TOPIC 1: BASIC THEORIES OF LAWPositivism and Natural LawBoth legal positivism and natural law are descriptive theories, in that they are principally concerned with identifying what law is, as opposed to what the law ought to be. Both are concerned with concepts of law and justice, even if they diverge as to how the two relate to one another. Both are largely based on Western, liberal ideas about law and society. Legal positivism reflects the belief that law is nothing more than the rules and principles that actually govern or regulate society (laws are

made by human beings); insists on separation between law and morality; focuses on describing laws without reference to justness/legitimacy/fairness. Legal positivism is only concerned with what is legally valid, not what is morally valid . The common slogan of legal positivists is “the existence of a law is one thing; it’s merit or demerit is another”.( i.e Nazis had a legal system used for evil and British had a legal system used for good; both were legally valid). See, e.g, Noble and Wolf, and note how judge appeals to the CERTAINTY of positivism, and the lack of certainty of relying on public policy and morality

Natural law theory is aspirational, in that laws are only those rules which adhere to certain moral truths, most often of a universal and immutable nature; i.e. law’s legal authority depends upon an external moral standard that holds across all societies. See Drummond Wren, (land not to be sold to Jews) and note how judge appeals to our moral conscience

Feminist Perspectives on Law: critical legal theory RESULT = EQUALITY A normative theory, seeking to describe how existing laws fail to achieve an external objective. Feminist perspective on law reflects a critique of liberalism as a political ideology; laws that existed from 17 th century did not normally

respond to the needs of women and even aided in their oppression. Feminism takes issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision of what justice might be

Early formalist feminism attempted to replace laws that favoured men w/ more gender neutral laws Contemporary feminism consists of different sects with different beliefs. It’s a complex movement, relying on various disciplines such as

criminology and sociology – generally feminism = legal system is paternalistic and male-centred. The subject of abortion provides a good forum to examine how feminist theory may translate into practice (see Morganteler: In this case on

the constitutionality of the abortion restrictions, the majority found them unconstitutional on procedural grounds. Justice Wilson, however, wrote a concurring opinion focusing on much more “feminist” topics, such as rights in a wider social context, the female experience, and far more emotional issues) – s. 7 offended

Critical Legal Studies: critical legal theory – (CLS) Like some forms of feminism, critical legal studies is a radical alternative to established legal theories; rejects that there is any kind of natural

legal order discoverable by objective means. CLS is a direct attack on traditional legal theory, scholarship and education. The CLS movement can be very theory-driven and densely philosophical. CLS, like the feminist perspective, takes issue with the liberal basis of law and its relationship to justice, and attempts to establish a different

vision of what justice might be The liberal belief that law should be certain and natural is, for CLS scholars, illusory. Law reproduces the oppressive characteristic of

contemporary Western societies 3 stages governing the application of CLS ideas:

1) Hegemonic consciousness : Western laws are maintained by a system of beliefs that have their foundation in a liberal, market driven economy, which reflect interests of a dominant class (Elite class beliefs)

2) Reification : The beliefs that maintain Western laws are presented as essential and objective, and the laws that prop up this belief system necessary follow suit, becoming equally incontrovertible

3) Denial: Laws and legal thinking aid in the denial of real truthsSee R v R.D.S (bias test): Compare how the judges in this case dealt with the issue of race with the judges in Re Drummond Wren and Re Noble and Wolf

Law and Economics RESULT = EFFICIENCY Law and economics theories look at law differently, less grounded in moral theory and more in ideas about efficiency (as opposed to

feminism, which deals with producing equality); law and economics scholars have applied economic analysis to explain various areas of law. The traditional law and economics approach applies economics methodology to legal rules in order to assess whether the rules will result in

outcomes that are efficient. The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understand public policy. It

attempts to explain government intervention as a corrective to market failure. The theory seeks to understand why some government programs seems to run counter to the public good, or at least do not maximize the public good. This theory says that policy makers (e.g. legislators) act in order to maximize political support; they are not necessarily attempting to maximize social welfare and are motivated by self interest.

See Duncan Estate v Baddeley (This case dealt with the issue of how to calculate damages for an estate arising out of a negligence action for wrongful death. Should future earnings be included or not? While the court did not do any explicit calculations or economic reasoning, there was a clear subtext that the judge had to consider the wider social-economic implications of allowing for recovery of future earnings or not); Bhadauria v Board of Governors (public choice theory behind the Court of Appeals decision; the Court recognised, on public policy grounds, a new “tort of discrimination”. But, at the Supreme Court level, this idea was rejected this idea of a new “economic tort”

* Note: One of the themes in public law is to show how common law has been displaced by policy formation (in the form of legislation) as the primary means of social regulation. A number of important questions lie at the heart of this analysis: What, in economic terms, is the problem that a legal rule or structure is attempting to resolve? What effect does this rule have on society? Why do we have the laws that we have? Should we have different laws?

CASESHill v Church of Scientology FACTS: Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common law libel action based on allegedly false statements the church made about him.ISSUE: Is the Charter applicable to a private action based on a common law tort? Is the common law tort of defamation inconsistent with the Charter (s. 2b)? REASONING Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the

common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not extend in the absence of state action.

The most that the litigant can do is argue that the common law is inconsistent with Charter values. “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 Charter values and that, when these values are balanced, that the common law should be modified.”

So, it is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with the Charter values but also that its provisions cannot be justified.

HELD: Even though private parties owe each other no constitutional duties and cannot found a cause of action upon a Charter right, Court concluded that the common law tort of defamation reflected an appropriate balance between freedom of expression values and the legislative objectives underlying the law. Therefore, no need to amend/alter the legislation. RATIO: Even though Charter doesn’t apply directly to this action, Common law should be interpreted with reference to Charter values (as per obiter in Dolphin). If common law is inconsistent with Charter values, and not justifiable, the common law should be modified.

Societe de l’assurance automobile du Quebec v CyrFACTS: Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ) entered into a contract with the Centre de vérification mécanique de Montréal (CVMM) to carry out the mechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program. However, following notices of breach for failure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked by SAAQ. Cyr and CVMM filed a motion for judicial review of the decision to revoke the accreditation, claiming that it had not been rendered in a manner consistent with the Act respecting administrative justice (AAJ). The Superior Court concluded that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights and dismissed the application. The majority of the Court of Appeal set aside the decision, holding that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid the obligations codified by s. 5 of the AAJ.ISSUES: Whether a gov’t body can avoid public law duties when delegating its functions by contract or other agreementREASONINGCyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considered a party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was granting him the authorization to act on its behalf. Moreover, the authorization in the present case is specifically provided for in s. 520 of the HSC. The legislative origin of the authorization further confirms its administrative nature. Consequently, s. 5 of the AAJ and its procedural requirements are applicable to the present matter because (1) the revocation of Cyr's designation is a "decision concerning a permit or licence or other authorization of like nature", and (2) Cyr is a "citizen" as contemplated by the AAJ. Not all acts of the SAAQ are subject to public law, but the act of authorization has specifically been deemed worthy of procedural fairness protection by the legislature.HELD: Appeal dismissedCOMMENT: This case distinguishes between the applicability of public and private law. The dissent held that the parties are bound by contract, since the SAAQ chose to use a contract to appoint the persons authorized to conduct the mechanical inspectionARTICLESDavid Tanovich, “The Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian Criminal Justice System”Introduction Reflecting on the 25th anniversary of the Charter, much will be written about the impact it has had on those living on the margin. Has the

Charter given any hope to Aboriginal and racialized communities? There’s reason to be optimistic about the possibilities for future reform, the Charter to date has had very little impact on racial injustice in Canada

We continue to incarcerate Aboriginals and African at alarming rates, racial profiling at borders and streets flourishesThe utility of using litigation to address racial injustice

Successful litigation brings with it considerable attention – media, community organizations etc – and can help raise public consciousness, stimulate academic research and political action. And one of the most important political responses could be the collection of data which will reveal the extent and scope of racial injustice

Absence of any racial profiling legislation, and the passing of Anti Terrorism Legislation, and the Conservative Criminal Code amendments, all of this has had a disproportionate impact on racialized communities. So, Charter litigation remains as important means of addressing fundamental injustice

“While I place considerable reliance on Charter litigation to address racial injustice, there is no question that other legal and extra-legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigation fails. Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actors etc are all examples of strategies that can work together with litigation”

The problem is not with the Charter but with those who argue and interpret it Narrow approaches to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter litigation on racial

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

Also, in a number of cases, trial judges have been or appeared hostile when asked to adjudicate a race issue. E.g. in R v Brown, B was asked by the judge to apologize to the officer for raising racial profiling. Sometimes, hostility can be implied from the reasoning employed by the Court to dismiss the argument. The relevant instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change

With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once critical race standards have been established by the courts. Why are trial lawyers not raising race when it is appropriate to do so? E.g. small number of racial profiling cases litigated following the R v Brown decision. Race is not being raised because some lawyers are not seeing the issue, while others are uncomfortable engaging in race talk before courts

Appellate lawyers often fail to raise the issue of race on appeal. The SCC has yet to deal with the racial profiling issue. And they face the hurdle of not having a record from which to work (i.e race issues may not be raised at the trial level)

Conclusion This refusal of judges to act and lack of race consciousness by lawyers are having a direct impact on the ability of the Charter to remedy

racial injustice The two bright spots have been race-based challenges for cause, and the recognition of the existence of racial profiling by our courts. But

even in these areas, there is still room for improvement

Rostam Josef Neuwirth, “International Law and the Public/Private Law Distinction”Background The role of law is to provide rules to coordinate reciprocal behaviour amongst various members of a social order, in order to avoid conflicts or

detrimental effects amongst these members. A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible

It is the ill-defined notion of international law that is called to face the challenge of a menacing disorder spreading over the emerging international community

The 2 categories of public international & private international law are most likely to fulfil this function in the emerging international community Public international law, or the “law of the nations”, is defined as the system of law governing the relations between states. Private

international law, or the “conflict of laws”, is a system co-ordinating the different laws from different countries, and it responds to the question of applicability of foreign or domestic law within domestic courts

In the present time, complex interactions between states and private individuals occurs, and harmony between public and private international law cannot be confirmed anymore

The decline of state sovereignty and the increasing insufficiency of a pure positivist theory of law to explain phenomena on the legal plane, are two examples of how global change has shattered the fundaments of doctrinal thinking on which the classical doctrine was built LEGAL ≠ MORAL

Legal pluralism and legal polycentricity in international law The world community of today is formed by a great number of diverse societies; each political society has its own law which is

based on its own traditional religious, cultural or social values The first steps in the recognition of the diversity of the world community are found in the terms of legal pluralism and legal

polycentricity, repudiating both the presumption of the sole existence of one total legal order and a single value approach to law.

Considering the very nature and rationale of public and private international law - both dealing with interactions amongst these various societies, whether organised as states, peoples, groups or individuals, that together form the world community - different legal traditions must be given their equal and due place in the international legal order, This can be achieved by emphasising the continuity in the evolution of law; an evolution that has constantly been influenced by the exchange of many different cultures.

The critical point: tendencies in contemporary law The second half of the 20th century has faced dynamic development in human society, and driven by the theory of legal positivism law was

not spared from this development and underwent, and is undergoing, significant changes Law has reached a critical point which is cause for hope and concern – the critical point is understood as two parallel yet mutually

antagnostic trends. The evolution of technology has affected the evolution of law – law has rapidly evolved, but the question is whether it has progressed or regressed?

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

A law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible. Aristotle pointed out that every law is laid down in general terms, while there are maters about which it is impossible to speak about in general terms. But the defect lies not in the law, but in the nature of the subject matter. Because of this flaw apparently inherent in law, the challenge in the near future is to examine the traditional perception of the theory underlying law. This flaw, and various opposite tendencies in the evolution of law, call for new theoretical approaches to the law regulating the present world order. From a practical perspective, it calls for a simpler general theory, allowing for a rapid orientation but also a just application of the vast variety of norms. TODAY POSITIVISM = LEGAL ≠ MORAL

A Law for the World of Today The present challenge is to find a legal notion that faces the challenges of the new realities that a global political world order has

created. Such a notion would not only have to cover the different categories of law, but also it would have to meet the implications of an immense cultural diversity of legal systems created by a large number of states

In this process of adaptation, the preliminary step is to bring about the desired change by redefining existing notions, or by creating new notions used in legal discourse

Since codification – the process whereby legal ideas become positive law – is taking place extensively, changes in the ideas do not automatically result in changes of the written positive law (i.e. the more condicitaiton, the more difficult it is to change notions). Therefore, when new legal ideas emerge, they are still expressed through notions that gave shape to their previous legal norms. The new ideas may then stand in clear contradiction to each other.

This fate is shared by the notion of international lawThe notion of “international law”:

This seems to be an outdated concept, not fit for responding to new realities [Author then lists numerous notions related to international law]

A synthetic search for a suitable notion: When contemplating the variety of notions that exist for the law of today, it is hard to make a choice. Each notion has appeared in a

different time and context, but they all appear to overlap The essay will use the term international law, because its covers broadest range of these contexts. Instead of trying to change the

term itself the focus will be on a change of its understanding and scope of applicationThe Dynamism of Public/Private DichotomyPublic international law foundations The evolution of public international law reveals the strong influences that theories exercise on the shape of law and its institutions; on the

other hand, the theories themselves are shaped by influences stemming from the factual developments occurring in this world This becomes obvious when one considers the two main theories competing in international law: natural law and positive law, the first

emphasising moral standards and the latter a more practical approach. While a naturalist view dominated the 17th and 18th centuries, the positivist view gained importance throughout the 19th century. Since WW II, the naturalist and positivist views can be said to co-exist in parallel. The atrocities committed by the Nazi government that culminated in World War UU revived the popularity of natural law. Since then, the naturalist and positivist view can be said to co-exist in parallel

Principle sources of international law: (i) international conventions establishing rules expressly recognised by contesting states (corresponds more with positivist thought) (ii) international custom (e.g. treaties which lack universal binding force) (corresponds with naturalist thought): The universally binding force

of custom is expressed in the concept of ius cogens, i.e. peremptory norms, which is based upon an “acceptance of fundamental and superior values within the system and ins some respects is akin to the notion of public order”. A further expression of the naturalist character expressed by custom is found in the concept of obligations erga omnes. With full awareness of the major importance of the distinction between customary and treaty law

Private international law 1 2 3

Conflict of laws in its widest sense deals with 3 subjects: jurisdiction, choice of law and recognition of foreign judgments The body of rules called private international law fulfills a coordinating function between legal orders of different states, in search for a greater

decisional harmony From a theoretical perspective, the historical development of private international law was dominated by 2 major ideas

Private (SELF) and public law (STATE) The classical distinction is that public law governs the relations between the state and its nationals, while private law governs their relations

amongst themselves.

The implementation of international law The way a state approaches this depends on whether the state practice is influenced by the monist or dualist concept The reception and implementation of the international norm in the national realm is necessary because a state, the

traditional subject of international law, can in some cases only achieve compliance w/ international obligations by assuring that the behaviour of its nationals is in conformity w/ international obligations entered by the same state

Customary international law and treaties: Distinguish between these two main sources of international law. International customary law is considered to be part of municipal law if incorporated. The incorporation can be made on the basis of

a relevant constitutional provision or by judicial practice. Incorporation doesn’t automatically give such law higher standing within the national legal order. A later national law is capable of nullifying the obligation set forth

Treaties: The way treaties are transferred into the national legal system not only depends on the constitution but also the character of the treaty. The CONSTITUTION determines the process from the beginning of negotiations until the final administration of a negotiated treaty within a national legislation. From a constitutional point of view, the implementation of a treaty can take place through a special or general transformation. Special = international norm must be adopted by legislation/regulation; general = declared part of municipal law without any special legislation. Treaties can either be self-executing or non-self executing, the former requires implementation by way of statute.

Advantages/disadvantages of direct applicability of international laws in a municipal court: Advantages: the increase for the effectiveness of int’l law, a better fulfillment of relevant treaty obligations etc. Disadvantages: when one considers democratic participation in the international law making process, the adaption of international

norms to domestic particular circumstances, the adequate fulfillment of the respective international obligations, possible conflicts between international and other nations norms

TOPIC 2: SOURCES OF LAWLaw and Aboriginals It is important for a legal system to recognize that Canada was populated by aboriginal people prior to its colonization by the European

empires Aboriginals’ cultural, political, economic and legal systems/rights not protected after colonization But in 1982, with the patriation of the Constitution, aboriginal rights were constitutionally entrenched in s 35 of the Constitution Act, 1982 (

protects the Aboriginals) Cases such as Mitchell v Canada and Delgamuukw v BC interpreted s 35Canada’s Common and Civil Law Traditionsa) Reception of European law :

Canada law remains a largely European inheritance. British concepts of “reception” determined how Canada’s common law and statute law was received

Just as the aboriginal legal systems, the British had special rules of incorporation that defined how non-British law would apply in their colonies. If a location was conquered, the local laws would continue to apply, modified only as far as was necessary to integrate them into the Imperial legal system. For those territories that were simply colonized, the Common law, as it stood at the time of first settlement, was imported (Cooper v. Stewart)

So there is an important distinction between CONQUER and SETTLE (that latter of which ignores the presence of Aboriginals; it entails the automatic reception of English law)

Most of Canada considered “settled”, so entire body of English law was imported to the settled colonies The courts were the arbiters of settlement dates

b) Nature of the Common and Civil law: Common law : Common law is an English invention. It is judge-made law, developed through the common law courts (as opposed to the

Court of Chancery). 2 fundamental ideas permeate common law theory: (1) Judges don’t make the law but merely declare it; (2) all the relevant past decisions are considered as evidence of the law, & judges infer from precedents what is the true law in a given instance

Civil law : Quebec inherited civil law. Civil law is based on established laws, written as broad legal principles. The difference between civil and common law lies more in their different methodological approaches as opposed to codification per

se. In civil law countries, legislation is seen as the primary source of law. Judgements normally rely on the provisions of codes and statutes. Judicial reasoning is based extensively on the general principles of the rule or code. Common law methodology, even where statutory sources of law are present, employs analogical reasoning from statutory provisions to fill in gaps.

The “bijuralism” remains largely intact in Canada today

c) The Operation of Common Law and Precedent The principle of stare decisis is the formal term to describe how the common law relies on precedent Precedent in law helps in categorization; precedent economizes on information and minimizes idiosyncratic conclusions, and serves,

therefore, a number of purposes Advantages and disadvantages of precedent:

o Advantages/benefits : (i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (i.e. judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases

would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs

in society) (e.g. discuss how feminists enjoy this aspect of the doctrine, without which the laws today relating to females in society might be primitive)

oDisadvantages/problems : (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (Give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution)

d) Common Law and Equity Common law has a variety of internal meanings according to context; for instance, common law must sometimes be distinguished from

equity. Re De Laurier: Children’s interest Equity’s original function was to provide a corrective to the perceived harshness of the common law. Law as a body of rules is by its nature concerned with generalities – groups/classes of persons/events, rather than individuals and

discrete happenings. Therefore, law sometimes fails to achieve adequate justice in particular case Rules of equity are now applied concurrently in all superior courts, with equity prevailing in cases of conflict

e) International Law Distinguish between domestic and international law

International law (EXECUTIVES MAKE THESE LAWS)Distinguish between treaties (contracts between states who take part in treaty) and customary international law (entrenched norms binding on all states, except those who have repudiated them by practice)International law as a part of Canadian lawHow does domestic law interact with international law? The answer depends on the source of international law: treaty or customary law? (a) Treaties

Dualism: Canada has a dualist tradition – an international treaty has no direct effect in domestic law until domestic legislation passed to implement the law into Canadian law by an act of Parliament (if a federal matter) or provincial Legislatures (if a provincial matter)

There are advantages, disadvantages and uncertainties with the dualist mode of reception (e.g. implementation issue – no clear rules on when a treaty has been implemented into Canadian law; in this context, the Baker approach seems to be unsatisfactory, which states that for a treaty to be considered implemented, it must be done so explicitly in the relevant statute – see the “A Hesitant Embrace” article below for a critique of Baker and this approach in general; further, the Suresh approach appears to not be satisfactory either, which suggests that you can use unimplemented treaties to aid interpretation of legislation)

(b) Customary international law Once a rule becomes recognized as customary law, it is AUTOMATICALLY part of domestic law but can be displaced by statute There are also some concerns related to incorporating customary international law into domestic law But the SCC has been unclear on the statutes of customary international law in Canadian domestic law The following are two cases on the application of international law in Canadian domestic law:

Baker v Canada L’Heureux-Dube: Importance of considering best interests of children indicated by Canada’s ratification of the Convention on the

Rights of the Child, an international instrument. International treaties and conventions are not part of Canadian law unless they have been implemented by statute. The Convention has not been implemented by Parliament, and therefore its provisions have no direct affect on Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.

Lacobucci: It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system.

De Guzman v CanadaFACTS: Ms G’s application to have her sons sponsored for admission to Canada was refused under the Immigration and Refugee Protection Regulations. Ms G argued, inter alia, that the relevant provision is invalid. One ground was that it is inconsistent with international human rights instruments to which Canada is a signatory, and which protect the right of families to live together and the best interests of children. G argues that priority should be given to international instruments which prevail over any inconsistent provision in either the IRPA or the regulationsISSUE: Is para 117(9)(d) invalid b/c it renders the IRPA non-compliant with “international HR instruments to which Canada is signatoryREASONING: To conclude that the terms of the IRPA, which have been debated and approved by Parliament, are overridden by a conflicting international

legal instrument does not respect the legislative process in this country. Only express indication of such a principle by Parliament would allow such an outcome

But the applications Judge took an overly narrow view on the value of international law International law can be used to interpret the Charter and it can influence the common law In Baker, Court endorsed the use of int’l law to interpret a statutory provision as requiring immigration officers to give great weight to the best

interests of any affected children when exercising discretion, EVEN IF NOT IMPLEMENTED Further, Brunnees and Troope in a Hesistant Embrace argue that courts have not always made it clear how influential international law

should be in the interpretation of domestic legislation. Sometimes it is treated as merely persuasive, while at other times it is presumed to be determinative, unless the statutory text is irremediably inconsistent with international law. In an attempt to bring greater clarity to the analysis in the evolving domestic jurisprudence, the authors suggest that Parliament should be presumed not to legislate in derogation of international legal norms that are binding in Canada. In contrast, non binding international norms should not be given the same interpretive weight, but should be regarded as no more than persuasive and contextual

HELD: I conclude that paragraph 3(3)(f) does not incorporate into Canadian law international human rights instruments to which Canada is a signatory, but merely directs that the IRPA must be construed and applied in a manner that complies with them

The following is an article on issues concerning the application of international law in Canadian courts:Brunnee, Jutta & Stephen Toope, “A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts” Today, Courts appear to recognize the relevance of international norms whether or not they have been implemented through Canadian

legislation, and whether or not they are binding on Canada In Baker, the Court held that the values reflected in international human rights law may help inform the contextual approach to

statutory interpretation and judicial review Canadian courts are grappling more with the “practical application” of international law Canadian courts, however, are still inclined to avoid deciding cases on the basis of international law: and the avoidance strategy is subtle –

even when they invoke international law, Canadian courts generally do not give international norms concrete legal effect in individual case

After the Baker decision, there appears to be a trend towards treating all international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and persuasive, but not determinative (this comes implicitly from the decision, not explicitly)

The point is the SCC and other courts have confused, rather then clarified the domestic impact of international law Job for academics and judiciary to attack international law questions in a more principled manner. Same with courts The SCC in Baker and in Suresh said that the relevant int’l instrument was not implemented in Canada (but we think it’s arguable

that there is implied implementation because of the Charter and its protections) We argue that its not enough to treat ALL normative threads as potentially persuasive, but not mandatory – over time, this

approach risks weakening the fabric of the law. CONCERN: If international law is merely persuasive, it becomes purely optional, and it can be ignored at the discretion of the judge

We argue that in the case of norms that are binding on Canada under international law, Canadian courts have an obligation to interpret domestic law in conformity with the relevant international norms as far as possible. By contrast, norms that aren’t binding (e.g. soft law) can help inform the interpretation of domestic law and may be persuasive.

Implemented Treaties In Canada, the executive controls both the signature and ratification of international treaties. If the treaty is in force and Canada has

ratified it, the treaty is binding on Canada as a matter of international law; but this does not answer the question of whether the treaty is effective within the Canadian domestic legal system

International treaties are not directly applicable in Canada but require transformation.

Canadian courts struggle not only to determine when international norms require implementation through legislation but also to determine whether such implementation has actually occurred. Also, they wrestle with the implications of the common law principle that "Parliament is not presumed to legislate in breach of a treaty or in a manner inconsistent with the comity of nations and the established rules of international law."76 In the case law, it remains unclear when this principle comes into play and how it relates to the implementation requirement.

So while the power to enter into an agreement rests with the federal executive, transformation generally requires legislation that enacts treaty obligations into domestic law.

Transformation must occur w/in the jurisdictional framework set out by the Constitution Act 1867. It is unclear what constitutes implementation, and there are potentially many ways this can be done in a statute. Least common practice is

“inferred implementation” When a treaty is explicitly transformed into Canadian law, its provisions should be determinative in the interpretation of domestic

legislation When the purpose of a statute is to implement an international treaty, the Court must adopt an interpretation consistent with Canada’s

obligations under the treaty. A court must rely on the treaty to interpret the statute and on the international rules of treaty interpretation to interpret the treaty and resolve

any textual ambiguities Canadian courts have tended towards a narrow construction of the implementation requirement, effectively equating

implementation with statutory implementation But surely there can be implicit implementation, e.g. by way of the Charter. In Ahani, it was stated that absent implementing legislation, international law has no effect Traditionally, however, Canadian law did not categorically require statutory implementation

Unimplemented treaties What is the legal effect of such treaties? We submit that a treaty that is binding on Canada, while not directly applicable in Canada,

is nonetheless subject to the presumption of legislative intent to Act consistently with Canada’s international obligations. On this presumption, it applies to all of Canada’s international obligations, whether treaty based or rooted in customary international law This leads to the inference that courts should make every effort to interpret CDN law so as to conform to Canada’s international obligations Unfortunately, CDN case law hasn’t taken a consistent approach to the presumption of conformity w/ int’l law. First , there is an uncertainty of the effect of that presumption in the context of Charter interpretation. The SCC tends to draw upon int’l norms

merely to inform its interpretation of the Charter. In the Charter context, a weaker version of the presumption of conformity has emerged. Secondly , the case law since Baker is unclear on whether the presumption applies equally to Canada’s international obligations and non-

binding international norms The ambiguous state of the case-law in this regard is reflected in the Court’s decision in Baker. One of the principle causalities of

this lack of clarity is customary international law. The central ruling in Baker was that even though Canada had never explicitly transformed its obligations under the Convention of the Rights of the Child into domestic law, the immigration official was bound to consider the “values” expressed in that Convention when exercising discretion. Therefore, the Convention’s emphasis upon “the best interests of the child” should have weighed heavily in considering Ms Baker’s application. (BAKER RULING)

How did majority arrive at the conclusion “that the values reflected in int’l human rights law may help inform the contextual approach to statutory interpretation and judicial review? More specifically, how the majority conceived of this principle in relation to the traditional presumption of statutory conformity with international obligations.

It would seem that the primary question for the majority with respect to the relevant international instrument was how to give effect to the unimplemented treaty. The majority took the narrow view on the question of implementation and observed that, absent implementation by Parliament, it’s provisions have no DIRECT application in Canadian law. Yet the “values” reflected in the Convention could shape statutory interpretation.

In our view the majority erred for 2 reasons: (1) While the provisions in that instrument were not directly applicable IN Canadian law, they were binding ON Canada and therefore relevant to statutory interpretation through the presumption of conformity (from the standpoint of this presumption, the Court wouldn’t have had to distinguish between the provisions and “values”, and could have used both). The Court simply failed to adopt the presumption which they should have, based on the very quote which they relied to cite authority for the presumption; it would have been clearer for them to just have used the presumption in arriving at the conclusion; (2) By avoiding the presumption, the interpretation of the international instrumental taken was overly narrow

Baker results in 2 questions: (1) How should courts approach international treaty norms that are binding on Canada, but absent implementation, not directly applicable in Canada? (2) How should they approach norms that do not bind Canada but reflect important international values? (BAKER QUESTIONS)

Some have suggested to ignore the rigid distinction between binding and non binding. Doing so risks some norms being ignored completely, simply because they are not legally binding. Similarly, legal norms produce a false sense of security when it is assumed that they require nothing other than “mechanical” application by a judge. According to Knop, an approach focused on persuasiveness of norms can improve the domestic application of both types of norms. Knop therefore likes Baker’s approach

But we are worried that Baker has not signaled a positive shift. Worry is that Baker signals a path towards treating all international law as persuasive authority, which the Court MAY use to inform its interpretation of domestic law. By treating both binding and

non-binding international norms in this manner, courts move away from their duty to strive for an interpretation that is consistent with Canada’s international obligations.

Binding international norms are not only persuasive, they are obligatory. If we fail to uphold our obligations, we undermine respect for law internationally

[Note: binding = ratified; implemented = implemented by statute]Customary international law The existence of a binding rule of custom is proven with reference to two distinct, but interrelated, elements: state practice and opinio juris. The proper application of customary international law has emerged in a series of cases after Baker as a major question for the Supreme

Court. To what extent can international customary law inform domestic legal processes? The best view appears to be that customary law can operate directly within the Canadian legal system

We hope that the SCC intended to suggest that the precautionary principle can inform statutory interpretation even if it should not yet have become customary international law. If this reading is correct the Court would have confirmed a principle that it alluded to in Baker: in appropriate cases, international norms that are not legally binding on Canada may inform statutory interpretation and judicial review

Another case after Spraytech that the SCC commented on customary international law was in Suresh. Jus cogens norms are a particularly compelling form of customary international law.

Summary Customary int’l law (a peremptory norm of customary int’l law which emerges by general consensus of the int’l community): should be directly

applicable (it is a part of CDN law). Courts should strive to interpret statutes and common law to be consistent with obligations under customary law. However, the approach of CDN courts to customary int’l law is unclear. There is no unequivocal statement on whether custom is part of Canadian law or not. If anything, there are some indications that our courts may be retreating from custom. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more.

International treaty law: treaty that has been explicitly implemented by statute is part of our domestic law and should be determinative in the interpretation of CDN law. When Charter issues arise, CDN legislatures retain control over domestic law. The presumption of conformity is to be applied only where possible, and can be rebutted by an explicit legislative Act.

Int’l law that is NOT binding: finally, there is an array of international normative statements that may not be legally binding on Canada, but Canada may find relevant to the interpretation of a domestic statute. E.g. might encounter non-binding parts of a treaty (preamble); international treaties to which Canada is not a party etc (SOFT LAW)

These norms should be treated as potentially relevant and persuasive for the interpretation of domestic law

Conclusion Canadian courts are becoming international courts, as the boundaries between nations becomes more blurred

The “Bijuralism” IssueDepartment of Justice, “Bijuralism and Harmonization: Genesis” “Bijuralism” signifies the co-existence of the English common law & French civil law traditions, within a country organized along federal lines

Common Law Tradition The common law tradition can be distinguished from the civil traditional essentially by its method, that is, its rules of interpretation, the

hierarchy of its sources and its inductive reasoning. The principle characteristic of the common law is this inductive process, which consists of generalizing from common points between distinct

cases and then establishing legal categories with vague foundations and flexible limits To practitioners, the common law means that they have access to a fragmented law that they will discover incrementally as needed. This

leads to the legal fiction that a judge does not make the law but discovers it, as a legal vacuum is impossible

Civil Law Tradition (written law) The most important feature of the civil law tradition differentiating it from the common law tradition is its emphasis on the primacy of written

laws. Civil law is not judge made/recognized law, it’s codified law Another defining characteristic of the civilian tradition is its conceptualism as the civil law tradition is characterized by its emphasis on

abstract concepts. What follows from this is the use of a deductive approach to legal reasoning is used, proceeding from the general to the specific (as opposed to specific to general like in C/L).

The second source of law in civilian tradition is legal scholarship “la doctrine”, and the third source is prior judicial decisions. Language One integral issue relating to Canada's bijuralism is that of "language". I stress that language plays a crucial role in the evolution of law. The sources of common law were established in the English language. Translation often results in some very difficult problems for the

practice of the common law in French. The same holds true for the practice of civil law in English

The suitability of judges educated in the common law tradition hearing cases involving civil law issues has been the subject of some debate in Quebec & has even led to some opinion favouring a distinct SC for Quebec or a separate civil law division within the existing SC

One question that often arises is whether the common law system is intimately linked to the Anglo-Saxon mentality and language? Is the system of values of Francophones inconsistent with the common law tradition?

In this regard, I cannot emphasize enough that my experience has taught me that French is not the exclusive linguistic vehicle for the expression of the civil law tradition nor is English the exclusive vehicle for the expression of the common law. I highly doubt that there is any mystical connection between the French language and the civil law tradition and the English language and the common law tradition.

Bilingual legislation It is perhaps trite to state that federal legislation in Canada is intended to apply consistently across the provinces and territories—that the

same federal law must apply in both Quebec and in Ontario. While this may be the ultimate goal of federal legislation, in practice this goal is not easily attained, since federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Federal legislation must not only be bilingual, but also bijural. Indeed, federal legislation must simultaneously address four different groups of persons:

1. anglophone common law lawyers; 2. francophone common law lawyers; 3. anglophone Quebec civilian lawyers; and 4. francophone Quebec civilian lawyers.

It is crucial that these four legal audiences in Canada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory

One distinctive and difficult feature of CDN bijuralism is the task of rendering the common law in French and the civil law in English. More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. With respect to the process of drafting federal legislation, it is now readily recognized that this process shouldn`t rely upon the technique of simply transposing the concepts of one legal tradition into the corresponding functional equivalents of the other. In many areas, a new vocabulary must be forged.

Interpreting Bilingual Legislation The requirement in Canada that legislation be enacted in both English and French has important implications= both language versions of a

bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translation—and neither has paramountcy. This is known as the "equal authenticity rule"

The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extract the "highest common meaning" from the two versions that is consistent with the context of the provision. Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute. One must therefore go further than mere verbal comparisons, looking to the highest common meaning of the two versions

Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit, intent and meaning of an enactment and that best ensures the attainment of its objectives.

Harmonization The interaction of law emanating from the federal and provincial levels and the potential conflicts between them and possible harmonization

is a complex issue Over the years, pursuant to the division of powers under the Constitution Act, 1867, Parliament has enacted a considerable number of laws

aimed at regulating private law issues. Certain public law statutes, when applied in Quebec, require that recourse be had to the Civil Code of Quebec to identify the precise nature of the juridical act in question. Consequently, there are several areas of law found in federal statutory enactments which require harmonization with Quebec private law, expressed primarily in the Quebec Civil Code

As such, civil law is called upon to fill the gaps left by the federal law While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not

be applied uniformly throughout the country in every respect. Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly across Canada; this requires respect for the character and uniqueness of the concepts and principles of each legal system

Convergence and Progress There is evidence of a convergence between the civil law and common law traditions in Canada. While common law and civil law share

common origins, these legal systems have been moved farther and farther from those origins. This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of

international law, the mobility of persons, the influence of the media, the production of indigenous reference works and the growing use of legislation, even in common law jurisdictions, to enable the law to adapt quickly to societal change.

One often-cited example of the convergence of the two legal traditions in Canada focuses on the acceptance in Quebec of specific institutions of the common law tradition—namely, the trust.

Another instance of this "rapprochement " of the 2 traditions can be discerned from the current situation where common law courts are required to apply & interpret substantive civil law. E.g. recent tort case where Court made extensive reference & resorted to civilian authority

Chief Justice McLachlin stated that looking to how other courts in different jurisdictions deal with this issue provides perspective both on the nature of the problem and possible solutions.

Conclusions Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone. It must

evolve in light of our background and needs. In the Canadian context, it seems to me that a new analysis of the situation is also needed Things have already changed substantially. The codification of the law is increasingly extensive in both systems. There are more new

sources of substantive law, including int’l law and native law. Translation, language training for judges & jurists, and exchanges between law schools are far more common. There’s widespread access to criminal justice in French at the trial level throughout the country. Some universities offer a double law degree; others have organized 1 year work terms for students studying the other system. POLAJ is doing important work

The negative side is that French-language books, articles and cases from Quebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. I have also noticed that the bilingualism of many young Quebec jurists is insufficient to give them full access to English-language legal sources. On the flip-side, if French is not understood in most of English Canada, how can we be expected to make use of the insights it offers in resolving legal disputes?

St-Hilaire v Canada (A-G)FACTS: The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. The respondent then applied to the Federal Court, Trial Division for a declaratory judgment that would recognize her right to the benefits provided by the Act. Allowing the application, Blais J. ruled that the applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. ISSUE: The main issue on appeal was whether the civil law of Quebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Quebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under subsection 620(1) of the Civil Code of Québec.REASONING:Decary JA (dissenting in part): What is the applicable law: the civil law of Quebec or the common law? Unless indicated otherwise, no document other than the Civil Code shall serve as ordinary law, in private law, in the federal legislation

applicable to Quebec. Whenever a federal statute that is to be applied to Quebec resorts to a private law concept without defining it, and the Interpretation Act is

silent, or the federal statute does not fully occupy the possible field of private law jurisdiction in question, it is the Civil Code that supplies the necessary conceptual support for an intelligent application of that statute

In Quebec it is trite law that the "ordinary law" of the province is constituted by the Civil Code of Québec and the Code of Civil Procedure There are a number of situations in which the civil law is required to assume what might be called a passive role. Such situations include

every instance where, in furtherance of its own purposes, a federal statute assigns certain effects to juridical acts or facts governed by the Civil Code. More frequent, however, are situations in which the civil law plays an active role by applying directly to complement federal private law statutes, just as it does with regard to provincial statutes of the same type. Most of the time these laws do not contain all that is necessary for their application. In one way or another, they are almost always incomplete. They employ civil law concepts without defining them; they refer to institutions enshrined in the Civil Code or fail, wittingly or unwittingly, to state all of the principles that apply to the field they regulate. The civil law is therefore called upon to fill in the lacunae or gaps left by federal law

What, in my view, should determine whether or not it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact, quite simply, that the federal enactment in a given case must be applied to situations /relationships that it has not defined & that cannot be defined other than in terms of the persons affected.

It is also worth remembering the complementary nature of federal and civil law: all of the Federal statutes created do not create an independent legal system. Because these Acts derogate from or add to the jus commune of each province, they are supplemented by the relevant provincial law, which is used to interpret them and to apply them. There is, therefore, a complementary relationship between federal legislation and the jus commune of the provinces

I do not think there can be any doubt that this part of the Act, which refers to "succession" without defining it, should be interpreted in Quebec in light of the civil law. The answer is not so obvious when it comes to defining the rights of the "surviving spouse". This expression, as I said earlier, is defined in the Act and furthermore does not correspond to any concept that is defined in the Civil Code of Québec. The Act appears, prima facie, to constitute a complete code in this regard. But is this really the case? What we are looking for here is not who is the surviving spouse. We know her. What we are asking ourselves, rather, is whether this surviving spouse is eligible to receive the benefit provided by the Act.

Since the Act is silent on the question of eligibility, the Attorney General submits that the legislative void must be filled by the common law. This argument cannot succeed, since the question of eligibility is a question of civil rights and the applicable rule is one of private law, and thus, in this case, of civil law

The Civil Code of Québec recognizes the principle that no one should profit from his or her crime. The question then is what the civil law understands by the principle that no one should profit from his or her crime.

In ab intestate and testamentary succession, there is unworthiness by operation of law only if the heir is convicted of making an attempt on the life of the deceased. Should the circumstances of the crime in the case at bar lead to the disqualification of the respondent, given that the respondent has been convicted of manslaughter? I think so. It would be too easy for anyone charged with murder to avoid the civil consequences of a conviction for murder by pleading guilty to a reduced charge of manslaughter and avoiding a trial in the course of which all of the relevant facts would be disclosed. The civil court, faced with a plea of guilty to a charge of manslaughter, may be sceptical and conclude, from the scant evidence at its disposal, and given the balance of probabilities, that there was a sufficient intention to kill.

In sum, the respondent was forfeited from her entitlement to the benefits payable to a surviving spouse under subsection 13(3) of the Act, but she was entitled in her capacity as heir, to the minimum amount of $75,202.50 payable under subsection 27(2) of Part I of the Act and to the supplementary death benefit of about $81,750.

Letourneau JA: The Federal Court of Appeal has on many occasions recognized that Quebec civil law compliments federal law where the latter is silent. It

has also endeavored to harmonize the effects of federal statutes in order to avoid possible inequities as a result of disparities while acknowledging a right to be different where harmonization proves impossible. The unworthiness to inherit under subsection 620(1) of the Civil Code of Québec attaches to the person convicted of making an attempt on the life of the deceased. The wording of this article creates serious difficulties since there is no offence in Canadian criminal law of making an attempt on the life of the deceased. But Subsection 620(1) of the Civil Code of Québec does not exclude from its purview all cases of manslaughter. Where, as here, a person commits aggravated assault or inflicts serious bodily harm likely to cause death, knowing that death may result but being indifferent as to whether or not it results, that person is by operation of law unworthy of inheriting from his victim

Held that respondent was disqualifiedDesjardin JA: To determine the meaning of the words "surviving spouse" and "succession" when the federal statute in question, the Public Service

Superannuation Act, is silent, it is necessary to refer to the Civil Code of Québec and not the common law. The Civil Code of Québec is the foundation not only of all other Quebec laws, but also of the relevant provisions of the Act in question. The first paragraph of article 620 of the Code, which states that "a person convicted of making an attempt on the life of the deceased" is unworthy of inheriting by operation of law, does not rule out the applicability thereto of some cases of manslaughter, let alone the manslaughter committed by the respondent

Since the respondent was "convicted of making an attempt on the life of the deceased", she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse's annuity.

HELD: Appeal allowed

Convention (UNWRITTEN AGREEMENTS MADE BY POLITICIANS) Constitutional conventions are a species of unwritten constitutional norms. The British Constitution was understood to include certain

conventions that govern the workings and interaction of the branches of the state. Because the CA 1867 sought to effect “a Constitution similar in Principle to that of the UK,” Canada inherited these conventions.

The following is a case where a specific convention was recognized:

Re: Resolution to amend Constitution: FACTS: The References in question were prompted by the opposition of eight provinces to a proposed Resolution, published on October 2, 1980. The proposed Resolution contained an address to be presented to The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of R&F. The proposed Resolution carried the approval of only two provinces, Ontario & New Brunswick. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty with the appended statutes. The proposed Resolution was adopted by the HofC and by the Senate on April 23 and 24, 1981.

ISSUES: All parties agreed that proposed amended constitution would affect provincial rights and powers. 2 issues: (1) Is agreement of provinces constitutionally (legally) required? (2) Is there a constitutional convention?REASONING: Issue 1 : Majority of 7:2 - “Legally” provincial consent was not required. Issue 2: Constitutional convention, 6:3 majority found an existing convention that a “substantial measure of provincial consent” is required.

Re: provincial consent there was precedent. Since 1930 all amendments affecting the provinces were passed with provincial consent – there were no exceptions. Precedent indicated intent to have consent. Reason confirms Canada’s federal principle.

1. “Legal Issue” [7:2]The Majority (CJ Laskin): No unanimity for constitutional amendment w/ all provinces impacted.Majority took view of legal authority. It w/n power of feds to pass such a resolution and take it on to the UK.

The Dissent (Martland & Ritchie) : “federalism” principle and precedent to support the view that “in law” provincial approval was required. P. 33 “history of amendments reveals the operation of constitutional constraints.” A unilateral power to amend could see feds take away all provincial powers [the in terrorem argument].Argued: feds doing indirectly what cannot do directly by having UK amend constitution w/o provincial approval.

2. The Constitutional Convention [6:3]Majority [Including Martland & Ritchie] p. 46 “Constitutional conventions + constitutional law = total constitution”

Majority recognized conventions. Constitutional conventions unenforceable by courts. Exist and recognized to ensure that framework of const. will be operated with prevailing

constitutional values or principles [p.44]. Three key elements to convention: (1) precedent (2) intent to be bound by the convention; and (3) reason for the convention.

HELD: Convention needs “substantial measure of provincial consent” wasn't supported by precedent – arguably required unanimous consent. But, here, 8 provinces opposed the amendments it did not matter. Insufficient provincial support.

TOPIC 3: Fundamental Principles of the Canadian Legal SystemBackground Public law concerns the relationship between the state and civil society Private persons may only create legal rights and duties b/w each other, and only with consent. In comparison, the state holds all authoritative

power (the state may impose its dictates on persons without their individual consent) A society governed by the rule of law, state may not act arbitrarily. The state must act lawfully in accordance with law The starting point in assessing the legitimacy of state action is the Constitution The Constitution establishes the foundational law through which the rule of law can occur. Second, it establishes the respective relationships

between the institutions or branches of the state that perform the functions necessary to operationalize law in society

Rule of law Everyone, including the powerful state, must act in accordance with the law Rule of law is similar, but broader than the concept of constitutionalism, which requires that all government action comply with the

Constitution; rule of law is a prerequisite to the constitutionalism Rule of law means that laws must meet certain qualitative standards, but being prospective and being general in character are not

necessarily requirements (see the BC v Imperial Tobacco case) The rule of law is an implicit principle underlying the Constitution (& such principles have full force of law) (see, e.g, BC v Imperial Tobacco) See Roncarelli v Duplessis, where it was held that even a fully discretionary power is subject to the rule of law See BC v Imperial Tobacco Canada, where manufacturers of tobacco claimed that legislation enacted which favoured BC government in

many respects violated principle of rule of law. Court described rule of law in 3 principles:(1) The law is supreme over gov't officials and private individuals (i.e. the law applies to everyone equally)(2) Rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general

principle of normative order (i.e. must be positive laws)(3) Requires that the relationship between the state and the individual be regulated by law

Unwritten constitutional principles Reference re Secession of Quebec case confirmed that the Constitution contains unwritten principles These unwritten principles are important to understanding the legal constraints under which public power is exercised by the CDN state; they

help interpret the Constitution; AND,, they have the force of law and serve to impose SUBSTANTIVE limits on the powers of government “These principles are important because problems or situations may arise which hare not expressly dealt with by the text of the Constitution.

In order to endure time, a constitution must contain a comprehensive set of principles which are capable of providing an exhaustive definition for our system of government”: Reference re Secession of Quebec

Constitutional conventions AGREEMENTS WHICH ≠ LAWS. BASED ON CUSTOMS & PRECEDENTS Constitutional conventions are another species of unwritten constitutional norms: they represent accepted understandings of how organs of

the government operate. They have particular importance with respect to the workings of the Crown and executive government They were inherited from the British constitutional structure see Patriation Reference case which defined what a convention is and recognized a convention of “substantial provincial agreement”

Constitutional supremacy ≠ NOT ENFORCEABLE BY COURTS With s 52(1) CA 1982, the Canadian system of government now operates under a principle of constitutional supremacy The essence of constitutionalism in Canada is that all government action must comply with the Constitution

With the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy

The doctrine of const’l supremacy carries with it necessary implications that speak to other aspects of public law:(1) Hierarchy of law: To state that the Constitution is Canada’s supreme law implies a hierarchy of law(2) Adjudication: Our system accepts that constitutional interpretation cannot be performed by the same body that enacts the ordinary law

(i.e. the legislature). Our system requires that the legislature will be checked by the judiciary with the authority to interpret and apply the Constitution

(3) Counter-majoritarianism: In a system of constitutional supremacy, the power to interpret and enforce the Constitution against majority preferences must be present

(4) Amendment by super-majority required

The Separation of powers doctrine and parliamentary supremacy (SOP) BABOCK The SoP doctrine refers to the division of governmental functions between the legislative, executive and judicial branches of the state Each branch is defined by its relationship to law: the making of law (legislature); the implementing of law (executive) and the interpreting and

applying the law (judiciary) 3 1 2 In Canada, there is no strict separation. The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative

branch, to which the executive is made subordinate. Also, the parliamentary system contemplates an overlapping of personnel between the legislature and the executive. The PM and members of their Cabinet (the executive council “advising” the head of state) are elected members of legislature. Unlike in the US.

Nevertheless, the distinction between the legislature, executive and judiciary is important to Canadian law. It serves two principal purposes: (1) a functional purpose of identifying the institutional homes of the three major forms of public power and (2) a normative purpose of providing general boundaries for the operation of each institution

Legislative power and parliamentary supremacy: Separated between the federal (the Parliament) and provincial legislatures. The principle of parliamentary supremacy is that Canada’s federal and provincial legislatures are understood to be the sole sovereign holders of state authority, subject to authority being divided between them along the lines set out in ss 91 and 92 of the CA 1867.

But with the Constitution Act 1982, Canada adopted both a Charter of Rights and Freedoms and an express declaration of constitutional supremacy (which put new limits on the lawmaking ability of either level of legislature). Thus, the concept of parliamentary supremacy was modified (and constitutional supremacy trumps it)

The principle of federalism Dividing legislative power between federal gov't and regional gov'ts, each assigned respective spheres of jurisdiction Federalism is an unwritten principle of the Canadian Constitution (see Reference re Secession of Quebec); the SCC in that case described

this principle as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society

The executive power The executive derives any power it has solely from the laws or statutes passed by the legislature. That is, the executive must locate any

authority it has to act in Canadian society from a statutory source The executive, by constitutional convention, is responsible to the legislature – which is essentially the meaning of “responsible government”

in the parliamentary traditionJudicial independence Judicial independence is an elemental constitutional doctrine, closely tied to the separation of powers JI ensures that judges, as arbiters of disputes, are at a complete liberty to decide individual cases on their merits without interference Judicial independence also preserves the separation of powers b/w the three branches of our democracy by depoliticizing the relationship

between the judiciary and the other two branches

CasesReference re Secession of Quebec (Recognizes and explains the importance of 4 unwritten constitutional principles)Nature of unwritten principles: These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based. The following discussion addresses the four foundational constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of another.Use of unwritten principles: The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada

The effect of the preamble to the CA 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board. In the Provincial Judges Reference, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text"

1.Federalism: Canada is a federal state in which political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the CA, 1867. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, we confirmed that the principle of federalism runs through the political and legal systems of Canada.The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction

The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself

2.Democracy: The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration today. The democracy principle can best be understood as a baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itselfDemocracy is commonly understood as being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural & group identity, & faith in social & political institutions which enhance the participation of individuals & groups in society.

In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. In individual terms, the right to vote in elections to the HoC and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter.

The relationship between democracy and federalism means, for ex: that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No majority is more/less "legitimate" than the others as an expression of democratic opinion, although, the consequences will vary with the subject matter. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation

Constitutionalism and the Rule of Law: The 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

3.Protection of Minorities: There are a number of specific constitutional provisions protecting minority language, religion and education rights. The 3 other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. One of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities.

Singh v Canada (Explains some of the fundamental principles discussed above)

Parliamentary sovereignty: It is the prerogative of a sovereign Parliament to make its intention known as to the role the courts are to play in interpreting, applying and enforcing its statutes. While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention or sovereign will of Parliament, however purposively, contextually or policy-oriented may be the interpretative methods used to attribute such meaning. Before/after 1982 our system was/is one of parliamentary sovereignty exercisable within the limits of a written constitution Prima facie, then, 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. In the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective

Separation of powers : The appellants argue that doctrine of separation of powers prevents Parliament from giving judicial functions to the Executive. They characterize the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial in nature because it involves a determination of whether a court should have access to certain evidenceIn Canada (unlike the US/UK) there are many other examples of the mixing of functions among the various branches of government, the most obvious being the statutory power of the SCC to give advisory opinions, a function not countenanced in systems of true separation of powers such as USA. The CDN Constitution does not insist on a strict separation of powers. In the Quebec Secession Reference Court unanimously confirmed its right to perform this function:

Moreover, the CDN Constitution does not insist on a strict SoP. Parliament & the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation, and such opinions are traditionally obtained by the executive from the law officers of the Crown, there is no constitutional bar to this Court's receipt of jurisdiction to undertake such an advisory role

It is not surprising that the Court reached this conclusion, as it was there engaged in a celebrated exercise of advising the Executive, answering several hypothetical questions posed by the Governor in Council in the absence of any real "case or controversy" in the legal sense (the criterion in the U.S. for the exercise of judicial power). ≠ strict SoP in Canada In the present context it is difficult to see how, even on the basis of the SoP, the refusal of one branch of the Exec, the PC Office, to give to another branch of the Exec, the RCMP Public Complaints Commission, both governed by the laws of Parliament, access to certain Cabinet information, can be seen to be a violation of the separation of powers. Just as there are fundamental policy reasons of a quasi-constitutional nature as to why legislators should have full control of their procedures and judges shouldn't have to reveal the processes by which they reach a given decision, so the Executive (with the guidance of an Act of Parliament) should be able to identify those documents generated in its internal decision-making process which should not, for the integrity of the system of Cabinet secrecy, be disclosed.

Rule of law: The elements of rule of law include: 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"; and that "the exercise of all public power must find its ultimate source in the legal rule". “The relationship between the state and the individual must be regulated by law". In this case, the rule of law cannot be taken to invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on const’l principles such as responsible government, have been treated differently from private documents in a commercial law suit.Independence of the judiciary: Appellants’ position is essentially that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions, is a violation of constitutionally guaranteed independence of the judiciary. The Trial Judge (correctly) held that this did not constitute an interference with independence as measured by the now well-established rules in Valente v. The Queen. s. 39 in no way interferes with the security of tenure, the financial security, or the administrative independence of judges as dealt with in that case

Reference re Rumuneration of Judges of the Prov Court of PEI FACTS: Certain statutes created by provincial gov'ts interfered with judicial independence of provincial courts; although invalidated, those invalidations didn’t cure all of the unconstitutional effects of the relevant provisions. The upshot of this judgment is that every person found guilty by a provincial court in one of the relevant provinces while the unconstitutional laws were being applied has suffered a breach of their s. 11(d) rights (“right to be heard by an independent and impartial tribunal”). The provinces have requested declarations that these decisions cannot be reopened (i.e. they remain valid)REASONING: One effect to those legislative provisions that had undermined the financial security of provincial court judges was to render those tribunals

dependent. The retroactive annulment of the salary reductions does not change the fact that that provincial court judges were not independent during the period of time when those reductions were imposed on them

DOCTRINE OF NECESSITIY : But there is no need to make those declarations. Past decisions cannot be reopened. In fact, there is a doctrine that recognizes that in some situations it is better to have a non-impartial and independent judge to none at all – the doctrine of necessity. The doctrine of necessity finds its source in the rule of law: the doctrine of necessity is applied to prevent a failure of justice. There are 2 qualifications to the rule: 1. The rule will not apply in circumstances where its application would involve positive and substantial injustice; 2. When the rule does apply, it only applies to the extent that necessity justifies

Like res judicata, the doctrine of necessity recognizes the importance of finality and continuity in the administration of justice. However, these doctrines should be applied rarely, and with great circumspection, as both preserve the effects of an unconstitutional law

Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (Identifies judicial independence as stemming from an unwritten constitutional principle, and detailed discussion of “financial security at the institutional level”)

FACTS: A statute decreased provincial court justices’ salaries b/c of a provincial deficit. Concern that this eroded judicial independence guaranteed under s 11(1)(d) of Charter. ISSUE: Appeal raises a range of issues relating to the independence of provincial courts, but are united by two interrelated issues:

1. Whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights & Freedoms restricts the manner by and the extent to which provincial gov'ts and legislatures can reduce the salaries of provincial court judges;

2. Whether the constitutional home of judicial independence lies in the express provisions of the CA 1867 to 1982, or exterior to the sections of those documents

REASONING: Background Litigation has ensued between two primary organs of our constitutional system — the executive and the judiciary — which both serve

important and interdependent roles in the administration of justice. The aspect of judicial independence which is engaged by the impugned reductions in salary - financial security - has only been dealt with in

any depth by Valente v. The Queen. But only individual financial security was considered. Financial security must be understood as merely an aspect of judicial independence, which is not an end in itself. Judicial independence is valued b/c it serves important societal goals — it is a means to secure those goals. One of these goals is the maintenance of public confidence in the impartiality of the judiciary (essential to the effectiveness of

court). Independence contributes to the perception that justice will be done in individual cases. Another social goal served by judicial independence is the maintenance of the rule of law , one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule. It's with these broader objectives in mind that these reasons and the appeal must be understood.

The Unwritten Basis of Judicial Independence Judicial independence is at root an unwritten constitutional principle. Although several sections of the Constitution guarantee things

such as financial security (e.g. s 11(d) of the Charter)), these don’t provide an express code for the protection of JI for all types of courts There are serious limitations with the view that express provisions of the Constitution comprise an exhaustive and definitive code

for the protection of judicial independence. 1. The first and most serious problem is that the range of courts whose independence is protected by the written provisions of the

Constitution contains large gaps. Sections 96-100, for ex, only protect the independence of judges of the superior, district, and county courts, and even then, not in a uniform or consistent manner. Thus, while ss. 96 and100 protect the core jurisdiction and the financial security, respectively, of all 3 types of courts (superior, district, and county) s. 99, on its terms, only protects the security of tenure of superior court judges. Moreover, ss. 96-100 doesn’t apply to provincially appoint inferior courts, i.e. provincial courts.

2. S. 11(d) is limited as well (only applies to bodies which exercise jurisdiction over offences). So, the independence of provincial courts adjudicating in family law matters, for ex, would not be constitutionally protected.

The Preamble has been used as a reference point to fill the gaps in the Constitution. Ex where the Court has inferred a basic rule of CDN constitutional law despite the silence of the const’l text is the doctrine of paramountcy.

Also, preamble recognizes and affirms that we are governed by a Parliamentary democracy. One implication of the preamble’s recognition and affirmation of Parliamentary democracy is the constitutionalization of legislative privileges for provincial legislatures, and most likely, for Parliament as well. These privileges are necessary to ensure legislatures can perform their functions, free from Crown/Court interference

These examples — the doctrines of full faith and credit and paramountcy, the remedial innovation of suspended declarations of invalidity, the recognition of the constitutional status of the privileges of provincial legislatures, the vesting of the power to regulate political speech within federal jurisdiction, and the inferral of implied limits on legislative sovereignty with respect to political speech — illustrate the special legal effect of the preamble. The preamble identifies the organizing principles of the CA 1867, and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text

The same approach applies to the protection of judicial independenceSection 11(d) of the Charter

3 characteristics of judicial independence: security of tenure, financial security & administrative independence. And there are 2 dimensions of judicial independence:

1. individual (i.e. of the judge) and2. institutional/collective (i.e. of the court or tribunal of which that judge is a member). The conceptual distinction between the

core characteristics & the dimensions of JI suggests that it may be possible for a core characteristic to have both an individual and an institutional or collective dimension

Financial security has both an individual and institutional dimension A reasonable person test employed to determine whether there is judicial independence under s 11(d)

Institutional Independence The institutional independence of the courts emerges from the logic of federalism, which requires an impartial arbiter to settle

jurisdictional disputes between the federal and provincial orders of government. But the institutional independence of the judiciary reflects a deeper commitment to the separation of powers between and amongst

the legislative, executive, and judicial organs of government

The point I want to make first is that the institutional role demanded of the judiciary under our Constitution is a role which we now expect of provincial court judges

Note that the increased role of provincial courts in enforcing the provisions and protecting the values of the Constitution is in part a function of a legislative policy of granting greater jurisdiction to these courts. Often, legislation of this nature denies litigants the choice of whether they must appear before a provincial court or a superior court. The constitutional response to the shifting jurisdictional boundaries of the courts is to guarantee that certain fundamental aspects of judicial independence be enjoyed not only by superior courts but by provincial courts as well

Collective Financial Security The facets of collective financial security all flow from the imperative that the relationship between the judiciary and other

branches of government be depoliticized . [remove from political activity or influence] This demands that the courts both be free and appear to be free from political interference through economic manipulation by the

other branches of government, and that they not become entangled in the politics of remuneration from the public funds These different components of the institutional financial security of the courts in here, in my view, is a fundamental principle of the Canadian

Constitution: the separation of powers. The institutional independence of the courts is inextricably bound up with the separation of powers, because in order to guarantee that the

courts can protect the Constitution, they must be protected by a set of objective guarantees against intrusions by the executive and legislative branches of government.

The separation of powers requires at the least, that some functions must be exclusively reserved to particular bodies. Issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized: the legislature and executive cannot, and cannot appear to, exert political pressure

on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.

The depoliticization is largely governed by convention. The depoliticization of these relationships is so fundamental to the separation of powers, and hence to the Canadian Constitution, that the

provisions of the Constitution, such as s. 11(d) of the Charter, must be interpreted in such a manner as to protect this principle. However, the depoliticized relationships I have been describing create difficult problems when it comes to judicial remuneration.

On the one hand, remuneration from the public purse is an inherently political concern, in the sense that it implicates general public policy. On the other hand, the fact remains that judges, although they must ultimately be paid from public monies, are not civil servants

With respect to the judiciary, the determination of the level of remuneration from the public purse is political in another sense, because it raises the spectre of political interference through economic manipulation. An unscrupulous government could utilize its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication

The challenge which faces the Court in these appeals is to ensure that the setting of judicial remuneration remains consistent — to the extent possible given that judicial salaries must ultimately be fixed by one of the political organs of the Constitution, the executive or the legislature, and that the setting of remuneration from the public funds is, as a result, inherently political — with the depoliticized relationship between the judiciary and the other branches of government. Our task is to ensure compliance with one of the “structural requirements of the CDN Constitution”. The 3 components of the institutional or collective dimension of financial security, to my mind, fulfill this goal: (1) Judicial salaries can be reduced, so long as economic manipulation occurs through an independent body, combined with a judicial compensation commission (between the judiciary and other branches of government) that would depoliticize the process: The commissions must be independent. The salary commissions must be objective. Finally, the commission must also be effective. While not binding, these reviews should be taken seriously(2) No negotiations on judicial remuneration b/w the judiciary and the executive/legislature (as they are indelibly political; they would undermine public confidence in the impartiality of the independence of the judiciary; also, a conflict of interest would arise, as the Crown is almost always a party to a criminal prosecution)(3) Judicial salaries may not fall below a minimum level (the Constitution protects judicial salaries from falling below an acceptable minimum level. The reason it does is for financial security to protect the judiciary from political interference through economic manipulation, and to thereby ensure public confidence in the administration of justice. If salaries are too low, there is always the danger, however speculative, that members of the judiciary could be tempted to adjudicate cases in a particular way in order to secure a higher salary from the executive or the legislature or to receive benefits from one of the litigants)

Application of Legal Principles The SCC faulted the governments of PEI and Alberta for neither consulting salary commissions nor having such bodies to begin with.

Therefore, the actions of these governments breached section 11(d) of the Charter of Rights. Manitoba did have a salary commission, but its actions were unconstitutional because the provincial gov’t didn’t use it . Since these considerations were made using section 11(d), the Court considered whether violations of these rights could be justified under

section 1 of the Charter of Rights, as is normal procedure. Section 1 typically requires a valid government reason for violating rights, and in this case Prince Edward Island and Alberta's actions failed the section 1 test because they did not explain why they did not have salary commissions. Likewise, Manitoba did not explain why they did not use their salary commission

COMMENT: Although this case was settled using s 11(d), the Court went on to recognize the general principle of J I as an unwritten rule

TOPIC 4: Basic Architecture of the Canadian Legal SystemLegislative Branch (Chapter 4 of Craik) Structure/operation of Parliament Parliament consists of the Queen, an Upper House styled Senate, and House of Commons: s 17, Constitution Act The Monarch and Governor General:

o Queen is essentially Canada’s head of state. Governor General, in practice, exercises Queen’s powerso CDN head of state is not elected; their identity depends (in the case of Monarch) on birth, and (in the case of GG) on appointment. o Selection of Monarch is discriminatory, and has been challenged with Charter, see e.g., O’Donohue v The Queen, which decided that

Canada cannot unilaterally change succession ruleso The monarch appoints the GG. But the monarch does so on the ADVICE of PM (a constitutional convention)

The Senate:o Canada has an unelected upper chambers of the federal legislature; the Constitution expressly anticipates the appointment of senators

by the governor general (see s 24 of the Constitution Act 1867)o In exercising that power, the GG follows the advice of the PM, as required by constitutional convention. o 2 cases attempted to dispute this process, but failed (see Brown v Alberta, where it was held that the appellant didn’t raise legal issue;

and Samson v A-G, where it was held that the Court cannot fetter the GG’s discretion) House of Commons:

oMembers of the House of Commons are electedo Each riding elects 1 member to the house (the current number of districts, & thus members of Parliament, is 308)o Canada’s electoral system is referred to as a “single-member plurality” or “first-past-the-post” system. After an election, the party with the

most elected representatives usually becomes the governing party. o The leader of this party becomes the PM, and chooses people to head the various government Departmentso All the elected candidates have a seat in the House of Commons, where they vote on Bills o Until recently, the Canada Elections Act required a registered party to run candidates in at least 50 electoral districts. This rule was

struck down by the SCC in Figueroa v Canada s. 3 CoR&F purpose = vote Bringing the constituent elements of Parliament together:

1. Summoning: the calling of Parliament. 2. Prorogation: once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation. A prorogation is

the prerogative of the governor general, acting on the advice of the PM. Section 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least once every 12 months (i.e. Parliament cannot be entirely sidelined)

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

Key actors in parliament(a) Political parties(b) The speaker (c) Parliamentary committees

Parliamentary procedure/law making(a) Source of parliamentary law Parliamentary law: rules determining parliamentary procedure, flows from various sources i.e. statute, Constitution, etc(1) Constitution and statute:

To understand parliamentary law start at the Constitution. The CDN Constitution incorporates British parliamentary traditions via the preamble to the CA 1867. That Act speaks of Parliament possessing parliamentary “privileges”, as does Parliament of Canada Act

Parliamentary privileges (the important part in this section) 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 usually means legal exemption from some duty, burden etc to which others are subject. See Canada v Vaid for an outline of the scope of parliamentary privilege; in this case, the dismissing of a chauffeur was not considered part of parliamentary immunity) HR ≠ employment

[NOTE: The idea of privilege reflects and enforces the separation of powers, specifically the separation between Parliament/legislatures and courts]

(2) Standing orders: Canada’s legislatures can administer that part of a statute relating to its internal procedure, as well as to determine the contents of

such things as Standing Orders on Procedure, without court intervention. Standing orders are rules of procedure adopted by at least a simple majority vote of the members of the Commons. It constitutes a

fairly comprehensive code of Commons operations, including Commons law making

(b) Parliamentary law makingScope of law making jurisdiction (substantive law focus) Parliamentary supremacy means that Parliament is the source of all power and Parliament has the jurisdiction to make or unmake any law

whatever [NOTE: Some suggest that, unlike the Parliament in UK, the Parliament of Canada is NOT supreme; the division of powers found in ss 91 and 92, for ex, identify certain subjects in respect of which Parliament cannot legislate; then, also consider the limitations put on it by the Charter]

Nonetheless, the scope of Parliament’s law-making jurisdiction is endless, so long as is it conforms to the Constitution (rules governing division of powers between federal and provincial legislatures), and constitutionally protected individual rights and liberties found in the Charter (this goes back to parliamentary supremacy).

Parliament is, therefore, even free to pass careless or bad laws, as long as it sticks within its Constitutional mandate (see Bacon v Saskatchewan Crop Insurance, where the applicant failed in using the rule of law principle in an attempt to challenge an allegedly bad law).

Further, even if Parliament is tricked into passing a law by the executive, that alone is insufficient for a court to strike it down; such an issue is not justiciable (see Turner v Canada).

CDNs aren’t entitled to due process or procedural fairness in the law-making process (so long as the procedures in the Constitution are met). Courts say that this aspect of law making should be looked after by Parliament/legislatures themselves. To do so would trench parliamentary privilege (Wells v Newfoundland).This means Parliament is free to act unfairly i.e. by passing laws without any notice to those implicated in it.

But Parliament can be held in check if it passes arbitrary laws: e.g, if it strips away contractual rights (by legislation), it may be held responsible for, e.g., paying compensation to those the legislation affects (Wells v Newfoundland)

Thus, no prudential constraints exist on Parliament, except those found in the Constitution To demonstrate the breadth of Parliament’s law making power, it has been held that there can be expropriation of property without

compensation, so long legislation makes such an intent clear (Authorson v Canada) [That’s bull shit!]

Ethics in law making (focussing on conflicts of interest) Parliament may be sovereign, but individual parliamentarians are not Thus, although the discussion up to this point suggests that no prudential constraints exist on Parliament other than those found in the

Constitution, it must be noted that, for ex, a parliamentarian induced by the prospect of financial gain to vote in one way or another in performing his or her law making functions is subject to sanction in a number of ways

Ethics rules exist both in statutory law and in the internal procedural rules governing each hose of Parliament

Parliament’s law-making procedure (bill to law) Parliament is free to determine its own procedure & pass laws as it pleases within its constitutional jurisdiction; so what rules does it follow? Mainly governed by rules of procedure of each chamber of Parliament, e.g. Standing Orders of the House of Commons There are 2 types of bills: public (centred on public policy) and private (relates to matters of a particular interest/benefit to a person/persons).

The legislative process for each is a bit different

(1) Public bills:o Goes through 9 stages , the second reading being the most important stage (it is then that the principle and object of the bill are

debated/accepted/rejected; three types of amendments may be proposed at this stage) o A bill becomes law when it receives Royal Assent. For Royal Assent to be given, the bill has to be passed in the same form by both

Houses (i.e. the Senate and House of Commons). (2) Private billso A bill designed to exempt an individual or group of individuals from the application of the law is a private bill. Private bills are subject to

special rules in both Houses of Parliament, however, most private bills originate in the Senate where the fees and charges imposed on the promoter are less

o They are introduced by means of a petition signed by interested parties & presented in House by a Member who agrees to sponsor it

The Executive Branch (Chapter 5 of Craik)The executive branch refers to institutions in government that are responsible for implementing and enforcing laws, whether those laws –

created by both the legislature or judiciary DEFINITIONDespite the absence of a rigid separation of powers doctrine in Canada, it is still useful to speak about a distinct executive branch of gov’tA clear set of legal principles governing the boundaries of executive powers and manner by which executive powers are to be exercised has

been developed (namely administrative law)At the heart of administrative law is a requirement that government officials exercise their powers in furtherance of public, not private,

interests. A similar expectation underlies the exercise of legislative powers, but in the case of legislators, public preferences are made know, and the creation of public policy is legitimized through democratic processes. Administrative actors, however, are generally not elected

In cases where administrative officials exercise narrow powers carefully defined through legislation, the democratic legitimacy of administrative decisions is derived from the close relationship between admin officials and the legislature.

To a large degree, the legal rules that have developed in admin law have arisen so as to constrain the exercise of administrative discretion in ways that respect the intentions of the legislative branch and promote outcomes that take into account the public interest

The rise of the administrative state in Canada Growth of gov’t leads to ad hoc growth of executive branch (not planned) One of the implications of this transformation s a more attenuated link between decision makers and elected officials

The executive branch defineda. The Crown:

o The entire authority of the executive branch is vested in the monarchy. Thus, the Crown is the formal legal entity of the government, and the Crown is the bearer of both legal rights and obligations

o This is entrenched in s 9 of the Constitution Act 1867o Identification of the gov’t with the Crown speaks only to the formal legal status of the executive. The governor general is to exercise all

powers and authorities lawfully belonging to the monarch in respect of Canada o But in a system of responsible government, the Crown’s representative is not as potent as these provisions imply. Remember, the

Queen appoints the GG and lieutenant governors to act as her representatives, although by constitutional convention the Queen makes these appointments on the advice of the PM, who the Queen must follow; in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet of their respective government

b. The Prime Minister and the Cabineto Ministers and the prime minister together comprise the ministry (which is used interchangeably with the word cabinet). It is the prime

minister who presides over the Cabineto The Cabinet is in most matters the supreme executive authority: It is the Cabinet that determines the legislative agenda of the gov’t in

Parliament and it is the Cabinet and its ministers that are responsible for the administration of the individual departments of the gov’to The separation of the executive branch from the legislative branch is not absolute. The constitutional convention of “responsible

government” lies at the foundation of CDN governance. Under a system of responsible gov’t, the ministry is accountable to the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain the confidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in Parliament for the activities of his or her department

o In addition to Cabinet duties, Cabinet ministers have administrative duties for departments under their chargec. The Public Service

o The employees of ministries of the government, often referred to as civil servants, are also part of executiveo They are distinct from ministers, however, in that they are politically neutralo Civil servants must be loyal to the government they represent (Fraser v Canada)

d. Independent Administrative Agencieso As a matter of express constitutional recognition, the formal executive bodies are limited to the GG and lieutenant governors, the federal

and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministerso However, exec functions are also carried out by various bodies that have a measure of independence from the gov’t, for various reasons

(e.g. legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency + particular expertise may be needed)

o Independent admin bodies appear in a broad range of forms depending on their functiono An administrative body is the product of the legislative instrument that creates ito As a constitutional matter, adjudicative admin bodies do not have to be independent, although there may be circumstances which

require their independence. o Ocean Port Hotel case draws the distinction b/w independence required by courts & those by admin bodies that are adjudicative. It’s

Parliament/legislatures that determines by statute the independence required by admin bodies e. Crown corporations

o These are essentially administrative bodies that have a legal personality separate from the government.o The purpose of creating Crown corporations is that they may be useful where there is a strong commercial aspect to the governmental

service, which may require decisions to be made free from political influences that may unduly interfere with the commercial objectives. Additionally, the commercial nature of some activities may be ill-suited to government departmental structures

f. Municipalities o Municipalities, which are created under provincial legislation, deliver a wide range of public services, such as the provision of road,

sewer and water serviceso Unlike other forms of independent administrative bodies, municipalities are governed by elected officials & exercise broad/full powers

Shell Canada: Municipal authority only – geographical locationEast York: Inferior state government

e. Enforcement bodies: Police and Prosecutorso The executive branch of gov’t, in addition to being responsible for the implementation of gov’t policy, is required to enforce those policies

that have the force of law. Enforcement duties fall primarily on the police and prosecutors

o There is a tension b/w accountability and independence in the context of enforcement (i.e. free from political oversight, yet they have to be held accountable)

Campbell: RCMP action protected

Sources of executive powerAll executive power flows from the royal prerogative and statutory delegation: Prerogative powers:o Prerogative powers are those exercisable by the Crown that don’t arise from a statutory grant of power to Crowno These powers can be overridden by statuteo There has been debate over who can exercise these powers, and when they may be subject to judicial oversight. Black v Chretien says

that such powers are subject to judicial oversight in certain circumstances, although in that case, the issue was non justiciable Statutory powers:o The majority of executive powers originate from a delegation of authority by the legislature by statuteo Delegation power of Legislatures is wide (parliamentary sovereignty), but the powers delegated must conform to the Constitution, and

another rule which says that no delegate can be authorized to exercise absolute discretion (Ronceralli v Duplesis)o Legislatures can delegate power to execs, but can’t abdicate their power (Re Gray: delegation of war time powers)o Parliament cannot delegate to provincial legislatures, and vice versa (i.e. inter delegation) (the basis of this principle is that an inter-

delegation would upset the constitutional division of powers contained in ss 91 and 92 of the Constitution Act, 1867), although there can be indirect inter-delegation (namely where the inter-delegation was to an administrative body) (PEI Potato Marketing Board v Willis).

Nature and function of delegated powers Delegated authority has been granted in virtually every area of public policy. Despite that there is now a de-emphasis on functional distinctions in order to determine administrative actors’ duties

/functions/responsibilities, it helps to review the major types of decisions commonly made by admin decision makers:(1) Rule making (i.e. delegated legislation) [subordinate to legislation]

o Most pervasive form of admin rule making is the regulation making power that is delegated to the Cabinet through the governor in council; but admin rule making isn’t restricted to this form

o The legal effect of delegated legislation is determined by the parent legislationo Benefits of delegated forms of legislation relate mainly to the relative flexibility of regulations. The statutory process is much more

cumbersome and time consuming than the process for enacting regulations; AND regulations are suited where rules require readjustment (impossible for legislators to know in advance the range of circumstances that will require specialized rules); AND expertise AND it is impossible for legislators to know in advance the range of circumstances that will require specialized rules

o There are concerns as well though (i.e. lack of same scrutiny legislation is enacted with)o See the “Government of Canada, Guide to Making Federal Acts and Regulations”, p. 273 of the book for more

(2) Dispute resolution [cabinet cannot enact without notice]o It is common for administrative agencies to be created in order to hear and decide specific kinds of disputeso There are some advantages (public participation; time/expense; don’t have to follow rigid laws always & can rely heavily on policy etc)

(3) Benefit or obligation determinationo The most prevalent group of administrative decision makers are those empowered to determine whether a person will be granted a

particular public benefit (e..g a welfare entitlement)o Also, obligation determinations may raise different issues; these decisions usually initiated by the imposing agency, leaving an affected

person to take affirmative steps to protect interesto The desire for fairness is often in conflict with the need for administrative efficiency in these situations

(4) Enforcement decisions E.g. by police/prosecutors and some administrative officials whose enabling statutes confers investigatory powers**[NOTE: Each of these functions may overlap, as shown by the Canadian Human Rights Commission example]

Limits on the exercise of delegated authority While the constraints on the ability of the legislative branch to delegate authority are minimal, once authority is delegated, the law imposes a

rigorous set of limitations on the exercise of power The principle is that delegated authority must be exercised w/in the boundaries of the statutory grant of power The determination of the legality of the exercise of administrative authority is the function of the courts. The supervisory role of the courts

raises complex issues concerning the conditions under which the judicial branch should interfere with decisions taken by the executive branch (see chapter 8) [source of power = statutory delegation](1) Controlling Jurisdiction: Substantive Ultra Vires

o Can only exercise the powers granted by the enabling statute – limited o Cannot sub-delegate duties (with some exceptions – i.e. matters that are merely admin may be subdelegated)

(2) Controlling procedures: The duty to be fairo Duty to be fair refers to the procedures adopted by the decision makero Admin decisionmakers are generally required by common law to act fairly toward those affected by the decisions o The duty to be fair is no longer confined to judicial/quasi judicial decisionso See Knight v Indian Head School and Baker

(3) Controlling discretion: bad faith, improper purposes and irrelevant considerationso There are benefits of admin decision makers having broad discretion. However, there are also concernso If admin decision maker exercises discretion in (1) bad faith; or (2) takes into account irrelevant considerations or (3) ignores

mandatory considerations, then their decision may be overturned ≠biaso These are jurisdictional errorso The standard of review of these decisions is important: an imp consideration in determining whether an admin decisionmaker has

improperly exercised their discretion will be the amount of deference a reviewing court gives an admin decisiono See Baker excerpt (SCC considered the proper approach to the judicial review of discretionary decisions and the requirements of

administrative decision makers who exercise discretionary powers) [officer’s dismissal of kid’s interest = “unreasonable”

Courts and the Judiciary (Chapter 6 of Craik)Court systemConstitutional framework: Starting point in understanding the Canadian court system is the Constitution Act 1867 Fed government created the SCC, Federal Court/Federal Appeal Court, & Tax Court, as authorized by the Constitution Provinces create s 96 superior courts Fed government appoints and pays the salaries of provincial superior court judges Provinces appoint and pay the salaries of provincial court judges Provinces cannot pass legislation creating a tribunal, appoint members and then confer on the tribunal the jurisdiction of superior courts. Re

Residential Tenancies Act developed a 3 part test in order to determine whether creating such a tribunal would erode the s 96 power. This is because superior courts are a fundamental institution protected by our Constitution through the interpretation of s 96. The provinces, or federal Parliament, cannot enact legislation to encroach on their core jurisdiction

Overview of the court system1) 1st level is the provincial/territorial courts, which every province has except Nunavut (there is no territorial court—matters that are normally

heard at that level are heard by the Nunavut Court of Justice, which is a superior court)2) 2nd level is provincial/territorial superior courts (s 96 courts) (except for Nunavut, where the Nunavut Court of Justice deals with both

territorial and superior court matters) 3) 3rd level is courts of appeal4) The highest level is the supreme court of Canada

**Note, also, the federal courts, specialized federal courts (e.g. the tax court of Canada and military courts)

Judicial appointments Are the right people appointed as judges? There has been controversy surrounding judicial appointment, especially at the federal level (i.e.

appointment of superior court judges) In Canada, judges are selected by exec branch, following a short-listing procedure involving an advisory committee

Provincial appointments:Basic model is built on an advisory committee made up of a mixture of members from the legal community and laypersons, which makes recommendations to the provincial attorney general

Federal (non-Supreme Court) appointments):s 96 courts, Federal court and tax court are appointed by the governor in council (i.e. the Cabinet) (and the process is overseen by the Office of the Commissioner for Federal Judicial Affairs), and the Supreme Court of Canada justices are simply appointed by the governor in council

a. Overview Office of Commissioner for Federal Judicial Affairs oversees the federal judicial appointment for s 96 courts Independent judicial advisory committees constitute the heart of the appointments process Federal appointments are made by the governor general, acting on the advice of the federal Cabinet. A recommendation is made to Cabinet by the

Minister of Justice; that recommendation is made from amongst the names which have been previously reported by the committees to the Minister The recommendation for appointment as a judge is made to Cabinet by the minister of justice, who has been advised by the judicial advisory committee

b. Criticisms Questions have remained about political influence on the selection process. Concern for patronage appointments (i.e. allegations have been

made that appointments are tainted by political considerations and that candidates who have contributed to political parties are appointed) Too much discretion in the hands of the government – e.g. minister has power to appoint from the “recommend” and “highly recommend list” (big

lists = room for abuse of discretion) (“the basic concern”)

No transparency or accountability Calls for change have been made (one suggestion is to have interviews)

Supreme Court appointments Appointment processes described above do not apply to SCC (SCC judges appointed by governor in council) Yet, in the post –Charter era, the court’s decisions will have a great effect on public policy. It is argued that the SCC is “legislating”. As

a result, calls for change to the federal appointment process have been especially persistent in relation to appointments to the SCC

Judicial independence Judicial ind. is the notion that judges are at arm’s length from the other branches of government Judicial ind. consists essentially in the freedom to render decisions based solely on the requir’ts of law and justice. It requires that the judiciary be left free to act w/out improper interference from any other entity – i.e. that the executive and the legislative

branches don’t impinge on the essential authority and function of the court

Sources and scope JI is richly a constitutional concept; e.g. ss 96-100 of CA, 1867 provide for the appointment, security of tenure and remuneration of federally

appointed judges [Note: these provisions only apply to superior courts] Other than those provisions, s 11(d) imposes a requirement for judicial independence It’s source is also in unwritten constitutional principles (Reference re Remuneration of Judges of the Provincial Court of PEI) Judicial independence, as an unwritten constitutional principle, extends to ALL courts, not just superior courts (see Reference re

Remuneration of Judges of the Provincial Court of PEI)o Assessing independence [TEST]

How is independence measured? The test to assess whether there is judicial independence is an objective, reasonable persons test, Requires actual independence and a reasonable perception of independence on the part of a reasonable and well informed person Independence includes both a requirement of actual independence, and also conditions sufficient to give rise to a reasonable

perception of independence on the part of a reasonable and well-informed person

o Core characteristics [of Judicial Independence]There are 3 core characteristics and 2 dimensions (i.e individual and institutional)(1) Security of tenure:

This has both institutional and independent Individual security of tenure means that judges may not be dismissed until the age of retirement except breaches of “good

behaviour”, which have been interpreted to include misconduct or disability. Institutional security of tenure means that, before a judge may be removed for cause, there must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded the opportunity to be heard

Thus judge can only be removed from office for reason relating to their capacity to perform their judicial duties. The Judges Act establishes the Canadian Judicial Council as the body responsible for investigating complaints about the conduct of

federally appointed judges. If the Council concludes that removal of a judge is warranted, it makes a report to the minister of justice, who may introduce a motion before Parliament.

The actual authority to recommend removal of a judge is found in s 69(3) of the Judges Act(2) Financial security

Financial security relates to the pay judges receive for performing their job – and protects against an unscrupulous government that could utilize its authority to set judges salaries as a vehicle to influence the course and outcome of adjudication

It has both an individual and institutional dimension. Institutional financial security has 3 requirements (1) changes to remuneration require prior recourse to a special process, governed by

an independent, effective and objective body who makes a recommendation of salary (2) Not permissible for judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature; (3) Reductions to judicial remuneration cannot take those salaries below a basic minimum level of remuneration that is required for the office of a judge (see Reference re Remuneration of Judges of the Provincial Court of PEI).

(3) Administrative independence Admin independence requires that courts themselves have control over the administrative decisions that bear directly on the exercise

of the judicial function See Canada v Tobiass (SCC concluded that at least the appearance of independence was transgressed)

Constraints on Legislative and Administrative Action (Chapter 8 of Craik) This part explores the role that the judiciary plays in constraining legislative and administrative/executive action

The role of constitutional judicial review in a democratic society

Justification for constitutional judicial review Constitution, designed by the will of the people, made up of principles that are so fundamental and established, and so the legislative acts

must be consistent with it And it’s the province of the judiciary to say what the law is (those who apply rules to cases must interpret that rule), and even the Constitution

requires interpretation

Limitations of judicial review Issue of justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial determination (see

Operation Dismantle v The Queen) Issue of enforcement: although the Constitution is supreme and the judiciary is relied on to interpret and invalidate legislation that is

inconsistent with it, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions. In Doucet Boudreau v NS, the issue of court usurping executive function arose (where the court ordered the government of Nova Scotia to use its best efforts to build a French Language school to comply with its duties under the Charter (minority language rights). Periodic reports on its progress were also ordered [How close is this to the judiciary usurping the role of the executive?] A related issue is how courts address the sometimes sweeping disregard by the legislature of constitutional rules. See Reference re Language Rights under s 23 of Manitoba Act: Validity of s 23 was struck down 4 times, without legislative response. It was the Court’s duty to ensure the language rights in the constitution are protected. To conform with rule of law, Court decided on a drastic remedy: allowing the invalid acts to remain law until statutes were translated.

Issue of legitimacy: A more prominent concern is that judges have to interpret vague statements in the Constitution; when judges give concrete shape to vague ideas set out in the Charter for example, and then invalidate laws that do not conform to their interpretation of these requirements, the rule of law may subtly be transformed into the rule of unelected judges. Two main complaints about judicial review aspect:(1) Under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial

legislatures. Argument is that courts have expanded their proper role of interpreting the Constitution and have thereby unduly shrunk the zone of parliament supremacy. o On one side, the concern is that sometimes JR is illegitimate, because it is anti-democractic, in that unelected officials (judges) are overruling elected

representatives (legislators). Also, they read in concepts to laws which amounts to changing the law in itself (e.g. reading in JI principle in the Constitution by reference to preamble, in Reference re Remuneration of Judges of PEI, was criticized in dissenting opinion of La Forest J)

o The other side is that it was the will of the people that enacted the Constitution (including the Charter) and administrative tribunals. And it is the Court’s job to oversee adherence to these laws. Judicial review is not anti-democratic, therefore. Further, there is a lot of built in deference to the legislature (see s 1, s 33). Also note the dialogue model which some say occurs between the judiciary and legislature (which preserves a proper separation of power). Further, there is no clear line b/w applying, interpreting and making the law as critics appear to think.

(2) Concern about the substantive approach courts have taken to particular rights, rights that may be unpopular elements of society[A core question lies at the heart of both of these complaints: in rendering constitutional decisions, how much deference should courts show elected officials?]

Different sorts of judicial review (specifically constitutional litigation) of legislative actionVarious types of approaches courts use to address different types of constitutional challenges to legislation:Unwritten Constitutional principlesCanadian courts have been willing to a limited extent to recognize underlying constitutional principles that can be given full legal effect (e.g. Reference re Secession of Quebec; Reference re Remuneration of Provincial Court Judges)The Constitution Act, 1867In terms of their potential to generate litigation, the most important features of the Constitution Act 1867 are the provisions of ss 91–95 that distribute legislative power between the federal and provincial levels of governmentThe Canadian Charter of Rights and Freedoms The other type of constitutional litigation arises from the Charter Two aspects: (1) Process of defining the substantive right protected by the relevant provision of the Charter; (2) Relationship between the

substantive rights and the justification of limits on those rights under s 1

Judicial review of administrative action JR of executive or administrative action raises some different questions about institutional relationships than does JR of legislative action There is some overlap, at least to the extent that judges will normally want to respect the choice of democratically elected legislatures to

allocate decision-making authority to institutions other than courts. On the other hand, the judicial invalidation of particular administrative acts on non-constitutional grounds often does not preclude the decision maker from repeating his or her actions, this time in compliance w/ the standards set out in the statute delegating power or common law procedural fairness

As Canadian courts have become more sophisticated in their approach to judicial review, they have become more willing to take into account a number of other factors in determining the nature of their institutional relationship with administrative decision makers. These factors have become part of the standard of review analysis that has become the first step a court must take when reviewing an administrative decision

The basic question addressed by the standard review analysis is how deferential should the courts be to executive branch interpretations of the mandate accorded to them by statutes?

TOPIC 5: Relationship of Aboriginal Peoples to the Canadian State Articles“Mary C Hurley, “The Crown’s fiduciary relationship w/ Aboriginal peoples”:Aboriginal peoples have always had a unique legal and constitutional position.

(i) First there was the Royal Proclamation of 1763, which reserved to the Crown the exclusive right to negotiate cessions of Aboriginal title(ii) Then came subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over “Indians, and

Lands Reserved for the Indians.” (iii) Finally, section 35 of the Constitution Act, 1982 recognizes and affirms “existing aboriginal and treaty rights” of Canada’s Aboriginal

peoples, defined as including the “Indian, Inuit and Métis peoples

Judicial interpretation A “fiduciary relationship” is one in which someone in a position of trust has “rights and powers which he is bound to exercise for the

benefit” of another. The SCC has adapted these largely private law concepts to the context of Crown-Aboriginal relations See Guerin v R, for example, which established that:

o the fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement, outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown;

o this requirement, which places the Crown between the Aboriginal group and third parties to prevent exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group;

o in the unique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is sui generis (1 of a kind) The scope of the relationship was extended in R v Sparrow, which was the Court’s first s 35 decision:

o “General guiding principle” for s. 35 is that “the Gov’t has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship b/w the Gov’t and aboriginals is trust-like, rather than adversarial, and contemporary recognition & affirmation of aboriginal rights must be defined in light of this historic relationship”;

o "The honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship & responsibility of the gov’t vis-à-vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified”;

o “T]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test.

o See also R v Adams, Delgamuukw v BC etc which expanded on the duty. But then see Wewaykum Indian Band v Canada which set out some limitations of the fiduciary duty (e.g. that the fiduciary duty “does not exist at large)

Extra-judicial considerations The federal government identifies 2 principal categories of fiduciary obligations for government managers to take into account: (1) Guerin-

type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land). (2) Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights

Commentary The foregoing overview suggests that the Crown’s fiduciary relationship with and ensuing obligations toward Aboriginal peoples have

implications for the development and conduct of gov’t policy in matters that engage Aboriginal interests. Important questions related to implementation of the Crown-Aboriginal fiduciary relationship remain. The application of SCC decisions

confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for ex, land claim and self-government negotiations. Similarly, the standard(s) for government conduct that will uphold “the honour of the Crown” in various situations require clarification

“Highlights from the Report of the Royal Commission on Aboriginal Peoples”Stage 1: Separate worlds Aboriginals inhabited the AmericasStage 2: Nation-to-nation relations Cautious co-operation was the theme of this period. Aboriginals in charge of own affairs Co-operation was formalized in two important ways: (1) treaties; (2) the Royal Proclamation of 1763

(a) Treaties:o Treaties were a way for Europeans and Ab’s to recognizing each others sovereignty and mutual respecto Ab’s later found out that the treaties were used different to what they expected

(b) Royal proclamation:o The Royal Proclamation of 1763 was a defining document in the relationship between Aboriginal & non-Aboriginal in America. o The proclamation summarized the rules that were to govern British dealings with Aboriginal people - especially in relation to the key question of land. o Aboriginal people were not to be "molested or disturbed" on their lands o Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to be

acquired only by fair dealing: treaty, or purchase by the Crown.o The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal

political authority. o It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement. It finds a balance in an

arrangement allowing Aboriginal and non-Aboriginal people to divide and share sovereign rights to the lands that are now Canada.

Stage 3: Respect gives way to domination Ironically, the transformation from respectful coexistence to domination by non-Aboriginal laws and institutions began with the main

instruments of the partnership: the treaties and the Royal Proclamation of 1763 Then came Confederation in 1867, a partnership b/w English & French, which was negotiated w/out Aboriginal nations Then came the BNA Act, young Canada’s new constitution, which made “Indians and Lands reserved for the Indians” subject for government

regulation

Stage 4: Renewal and renegotiation Policies of domination and assimilation battered Aboriginal institutions, sometimes to the point of collapse. Poverty, ill health and social

disorganization grew worse. Aboriginal people struggled for survival as individuals, their nationhood erased from the public mind and almost forgotten by themselves.

Resistance to assimilation grew weak, but it never died. In the 4th stage of the relationship, it caught fire and grew into a political movement. One stimulus was the federal government's White Paper on Indian policy, issued in 1969 They studied their history & found evidence confirming that they have rights arising from the spirit & intent of their treaties & the Royal

Proclamation of 1763.They took heart from decisions of Canadian courts, most since 1971, affirming a special relationship with the Crown & their unique interest in their traditional lands. They set about beginning to rebuild their communities & their nations with new-found purpose.

A dozen years of intense political struggle by Aboriginal people, including appeals to the Queen and the British Parliament, produced an historic breakthrough: "Existing Aboriginal and treaty rights" were recognized in the CA 1982.

The way forward The policies of the past have failed to bring peace and harmony to the relationship between Aboriginal peoples and other Canadians.

Equally, they have failed to bring contentment or prosperity to Aboriginal people In the following chapters, we outline a powerful set of interlinked ideas for moving forward. But governments have so far refused to recognize

the continuity of Aboriginal nations and the need to permit their decolonization at last. By their actions, if not their words, governments continue to block Aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and work out their own solutions to social, economic and political problems. It is this refusal that effectively blocks the way forward.

The new partnership we envision is much more than a political or institutional one. It must be a heartfelt commitment among peoples to live together in peace, harmony and mutual support. 1. 2. 3. 4.

We propose 4 PRINCIPLES as basis for a renewed relationship: recognition, respect, sharing & responsibility We propose that treaties be the mechanism for turning principles into practice

Restructuring the relationship To restore the essence of the early relationship between Aboriginal and settler societies described in Chapter 1, the elements of

partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood. Right to self government is important: 1. Self government

The right is inherent in Aboriginal people and their nationhood We hold that Aboriginal governments are 1 of 3 orders of gov’t in Canada - federal, provincial/territorial and Aboriginal. To have self-government, they need to establish larger communities, develop human resources We propose a new Royal Proclamation. The proclamation should be followed by the enactment of companion legislation by the

Parliament of Canada - legislation to create the new laws & institutions needed to implement the renewed relationship. Their combined purpose is to provide the authority and tools for Aboriginal people to structure their own political, social and economic future.

3 types of self government: nation government, public government, and community interest government Financing self government is another issue (e.g. developing own source revenues such as a taxation system)

2. Redistributing lands and resources Aboriginal land, in relation to the size of Canada, is small and treaty agreements did not end the conflict.

Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and some have been successful. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues - they have legal rights.

The law of Aboriginal title establishes three things: (1) Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their

history of having lived in and used those lands since time immemorial.(2) Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that

nation's traditional lands. (3) The Crown is the guardian of Aboriginal title to their traditional lands and is obliged to protect their interests in those lands

But courts are cumbersome, costly & insensitive way to solve human issues that underlie land & resource claims The existing land claims settlement process is deeply flawed: It assumes that no Aboriginal rights apply on Crown land unless

Aboriginals can prove otherwise. This position is at odds with the doctrine of continuing Aboriginal title & with duty of Crown to protect Aboriginal interests. The gov’t of Canada controls the process. It acts as defender of the Crown's interests & also as judge & jury on claims. Clear conflict of interest: it considers itself the 'loser' if a claim is settled in favour of Aboriginal ppl

A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of a new treaty process

Failure to redistribute land & resources will lead Aboriginal ppl to state of dependency on other CDNs - causing grievance on both sides

3. Economic development Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure

that go with dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new governments a success

Several factors will make revitalization of Aboriginal economies a big challenge: dependence on government for funds; inequality; variability (in that aboriginal communities are located all over the country)

Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for most nations will come from

access to a fair share of lands and resources. But that won’t be enough. We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development

The employment problem is immense, and needs reform/support Public investment in education & training is vital to improve employment prospects for Aboriginal people in the existing job market. Alternatives to welfare are needed. There may never be enough jobs in Aboriginal communities. Yet social assistance, as now delivered, is

not a good way of providing cash income. It traps recipients in a marginal existence

4. Treaties: the mechanism for change The Commission proposes a wide-ranging agenda for change to achieve two goals:

o Rebuilding Aboriginal nations as the best and proper way for Aboriginal people to protect their heritage and identity, restore health and prosperity to their communities, and reorganize their relations with Canada.

o Restoration of relations of mutual respect and fair dealing between Aboriginal and non-Aboriginal people. As complex as the project appears, it can be done. The central mechanism of change is the treaty. We propose that the treaty relationship be restored and used from now on as the basis of the partnership between Aboriginal

and non-Aboriginal people in Canada Implementation of treaty terms & promises was problematic from the start. As time passed & the balance of power b/w Aboriginal & non-

Aboriginal people shifted, gov’ts were able to ignore terms and promises that no longer suited them On the second point, the Commission has concluded that the treaties should be implemented to reflect their

spirit and intent - not just their words, whether spoken or written It is deeply self-serving of Canadian authorities to insist on a literal interpretation of such clauses. If the relationship between Aboriginal

and non-Aboriginal people is ever to be set right, the underlying intentions of treaty promises - not the letter of outdated terms - must guide their present-day implementation

We believe that those without a treaty, accord, compact or other agreement clarifying their relationship with Canada have the right to seek one. For its part, Canada has a duty to conclude such treaties.

We propose a new treaty process to lead the way to reconciliation between Aboriginal and non-Aboriginal people over the next 20 years. An agreed treaty process can be the mechanism for implementing virtually all the recommendations in our report - indeed, it may be the only legitimate way to do so.

To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them.

The main objectives of a new treaty-making process would be to establish the full jurisdiction of those nations as part of an Aboriginal order of government; expand the land and resource base under their control

1. 2. 3.

The relationship restructured We have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of

tension and failed initiatives to one of co-operation and growing successes. The steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a workable plan. Let us review them briefly:

(1) The federal government should begin the cycle of renewal with an act of national intention - a new Royal Proclamation (We propose a new Royal Proclamation, stating Canada's commitment to principles of mutual recognition, respect, responsibility & sharing in the relationship between original peoples and those who came later)

(2) Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them.

(3) The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to establish the new relationship

(4) Aboriginal nations should begin their rebuilding processes(5) All governments should prepare to enter into the new treaty process(6) Governments should take interim steps, as proposed by this Commission, to redistribute lands & resources(7) Aboriginal and non-Aboriginal governments should co-operate to stimulate economic development

Aboriginal Rights

R v Sparrow ((1) The word existing in s 35 means that s 35 only protects unextinguished aboriginal rights and treaties; (2) The words “recognized and affirmed” in s 35 mean that aboriginal rights/treaties are constitutionally protected, but are not absolute rights, and may be infringed if the test of “justified interference” is met; (3) Sets out the test of justified interference)FACTS: The appellant, a member of the Musqueam Indian Band, was charged under s. 61(1) of the Fisheries Act of the offence of fishing with a drift net longer than that permitted by the terms of the Band's Indian food fishing licence. He has throughout admitted the facts alleged to constitute the offence, but has 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 licence is inconsistent with s. 35(1) of the Constitution Act, 1982 and therefore invalid

ISSUE: Whether the respondent was exercising an “aboriginal right” within the meaning of s 35(1)

REASONING:The word “existing” in s 35 What is the status of aboriginal or treaty rights that had been extinguished or regulated before 1982? The word "existing" makes it clear that the rights to which s. 35(1) applies are those that were in existence, or unextinguished, when the

Constitution Act, 1982 came into effect. This means that extinguished rights are not revived by the Constitution Act, 1982. A right that has been validly extinguished before 1982 is not protected by s 35

Also, the phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. Those rights are "affirmed in a contemporary form rather than in their primeval simplicity and vigour

The “aboriginal right” That Mr. Sparrow was fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of the Fraser

River for salmon" is supported by the evidence and was not contested The respondent contends, however, that the progressive restriction and detailed regulation of the fisheries has had the effect of extinguishing any

aboriginal right to fish. But this argument confuses regulation with extinguishment. Prior to 1982 when this provision was enacted, the only way extinguishment could have occurred is with a clear and plain intention by Parliament;

there is nothing in the Fisheries Act that demonstrates this. We have no doubt that the Indians have an existing aboriginal right to fish in the relevant area.

“Recognized and affirmed” We now turn to the impact of s. 35(1) of the CA, 1982 on the regulatory power of Parliament and on the outcome of this appeal specifically. It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and

the courts for the constitutional recognition of aboriginal rights. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords aboriginal

peoples constitutional protection against provincial legislative power. In our opinion, Guerin, together with R. v. Taylor and Williams, ground a general guiding principle for s. 35(1). That is, the Government has the

responsibility to act in a fiduciary capacity with respect to aboriginal people. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship

The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).

In short, s 35(1) is a constitutional guarantee of aboriginal and treaty rights. However, the guarantee isn’t absolute, and the s 35 rights are subject to regulation by federal laws, provided that the laws meet a standard of justification.

Section 35(1) and Justified Interferences 1. The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does

have such an effect, it represents a prima facie infringement of s. 35(1) [Ask: is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right?]. The onus of proving a prima facie infringement lies on the individual or group challenging the legislation.

2. If there is a prima facie infringement, the second question is whether the Crown can justify it (for the law to be upheld, there must be sensitivity to and respect for the rights of aboriginal peoples on behalf of the government)

(a) What constitutes legitimate regulation of a constitutional aboriginal right [Is there a valid legislative objective? Is the regulation sought to be imposed required to complete that objective?]. If yes, go on to (b).

(b) Consider the special trust relationship and responsibility of government vis a vis aboriginals [There must be a link between the question of justification and the allocation of priorities in the fishery]

R v Van der Peet (The Court articulated the legal test to be used to identify an “existing aboriginal right” w/in the meaning of s 35)FACTS: The appellant Dorothy Van der Peet was charged under s. 61(1) of the Fisheries Act, R.S.C. 1970, c. F-14, with the offence of selling fish caught under the authority of an Indian food fish licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248. The charges arose out of the sale by the appellant of 10 salmon. The appellant, a member of the Sto:lo, has not contested these facts at any time, instead defending the charges against her on the basis that in selling the fish she was exercising an existing aboriginal right to sell fish. The appellant has based her defence on the position that the restrictions imposed by s. 27(5) of the Regulations infringe her existing aboriginal right to sell fish and are therefore invalid on the basis that they violate s. 35(1) of the Constitution Act, 1982.ISSUE: How are the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined? REASONING: Although equal in importance and significance to the rights enshrined in the Charter, aboriginal rights must be viewed differently from Charter

rights because they are rights held only by aboriginal members of Canadian society. The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which does so without

losing sight of the fact that they are rights held by aboriginal people because they are aboriginal. The way to accomplish this task is through a purposive approach to s. 35(1). It is through identifying the interests that s. 35(1) was intended to protect that the dual nature of aboriginal rights will be comprehended

This purposive approach must be guided by the general principle that s 35(1) should be given a generous and liberal interpretation in favour of aboriginal peoples, which arises from the nature of the relationship b/w the Crown and aboriginals (i.e. fiduciary one)

A purposive analysis of s 35(1) results in the following conclusions: the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be directed at fulfilling both of these purposes; the next section of the judgment

Test for identifying aboriginal rights in s 35(1): [TEST]o The test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of

those pre-existing distinctive societies. o The following test should be employed: “in order to be an aboriginal right an activity must be an element of a practice, custom or

tradition integral to the distinctive culture of the aboriginal group claiming the right”o Things that must be considered in applying the test:

(1) Courts must identify precisely what it is that is being claimed(2) Must satisfy the “integral” test: The claimant must demonstrate that the practice, custom or tradition was a central and

significant part of the society's distinctive culture prior to contact. Note that this test requires the practice to be distinctive, not distinct. Distinct means unique. Consider things like whether the practice was merely incidental to another practice;

(a) The practices, customs and traditions must have continuity with those that existed prior to contact(b) Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims(c) Claims to aboriginal rights must be adjudicated on a specific rather than general basis: the existence of an aboriginal right will depend entirely on

the practices, customs and traditions of the particular aboriginal community claiming the right

HELD: The appellant has failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo society which existed prior to contact. The exchange of fish took place, but was not a central, significant or defining feature of Sto:lo society. The appellant has thus failed to demonstrate that the exchange of salmon for money or other goods by the Sto:lo is an aboriginal right recognized and affirmed under s. 35(1) of the CA 1982.

R v Sappier; R v Gray (Even though a practice may have been undertaken for survival purposes, it can still be considered integral to an Aboriginal community’s distinctive culture) FACTS: Charged w/ unlawful possession or cutting of Crown timber. In defence, they say they possess an aboriginal and treaty right to harvest timber for personal use.ISSUE: Whether a right to harvest timber existed pre-contact for the relevant aboriginal peoplesREASONING:The Aboriginal right claim [DEFINITION] In order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the

aboriginal group claiming the right: R. v. Van der Peet. The respondents rely on the pre-contact practice of harvesting timber in order to establish their aboriginal right. Section 35 of the Constitution Act, 1982 seeks to provide a constitutional framework for the protection of the distinctive cultures of aboriginal

peoples, so that their prior occupation of North America can be recognized and reconciled with the sovereignty of the Crown: Van der Peet, at para. 31. In an oft-quoted passage, Lamer C.J. acknowledged in Van der Peet, at para. 30, that, “the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries”.

The goal for courts is, therefore, to determine how the claimed right relates to the pre-contact culture or way of life of an aboriginal society. Second, it is also necessary to identify the pre-contact practice upon which the claim is founded in order to consider how it might have evolved to its present-day form

STEP 1 (CHARACTERIZATION): In the present cases, the relevant practice for the purposes of the Van der Peet test is harvesting wood. The record shows that wood was used to fulfil the communities’ domestic needs for such things as shelter, transportation, tools and fuel. I would therefore characterize the respondents’ claim as a right to harvest wood for domestic uses as a member of the aboriginal community.STEP 2 (The INTEGRAL to a DISTINCTIVE CULTURE TEST) : Evidence established that the wood was critically important to the Maliseet and Mi’Kmaq people pre-contact. Further, even though the practice may have been undertaken for survival purposes, it can still be considered integral to an Aboriginal community’s distinctive culture (THIS IS THE PRINCIPAL ISSUE ON THIS APPEAL). (a) Continuity: Although the nature of the practice which founds the aboriginal right claim must be considered in the context of the pre-contact

distinctive culture of the particular aboriginal community, the nature of the right must be determined in light of present-day circumstances; “logical evolution means the same sort of activity, carried on in the modern economy by modern means.” So, the right to harvest wood for the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of a modern dwelling. Any other conclusion would freeze the right in its pre-contact form.

Extinguishment:This issue was raised in the Gray case. The Crown must show that legislation evidenced a clear intention to extinguish the right. But this argument fails R v Powley ((1) For Metis claimants of aboriginal rights, the focus on European contact had to be moved forward to the time of effective European control; (2) Courts lays down 3 indicia of “Metis people”)FACTS: P charged with unlawfully hunting moose; P argues that, as Metis, they have aboriginal right to hunt for food in the Sault Ste Marie ISSUE: Whether members of the Métis community in Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35REASONING: We uphold the basic elements of the Van der Peet test and apply these to the respondents’ claim. However, we modify certain elements of

the pre-contact test to reflect the distinctive history and post-contact ethnogenesis of the Métis, and the resulting differences between Indian claims and Métis claims.

The pre-contact test is inadequate to capture the range of Metis customs, practices or traditions that are entitled to protection, since Metis cultures by definition post-date European contact

First, the court set out the indicia to determine whether a claimant meets the definition of Metis people: (1) Self-identification(2) Ancestral connection(3) Community acceptance

In this case, there is no reason to overturn TJ’s findings that P is member of Metis that arose & still exists in and around Sault Ste. Marie The relevant time frame? The test for Métis practices should focus on identifying those practices, customs and traditions that are integral to

the Métis community’s distinctive existence and relationship to the land. This unique history can most appropriately be accommodated by a post-contact but pre-control test that identifies the time when Europeans effectively established political and legal control in a particular area. The focus should be on the period after a particular Métis community arose and before it came under the effective control of European laws and customs (THE PRE-CONTROL TEST)

The Van der Peet test

STEP 1 (Characterization of the right): Here, the right being claimed can therefore be characterized as the right to hunt for food in the environs of Sault Ste. Marie.

STEP 2 (Integral test): The practice of subsistence hunting and fishing was a constant in the Métis community, even though the availability of particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Métis life and a defining feature of their special relationship to the land. Evidence supports the trial judge’s finding that hunting for food was integral to the Métis way of life at Sault Ste. Marie in the period just prior to 1850 (which meets the modified time frame test)(a) Continuity: Hunting for food was an important feature of the Sault Ste. Marie Métis community,& the practice continuous to the present.

Infringement of right:Ontario currently does not recognize any Métis right to hunt for food, or any “special access rights to natural resources” for the Métis whatsoever (appellant’s record, at p. 1029). This lack of recognition, and the consequent application of the challenged provisions to the Powleys, infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie Métis community

Is the infringement justified? The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree

with the trial judge that the record here does not support this justification. If the moose population in this part of Ontario were under threat (there was no evidence that it is) the Métis would still be entitled to a priority

allocation to satisfy their subsistence needs in accordance with the criteria in R. v. SparrowHELD: Legislation is invalid

Haida Nation v BC (case deals with the situation where aboriginal interests are in the process of being proved: (1) The duty to consult and accommodate is rooted in the honour of the Crown; (2)The duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title & contemplates conduct that might adversely affect it; i.e knowledge of a credible, but unproven claim, triggers the duty; (3) 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 effect upon the right or title claimed; (4) When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation; (5) Third parties do not owe such a duty; (6) The provincial and federal government are subject to the duty; (7) There is no duty for the governments to agree) FACTS: This brings us to the issue before this Court. The government holds legal title to the land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land (which is subject to a land title claim by the Haida people).ISSUE: Is the gov’t required to consult with Haida people about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land? REASONING:Source of duty to consult and accommodate Duty grounded in honour of the Crown: in all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of

claims and the implementation of treaties, the Crown must act honourably Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal

claims.Underlying this duty is s 35 of Constitution, which implies a duty to consult &, if appropriate, accommodate The Court’s seminal decision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land & resources, confirmed and

expanded on the duty to consult, suggesting the content of the duty varied with the circumstances Canada’s Aboriginal peoples were here when Europeans came & were never conquered. Many bands reconciled their claims with

the sovereignty of Crown through negotiated treaties. Others, notably in BC, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the CA 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests

When the duty to consult and accommodate arises Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof & resolution of

the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants? The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal

interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof The Crown isn’t rendered impotent – it may continue to manage the resource in question pending claims resolution; but depending on the

circumstances, the honour of the Crown may require it to consult and reasonably accommodate Aboriginal interests Neither the authorities nor practical considerations support the view that a duty to consult and, if appropriate, accommodate arises only upon

final determination of the scope and content of the right.

But, when precisely does a duty to consult arise? 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, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it

Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The scope and content of the duty to consult and accommodate In general terms, it may be asserted that 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 effect upon the right or title claimed

In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation

At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information & discuss any issues raised in response to the notice. At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right & potential infringement is of high significance to Aboriginal ppl, & the high risk of non-compensable damage. In such cases consultation, aimed at finding a satisfactory interim solution maybe required

The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.

When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation (i.e. this may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim)

Do third parties owe a duty to consult and accommodate?No. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect Aboriginal interestsThe provinces’ dutyProvinces and federal government are subject to this duty

Taku River v BC (Example of how the duty to consult is fulfilled, and reinforces the principle set out in Haida that meaningful consultation doesn’t require agreement) FACTS: A mining company applied to the BC gov’t for permission to reopen an old mine in an area that was subject of an unresolved land claim by the TRTFN ppl. This application triggered a statutory environ’tal assessment process, which ended with the approval of the application to reopen the mine. Through the environ’tal assessment process, the TRTFN’s concerns with the road proposal became apparent. Its concerns crystallized around the potential effect on wildlife and traditional land use, as well as the lack of adequate baseline information by which to measure subsequent effectsISSUE: Duty to consult and of accommodation REASONING: In Haida Nation v. British Columbia (Minister of Forests), this Court has confirmed the existence of the Crown’s duty to consult and, where

indicated, to accommodate Aboriginal peoples prior to proof of rights or title claims. The principle of the honour of the Crown grounds the Crown’s duty to consult and, if indicated, accommodate Aboriginal peoples, even prior

to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles

The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them

When Redfern applied for project approval, in its efforts to reopen the Tulsequah Chief Mine, it was apparent that the decision could adversely affect the TRTFN’s asserted rights and title. The contemplated decision thus had the potential to impact adversely the rights and title asserted by the TRTFN.

It follows that the honour of the Crown required it to consult and if indicated accommodate the TRTFN in making the decision whether to grant project approval to Redfern, and on what terms

The scope of the duty to consult is “proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed”

There is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over at least some of the area that they claim and the potentially adverse effect of the Ministers’ decision on the TRTFN’s claims appears to be relatively serious. In summary, the TRTFN’s claim is relatively strong

While it is impossible to provide a prospective checklist of the level of consultation required, it is apparent that the TRTFN was entitled to something significantly deeper than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation.

The Crown fulfilled its duty to consult and accommodate. The process of granting project approval to Redfern took three and a half years, and was conducted largely under the Environmental Assessment Act. Members of the TRTFN were invited to participate in the Project Committee to coordinate review

HELD: Crow fulfilled duty

Aboriginal TitleDelgamuukw v BC (The leading case on Aboriginal title and shows how to prove it) FACTS: In 1984, 35 Gitxsan and 13 Wet’suwet’en Hereditary Chiefs instituted proceedings against the Province of British Columbia. They claimed, both individually and on behalf of their respective Houses, ownership (unextinguished Aboriginal title) and resulting jurisdiction (entitlement to govern by Aboriginal laws) over separate portions of territory in northwest British Columbia totalling 58,000 square kilometresISSUE: The nature and scope of the constitutional protection afforded by s. 35(1) to common law aboriginal title.REASONING:Trial judge errors [Must follow 3 steps] First thing court noted is the errors made by the TJ, including giving little weight to aboriginal oral histories and recollections of aboriginal live These errors are particularly worrisome because oral histories were of critical importance to the appellants’ case. They used those histories

in an attempt to establish their occupation and use of the disputed territory, an essential requirement for aboriginal title The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had

not demonstrated the requisite degree of occupation for “ownership”. Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different.

A new trial is warrantedContent of aboriginal title/how it’s protected by s 35(1)/requirements for proof

General points The parties disagree over whether the appellants have established aboriginal title to the disputed area. However, since those factual

issues require a new trial, we cannot resolve that dispute in this appeal. But factual issues aside, the parties also have a more fundamental disagreement over the content of aboriginal title itself, and its reception into the Constitution by s. 35(1). In order to give guidance to the judge at the new trial.

Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights

Unique dimensions of aboriginal title: Aboriginal title is a sui generis interest in land. The idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. One dimension is INALIANABILITY (lands can’t be transferred sold or surrendered to anyone other than the Crown). Another dimension of aboriginal title is its SOURCE (it’s source, although thought to be in the Royal Proclamation, 1763, arises from the prior occupation of Canada by aboriginal peoples; what makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward). Further, aboriginal title is held COMMUNALLY (aboriginal title cannot be held by individual aboriginal persons)

Content Although cases involving aboriginal title have come before this Court and Privy Council before, there has never been a definitive statement

from either court on the content of aboriginal title I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title

encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land

Regarding the second proposition, it is drawn by reference to the other dimensions of aboriginal title which are sui generis as well”. Implicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time. As a result, uses of the lands that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title. For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). It is for this reason also that lands held by virtue of aboriginal title may not be alienated. Alienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it.

Aboriginal title under s 35(1)Aboriginal title at common law is protected in its full form by s. 35(1). Proof of aboriginal title Aboriginal title differs from aboriginal rights (which are defined in terms of activities). Aboriginal title = right to land itself. In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: [MUST

satisfy to be considered Aboriginal]

(i) The land must have been occupied prior to sovereignty: The relevant time period for the establishment of title is different than for the establishment of aboriginal rights to engage in specific activities.Proof of occupancy must be established by both common law (ie. physical occupation/possession) & aboriginal perspective on land.If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation: Conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required, in addition, is a continuity between present and pre-sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty. Needless to say, there is no need to establish “an unbroken chain of continuity(ii) At sovereignty, that occupation must have been exclusive: Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title. As with the proof of occupation, proof of exclusivity must rely on both the perspective of the common law and the aboriginal perspective, placing equal weight on each

Infringement of aboriginal title: the test of justification The aboriginal rights recognized and affirmed by s. 35(1), including aboriginal title, are not absolute. Those rights may be infringed, both by

the federal (e.g., Sparrow) and provincial (e.g., Côté) governments. However, s. 35(1) requires that those infringements satisfy the test of justification.

The general principles governing justification laid down in Sparrow operate with respect to infringements of aboriginal title (I.e. Ask, first, whether the infringement is in furtherance of a legislative objective that is compelling and substantial; and, second, an assessment must be made of whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples – the fiduciary duty principle has been interpreted in terms of the idea of priority, namely that aboriginal demands should be placed first; but this does not demand that aboriginal rights always be given priority. Other contexts permit that the fiduciary duty be articulated in other ways, such as: whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented)

In this context, with regard to the second stage, aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. Also, the economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well

HELD: Remit case back to trial

Tsilhqot’in Nation v BCAboriginal title (nature) Canadian courts began to outline and define Aboriginal title in St Catherine’s Milling case The description of Aboriginal title as a usufructuary right was favoured by the SCC in the 1980s (usufructuary meaning a legal right to

use, benefit from and derive profit from property belonging to another person) But, viewed through a contemporary lens, it is not surprising that the SCC has found that describing Aboriginal title as a usufrutuary right isnt’

helpful (see Delgamuukw). Now, it can no longer be characterized as such The notion of an occupancy based Aboriginal title started to gain acceptance at a time when countries such as Canada

began the process of decolonization. In Canada, decolonization experienced its first legal challenge in Calder (SCC) Calder was a turning point in our basic understanding of Aboriginal rights. The Baker Lake case, decided shortly after Calder, said that

Calder was solid authority for the general proposition that the law of Canada recognizes the existence of an aboriginal title independent of The Royal Proclamation or any other prerogative act or legislation (it arises at common law)

The next important development in Canadian Aboriginal law was the patriation of the Canadian Constitution with the enactment of the Constitution Act, s 35(1). Professor Slattery argues that this provision represents a basic shift in our understanding of the constitutional foundations of Canada. Section 35 renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown. Professor argues for a new concept of the Constitution which he calls the Organic Model, under which it is said that the Constitution is rooted in Canadian soil

The view that aboriginal title is rooted in Canadian soil is embodied in the theory that title is sui generis. Put simply, aboriginal title in this country is unique and in a class by itself. The description of Aboriginal title as sui generis captures the essence of a proprietary right shaped by both common law and Aboriginal systems (note the 3 sui generis aspects noted in Delgamuukw)

One of the key challenges of Aboriginal law is reconciliation between present day Aboriginal title holders and the Crown. Any definition of existing aboriginal rights must take into account that they exist in the context of an industrial society with all of its complexities and competing interests.

The common law recognition of Aboriginal rights and title calls for a reconciliation of Aboriginal people’s prior occupation of Canada and the sovereignty of the Crown.

The Van der Peet decision clarified our current understanding of the origin and nature of these rights (and articulated a test for determining whether a particular activity is protected as an Aboriginal right)

Today, we no longer speak of an overarching Aboriginal title. It is more accurate to speak of a Variety of Aboriginal rights, one of which is title to land. It is possible for an Aboriginal group to show that a particular practice taking place on particular lands was integral to their distinctive culture so as to establish site specific Aboriginal rights, but not establish Aboriginal title on those same lands

Delgamuukw is a significant case in relation to aboriginal title To summarize, aboriginal title is a SPECIES of aboriginal right which differs from aboriginal rights to engage in particular activities. It confers

a sui generis interest in land, that is, a right to the land itself. It confers a right to exclusive use, occupation and possession to use the land for the general welfare and present day needs of the Aboriginal community. Aboriginal title also includes a proprietary type right to choose what uses aboriginal title holders can make of their lands, which is subject to an inherent limit which is defined by the nature of the attachment to the land. Such inherent limits prohibit uses that would destroy the ability of the land to sustain future generations of Aboriginal peoples. Aboriginal title also has an economic component, which will ordinarily give rise to fair compensation when Aboriginal title has been infringed. Aboriginal title is held communally. It is inaliable to third parties, but can be surrendered to the Crown.

(b) Test for aboriginal title [Delgamuukw test]1. Pre-sovereignty occupation: “Any land that was occupied pre-sovereignty, and which the parties have maintained a substantial

connection with since then, is sufficiently important to be of central significance to the culture of the claimants”. The standard of occupation required to prove aboriginal title may be established in a variety of ways (e.g. construction of dwellings)

2. Continuity: This only becomes an aspect of the test where an aboriginal claimant relies on present occupation to raise an inference of pre-sovereignty occupation. Aboriginal claimants do not need to establish an unbroken chain of continuity.

3. Exclusivity: Exclusive occupation may be demonstrated to exclude others, including the intention and capacity to retain exclusive control of the lands. Proof must rely on both common law and aboriginal perspective on land, each being given equal weight.

BC Treaty Commission, “Why treaties in the modern age” When the early Europeans first began to settle in the eastern part of North America, Britain recognized that those people who were living

there had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty

In most of the treaties, aboriginal people gave up their title in exchange for land reserves and for the right to hunt and fish on the land they’d given up

In BC, aboriginal peoples signed treaties, but they were later on extinguished by the Dominion of Canada Over the decades, aboriginal people protested demanding treaties to be signed. The demand intensified, culminating in the formation of the

Allied Tribes of BC in 1916 to work for treaties. In response, Ottawa amended the Indian Act in 1927 to make it illegal to raise funds to pursue land claims (which was lifted only in 1951)

So treaties should have been made but they weren’t. Isn’t it simply too late to revisit this? Under s 35 of the Constitution Act 1982, aboriginal rights and treaty rights are recognized and affirmed

The Evolution of Aboriginal Title Calder decision recognizes aboriginal title (1973). The decision was a legal turning point. The recognition of aboriginal title in Calder

as a legal right was sufficient to cause the federal government to establish a land claims process; but BC refused to participate. Still, the question remained: had aboriginal title been extinguished before BC joined Confederation or not? In Sparrow, the Court took the

same approach as in Calder, who said that unless legislation had evinced a “clear and plain intention” to extinguish aboriginal rights, it did not have that effect. This case dealt with particular aboriginal rights, not rights in land.

But in Delgamuukw, the SCC confirmed that aboriginal title exists in BC Morever, the Marshall and Bernard decision sets limits on aboriginal title. In the case, the Court unanimously dismissed the claim to

both treaty and aboriginal rights. It found that although the treaty protected the Mi’kmaq rights to sell certain products, this right did not extend to commercial logging.The Court said that while rights are not frozen in time, the protected right must be a logical evolution of the activity carried on at the time of treaty-making. Treaties protect traditional activities expressed in a modern way and in a modern context; new and different activities are not protected. The Court adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in question. Traditional practices must translate into a modern legal right, and it is the task of the court to consider any proper limitations on the modern exercise of those rights. The Court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title.

What do these legal decisions mean? The courts have confirmed that aboriginal title still exists in BC, but they have not indicated where it exists. To resolve this situation, the

governments and First Nations have two options: either negotiate land, resource, governance and jurisdiction issues through a treaty process or go to court & have aboriginal rights/title decided on a case to case basis

Haida Nation and Tlingit First Nation cases provide guidelines for the negotiation & definition of aboriginal title in BC

In Mikisew, the SCC extended the Crown’s obligation to consult and accommodate aboriginal interest (established in Haida and Taku) to include existing treaty rights.

All of these landmark judgments together confirm that:(1) Aboriginal rights exist in law(2) Aboriginal rights are distinct from the rights of other Canadians(3) They include aboriginal title, which is a unique communally held property right(4) Aboriginal rights take priority over the rights of others, subject only to the needs of conservation(5) The scope of aboriginal title and rights depend on specific facts relating to the aboriginal group and its historical relationship with the land(6) The legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the

peoples and governing societies that were resident in North America long before settlers arrived(7) Aboriginal rights and title cannot be extinguished by simple legislation because they are protected by the CA 1982(8) Gov’t has a duty to consult and possible accommodate aboriginal interest even where title has not been proven(9) Gov’t has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected

Aboriginal Treaties

R v Marshall; R v BernardFACTS: M and B were convicted of offences related to the selling/possession of timber ISSUE: Whether the Mi’kmak people in NS and NB have the right to log on Crown lands for commercial purposes pursuant to either treaty or Aboriginal titleREASONING:Aboriginal treaty right: the test The cases raise issue of scope of treaty right. Crown argues that scope of treaty right is to be determined by what trading activities were in the contemplation of the parties at the

time the treaties were made. This is correct But treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. “The question is whether the

modern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made”

Thus, the question is whether the commercial logging here at issue is the logical evolution of a traditional Mi’kmaq trade activity

Test applied In each case, the trial judge concluded that the evidence did not support a treaty right to commercial logging In Marshall, Curran Prov. Ct. J. found no direct evidence of any trade in forest products at the time the treaties were made. In Bernard,

Lordon Prov. Ct. J. made similar findings on similar evidence. I conclude that the evidence supports the trial judges’ conclusion that the commercial logging that formed the basis of the charges

against the respondents was not the logical evolution of traditional Mi’kmaq trading activity protected by the treaties of 1760-61

Aboriginal title The respondents also claim they hold aboriginal title to the lands they logged The common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of European

sovereignty and never ceded or otherwise lost its right to that land, continues to enjoy title to it. Prior to constitutionalization of aboriginal rights in 1982, aboriginal title could be extinguished by clear legislative act (see Van der Peet). Now it is not possible. The Crown can impinge on aboriginal title only if it can establish that this is justified in pursuance of a compelling and substantial legislative objective for the good of larger society: R. v. Sparrow)

These principles were canvassed at length in Delgamuukw v. British Columbia, which enunciated a test for aboriginal title based on exclusive occupation at the time of British sovereignty.

Delgamuukw requires that in analyzing a claim for aboriginal title, the Court must consider both the aboriginal perspective and the common law perspective. Only in this way can the honour of the Crown be upheld

A sub issue here is whether nomadic and semi-nomadic peoples can ever claim title to aboriginal land. The answer is that it depends on the evidence. Whether a nomadic people enjoyed sufficient “physical possession” to give them title to the land, is a question of fact

HELD: Court concludes that there is no ground to interfere w/ the trial judges finding that no title existed

Potential Essay Questions

(1) It is often said that under our constitutional system, the role of the legislature is to make the law, the role of the judiciary is to interpret the law, and the role of the executive is to apply the law. In practice, does this theoretical understanding always unfold? The following areas are where the separation of powers starts to blur:

a) The parliamentary tradition adopted by Canada’s founders gives pre-eminence to the legislative branch, to which the executive is made subordinate (an introductory example)

b) The parliamentary system contemplates an overlapping of personnel between the legislature and the executive. The PM and members of his/her Cabinet, who comprise the executive council “advising” the head of state, are elected members of the legislature. This is not the case in the US (another introductory example)

--- The following would be more suitable for the body of the essay:c) Legitimacy of Constitutional judicial review: SCC’s interpretation of the “vague” Charter and vague language in the Constitution Act, 1867

leads to concern is that when judges give concrete shape to the rights provided in the Charter, and invalidate laws that do not conform to their interpretation of these requirements, the rule of law may become subtly transformed into the rule of unelected judges

d) Forms of administrative justice or adjudication have grown out of the development of executive functions (tribunals verge on being courts in some circumstances – see Human Rights Tribunal, p. 241) & rule making of admin bodies (delegated legislation) blurs the role between the executive and legislature; see also the leniently interpreted difference between delegation of power Parliament/legislature power and abdication (re Gray)

e) There is a considerable degree of integration between the Legislature and Government (i.e. executive) – it is the same individuals, on a practical level, who control the legislative and executive branches of government. Talk about idea of responsible government here.

f) The ability of the SCC to “enforce” executive decisions creates a tension between the appropriate relationship of judiciary and executive (see Doucet-Boudreau case)

g) SCC ability to give “advisory opinions” to the federal government (the government may ask the Court to consider questions on any important matter of law or fact, especially concerning the interpretation of the Constitution.

(2) Discuss cases cited in the Craik book that demonstrate the blur between the separation of powers and/or the problems that result as a result of the blurred roles of the legislature, executive and judiciary:

(3) Critique the role of international law in Canadian domestic law:a) What is the approach? Dualist tradition re: treaties (i.e. needs to be “implemented” in legislation); customary international law (no special

approach)b) Advantages about Canada’s approach re: international law:

Democratic participation in the international law making process Keeps in check separation of powers (ie. Prevents executive from “law making”)

c) Problems: Implementation issue: Baker’s approach too strict (why can’t there be “implied” implementation?); hesitancy after baker to treat

international law as binding (generally treated as merely persuasive) – this weakens the fabric of law – on the verge of becoming “optional” law to be applied at judge’s discretion – this would weaken international respect for us

Courts’ use (or lack thereof) of presumption of legislative intent (see article): uncertainty of the effect of that presumption in context of Charter interpretation; unclear, thanks to Baker, as to whether presumption applies equally to Canada’s international obligations and non-binding international norms; particularly suspect in context of interpreting customary international norms – Baker = “values” of international instruments may help inform contextual approach to statutory interpretation if dealing w/ unimplemented norm, but what about presumption? Although int. instrument in that case was unimplemented, it was binding on Canada (via ratification) and SCC should have appealed to presumption

Suresh approach of allowing unimplemented treaties aid interpretation of legislation (potential problem) Unclear what SCC’s position is re: customary int’l law: There is no unequivocal statement on whether custom is part of CDN law or

not. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. The 2 decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant & persuasive source for this power, that’s about it

(4) Unwritten constitutional principles Positives include: These are fundamental concepts about which everyone can agree, so it makes sense that they will affect judicial decision making

(even the highest court of India has recognized almost identical unwritten principles, + 1 more); Problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a

constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive definition for our system of government;

They are only resorted to when the express wording of the Constitution is insufficient to solve a problem (which is a valuable limit on the doctrine, and prevents it from being used inappropriately);

We are used to unwritten legal principles (that’s what our common law system is built on)

Negatives include: By swaying away from written text, we get into a realm of uncertainty, ambiguity; They are so broad that they can be found to apply to any issue; To recognize these principles can be seen as an unauthorized judicial expansion of their power in the constitutional sphere; A written constitution promotes certainty and predictability.

(5) Constitutional conventions - what are they? Give some examples?:a. See book for definition b. Examples include:

Selecting a governor general: the Queen follows the Canadian PM’s recommendations (based on an “instrument of advice”); in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet of their respective government

Selecting members for the Senate: the governor general follows advice of the PM The governor general calls Parliament into session on the advice of the PM (i.e. summoning Parliament)

Parliament can be prorogued through a speech by the governor general in the Senate Chamber PM to resign his or her gov’t or seek parliamentary dissolution after a “no confidence” vote by the House Responsible government (and all of its understood “rules”) The individual commanding the confidence of the HoC (that is, the majority) is appointed PM Only privy councillors who are in the Cabinet are entitled to exercise the powers of the Privy Council The PM, leader of the Cabinet/gov’t, possess authority to exercise so-called personal prerogatives, e.g., he/she may select ppl to fill

some important appoints that are technically made by the governor general Formal executive bodies are limited to the governor general and lieutenant governors, federal and provincial Cabinets, and the system

of governmental departments and ministries that are overseen by individual ministers, including the civil service

(6) Bijuralism

(7) Advantages and disadvantages of precedentAdvantages/benefits:

(i) Aids in the stability and coherence of the law, making it more predictable (ii) Provides fairness in decision making;(iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases

would result in uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (talk about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive)

Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (give case example); (v) (v) Also some intellectual uncertainty (as the law is in constant evolution)

(8) Is the Parliament of Canada truly “supreme”? Discuss: Arguments for:

Consider that the scope of Parliament’s law-making jurisdiction is endless, so law is it conforms to the Constitution (rules governing division of powers between fed and prov legislatures), and constitutionally protected individual rights and liberties found in the Charter (this goes back to parliamentary supremacy);

Consider that Parliament is free to pass careless or bad laws; Consider that even if the ministry tricks Parliament into passing a law, that alone is insufficient for a court to strike it down (see Turner

v Canada); Consider that Canadians aren’t entitled to due process or procedural fairness in the law-making process (so long as the procedures in

the Constitution have been met); Consider that there can be expropriation without compensation by way of legislation that makes such an intent clear (Authorson v Canada)

Arguments against:

Consider the division of powers found in ss 91 and 92 which identify certain subjects in respect of which Parliament cannot legislate; consider the limitations put on it by the Charter;

(9) Critically analyze the limits on delegated legislation

(10) Do you think there needs to be a reforming of the judicial appointment process? Why/why not?: Strengths? A number of filters exist before judges are selected; flexibility in appointing allows for ability to tailor bench to needs of

society at the time Concerns? Political patronage; abundance of discretion; lack of transparency/accountability; the appointment process is simply policy,

and cannot be legally enforced, which gives rise to concerns that it may be manipulated in individual rather than societal favour; What should be done? Note: discuss both times of federal appointments – non Supreme Court and Supreme Court (and note the unique concerns w/

Supreme Court appointments)

(11) Discuss, and give examples demonstrating, the significance of the rule of principle in Canadian society and law

(12) Do you think Canada should abolish prorogation?

(13 ) Aboriginal rights/s 35 question