in this case.
the potential for negative derivative impacts on the claims is high. In this case. The TRTFN was part of the Project Committee. On the spectrum of consultation required by honour of the Crown. Its views were put before the decision maklers and the final project approval contained measure designed to address both its immediate and long term concerns. the procvess engagaed in by the province under the ESA fulgilled the requirement of its duty to consult and accommodate. the aborignials were entitled to more than minimum consulation under the circumstances and to a level of responsiveness to its concerns that can be characterized as accommodation. The province was not under a duty to reach an agreement with the aboriginals and its failure to do so did not breach the obligations of good faiteh that it owed. as well as in the development of the land use strategy. o Finally it is expected that throughout the permitting. participating fully in the evnvironmental review process. • . to provide a prospective checklist of the leel of consultion required.o Whiel the proposed road is only to occupy a small portion of the territory. • • It is impossible however. the crown will continue to fulfill its honorable duty to consult and if appropriate accommodate. approval and licensing process.
the courp expanded in particular about the Crown’s obligation to consutl affected aboriginal groups. ABORIGINAL TITLE: Court noted that aboriginal title dencompases the right to exclusive use and occurpation of the land held pursuant to aht title for a variety of pruposes. customs and traditions integral to the claimiant’s group distinctive aboriginal culture. if not legal. find that the consultion must be in good faith. which need not be aspects of those aboriginal practices. BC (1997) (Split court – ober dicta not binding) Court ruled that the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the aboriginal right at issue. Aboringial titles o Degmaukwu v. In the context of aboriginal title. sold or surrendered to anyone other than the Crown. Recognition by the Royal Proclamation of 1763. the crown is under a moral. the resltionshop betwent eh common law wihic recognizes occupation as proof fo possession and systems of aboriignla law pre-exisitng the assertion of British sovereignty Aboriginal title is held communally. customs and traditions whicha re integral to distinctive aboriginal cultures. duty to enter into and conduct negoations with aborigninal peoples in good faith. with the intention of substantially addressing the concerns of the abordiginal peoples whose lands are at issiue. Aboriginal titlte is sui generis. • The exclusive right to use land is not restricted to the right to engage in activities which are aspects of aboriginal practices. . Under section 35. • BUT the protected uses must not be irreconcilable with the nature of the group’s attachment to that land. and so distinguished from other proprietary interests and characterized by several dimensions: • • It is inalienable and cannot be transferred.
there will exist a special bond between the group and the land in question such that the land will be part of the definition of the group’s distinctive culture. the importance of the continuity of the relationshop between an aboridingl community and its land and the non-economic or inherent value of that land. then they must surrender those lands and convert them into non title lands to do so. Consittutionally recognized aboriginal rights fall along a spectrum with respect ot their degree of connection with the land: • At one end: those aboriginal rights which are practices. If lands are so occupied. Occupancy is determined by reference to activities that have taken place on the land and the uses to which the land has been put by a particular group. Land held by virtue of aboriginal titled may not be alienated beacue the land has an inherent and uniqyue value in itself. 35(1). which is enjoyed by the community with aboriginal title to it. The naure of the Indian interst in reserve land which has been found to be the same as interest in triabl lands is very broad and incorpraotaes present-day needs. • The content of aboriginal title contains an inherent limit in that lands so held cannot be used in a manner that is irreconcilable with the nature of the claimiant’s attachment to those lands. customs or traditions integral to the distinctive culture of the group claiming the .• Aboriginal title jurisprudence frames the right to occupy and possess in broad terms and significantly is not qualified by the restriction that the use be tied to practice. • If aboriginal peoples awsn to use their lands in a way that aboriginal title does not permit. Aboriignal title encompasses mineral rights and lands held pursuant to aboriginal title should be capable of exploitations. This inherent limit arises because the realtionshop of an aboriginal community with its land should not be prevented from continuing into the future. custom or tradition. Finally. The community cannot put the land to uses which wwould destroy that value. Court also noted that the existence of an aboriginal right at common law is sufficient but not necessary for the recognition and affirmation of that right by s. should not be taken to detract from the possibility of surrender to the Crwon in exchange for valuable consideration.
right but where the use and occupation of the land wher the activity is taking place is not susfiicent to support a laim of title to the land. Seocnd. traditions and practices of distinctive aboriginal culture. • . some aborigninalg groups may be unable to make out titkle. o Although the group may not be able to demonstrate title dot the the lnda. must recognize and affirm both aspects of htat prior presence – first the occupation of that land and second the orpr social organization and distirnctive aboriginal cultures of the people ont aht land. for a variety of reasons. including sitespecifc rights to engage in particular activities. although broadly similar are distinct in two ways: • Under the test for aboriginal title. Aborigiinal tilte is a right to the land itself. the time for the identification of aboriginal title is at the tiem at which the Crown asserted soveriengly over the land. whereas the time for identigfication of aboriginal rights is the tiem of first contact. The test for the identification of aboriginal rights to engage in particular activities and the test for the identification of aboriginal title. • In the middle”: activities which out of necessity take place on land an dindeed. • At the other end: aboriginal title itself which confers more thant he right to engage in site specific activities which are aspects of the customs. That land may be sued subejc tot the inherent limitations of aboriginal title. Because abroginal rights vary with respect to the degree of connection with the land. none of which need to be individually protected as abodiringal rights. might be intimately related to a particular piece of land. but will nevertheless possess aboriingal rights that are recognized and affirmed by the section. Section 35(1) since its purpose is to reconcile the prior presence of aboriginal peoples with the assertion of crown sovereingthy. the requirement that the land be integral to the distinctive culture of the claimaints is subsumed b y the requirement of occupancy. it may nevertheless have a site specific right to engage in a particular activity.s o Site specific rights can be made out even if title cannot.
consider: • The group’s size Manner of life . o In determining whether occupation sufficient to ground title is established. • If present occupation is relied on as proof of occupation presoveriengly. it was not necessary to include as part of the test for aboriginal title whether ra group demonstrated a connection witht eh piece of land as being of central significance to its distinctive cultre Occupancy is one of fact ot be determined at trial.material resources Technological abilities And the character of the lands claimed Given the occupancy requirement. rangin from the construction of dwellings through cultivation and enclosure of field to regular use of definite tracts of land for hunting. o Both the common law and aboriginal perspectives on land should be taken inot account in estabalsihing proof of occupancy. fishin or otherwise exploting its resources. which in turn will ground title in the land. • Sicne the conlcisve evidence of pre=-sovereongly occurapiton may be difficult. • Physical occupation may be established in a variety of ways. an aboriginal community may present evidence of present occupation as proof of pre=sovereignty occupation in support of a claim for aboriingal title. In order to establish a claim to aboriginal title. . the group msut establish: • That it occupied the lands in question at the time at which the Crown asserted soveriengty opver the land subject to the title. At common law – the fact of physical occupation if proof of possession at law. there must be a continuity between present and pre-sovereingty occupation.
as long as a subsntaitl connection between the people and the land is maintained. The only limitation on the principle might be that the land not be used in ways which are inconsistent with conit ied use by future generations of aboriginals. • THE TEST OF JUSTIFICATION: o Constitutionally recognized aboriginal rights are not absolute and may be infrineged by the federal and provincial governemtns if the infringement: 1) furthers a compelling and subsntainal legislative objective and • This includes: o general economic development of the interior. • • The test must take inot account the context of the aboriginal society at the time of sovereignty. As well.o An unbroken chain of continuity need nnot be established between present and prio occupation. o The fac that the nature of the occutaopn has hchnaged would not orindaityly preclude a claim for aboriginal title. which is defiend in terms of the right to exlusive use and occupation ofhte land. shared. o protection of the environment or endangered species o the biuling of infrastructure . non=exuclisve aboriginal rights short of title but tied to the land and permitting a number of usesw can be established if exlsuvitiy cannot be provide. This requirement flows from the definition of aboriginal title itself. The requirement of exlusive occupany and the posisbiliyt of joint title can be reconciled by tecogniznes that joint title can arise from shared exclusivity. At sovereignty. occupartion must have been exlusive.
and by implication the judisition to extinguish it. . • 3 aspects of aboriginal title are relevant to this part of the test: o 1) the right to exlusive use and occupation of the land is relevant ot the degree of scrutiny of the infrining measure or action o 2) the right to choose what uses land can be put. Fiar compensation will usually be required when aboriginal title is infringed. o Notwithstanding section 91*(24) provincial laws of general applcaition apply proprio vigore to Indians and Indian lands. • the ownership by the prpovinical crwon of lands held pursuant to aboriginal title is serpate from jurisdciotyn over those lands. EXTINGUISHMENT: Section 91(24) of the Constitution act 1867 carries with it the jurisdiction to legislate in realtion to aboriginal title.o settlement of foreign poiptuations to support those aims 2) is consistent with the special fiduciary relationship between the Crown and the aboriginal peoples. subject ott he ultimate limit that htose uses cannot destroy the ability of the lnad to susbtain future generations of aboriginal peoples suggest that the fiduciary relationship between the ZCrown and the aboriginal peoples may be satsifed by the involvement of the aborifinal peoples in decisions taken with respect ot their land and There is always a duty of consultation an din most cases that duty will be significantly deeper than consultation o 3) lands held pursuant to aboriginal title have an iesapable economic component which suggests that compensation is relevant to the question of justification as well.
• A provincial law of general application cannot extinguish aboringinal rights. • In the first stage – identify the historic community that exercised that right and o Here use the historical evidence. BC (2007) (BC SC) Court noted that in order ot determine who holds the right. 91(24) protects a core of federal jurisdiction even from provincial laws of general application through the operation of the doctrine of interjurisdicitonal immunity. o Second. 88 of the Indian act which incorporates by reference provincial laws of generl aplcaition. a law aof general applcaition cannot by definition meet the standard of clear and plain intention needed to extinguish aboriginal rights wihtou being ultra vires the province. • Provincial laws which owudl otherwise not applyu to Indians proprio vigore are allowed to do so by s. This provision however does not inviorgatre provincial law shiwhc are invalid because they are in realtion to Indians and Indian lands. o Tsilqhot v. s. The core has been described as matters touching on Indanness or the core of Indinaness. tradtions and a collective identity • In the second stage – identify the contemporary rights bearing community o Consider the claimant’s ancestra. including demographic evidence in HBC journals o Proof of shared customs. It should be the particular aboriginal community which determines its own membership Aboriginal Treatises .lly based membership in the present community. the court takes a two stage process. o First. in order to identify the prioer rights holder.
and stated that nay claim to abroignal title would depdn on the specific facts realating ot the aboriginal group and its historical relationship to the land in question. not aboringal title. The court also adopted strict proof of aboriginal title. R. • Traditional practices must translate into modern legal rights and it is the task of the ocurt to consider an y proper limitations on the modern exercise of htose rights. • Court also emphasized that ther must be contiuity between the persons asserting the modern right and a pre=sovvereiong group/. these rights did not extend to commercial logging. Bernard (2005) Issue was whether the mikmaqs of NS and NB needed prior authorization from provincial authorities to harvest timber. the protected right must be a logical evolution of the activity carried on at the time of treaty-making.o R. an aboriginal practice cannot be transformed itno a different modern right. • Seasonal hunting and fishin gin a particular area maoutn to hiunting and fishing rights only. As with treaty right. including some word products. o Howvere. v. . fishing or resource exploitiation. Court noted that the treatises do not confer on modern native groups a right ot log contrary to provincial regulation. it found that although the treaty protected the rights of the natives to serll certain products. v Marshall. • While the right to trade in traditional products carried within it an implciyt right to harvest those resources. the court did not rule out the possiobility that nomadic and semi-nomadic peoples could prove aboriginal title. New and different activities not protected. Court said that while rights are not frozen In time. Nohing in the treaty comports a genral righ to harves or father all natural resources then used. this right ot harvest ios the adjunct of the basic right to trade in traditional products. Court unanimously dismissed the clainm to both treaty and aboriginal rights. The court further stated tha the abodirnignal title would require evidence of exlusive and reguar use of the land for hunting.
o Typically this is estbalsihed by showing regular occupancy or use of definite tracts of land for hunting. from which a reaosnabel inference can be dwawn that the group could have exluced others had it chosen to do so. On all matter. Occiupation means physical occupation Exlusive occupation means an intention and capcity to retain exclusive control fo the land • Evience of acts of exclusion is not required for this. These principles apply to nomadic and semi o nomadic. all that is required is a demonstration of effective control of the land by the group.• Ancestral trading rights are not frozen in time and the question in eachcase is whether modern trading activity in issue respresents a logivcal evolutaion fromt eh traditional trading activities at the time the treatises were made. Also no aboriginal title established. • . both aboriginal and common law presepctives must be considered. and the court ntoed that in analyzing a claim for aboriginal title. fishing or exploitation of resources. o The evidence must provie exlusive pre-sovereingty occupation ofhte land by their forebearers. evidence of oral history is admissible. provided it meets the requires standards of usefulness and reasonable relaoibitlyt. in each case the right depends on what evidence estrblishes • • Continuity is required in the sense of showing the groups’ descent from pre-sovereingty group whoser practices are relied on tpfr those rights.