law casebook volume 1

8/13/2019 Law Casebook Volume 1

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Introduction to LawLAWS 2500X/Y 2013-2014

Volume One

Professors Dale Darling and Jonathan Shapiro

Editted by Christen Cole


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3ii) In The Matter of a Reference as to the Meaning of the Word "Persons" in Section24 of the British North America Act, [1928] SCR 276. ............................................... 95iii) Henrietta Muir Edwards and Others and Attorney-General for Canada andOthers, [1930] 1 DLR 98 (Privy Council). ................................................................... 97iv) Egan v Canada, [1995]2 SCR. ............................................................................... 100

c) Cases Relating to Race ............................................................................................... 102i) Union Colliery Company of British Columbia Limited v. Bryden andAttorney-General for British Columbia, [1899]AC 580 (Privy Council). .................. 102ii) Cunningham and Attorney-General for British Columbia v. Tomey Homma andAttorney-General for the Dominion of Canada, [1903] A.C. 151 (Privy Council). ... 104iii) Quong-Wing v. His Majesty The King (1914), 49 SCR 440. ............................... 106iv) Fred Christie v. The York Corporation, [1940] SCR 139. .................................... 106

2) READINGS ON LEGAL THEORY .............................................................................. 108a) Natural Law - Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law; AnIntroduction to Jurisprudence (1990) 11-19. .................................................................. 108b) Legal Positivism - H.L.A. Hart, "Legal Positivism", The Encyclopedia of Philosophy(New York: MacMillan Publishing Co. Inc, 1972) ........................................................ 112c) Legal Realism - Yosal Rogat, "Legal Realism", The Encyclopedia of Philosophy (NewYork: MacMillan Publishing Co. Inc, 1972) .................................................................. 114d) Recent Trends - R. Devlin, "Mapping Legal Theory" (1994), 32 Alta L Rev 602. ... 116

V) LAW AND SOCIAL CHANGE ....................................................................................... 1231) A CASE STUDY - SHELTER ALLOWANCE FOR DISABLED NOVA SCOTIANS............................................................................................................................................. 123

a) Way v. Covert(1996), 154 NSR (2d) 223 (NS SC). ................................................... 127b) Way v. Covert(1997), 160 NSR (2d) 128 (NS CA). .................................................. 132

2) STREET PROSTITUTION: A CONVERSATION BETWEEN PARLIAMENT ANDTHE SUPREME COURT OF CANADA .......................................................................... 137

a) R. v. Hutt, [1978] 2 SCR 476. .................................................................................... 138b) R. v. Whitter, [1981] 2 SCR 606. ................................................................................ 141c) R. v. Westendorp [1983] 1 SCR 43. ........................................................................... 144d) Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 SCR 1123. ... 148

3) R. v. R.D.S.: RECOGNITION OF ISSUES OF RACE IN THE JUSTICE SYSTEM .. 152a)R. v. R.D.S., [1997] 3 SCR 484. .................................................................................. 153

VI) INTERNATIONAL LAW ............................................................................................... 1661) Public International Law, 2d ed. (2008) Toronto: Irwin Law. Selected Excerpts. ......... 166

CHAPTER TWO - INTRODUCTION TO PROPERTY LAW.......................................... 169I) THE THEORY OF PROPERTY ........................................................................................ 169

1) Personal Property - Jeremy Waldron, The Right to Private Property (Clarendon Press:1988) at 26-31. .................................................................................................................... 1692) Real Property .................................................................................................................. 171

a) Alex M. Cameron, Your land and the law: a landowner's guide to real property law inNova Scotia(Halifax, NS: Nimbus Press, 1993). ........................................................... 171b) Real Property Definitions ........................................................................................... 175

1) Fixtures - Bank of Nova Scotia v. Mitz (1979), 27 OR (2d) 250 (CA). ......................... 1762) Adverse Possession - Montreal Trust Co. v. Crosby (1931), 3 MPR 244 (NSSC) ........ 1803) Land Registration ........................................................................................................... 182

a) Land Registration Act, SNS 2001, c. 6, ss 2,46,74,75 and 85. ................................... 183III) PERSONAL PROPERTY ................................................................................................ 184

1) The Notion of Property ................................................................................................... 184a) Pierson v. Post (1805), 3 Cai R 175 (NY SupCt). ...................................................... 184b) Young v. Hichens (1844), 1 Dav and Mer 592, 115 ER 228 (QB). ........................... 186c) The Tubantia, [1924] P. 78 (H.C.J.). .......................................................................... 187d) Keron v. Cashman et al., 33 A. 1055 (1896, Court of Chancery of New Jersey). ..... 191

2) FINDERS ....................................................................................................................... 192a) Armory v. Delamirie (1722), 93 ER 664 (KB). .......................................................... 192b) Hannah v. Peel, [1945] 1 KB 509. .............................................................................. 192c) Grafstein v. Holme And Freeman (1958), 12 DLR (2d) 727 (Ont CA). .................... 197d) Found: The One Ring, Steve Coughlan and Dale Darling ......................................... 204

3) GIFTS ............................................................................................................................. 205

a) Transfer of Title Through Delivery: Gifts, Bruce Ziff, Principles of Property Law (4th


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4Ed.) (2006), pp.140-147, (footnotes omitted). ................................................................ 205b) GiftsInter vivos(between living parties) ................................................................... 208

i) Irons v. Smallpiece (1819), 2 B & A 551, 106 ER 467 (KB). ................................ 208ii) Watt v. Watt Estate, 28 ETR 9 (Man CA). ............................................................. 209iii) In Re Cole, [1963] 3 WLR 621. ............................................................................ 212iv) Thomas v. The Times Book Co., Ltd., [1966] 2 All ER 241 (ChD). .................... 215

c)Donatio Mortis Causa(Gifts made in contemplation of death) ................................. 219i) P. Baker, Snell's Principles of Equity, 28th ed. (London: Sweet & Maxwell, 1982),pp.377-382. ................................................................................................................. 219ii) Re Zachariuc; Chevrier v. Public Trustee (1984), 16 ETR 152 (Ont Dist Ct). ...... 221

4) CONSTRUCTIVE TRUST ............................................................................................ 225a) Pettkus v. Becker, [1980] 2 SCR 834. ........................................................................ 225b) Globe and Mail Articles, 12-13 November 1986. ...................................................... 235

i) Canadian Press, Woman's suicide ends fight for rights, The Globe and Mail (12November 1986). ........................................................................................................ 235ii) Rosa Becker's loss, The Globe and Mail (13 November 1986). ......................... 235iii) Oackland Ross, Ontario Fee system cited in woman's legal woe, The Globe andMail (13 November 1986). ......................................................................................... 235

5) BIOTECHNOLOGY ...................................................................................................... 2356) COPYRIGHT ................................................................................................................. 243

a) Copyright Act, RSC 1985, c. C-42, ss. 2, 3(1), 5(1),(1.01), (1.02) 6, 13(1)-(4), 14.1,14.2, 28.2......................................................................................................................... 243b) Freedom of Information and Protection of Privacy Act, SNS 1993, c. 5, s. 1. .......... 245c) Snow v. Eaton Centre Ltd. (1982),70 CPR (2d) 105, (Ont H Ct J). ........................... 247d) Stewart v. The Queen [1988] 1 SCR 963. .................................................................. 248f) Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012SCC 36 ............................................................................................................................ 259g) Digital Locks .............................................................................................................. 264h) What the Copyright Modernization ActSays About Digital Locks. .......................... 264i) Digital locks dominate copyright law debate, Christoper Gully, The Lawyers WeeklyVol.30, No.28 .................................................................................................................. 265


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5

CHAPTER ONE - OVERVIEW

I) LEGAL ETHICS

In this course, we will pursue many different aspects of the legal system, including our

methods of making law, legal philosophy, and various specific areas of law. Of relevance

at many stages of the system, however, is the behaviour of lawyers. Lawyers are bound

by a code of professional ethics, which creates obligations for lawyers in many different

contexts. Various rules govern how lawyers are to behave towards other lawyers, toward

the court, and in other situations. Of particular relevance to us in this class will be the

rules dealing with a lawyers obligation to a client. The Code of Professional Conduct

creates obligations concerning the services a lawyer will provide to a client. At the sametime, it attaches limits to the ways in which a lawyer can ethically carry out those duties.

Generally speaking, a lawyer has a duty to ask every question, raise every issue and

advance every argument, however distasteful, that the advocate reasonably thinks will help

the clients case, but must do so by fair and honourable means, without illegality (Rule

10). It is not always easy to reconcile these twin obligations.

Below, you will find some selections from the Code of Professional Conduct prepared

by the Nova Scotia Barristers Society. Read through these rules to get a sense of the

various ethical obligations that bind lawyers in their dealings with clients. Then read

over the fact situation set out afterward. Try to decide which ethical rules are relevant to

a lawyers behaviour in that situation, and how lawyers confronted with similar situations

should respond.

1) LEGAL ETHICS AND PROFESSIONAL CONDUCT (Nova Scotia BarristersSociety)

(most footnotes omitted)

CHAPTER 1 - INTEGRITY

RuleA lawyer has a duty to discharge with integrity

(a) every duty the lawyer owes to(i) a client,(ii) another lawyer,(iii) a court,(iv) the profession, or(v) the general public; and

(b) every duty the lawyer has to uphold justice and to uphold and improve the administrationof justice.

Guiding Principles

Integrity underlies each Rule of this Handbook. Every person who practises law must thereforehave integrity.

Commentary

The consequences of lack of integrity

1.1 If a client is in doubt about his or her lawyer's trustworthiness, the essential element of thelawyer-client relationship is missing. If personal integrity is lacking, a lawyer's value to the clientand ultimately the lawyer's reputation inside and outside the legal profession will be destroyed,competence notwithstanding.


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6Conduct outside the practice of law

1.2 Dishonourable or questionable conduct of a lawyer in either private life or professionalpractice reflects adversely on the lawyer, the integrity of the profession, the legal system and theadministration of justice as a whole.1

1.3 If the conduct of a lawyer is such that a client's knowledge of it would likely impair theclient's trust in the lawyer as a professional adviser, a discipline committee is justified inconsidering disciplinary action against the lawyer.

Extra-professional activities

1.4 Generally speaking, however, a discipline committee will not be concerned with purelyprivate or extra-professional activities of a lawyer that do not bring into question the integrity ofthe legal profession or the lawyer's professional integrity or competence.

CHAPTER 5CONFIDENTIALITY

Rule

A lawyer has a duty to hold in strict confidence all information concerning the business andaffairs of a client where the information is acquired by the lawyer as a result of the professionalrelationship with the client except where disclosure is

(a) expressly or impliedly authorized by the client;(b) required by law; or(c) permitted or required by this Handbook.

1 Illustrations of conduct as drawn fromLund,pp. 20-24 and Nova Scotia disciplinaryrecords, that may infringe the Rule (and often other provisions of this Handbook) include(a) committing any personally disgraceful or morally reprehensible offence that reflects

upon the lawyer's integrity (whereof a conviction by a competent court would be

prima facie evidence);(b) committing, whether professionally or in the lawyer's personal capacity, any act of

fraud or dishonesty, e.g. by knowingly making a false tax return or falsifying adocument, even without fraudulent intent, and whether or not prosecuted therefor;

(c) making untrue representations or concealing material facts from a client withdishonest or improper motives;

(d) taking improper advantage of the youth, inexperience, lack of education orsophistication, ill health, or unbusinesslike habits of a client;

(e) misappropriating or dealing dishonestly with the client's monies;(f) receiving monies from or on behalf of a client expressly for a specific purpose and

failing, without the client's consent, to pay them over for that purpose;

(g) knowingly assisting, enabling or permitting any person to act fraudulently,dishonestly or illegally toward the lawyer's client;

(h) failing to be absolutely frank and candid in all dealings with the Court, fellowlawyers and other parties to proceedings, subject always to not betraying the client'scause, abandoning the client's legal rights or disclosing the client's confidences;

(i) failing, when dealing with a person not legally represented, to disclose material facts,e.g., the existence of a mortgage on a property being sold, or supplying falseinformation, whether the lawyer is professionally representing a client or isconcerned personally;

(j) failure to honor the lawyer's word when pledged even though, under technical rules,the absence of writing might afford a legal defence.

Other examples are specifically dealt with in subsequent Chapters....


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7Guiding Principles

In a lawyer-client relationship,

(a) the lawyer cannot render effective professional service to the client unless there is fulland unreserved communication between them; and

(b) the client must feel completely secure and entitled to presume that, unless there is anagreement or understanding with the lawyer to the contrary, all material disclosed to andmatters discussed with the lawyer will be kept secret and confidential.

Commentary

Distinction from evidentiary lawyer-client privilege

5.1 This ethical rule must be distinguished from the evidentiary rule of lawyer- client privilegewith respect to oral or written communications passing between the client and the lawyer. Theethical rule is broader and applies without regard to the nature or source of the information or tothe fact that others may share the knowledge.

Non-disclosure of lawyer-client relationship

5.2 As a general rule, a lawyer has a duty not to disclose that he or she has been consulted orretained by a person unless the nature of the matter requires the lawyer to do so.

Continuing duty of secrecy

5.3 The lawyer owes a duty of secrecy to every client without exception, regardless of whetherthe client is a continuing or casual client. This duty survives the professional relationship andcontinues indefinitely after the lawyer has ceased to act for the client, whether or not differenceshave arisen between them.

5.4 The fiduciary relationship between lawyer and client forbids the lawyer to use anyconfidential information acquired by the lawyer as a result of the professional relationship for thebenefit of the lawyer or a third person, or to the disadvantage of the client.

5.5 The lawyer who engages in literary works such as an autobiography, memoirs and the like

has a duty not to disclose confidential information in any such work.

5.6 Except as permitted by this Handbook, a lawyer has a duty to(a) not disclose to one client confidential information concerning or received from another

client; and(b) decline employment that might require such disclosure.

Gossip

5.7 A lawyer has a duty to

(a) avoid indiscreet conversations, even with the lawyer's spouse or family, about a client'saffairs;

(b) shun any gossip about a client's affairs even if the client is not named or otherwiseidentified; and

(c) not repeat any gossip or information about the client's business or affairs that may beoverheard by or recounted to the lawyer.

5.8 Apart altogether from ethical considerations or questions of good taste, indiscreet shop-talkbetween lawyers, if overheard by third parties able to identify the matter being discussed, could


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8result in prejudice to the client and also result in the respect of the listener for the lawyersconcerned and the legal profession generally being lessened.

5.9 Although this Rule may not apply to facts that are public knowledge, a lawyer has a dutynot to participate in or comment upon speculation concerning the client's affairs or business.

When disclosure permitted

5.10 Confidential information may be divulged with the express authority of the client concernedand, in some situations, the authority of the client to divulge may be implied. For example, somedisclosure may be necessary in a pleading or other document delivered in litigation beingconducted for the client. Unless the client directs the lawyer to the contrary, the lawyer maydisclose the client's affairs to partners and associates in the firm and, to the extent necessary, tonon-legal staff such as secretaries and clerks. A lawyer, therefore, has a duty to impress uponassociates, students and employees of the lawyer's office the importance of non-disclosure, bothduring their employment and afterwards, and to take reasonable care to prevent them fromdisclosing or using any information that the lawyer is bound to keep in confidence.

5.11 Disclosure may also be justified in order to establish or collect a fee or to defend the lawyeror the lawyer's associates or employees against any allegation of malpractice or misconduct, butonly to the extent necessary for such purposes.

5.12 A lawyer has a duty to disclose information necessary to prevent a crime where

(a) the lawyer has reasonable grounds for believing that the crime is likely to be committed;and

(b) the anticipated crime involves violence.

5.13 However, a lawyer has a duty, when disclosure is required by law or by order of a court ofcompetent jurisdiction, not to divulge more information respecting a client than is specificallyrequired and to assert the client's privilege.

Duty of former public officer

5.14 A lawyer formerly in the service of any government or public agency who has possession ofinformation about a person, has a duty not to represent any client, other than the lawyer's formerpublic employer, whose interests are adverse to the person about whom the lawyer possesses

information in circumstances in which the information could be used to the materialdisadvantage of such person.

CHAPTER 9PROTECTING CLIENT'S PROPERTY

Rule

A lawyer has a duty to the client to

(a) observe all relevant laws and rules respecting the protection and safekeeping of the

client's property entrusted to the lawyer; and(b) in cases where there are no such laws or rules or the lawyer is in doubt, take the same

care of such property as would a careful and prudent owner when dealing with property of a likedescription.

Guiding Principles

A lawyer's duties with respect to safekeeping, protection and accounting for a client's money andother property are generally the subject of special rules, but in the absence of such rules, thelawyer has a duty to adhere to the minimum standard set out in Rule (b).


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9For the purposes of this Rule "property" includes a client's money, securities as defined in theSecurities Act (Nova Scotia), original documents such as wills, title deeds, minute books,licenses, certificates and the like and all other papers such as client's correspondence, files,reports, invoices and other such documents as well as personal property including precious andsemi-precious metals, jewellery and the like.

Commentary

Notice to client

9.1 A lawyer has a duty to notify the client upon receiving any property owned by or relating tothe client unless the lawyer is satisfied that the client knows that the property has come into thelawyer's custody.

Separate safekeeping of client's property

9.2 A lawyer has a duty to clearly label and identify the client's property and place it insafekeeping separate and apart from the lawyer's own property.

Record of client's property

9.3 A lawyer has a duty to maintain adequate records of a client's property in the lawyer'scustody so that it may be promptly accounted for or delivered to or to the order of the client uponrequest.

Delivery of property to client

9.4 A lawyer has a duty to ensure that a client's property is delivered to the right person. Wherethere is a dispute as to the person entitled to the property, the lawyer may have recourse to thecourts.

Confidentiality

9.5 A lawyer has a duty to keep a client's papers and other property out of sight as well as out ofreach of those not entitled to see them. This duty is closely related to those concerningconfidential information.

Prompt return to client

9.6 Subject to any right of lien, a lawyer has a duty to return a client's property to the clientupon request or, where appropriate, at the conclusion of the lawyer's retainer.

Privilege

9.7 A lawyer has a duty to claim on behalf of a client any lawful privilege respecting informationabout the client's affairs, including the client's files and property where a third party seizes orattempts to seize them. To be able to meet this duty, the lawyer must be familiar with the nature

of clients' privilege and the relevant constitutional and statutory provisions, such as those in theCanadian Charter of Rights and Freedoms, the Criminal Code and theIncome Tax Act.

CHAPTER 11WITHDRAWAL

Rule

A lawyer has a duty to a client not to withdraw services except for good cause and upon noticeappropriate in the circumstances.


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10Guiding Principles

1. Although the client has a right to terminate the lawyer-client relationship at will, the lawyerdoes not enjoy the same freedom of action. Having once accepted professional employment, thelawyer has a duty to complete the task as ably as possible unless there is justifiable cause forterminating the relationship.

2. The lawyer who withdraws from employment has a duty to minimize expense and avoidprejudice to the client, doing everything reasonably possible to facilitate the expeditious andorderly transfer of the matter to the successor lawyer.

3. Where withdrawal is required or permitted by this Rule, the lawyer has a duty to complywith all applicable rules of court.

Commentary

Obligatory Withdrawal

11.1 In some circumstances the lawyer is under a duty to withdraw. Examples of suchcircumstances are

(a) where the lawyer is instructed by the client to do something inconsistent with thelawyer's duty to the court and, following explanation, the client persists in such instructions;

(b) where the client is guilty of dishonourable conduct in the proceedings or is taking aposition solely to harass another person or cause injury or damage to another person or anotherperson's property;

(c) where it is clear that the lawyer's continued employment will lead to a breach of theseRules such as a breach of the Rules relating to Conflict of Interest;

(d) where the lawyer is not competent to handle the matter.

11.2 In these situations the lawyer has a duty to inform the client that the lawyer mustwithdraw.

Optional Withdrawal

11.3 As a rule, a lawyer is entitled to withdraw, although not under a positive duty to do so, onlywhere there has been a serious loss of confidence between the lawyer and the client. Such a lossof confidence goes to the very basis of the relationship. The lawyer who is deceived by the clienthas justifiable cause for withdrawal.

11.4 The refusal of a client to accept and act upon the lawyer's advice on a significant pointmight give rise to such a loss of confidence. The lawyer has a duty not to use the threat ofwithdrawal as a device to force the client into making a hasty decision on a difficult question.

11.5 The lawyer may also withdraw if unable to obtain instructions from the client.

Non-payment of fees

11.6 Failure on the part of the client after reasonable notice to provide funds on account ofdisbursements or fees justifies withdrawal by the lawyer unless serious prejudice to the clientwould result from the withdrawal.

Notice to client


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1111.7 No definitive rule can be laid down as to what constitutes reasonable notice prior towithdrawal. Sometimes notice requirements are established by statute or the rules of court.

11.8 In other situations the lawyer has a duty to protect the client's interests as far as possible andnot to desert the client at a critical stage of a matter or at a time when withdrawal would put theclient in a position of disadvantage or peril.

Duty following withdrawal

11.9 Upon discharge or withdrawal the lawyer has a duty to(a) deliver in an orderly and expeditious manner to or to the order of the client all papers and

property to which the client is entitled;(b) give the client all information that may be required about the case or matter;(c) account for all funds of the client on hand or previously dealt with and refund any

remuneration not earned during the employment;(d) promptly render an account for outstanding fees and disbursements; and(e) co-operate with the successor lawyer so as to minimize delay, disruption and expense in

the transition.

11.10 The obligation to deliver papers and property is subject to the lawyer's right of lienreferred to in Commentary 11.13. In the event of conflicting claims to such papers and property,the lawyer has a duty to make every effort to have the claimants settle the dispute.

11.11 Co-operation with the successor lawyer in a matter normally includes providing anymemoranda of fact and law that have been prepared by the lawyer in connection with the matter,but the lawyer has a duty not to divulge confidential information without the express consent ofthe client.

11.12 The lawyer who is acting for several clients in a case or matter and who ceases to act forone or more of them, has a duty to co-operate with the successor lawyer or lawyers to the extentpermitted by this Handbook and has a duty to avoid any unseemly rivalry, whether real orapparent.

Solicitor's lien for unpaid fees

11.13 Where upon the discharge or withdrawal of the lawyer the question of a right of lien forunpaid fees and disbursements arises, the lawyer has a duty to duly regard the effect of its

enforcement upon the client's position. Generally speaking, the lawyer has a duty not to enforcethe lien if enforcement of the lien would materially prejudice the client's position in anyuncompleted matter. A lawyer does not have a right of lien on a client's property entrusted to thelawyer in one matter with respect to unpaid fees or disbursements in another matter.

Duty as successor lawyer

11.14 Before accepting employment the successor lawyer has a duty to be satisfied that theformer lawyer approves of the transfer of the matter or has withdrawn or has been discharged bythe client. It is proper for the successor lawyer to urge the client to settle or take reasonable stepstowards settling or securing any account owed to the former lawyer, especially if the latter

withdrew for good cause or was capriciously discharged.

11.15 But if a trial or hearing is in progress or imminent, or if the client would otherwise beprejudiced, the existence of an outstanding account should not be allowed to interfere with thesuccessor lawyer acting for the client.

Dissolution of a law firm

11.16 Dissolution of a law firm usually results in the termination of the lawyer-client relationshipas between a particular client and one or more of the lawyers involved. In such cases a clientusually will prefer to retain the services of the lawyer whom the client under stood was in charge

of the client's affairs prior to the dissolution.


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11.17 However, the final decision rests in each case with the client and the lawyer who is nolonger retained by the client has a duty to act in accordance with the Guiding Principles.

CHAPTER 23

AVOIDING QUESTIONABLE CONDUCT

Rule

The lawyer has a duty to carry out all of the duties in this Handbook in the spirit as well as theletter.

Guiding Principles

The lawyer should try at all times to observe a standard of conduct that reflects credit on theprofession and the system and administration of justice generally, and inspires the confidence,respect and trust of clients, those with whom the lawyer works, and the community.

Commentary

The consequences of irresponsible conduct and the appearance of such conduct.

23.1 Public confidence in the profession and the system and administration of justice may beeroded by irresponsible conduct of the individual lawyer and by conduct that appears to beirresponsible.

The consequences of trying to circumvent the legal system

23.2 Our legal system is designed to try issues in an impartial manner and decide them upon themerits. Statements or suggestions that the lawyer could or would try to circumvent the systemshould be avoided because they might bring the lawyer, the legal profession and theadministration of justice into disrepute.

Extension of duties to those with whom the lawyer works

23.3 A lawyer's duty to conduct himself or herself with integrity and entirely within the spirit and

letter of this Handbook extend to all with whom the lawyer works, including partners, associates,students-at-law and staff.

2) A PROBLEM - REPRESENTING PAUL BERNARDO

a) Steven Skurka and Leslie Pringle, The Case of the Smoking Video, The

Champion, Issue 135 February 9, 2001.

As criminal defence lawyers the subject of the lawyer possessing the smoking gun orbloody shirt makes for good law school discussion. The curious question posed by the lawyerconfronted with the clients confession and the gun in hand in the lawyers office seekingcounsels assistance seems more appropriate for an academic setting than the real world ofpractice.

Yet in the province of Ontario we experienced an actual variation of the smoking gundilemma. An experienced criminal lawyer, Ken Murray, was retained by Paul Bernardo inrelation to a number of sexual offences known as the Scarborough rapes and in addition to themurders of two young teenagers, Leslie Mahaffy and Kristen French and additional relatedoffences. The case involved horrific allegations and implicated Bernardos wife, KarlaHomolka, in the most serious of the allegations. It attracted an enormous profile in the mediaand was later the subject of an episode of the T.V. series Law and Order. At his trial (and


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13with Murray no longer acting as his counsel) Bernardo was found guilty on all charges.

As was later to be discovered, Bernardo had videotaped the sexual abuse of four of hisvictims, including the two murder victims, and subsequently hid the videotapes in the ceiling ofhis home in St. Catherines, Ontario. The tapes were later described by a judge as beingindescribably horrible. They revealed each of the two murder victims being forced toparticipate with Bernardo and Homolka in the grossest sexual perversions. In the course of thesexual assaults they are forced to pretend they are enjoying the experience through scripteddialogue, and, in the case of Kristen French, through being instructed to constantly smile at thecamera. Obedience is obtained through physical assault and Bernardo threatens each of themwith death if they do not perform as directed.

These tapes were subsequently hidden by Bernardo in the ceiling of hishouse. Remarkably, during a 71-day search where the police virtually dismantled the interior ofthe home, the tapes were not located. From his location in a jail cell, Bernardo directed hiscounsel to attend at his home once the police had completed their search, and to remove thevideotapes. Arriving with an associate and law clerk, Murray followed his clients instructionsand by taking apart various pot lights was successful in retrieving the videotapes. A pact wasentered by the group at Murrays suggestion that they would be the only ones that would everknow what had been obtained. Murray would later say in court that he felt that the discovery ofthe tapes was a bonanza or gold mine for the defence.

Subsequently, Murray locked the tapes in a safe in a credenza in his office. They werekept by Murray for some 17 months without disclosing their existence to the Crown, ostensiblyfor the purpose of springing the tapes on Karla Homolka, the key prosecution witness againsthim during cross-examination at trial. Indeed, before the prosecutions discovery of thevideotapes, a deal had been struck between Homolkas counsel and the Crown that Homolkawould plead guilty to two counts of manslaughter in relation to the deaths of Kristan French andLeslie Mahaffy, there would be a joint submission that she be sentenced to 12 yearsimprisonment and she would provide evidence to assist the Crown.

Charges were ultimately brought against Ken Murray, alleging that his concealment of thetapes constituted an attempt to obstruct justice. Murray was represented by Austin Cooper, avenerated member of the criminal defence profession in the country. The dilemma of what thelawyers obligations are in the context of the smoking gun scenario was now brought into sharpfocus in the Murray case. Surely any client walking into a lawyers office can expect that theirlawyers loyalty is to them and that nothing will be done to impair the clients legal

interests. Yet at the same time counsel bears an obligation to the administration of justice not totamper with any incriminating physical evidence even if it is brought by the client.

At Murrays trial, the trial judge was quick to reject the contention that counsel waspermitted to assert privilege to maintain possession of the videotapes in question. They weredramatic evidence of a crime and pre-existed the solicitor-client relationship. They were notsimilar, he held, for example to a sketch, which might be prepared by a client to help explain apoint to his counsel, or even a videotape prepared for that purpose. While any discussionsMurray may have had with his client about the tapes were privileged, the tapes themselves werenot. There could be no lawful basis to assert that hiding the tapes from the police on behalf ofthe client could be said in any form to be an aspect of solicitor-client communication.

There was a clear distinction between an obligation to assist the police in theirinvestigation or the Crown in its prosecution, and being a party to concealing evidence. Likemany citizens, Murray could not participate in a scheme where overwhelmingly inculpatoryphysical evidence was concealed. Having removed the tapes from their hiding place, he couldnot hide them again. Nor was he permitted to execute any instructions from Bernardo thatwould result in their continued concealment.

Once he had discovered the overwhelming significance of the critical tapes, Murray hadthree legally justifiable options according to the trial judge:


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141) immediately turn over the tapes to the prosecution, either

directly or anonymously;

2) deposit them with the trial judge; or

3) disclose their existence to the prosecution and prepare to dobattle to retain them.

Given his earlier findings, it was not surprising that the trial judge held that Murraysconcealment of the critical tapes was an act that had a tendency to prevent or obstruct the courseof justice. The only question that remained to be resolved was Murrays intent. It wasnoteworthy that the trial judge found that it was difficult to conceive how the critical tapes wereuseful to Bernardos defence, one of Murrays key points of continuing in concealing thetapes. Instead, as he pointed out, Murray had agreed in his evidence that once shown the tapesany jury would have convicted him of sinking the Titanic.[authors note: It may therefore be understandable why Murray wisely elected to be tried by ajudge rather than a jury].

Ultimately, in a decision that he clearly laboured over, the trial judge accepted the defenceposition that a defence strategy of employing the tapes at trial was indeed feasible. Cooper hadproposed that while the tapes had shown his client in a terrible light, Homolka turned out to bealmost as bad. It wasnt only her credibility that suffered but she was also shown to be a personcapable of committing a murder. Furthermore, without the tapes the case against Bernardo wasrather overwhelming. For example, DNA evidence placed Bernardo in the house and havinghad some sexual connection with one of the victims. Without the tapes, Homolka could play herrole as the beaten spouse, compelled under duress to assist Bernardo with his sordid crimes. Itwould be difficult to impeach her. [Indeed, ironically, this was the very reason so much publicscorn was heaped on Ken Murray; with the benefit of the tapes the deal with Homolka wouldnever have been made and it would have been impossible to portray herself as a helplessparticipant.]

It had to be acknowledged, as the trial judge did, that the governing body of lawyers inOntario, the Law Society of Upper Canada, had provided few guidelines for someone inMurrays predicament by the rules of professional conduct. As the trial judge noted, even withthe benefit of careful research, any lawyer like Murray might have remainedconfused. Ultimately, in acquitting Murray, the trial judge held that he accepted that Murraymay well have believed under the circumstances that he had no legal duty to disclose the tapes

until resolution discussion or trial.

One of the postscripts of the Murray case is that arguably any defence of confusion bycounsel in the future has now been removed. Indeed this was the view of the authors of a newbook,Ethics and Canadian Law,by Michel Proulx and David Layton, which will be published inthe year 2001 byIrwin Law:

There can be little doubt that counsel who suppresses orconceals evidence so as to improperly interfere with thefunctioning of the justice system has committed an offence.

Along the same lines, it would be an offence even to temporarilyremove evidence of a crime for the purpose of preventing seizureby the police. So too would an act of destruction of incriminatingphysical evidence contravene the law. (at p.14)

The question still remains as to what counsels obligations are in those cases (unlikeMurray) where a legitimate argument can be made for preserving physical evidence brought bythe client for defence purposes. For example the accuseds blood stained shirt may corroboratehis version of self defence, and may need to be sent for forensic examination. An importanttactical advantage for the defence may be lost by its disclosure. Proulx and Layton argue thatone option in such circumstances might be to turn over the item to the court accompanied by an

ex parte application for directions after necessary testing and examination have been


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15accomplished (at p. 35). It becomes self-evident that the legacy of the Murray case is that itlikely raises as many significant questions as it solves. For counsel like Ken Murray presentedwith difficult similar predicaments that provides little solace. It must be a truly agonizingdecision for the zealous advocate to be placed in the position where their actions damage theirown clients legal interests. The fear of prosecution, however, cannot be a reason forcomplacency in maintaining the fearless representation of any person charged with acrime. The one practical lesson to be learned from Murray is this: a prompt call to the localgoverning body of lawyers may provide some safe refuge and defence in any subsequentcriminal prosecution for the lawyer without unduly impairing the interests of the client.

II) THE STRUCTURE OF THE LEGAL SYSTEM

1) HISTORY AND DEVELOPMENT OF THE LEGAL SYSTEM

In this class, we will be examining the origins of the modern Canadian legal system, as well

at the mechanisms by which the law is maintained, and changed.

a) Gerald L. Gall, The Canadian Legal System, 3rd ed. (Toronto: Carswell,

1990).

THE BRITISH LEGAL TRADITION

INTRODUCTION

The influence of the British legal tradition is felt by many of the institutions within oursystem; it is the British tradition that underlies many of the processes and attitudes which makeour system operational. No stronger comment on the influence of the British legal tradition in theCanadian legal system can be made than that by the late Chief Justice of Canada, Bora Laskin,referring lo a letter written over one hundred and twenty-five years ago:

What a Toronto correspondent wrote in 1856 in a letter to the Law Times (28 L.T. 85)about England and Upper Canada has a familiar ring even today in respect of England andcommon law Canada; he said;

The laws of the two countries are almost identical. The practice or administration of thelaw is the same in each country... I do not invite an emigration of english lawyers, for inUpper Canada the profession is well supplied from native sources. But it will be aconsolation to such members of the English Bar as may resolve to enter into competition inthe colonies to know that they will labour under no disadvantage.

There can be no doubt that the British influence on the Canadian legal system is verysignificant. However, it is also important to realize that the Canadian legal system, as a whole,consists of two major components. As indicated in an earlier chapter, the private law in nine ofthe provinces of Canada is governed by the common law system, while, in the province of

Quebec, private law is governed by a civil law system. While the system of law in Quebec is notderived from the British legal system, it does possess a element of British influence.Unfortunately, most lawyers in the common law provinces do not possess more than afundamental understanding of the civil law tradition in Quebec. Canada is a unique nation in thather citizens can experience the two major systems of law prevailing throughout the world. It wasrarely mentioned in the referendum debate of the 1970's or in the now renewed debate andcontroversy concerning the role of Quebec in Confederation that within Confederation, as itpresently exists, Canada is indeed fortunate in having both of the major systems of law in theworld operate within her boundaries. In the late 1980's the debate has focused on the uniquenessof Quebec. That debate has centred around the Meech Lake Accord, its distinct society clauseand the use of the English an French languages. But again, little is mentioned of the richness of

Canada in being able to experience the world's two greatest legal systems. Accordingly, a laterchapter will be directed at a major discussion of the Quebec legal system.


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16

THE RECEPTION OF ENGLISH LAW INTO CANADA

1. THE ORIGIN OF THE COMMON LAW

The common law system of law originated in Feudal England at about the time of theNorman conquest. It became a practice at that time that the King, in the course of travellingthroughout England, would listen to complaints of his subjects and resolve disputes inaccordance with the particular customs of that local area of the country. Customs which were notlocal, but rather were known throughout the land, were called "common customs".

Eventually, responsibility for this adjudication fell to the King's body of advisors, whoestablished three types of courts. First, there was the Court of Common Pleas, for theadjudication of private disputes, one individual against another. Secondly, there was the Court ofKing's Bench, for criminal matters. Finally, there was the Exchequer Court, in which monetarymatters were resolved. The decisions of these courts subsequently became known and wereregarded as the "common customs" or "common law" of the land. Eventually, they began to takeon a formal aspect and the judges of the various courts held themselves bound by past decisions,and therein lay the origin of the common law as a body of jurisprudence or past decisions uponwhich judges rely in deciding the cases before them.

The common law of England subsequently spread to the colonies of the British Empire,including the British colonies in North America. Of the two major systems of law in the world,the common law system is not as extensively followed as the civil law system. However, thecommon law system governs the law in most of the English speaking world (except Scotland)and in may parts of the non-English speaking world, encompassing those nations that arepresently or were formerly part of the British Commonwealth. The common tradition linking thecommon law world is this reliance on a body of case law that developed over centuries ofjudicial decision-making in solving current problems before the courts.

The mechanism by which the British colonies in North America adopted the common lawsystem in general and English law, as it existed at the time, specifically, is somewhatcomplicated. Generally speaking, the method by which the English law was received in aBritish colony depended upon how that colony was acquired by Great Britain. If it had beenacquired by settlement, one set of rules would apply. If it had been acquired by conquest,another set of rules would apply. If it had been acquired by treaty or cession, yet another set ofrules would apply. In Canada, the reception of English law in the territories and in each of the

provinces differed. No attempt will be made in this text to consider the complicated history ofthe reception of English law in detail. However, set out below is a brief and summary review ofthat history. In addition, interested readers may consult various writings which consider thehistory of the reception of English law in Canada in considerable detail....

THE LAW OF EQUITY

With the reception of English law, Canada inherited not only the English common law butalso the law of equity. Historically, the various courts established by the King's advisors, referredto earlier in this chapter, became very formal and rigid in applying the law and in providing the

appropriate remedies in the course of adjudicating particular disputes. As a result may subjectswould petition the King, for extraordinary remedies, as the King was regarded as thefountainhead of justice. The King, in response to these petitions, would provide theseextraordinary remedies in the appropriate circumstances. However, as this responsibility becameincreasingly burdensome, he transferred this jurisdiction for providing extraordinary remedies tohis Chancellor. The Chancellor would the receive the various petitions and would dispense theseremedies in the appropriate circumstances. By reference to "appropriable circumstances", onemeans, first, that owing to the rigidity of the rules under which the regular courts operated, theycould not provide a remedy in a particular circumstance. Secondly, the petitioners had to fulfilcertain preconditions. Eventually, the Chancellor, too, found this responsibility burdensome, adaccordingly he transferred jurisdiction to special courts established for the sole purpose of

granting those extraordinary remedies. These courts became known as the courts of chancery.


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17After a period of time, these courts, like the King's courts, became somewhat formalized andoperated under a regime of rigid rules to which subjects had to adhere before the granting ofthese extraordinary remedies would be permitted.

In essence, what developed then were two systems of courts in England: the King's regularcourts or courts of common law, and the courts of chancery or, alternatively expressed, the courtsof equity. The reader will recall the various connotations given to the term "common law". Thisis yet another connotation, for here the term "common law" means a system of courts of commonlaw providing common law remedies, as opposed to a system of courts of equity providing whatare known as equitable remedies.

Parallel with the development of the two systems of courts was the development of twosystems of law. The common law courts concerned themselves with the common law, while thecourts of chancery concerned themselves with what became known as the law of equity. Theextraordinary remedies dispensed by the latter system of courts became known as equitableremedies and the preconditions that had to be fulfilled before the courts of chancery wouldentertain a petition for an equitable remedy became known as the rules of equity. Probably themost important rule of equity is that a petitioner will not receive an equitable remedy unless hecomes to the Court "with clean hands". This means, essentially, that he must not taint his case byany wrongdoing whatsoever on his part. Examples of the more important of the equitableremedies are those of rescission and specific performance in the law of contract, but there areseveral others as well.

In the latter part of the last century, by virtue of the enactment of the Judicature Acts by theParliament of Great Britain and by the legislative assemblies of the provinces of Canada, thecourts of common law and the courts of equity merged, with the result that we now have onlyone system of courts dispensing both common law and equitable remedies. However, since acourt will not now entertain an application for a equitable remedy unless the applicant hassatisfied the various rules of equity referred to above, the distinction between law and equity isstill important.

b) Stephen Waddams, Introduction to the Study of Law, (Toronto: Carswell,

1992) pp. 71-73 (excerpts, footnotes omitted).

QUEBEC LAW

Quebec, like many countries throughout the world, has a system based on Roman law.Federal statutes operate in Quebec, so that criminal law, and certain aspects of commercial lawsuch as bankruptcy and bills of exchange are governed by the same law as prevails elsewhere inCanada. But the whole law of civil obligations, property and family law (except divorce) is basedon the Civil Code, which is derived from the Code Napoleon. The principle of liability fordamage caused by negligence developed by the common law through hundreds of judicialdecisions, is contained in a single article:

1053. Every person capable of discerning right from wrong is responsible for the damage

caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.From one point of view a Quebec judge has less discretion than her common law

counterpart, for she is bound by a specific provision. From another point of view she has farmore flexibility, for the language of the provision is so general as to leave the difficult questionsin the hands of the individual judges. In theory, judicial decisions do not make law; they aresimply applications of the unchanging provisions of the Code. In practice, however, the law,even in a codified system, is able to develop to meet changing social needs, and a civil law judgeis aware of the interpretation currently being given by the courts to provisions of the Code.Judicial decisions, therefore, are not so unimportant as pure theory would suggest....

MEANING OF "COMMON LAW"


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Just as "civil law" has a variety of meanings, according to the subject with which it iscontrasted, so also does the phrase "common law". One common meaning of the expression is asystem of law based primarily on judicial decisions as contrasted with a system based on Romanlaw, (usually, but not always, based on a Code). Thus, we speak of Quebec and Louisiana andScotland as civil law jurisdictions (their systems being based on Roman law) and of the othereleven Canadian provinces and territories, the other American states, England, New Zealand, andAustralia as common law jurisdictions.

Internally, within a common law legal system, the phrase "common law" has two separatemeanings, each quite distinct from that just mentioned. Before the late nineteenth century (1881in Ontario) there were two separate systems of courts: the courts of law, or common law, on theone hand, and equity on the other. The distinction is still important for some purposes and will bediscussed in the next chapter. A third meaning of common law is that area of the law still largelydependent on judicial decisions, as opposed to areas of the law governed mostly by statute. Thus,one can call contracts and torts common law subjects in a sense that income tax is not. Similarly,one could say: "At common law, dandelions could lawfully be planted by anyone, but since theenactment of the Weed Control Act dandelion growers require a licence from the Minister." Thischapter is concerned with the common law chiefly in this last sense, that is, as contrasted withstatute law.

c) Common Law and Statutory Law

If a man has presented a gift to the house of his prospective father-in-law, and has giventhe bride-price, but his comrade has slandered him and his father-in-law has said to the

suitor, You shall not marry my daughter, {the father] shall return double all that was

presented him. Further, the comrade shall not marry the girl.

Code of Hammurabi

Thou shalt not bear false witness against thy neighbour

The 10 Commandments

i) Henry J. Abraham, The Judicial Process: An Introductory Analysis of the Courts of

the United States, England, and France, 6th ed. (1993: Oxford University Press, Inc.).

Common Law - Characteristics

As has already been pointed out, common law is predominantly judge-made law. Under itthe judge is the creator, interpreter, and the modifier of laws. Even when he merely "interprets"law, he may well be creating it. To that extent, statutory law, the law enacted by legislativebodies, is tentative. Discussing the benefits of judge-made law, Justice Benjamin N. Cardozopointed out that the judge can use "free scientific research" when analyzing a problem. By

"free" he meant that to a very real extent the common law removes the judge from action bypositive authority; by "scientific" he meant that there is an objective element in the judge'sdecision. Thus, the judge may come closer to the just and the true, for law under the commonlaw system develops by "judicial experience in the decision of cases". For example, in 1972 theU.S. Supreme Court, invoking the ancient common law of nuisance, declared unanimously thatfederal district courts may order polluters to stop fouling the environment.

Another significant characteristic of common law is the doctrine ofprecedent, under whichthe judges refer to a previous decision or decisions in order to adjudicate the case at issue. Theimportance of precedent varies with individual judges, for although common law normallyrecognizes precedent as binding, judges not only may occasionally depart from precedent when it

"appears right to do so", but may distinguish between various precedents in evolving the newlaw. Moreover, times and conditions change with changing society, and "every age should be


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19mistress of its own law" - an era should not be hampered by outdated law. "It is revolting",wrote Justice Holmes in characteristically forthright language, "to have no better reason for arule of law than that it was laid down in the time of Henry IV (1367-1413). It is still morerevolting if the grounds upon which it was lade down have vanished long since, and the rulesimply persists from blind imitation of the past." It is the readiness of the common law judgesto discard that which does not serve the public that has contributed to the survival and adoptionof common law, wholly or partly, in so many lands. Nevertheless, although Justice Cardozoapplauded this, he cautioned that while a judge may discard the old and adopt the new, he mustremember that the past is often a reflection of the present and must know and understand it, "forthe depths are the foundation of the heights." And although Britain's House of Lords, itshighest law court, announced in 1966 that it would henceforth no longer consider itself bound byits own precedents, as it had previously, all judges of first instance are bound by the decisions ofhigher courts, that is, the Court of Appeal or the House of Lords (and the Court of Appeal isbound by the decisions of the House of Lords).

Because common law as such is uncodified, it is generally described as unwritten law.However, case precedents really are not unwritten; they are derived from the principles of lawembodied in the judgments of cases that are decided and reported....

Statutory Law

Despite the origin of the concept ofstatutory law- variously known as code, written,Neo-Roman orRoman,or civil law- in ancient Rome, its broad application is essentially amodern one. Whereas the common law has dealt traditionally with matters of a privatecharacter, with the relations between individuals, statutory law is more frequently concernedwith society as a whole. It is law that originates with specifically designated, authoritativelawmaking bodies - presumably legislatures but also executive-administrative decrees andordinances, treaties, and protocols, all of which are committed to paper.

Historical Background

Although arguably traceable to the far-distant times of Moses, Manu, and Hammurabi,statutory law as we now conceive of it developed in and from the homogenous city-state,exemplified by the Codes of Emperor Justinian I (527-65), the Corpus Juris Civilis, which waspromulgated about A.D. 535. Hence it is frequently referred to as Roman law and, to confuseteachers and students alike, a civillaw - which has nothing whatever to do with civil jurisdiction.In contrast to diversified England, with its manifold customs that veritably seemed to cry out for

some sort of common law, Rome lent itself ideally to the development of a statutory system, onethat could be readily written down or codified. Statutory law had - and has, of course - theadvantages of preciseness, simplicity, and clear-cut applicability, although it still remains subjectto interpretation by administrators as well as judges.

Enacted by legislative and/or executive-administrative bodies of government, codified andspelled out in writing by the legal profession, clearly and readily available for all to see, statutorylaw has survived as the generally accepted law for most of the states of continental Europe,Russia, Latin America, and many of the newly emergent African nations. Justinian's Code hadbeen initially introduced into Western Europe in 544 when the Eastern Empire reconquered Italy.But it did not assume genuine significance for the West until the systematic study of Roman law

was revived at the Italian universities in the twelfth century. One of the most famous codifierswas Emperor Napoleon I (1804-15), whose Civil Code was published in 1804, his Code of CivilProcedure in 1807, and other codes subsequently. Indeed, the Code Napoleonhas been farmore enduring than most of the colourful Emperor's military triumphs. Its first major changedid not take place until the Gaullist reforms of 1959 that accorded France's married womenincreased property rights.

d) The Canadian Charter of Rights and Freedoms - Peter W. Hogg,

Constitutional Law of Canada (Toronto: Carswell, Looseleaf Edition)

(Footnotes Omitted)


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History of Charter

We have already noticed the absence of a bill of rights in the Constitution Act, 1867, theincreased interest in bills of rights following the second world war, and the enactment in 1960 ofthe Canadian Bill of Rights. The enactment of the Canadian Bill of Rights did not satisfy thosewho advocated a bill of rights for Canada. It was a merely statutory instrument. It did notapply to the provinces. And it had been given little effect event in its application to the federalgovernment. Indeed, the inadequacies of the Canadian Bill of Rights were often offered asreasons for the adoption of a more effective bill.

The most prominent of the advocates of a bill of rights was Pierre Elliott Trudeau, who waselected to Parliament in 1965, became Minister of Justice in the Liberal government of PrimeMinister Pearson in 1967, and became Prime Minister in 1968. His government, whichremained in office with only one brief interruption from 1968 until his retirement in 1984,steadily sought to achieve provincial consent to an amendment of the Constitution which wouldinclude a new amending formula and a new bill of rights. That long quest culminated inNovember 1981 with an agreement which included nine of the ten provinces (Quebecdissenting), and which was followed by the enactment of the Constitution Act, 1982 of whichPart I is the Canadian Charter of Rights and Freedoms.

The Charter of Rights has quickly proved itself to be a more effective instrument than theold Canadian Bill of Rights (which has, however, not been repealed). Whereas the Bill ismerely a statute, the Charter is part of the Constitution of Canada and can be altered only byconstitutional amendment. Whereas the Bill's effect on inconsistent statues is (or was) notclear, the Charter expressly overrides inconsistent statues. And whereas the Bill applies only tothe federal level of government, the Charter applies to both levels.

Protection of Civil Liberties

The Charter of Rights, like any other bill of rights, guarantees a set of civil liberties that areregarded as so important that they should receive immunity, or at least special protection, fromstate action. This purpose is partially accomplished through the legislative and executivebranches of government, which will normally do their best to avoid actions that would violateCharter rights. Indeed, after the adoption of the Charter, all Canadian jurisdictions except forQuebec (which was protesting the adoption of the Charter) engaged in a review of the statutebook and enacted amendments to a large number of statutes to correct perceived violations of

Charter rights. In the federal jurisdiction, there is a continuing statutory obligation on theMinister of Justice to review all proposed statues and regulations for compliance with theCharter, and to report instances of non-compliance to the House of Commons. In eachprovince, some degree of scrutiny (admittedly not followed by any public report) would beundertaken by the Attorney General or Minister of Justice as part of his or her duty to keepgovernmental action within constitutional limits. It would be a mistake to underestimate theextent of executive and legislative compliance with the Charter, although for the most part itgoes unnoticed and unrecorded.

If the Charter's effect depended exclusively on the voluntary acts of government, therewould obviously be no guarantee of compliance. Ultimately, the Charter is enforced by the

sanction of nullification administered by the courts. If a law (or a governmental act) ischallenged, and if it is found by a court to violate one of the civil liberties guaranteed by theCharter, the court will declare the law (or act) to be nugatory. In that way, the guaranteed civilliberties are protected from the actions of Parliament, Legislatures, government agencies andofficials.

The Charter will never become the main safeguard of civil liberties in Canada. The mainsafeguards will continue to be the democratic character of Canadian political institutions, theindependence of the judiciary and a legal tradition of respect for civil liberties. The Charter isno substitute for any of these things, and would be ineffective if any of these things disappeared.This is demonstrated by the fact that in many countries with bills of rights in their constitutions

the civil liberties which are purportedly guaranteed do not exist in practice.


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21

Expansion of Judicial Review

(a) New Grounds of Review

The major effect of the Charter has been an expansion of judicial review. Judicial reviewis not new in Canada. Since confederation, Canadian courts have assumed and exercised thepower to hold laws and acts to be invalid for inconsistency with the Constitution. Until theadoption of the Charter in 1982, however, the provisions of the Constitution that yielded most ofthe invalidating inconsistencies were the provisions that distribute legislative powers between thefederal Parliament and the provincial Legislatures. The Charter adds a new set of constitutionalprovisions that will invalidate inconsistent laws. Thus, whereas before 1982 judicial review inCanada was for the most part confined to federalism grounds, since 1982 judicial review can alsobe based on Charter grounds.

The addition of the Charter's grounds of judicial review has proved to be a substantialexpansion of judicial review. Not only are Charter cases much more numerous than federalismcases, they are also more policy-laden. This is because many of the Charter rights areexpressed in exceedingly vague terms, and all of the rights come into conflict with other valuesrespected in Canadian society. The result is that judicial review under the Charter involves amuch higher component of policy than any other line of judicial work.

(c) Role of s.1

The previous section has addressed the problem of vagueness in the language of theCharter, and the discretion which vagueness inevitably confers on the courts whose duty it is toapply the Charter. But even if there were perfect agreement on the precise scope of everyguaranteed right, the application of the Charter would still be a difficult, policy-ladenundertaking. This is because the civil liberties guaranteed by the Charter occasionally comeinto conflict with each other and frequently come into conflict with other values that arerespected in Canadian society. A moment's reflection is enough to show that the Charter'svalues should not always take precedence over non-Charter values. Take freedom ofexpression, for example. This freedom is undeniably limited by many laws that restrict what aperson is free to say or write, for example, laws respecting fraud, defamation, misleadingadvertising or labelling, sedition, official secrecy, blasphemy, obscenity and contempt of court.No one would seriously suggest that s.2 of the Charter should be applied to eliminate all lawslimiting expression, because the purposes of some at least of these laws are just as valuable in

their place as is freedom of expression. What is called for, obviously, is a compromise betweenthe conflicting values.

Section 1 of the Charter, which is the subject of a later chapter, implicitly authorizes thecourts to balance the guaranteed rights against competing societal values. Section 1 provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms setout in it subject only to such reasonable limits prescribed by law as can be demonstrablyjustified in a free and democratic society.

Section 1 makes clear that a law limiting a Charter right is valid if the law is a "reasonable"

one that "can be demonstrably justified in a free and democratic society". Who is to decidewhether a law satisfies the requirements of s.1? Initially, decisions will be made by thegovernment that introduces a bill in derogation of a Charter right, and by the legislative body thatenacts the bill into law. But these decisions are not conclusive. When a law is challenged inthe courts, the reviewing court will reach its own determination on the question whether s.1 issatisfied. When appeals have been exhausted, it is the final decision of the courts that prevailsover the judgment of the government and legislature that enacted the law.

Because of s.1, judicial review of legislation under the Charter of Rights is a two-stageprocess. The first stage of judicial review is to determine whether the challenged law derogatesfrom a Charter right. If it does not, then the review is at an end: the law is justified in a free

and democratic society. In the second stage of judicial review, the reviewing court must decide


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The characterization of laws for the purpose of Charter review reflects a similarity and adifference between Charter review and federalism review. If thepurposeof a law is to abridgea Charter right, then the law will be unconstitutional. That rule is similar to the federalism rulethat condemns a law with the purpose of regulating matters outside the jurisdiction of theenacting body. It is in the legal result to be attributed to the effectof a law that a crucialdistinction emerges between Charter review and federalism review. If the effect of a law is toabridge a Charter right, then the law will be unconstitutional (unless saved by s. 1), even if thepurpose of the law was entirely benign and constitutional. This rule is the reverse of thefederalism rule that tolerates effects on matters outside the jurisdiction of the enacting legislativebody so long as the purpose (more precisely, the matter or pith and substance) of the law iswithin the jurisdiction of the enacting body.

2) LEGAL STRUCTURES AND INSTITUTIONS

Having examined the origins and processes which form modern Canadian law, we are in

this class moving to an examination of legal structures, and the hierarchy of decision

making in Canadian law. We will look at the documents that form the basis of our legal

system, as well as how legal authority is divided in Canada between the federal level and

the provinces. Finally, we will look at the structure of the court system in Canada, and

how (and what) decision-making authority is given to the Courts.

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25realities of the Canadian political system. The provinces are given the power to legislate withregard to matters that directly affect the rights and freedoms of the individual in terms of theindividual's relationship with the state. An example of this would be section 92(13) of the BNAAct, which gives the provinces the legislative competence to deal with "Property and CivilRights in the Province." If the provinces possess the power to affect the property and civil rightsof Canadian citizens, then surely the provincial constitutions that regulate the exercise of thispower within the provinces must be considered a part of the Canadian constitution. At any rate,the Constitution Act of 1982 has affirmed the constitutional significance of the provincialconstitutions by including them in Schedule 1.

It has been asserted that constitutions are basically formal rather than informal, and aretherefore basically static. But constitutions consist, in part, of laws or collections of laws, whichmeans that they are general prescriptions that in practice must be applied to specific cases. Theapplication of constitutional principles to specific cases involves the interpretation of theconstitution, which, in our system, is performed by the judiciary. As the courts apply theconstitutional principles to many different cases, a body of judicial decisions is built up, whichelaborates and fills out the constitution. The judicial decisions that interpret the constitution arean integral part of that constitution. In Canada, because our legal system is based on the Englishcommon-law tradition, and because the BNA Act states in the preamble that we are to have aform of government similar in principle to that of Britain, precedents established in Britishcommon law make up a part of our constitution. As well, the interpretation of the BNA Act itselfby the Judicial Committee of the Privy Council, which was the final court of appeal for Canadauntil 1949, built a large body of decisions that elaborate and clarify the Act. These judicialdecisions, plus those of the Supreme Court of Canada since 1949, are a most importantcomponent of the constitution of Canada, especially as they have helped to clarify the federaldimension of our constitution.

In addition, the Canadian constitution includes a number of clearly defined principles suchas the conventions of Cabinet government and the firm, though unwritten, rule that thegovernment must hold the support of a majority in the House of Commons or resign. Theseconventions are not found in the BNA Act, or in any constitutional document, yet they are asmuch a part of the Canadian constitution as the BNA Act itself. Because they have nodocumentary manifestation, however, their exact definition and their legal enforceability defiesanalysis. The only sanction that effectively enforces the principle of responsible government isthe weight of public opinion that places value on it. A few of the customary and conventionalparts of our constitution have been written down in some form, and therefore have acquired thesupport of legal or quasilegal sanction. For instance, the rules and privileges of Parliament are

implicitly if not explicitly entrenched in the Standing Orders and the Rules of Procedure.Generally, however, while conventions and customs involve some of the most importantprinciples of the Canadian constitution, they exist in an unwritten form rather than asdocumentary and legally enforceable instruments.

Finally, a constitution can be considered to contain a number of principles or values thatform the normative basis of the regime. These are difficult to pin down, for they exist largely astacit assumptions in the minds of the members of the political community and they are passed onin very subtle ways through the process of political socialization. In Canada, they involve thewhole complex of democratic political values. There is some argument whether such principlesshould be considered a part of the constitution itself or the principles that underlie it. However,

within the context of this treatment of the Canadian political system, the important point is thatthese values are congruent with those reflected in the constitution. We have dealt with thesevalues as part of the Canadian political culture in chapter 4.

Written and Unwritten Constitutions

It has become a tradition of political science, when making comparisons between thepolitical systems of the United Kingdom and the United States, to state that the former has anunwritten constitution and the latter a written constitution. This distinction is a relative ratherthan a categoric one, which places constitutions, for the purposes of comparison, on a continuumranging from the hypothetical extreme of "purely written" to that of "purely unwritten." Upon

examination, it rapidly becomes apparent that the constitutions of the two largest


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26English-speaking democracies are neither purely written nor purely unwritten. The Americanconstitution, which started with the impressive document of 1789, has been filled out byconventions, judicial decisions, and statutes that express "fundamental" principles. Similarly,Britain's constitution, while consisting largely of principles embodied in the common law, has atits core written documents such as the Magna Carta and the Petition of Right. The Canadianconstitution, which consists of a hodgepodge of written documents and unwritten conventions,falls on the continuum somewhere between the constitutions of Britain and the United States.

With that said, there may be some further justification for discussing the relative merits ofwritten and unwritten constitutions with respect to the function of political integration. Perhaps awritten constitution may be more effective in creating a sense of national pride, but on the otherhand, such a sense of national pride is not absent in Britain, where the constitution, by anycriterion, is basically unwritten. Also, a written constitution may be more effective in inculcatingthe norms of the regime to children and newcomers, for through a written constitution the valuesof the society are given visible manifestation.

In summary, the Canadian constitution is a conglomeration of British, Canadian, andprovincial statutes, the British common law, Canadian judicial decisions, and a number of realbut invisible conventions, customs, values, and assumptions, all clustering rather loosely andhaphazardly around the central kernel of the BNA Act and the more recent modifications in theConstitution Act, 1982.

THE LEGAL SYSTEM

Divided Sovereignty: The Federal Principle

Divided sovereignty means basically that the legislative powers of government in Canadaare divided between the federal Parliament and the legislatures of the ten provinces. While weoften refer to the federal and provincial "levels" of government, within their specified spheres ofjurisdiction there exists no superior-subordinate relationship. The legislatures of the provincesand the Parliament of Canada have constitutionally distinct functions, and neither can trenchupon the constitutionally granted authority of the other. The term "orders of government" hasincreasingly come into use to express that fact.

The operative principle of divided sovereignty is ensconced in the British North AmericaAct, and represents an intention on the part of the drafters of that act to establish a federal systemof government in Canada. There have been many definitions of federalism, and many approaches

to its study, and while the evolution of the Canadian federal system will be discussed insubsequent chapters, a few words here on the concept itself will help to clarify the use of theterm. The most important modern contribution to the study of federalism has been that of K.C.Wheare. Since the 1946 publication of Wheare's classic,Federal Government, theoreticalwritings on the concept of federalism have added relatively little except qualifications andinteresting changes in emphasis. Wheare's analysis is institutional in the sense that he viewsfederalism as aform of government that embodies what he calls the "federal principle":

By the federal principle I mean the method of dividing powers so that the general andregional governments are each, within a sphere, coordinate and independent.

He then draws a distinction between federal governments and federal constitutions, and states:

It is not enough that the federal principle should be embodied predominantly in the writtenconstitution of a country.... What determines the issues is the working of the system.

The prerequisites of a federal system are two, according to Wheare:

To begin with, the communities or states concerned must desire to be under a singleindependent government for some purposes.... They must desire at the same time to retainor establish independent regional governments in some matters at least.


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27Thus, in functional terms, a federal system reconciles a desire for overall unity with a desire for alocal or regional autonomy. In structural terms, a federal system is seen as having independentnational and regional governments, each operating in a hypothetically distinct jurisdictionalcompartment. The federal processin Wheare's terms, "how federal government works" willvary from federation to federation, but so long as the federal function is being performed and aslong as the basic structural characteristics of federalism are present, the system can be calledfederal.

The major criticism of Wheare has come from people studying newer nations, many ofwhich claim to be federal, and few of which conform perfectly to Wheare's definition. The resultof this discontinuity between the term and the real world has been a redefinition of the term.Wheare's critics say that his concept of federal government is "institutional" and that his analysisis "legalistic." The most prominent of his detractors has been W.S. Livingstone, who argues thata legalistic definition of federalism is too narrow, and counters with a sociological one: "Theessence of federalism lies not in the institutional or constitutional structure, but in society itself."Livingstone goes on to state that a federal society is one whose diversity is reflected territorially,and that a federal government is merely a "device by which the federal qualities of the societyare articulated and protected."

The great weakness of Livingstone's concept of federalism is that it is so inclusive that it isvirtually useless for analyzing and categorizing real political systems. He defines a federalgovernment as one that presides over a federal society, and he defines a federal society as onethat has regional or territorial diversity. With such possible exceptions as Liechtenstein, Monaco,or San Marino, all modem states have varying degrees of regional diversity and therefore allmodern governments could be classed as federal. Thus, where Wheare is too restrictive in hisconcept of federalism, Livingstone is far too broad in his.

W.H. Riker improves on Wheare without going as far as Livingstone. He describesfederalism functionally as "the main alterative to empire as a technique of aggregating largeareas under one government," and structurally as a system with a constitution having three basiccharacteristics; namely,

(l) two levels of government rule the same land and people, (2) each level has at least onearea of action in which it is autonomous, and (3) there is some guarantee (even thoughmerely a statement in the constitution) of the autonomy of each government in its ownsphere.

Then Riker deals with the federal process as a continuous bargaining relationship that is carriedon among the various leaders of the regional and national governments. Here, by viewing theorigins and the operations of federal systems in terms of elite accommodation, Riker has addedsignificantly to Wheare's rather mechanistic and admittedly legalistic analysis of federalism.

There are many tomes written on the subject of federalism, and most of them addressthemselves at some stage to the problem of definition. Riker, Livingstone, and Wheare representthe general range of approaches, and likely form the foundations for most other authors'conceptions of federal government. The basic characteristics common to all federal systems canbe derived from these authors. First, the origins and persistence of federal forms of governmentdepend upon continuing general agreement among the various national and regional leaders that

some form of union is desirable and that, because of differences in priorities among the memberstates or provinces, there should be at least some degree of independence guaranteed to them.(R.L. Watts speaks of this in terms of social integration, an equilibrium between integrating anddisintegrating pressures within society.) Second, in structural terms, federal systems arecomposed of two levels of government, each of which is permitted to function independently ofthe other in specified although probably changing areas of jurisdiction, and neither can destroythe other.

Conceptual and definitional problems have arisen, moreover, only where political systemscalling themselves federal have lacked these basic characteristics. In fact, most real governmentscan be very quickly and easily classified as either federal or non-federal; only a few stand on the

effective borderline between federal and non-federal and thus challenge the governmental


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b) Distribution of Legislative Powers - The Constitution Act, 1867, ss. 91-92

Powers of the Parliament

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate andHouse of Commons, to make Laws for the Peace, Order, and good Government of Canada, inrelation to all Matters not coming within the Classes of Subjects by this Act assigned exclusivelyto the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict theGenerality of the foregoing Terms of this Section, it is hereby declared that (notwithstandinganything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends toall Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1.1. Repealed.IA. The Public Debt and Property.2. The Regulation of Trade and Commerce.2A. Unemployment insurance.3.The raising of Money by any mode or System of Taxation.4.The borrowing of Money on the Public Credit.5.Postal Service.6.The Census and Statistics.7.Militia, Military and Naval Service, and Defence8.The fixing of and providing for the Salaries and Allowances or Civil and other Officers ofthe Government of Canada.9.Beacons, Buoys, Lighthouses, and Sable Island.10. Navigation and Shipping.

11.Quarantine and the Establishment and of maintenance of Marine Hospitals.12.Sea Coast and Inland Fisheries.13.Ferries between a Province and any British or Foreign Country or between Two Provinces.14.Currency and Coinage.15.Banking, Incorporation of Banks, and the Issue of Paper money.16.Savings Banks.17.Weights and Measures.18.Bills of Exchange and Promissory Notes.19.Interest.20.Legal Tender.21.

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