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Transcript of Foundation Law
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BASIC THEORIES OF LAW Creik Readin Background
Competing approaches/theories affect judicial decisionmaking and legal outcomes- They each offer compelling
arguments as to the basic nature, origin, authority and
responsibility of the law
Positivism and Natural Law
Both legal positivism and natural law are descriptive theories,
in that they are principally concerned with identifying what
law is, as opposed to what the law ought to be. Both
positivism and natural law 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 principlesthat 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; its merit or demerit is another.
Thus,on this view, the Nazis had a legal system used for evil
ends and the British had a legal system used for good ends;
both, however, were legally valid. See, e.g,
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Nobleand 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 aspiration, in that laws are
only those rules which adhere to certain moral truths, most
often of a universal and immutable nature; i.e. laws legal
authority depends upon an external moral standard that
holds across all societies. See Drummond Wren, And note
how judge appeals to our moral conscience Feminist
Perspectives on Law: critical legal theory
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 17th 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 is a more
complex movement, relying on various disciplines such as
criminology and sociology the general gist of feminism is
that the legal system is seen as paternalistic and male
centred.- The subject of abortion provides a good forum to
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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)
Critical Legal Studies:
critical legal theory - Like some forms of feminism, critical legalstudies 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(2)
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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 truths- See
R v R.D.S:
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
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
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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 anew 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: (1) 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?
Cases
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Hill 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:
Feminist perspective on law reflects a critique of liberalism as a
political ideology; laws that existed from 17th 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 is a more complex movement, relying on various
disciplines such as criminology and sociology the general gist of
feminism is that the legal system is seen as paternalistic and male-centred.- The subject of abortion provides a good forum to examine
how feminist theory may translate into practice (see).
-
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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)
Critical Legal Studies: critical legal theory - 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. Lawreproduces 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(2)
Reification
: The beliefs that maintain Western laws are presented as essential
and objective, and the laws that prop up this belief system
-
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necessary follow suit, becoming equally incontrovertible(3)
Denial:
Laws and legal thinking aid in the denial of real truths- See
R v R.D.S:
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
-
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
-
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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 anew 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: (1) 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?
Cases
Hill v Church of Scientology
FACTS:
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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 cannotfound 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.
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HELD:
Even though private parties owe each other no constitutional duties
and cannot found a cause of action upon a Charter right, the 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. As such, there was no need
to amend or alter the legislation.
RATIO:
Even though Charter doesnt 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.
Society de assurance automobile du Quebec v Cyr
FACTS:
Pursuant to s. 520 of the Highway Safety Code (HSC), The Societyde l'assurance automobile du Qubec (SAAQ) entered into a
contract with the Centre de verification mcanique de Montral
(CVMM) to carryout 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
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
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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 government body will avoid public law duties when
delegating its functions by way of contract or other form of
agreement
REASONING:
Cyr is entitled to procedural fairness under s. 5 AAJ, as his
designation as an accredited mechanic for the purposes of the
SAAQ mechanical inspection program constitutes an administrative
authorization. Cyr cannot be considered a party to the contract,
because under this contract, CVMM is the mandatory 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, section 5 of the AAJ and its procedural requirements
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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 dismissed
COMMENT:
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 inspection Articles David
Tanovich, The Charter of Whiteness: Twenty-five years of
Maintaining Racial Injustice in the Canadian Criminal Justice
System
Introduction :
As we reflect on the 25 year anniversary of the Charter, much will
be written about the impact this document has had on those living
on the margin. Has the Charter given any hope to Aboriginal and
radicalized communities? While there is 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 Canadians at alarming rates,
racial profiling at our borders and in our streets flourishes. The
utility of using litigation to address racial injustice Successful
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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 radicalized communities.
So, Charter litigation remains as important means of addressing
fundamental injustice While I place considerable reliance onCharter 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
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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 tothe officer for rising 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
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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 stillroom
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 two categories of public international and 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
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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 pluralism and legal polycentricism
in international law The world community of today is formed by a
great number of diverse societies; each political society has its ownlaw 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
polycentricism, 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 privateinternational 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 all areas
affecting human society, and driven by the theory of legal positivism
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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 ant agnostic 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 EXTERNALLYalmost 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 oppositetendencies 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. A Law for
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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 codificationthe 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 conduction , 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 law
The notion of international law
This seems to be an outdated concept, not fit for responding to new
realities
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[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 allappear to overlap
The essay will use the term international law, because its covers
broadest range of these contexts. Instead of trying to change theterm itself the focus will be on a change of its understanding and
scope of application
The Dynamism of Public/Private Dichotomy
Public 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 themselvesare 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
,
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the first emphasising moral standardsand the latter a more
practical approach. While a naturalist view dominated the 17
th
and 18
th
centuries, the positivist view gained importance throughoutthe 19
th
century. Since WW II, the naturalist and positivist views can be said
to co-exist in parallel. The atrocities committed by the Nazi
government thatculminated 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 theconcept 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 thenotion
of public order. A further expression of the naturalist characterexpressed by custom is found in the concept of obligations erga
omnes. With full awareness of the majorimportance of the
distinction between customary and treaty law
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Private international law
- 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 and public law
- 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- Thereception and implementation of the international norm in the
national realm is necessary because a state, the traditional subject
of international law, can in some casesonly 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, the two main sources of international law.
-
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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 orby judicial practice. Incorporation doesnt automatically
give such law higher standing within the national legal order. A
later national law is capable of nullifying the obligationset 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 CONSTITUTIONdetermines 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 include the increase for the effectiveness of
international law, a betterfulfillment of relevant treaty obligations
etc. Disadvantages are recognized 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 othernations norms
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SOURCES OF LAW
Overview
- Early relations with Aboriginal Peoples- Reception of English
Common Law- French Civil Law and Bijuralism- Convention-
Statute- Treaty
Law 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-
Cases such as
Mitchell v Canada
and
Delgamuukw v BC
interpreted s 35
Canadas Common and Civil Law Traditions
a.
Reception of European law:
- Canada law remains a largely European inheritance. British
concepts of reception determined how Canadas common law and
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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 orceded, 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 simplycolonized, 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
datesb.
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). Two fundamentalideas permeate common
law theory: (1) Judges do not make the law but merely declare it; (2)
all the relevant past decisions are considered as evidence of the law,
and judgesinfer from these precedents what is the true law in a
given instance- Civil law: Quebec inherited civil law. Civil law is
based on established laws, normally written as broad legal
principles. The difference between civil and common law lies more
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in their different methodological approaches as opposed to
codification per se. In civil law countries, legislation is seenas 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 orcode. On the other hand,
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
todayc.
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/benefits and disadvantages/problems
with/of precedent:a. 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 (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 principleslaid down inprevious cases would result in uncertainty of law); (vi) Possibility of
growth (new rules can beestablished and old rules can be adapted
to meet new circumstances and the changing needs in society)(e.g.
can talk about how feminists would enjoy this aspect of the
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doctrine, without which the laws todayrelating to female
participation in society might be primitive)b.
Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is
binding even if the decision is thought tobe wrong) + Perpetuation of
errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay
people cantaccess it); (iii) Slowness in growth (the system depends
on litigation for rules to emerge); (iv) Easy todistinguish (Give case
example); (v) Also some
intellectual uncertainty (as the law is in constantevolution)
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- Equitys 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 generalitiesgroups
or classes of persons and events, rather than individuals and
discrete happenings. Because of this,law sometimes fails to achieve
adequate justice in a particular case- Rules of equity are now
applied concurrently in all superior courts, with equity prevailing in
cases of conflicte.
International Law
- Distinguish between domestic and international law
International law
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- Distinguish between
treaties
(contracts between states who take part in treaty) and
customary international law
(entrenched norms binding on all states, except those whohave
repudiated them by practice)
International law as a part of Canadian law
- How 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 transform or implement the
law intoCanadian 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 modeof reception (e.g. implementation issue no clear rules on when a
treaty has been implementedinto 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 inthe
relevant statutesee the
A Hesitant Embrace
article below for a critique of
Baker
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and this approach in general; further, the
Suresh
approach appears to not be satisfactoryeither, 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- 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
LHeureux-Dube: Importance of considering best interests of
children indicated by Canadas ratification of the Convention on the
Rights of the Child, an internationalinstrument. International
treaties and conventions are not part of Canadian law unless they
have been implemented by statute. The Convention has not been
implemented byParliament, and therefore its provisions have no
direct affect on Canadian law. Nevertheless, the values reflected in
international human rights law may help inform thecontextual
approach to statutory interpretation and judicial review.
Iacobucci: It is a matter of well-settled law that an international
convention ratified by the executive branch of government is of no
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force or effect within the Canadian legalsystem 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 mycolleague, wherein reference is made to the underlying values
of an unimplemented international treaty in the course of the
contextual approach to statutory interpretation andadministrative
law, because such an approach is not in accordance with the
Courts jurisprudence concerning the status of international law
within the domestic legal system.De Guzman v Canada
FACTS:
Ms Gs 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 theright 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
inconsistentprovision in either the IRPA or the regulations
ISSUE:
Is paragraph 117(9)(
d
) invalid because it renders the IRPA non-compliant with
international human rights instruments to which Canada is
signatory
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REASONING:
- 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 respectthe
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 onthe 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 international law to interpret a
statutory provision as requiring immigration officers to give great
weight to the best interests of anyaffected children when exercising
discretion, EVEN IF NOT IMPLEMENTED- Further, Brunnees and
Troope in a Hesistant Embrace argue that courts have not alwaysmade 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
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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 notto 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 thatthe 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
Background
- 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 arebinding on
Canada
- In Baker, the Court held that the values reflected in international
human rights law may help inform the contextual approach to
statutory interpretationand judicial review- Canadian courts are
grappling more with the practical application of international law
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- 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 internationallaw, 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, notexplicitly)
- The point is the Supreme Court 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
international instrument was not implemented in Canada (but we
think its arguable that there isimplied implementation because of
the Charter and its protections)- We argue that its is not enough to
treat ALL normative threads as potentially persuasive, but not
mandatory over time, this approach risks weakeningthe 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 inconformity with the relevant
international norms as far as possible. By contrast, norms that
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arent binding (e.g. soft law) can help inform the interpretationof
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 onCanada
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 hasactually occurred. They wrestle as well
with the implications of the common law principle that "Parliament
is not presumed to legislate in breach of a treaty or in a
mannerinconsistent 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 relatesto 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
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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
Canadas 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 statutoryimplementation- 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
- There are cases where treaties are genuinely unimplemented.-
What is the legal effect of such treaties? We submit that a treaty
that is binding on Canada, while not directly applicable in Canada,
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is nonetheless subjectto the presumption of legislative intent to Act
consistently with Canadas international obligations.
- As we understand the presumption, it applies to all of Canadas
international obligations, whether treaty based or rooted in
customary international law- This understanding leads to the
inference that courts should make every effort to interpret
Canadian law so as to conform to Canadas international
obligations
- Unfortunately, Canadian case law has not taken a consistent
approach to the presumption of conformity w/ international law.
- First, there is an uncertainty of the effect of that presumption in
the context of Charter interpretation. The SCC has tended to draw
upon international norms merely to informits 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 Canadas international obligations and non-binding international
norms
- The ambiguous state of the case-law in this regard is reflected in
the Courts decision in Baker. One of the principle causalities of
this lack of clarity iscustomary international law. The central ruling
in Baker was that even though Canada had never explicitly
transformed its obligations under the Conventionof the Rights of the
Child into domestic law, the immigration official was bound to
consider the values expressed in that Convention when
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exercisingdiscretion. Therefore, the Conventions emphasis upon
the best interests of the child should have weighed heavily in
considering Ms Bakers application
.- How did majority arrive at the conclusion that the values
reflected in international human rights law may help inform the
contextual approach to statutory interpretation and judicial review?
More specifically, the central question is how the majority conceived
of this principle in relation to the traditional presumption of
statutory conformity withinternational 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.
As saidabove, the majority took the narrow view on the question of
implementation and observed that, absent implementation by
Parliament, its provisions haveno DIRECT application in Canadian
la
w. 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
andtherefore relevant to statutory interpretation through the
presumption of conformity (from the standpoint of this
presumption, the Court wouldnt have had to distinguishbetween
the provisions and values, and could have used both). The Court
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simply failed to adopt the presumption which they should have,
based on the very quote which theyrelied 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, notdirectly applicable in Canada? (2) How should
they approach norms that do not bind Canada but reflect important
international values?- Some have suggested to ignore the rigid
distinction between binding and non binding. Doing so risks some
norms being ignored completely, simplybecause they are not legally
binding. Similarly, legal norms produce a false sense of security
when it is assumed that they require nothing other
thanmechanical application by a judge. According to Knop, anapproach focused on persuasiveness of norms can improve the
domestic application of bothtypes of norms. Knop therefore likes
Bakers 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 persuasiveauthority, which the Court MAY
use to inform its interpretation of domestic law. By treating both
binding and non-binding international norms in thismanner, courts
move away from their duty to strive for an interpretation that is
consistent with Canadas international obligations.- Binding
international norms are not only persuasive, they are obligatory. If
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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 caninternational 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 internationallaw. 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 onCanada 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
customaryinternational law.
Summary
- Customary international law (a peremptory norm of customary
international law which emerges by general consensus of the
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international community): should be directlyapplicable (it is a part
of Canadian law). Courts should strive to interpret statutes and
common law to be consistent with obligations under customary law.
However, theapproach of Canadian courts to customary
international law is unclear. There is no unequivocal statement on
whether custom is part of Canadian law or not. If anything,
thereare 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 permitthe inference that custom merely helps inform a contextual
approach to statutoryinterpretation, 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 Canadian law.When Charter issues arise,
Canadian legislatures retain control over domestic law. The
presumption of conformity is to be applied only where possible, and
it can be rebutted byan explicit legislative Act.- International 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 relevantto 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
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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 Issue
Department of Justice, Bijuralism and Harmonization: Genesis
Bijuralism signifies the co-existence of the English common law
and French civil law traditions, within a country organized along
federal lines
Common Law Tradition
The
common lawtradition can be distinguished from the civil traditional essentially
by its method, that is, its rules of interpretation, the hierarchy of its
sources and itsinductive 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 legalcategories with
vague foundations and flexible limits
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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 judgedoes not make the law but
discovers it, as a legal vacuum is impossible
Civil Law Tradition
The most important feature of the
civil law
tradition differentiating it from the common law tradition is itsemphasis on the primacy
of written laws
. Civil law is not judgemade/recognized law, its 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 fromthis 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
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One integral issue relating to Canada's bijuralism is that of
"language". It is very important for me to stress that I consider
language to play 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 and has even led tosome opinion favouring
a distinct Supreme Court for Quebec or a separate civil law division
within the existing Supreme Court
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 Francophonesinconsistent with the common
law tradition?In this regard, I cannot emphasize enough that my
experience has taught me that French is not the exclusive linguisticvehicle for the expression of the civil law tradition nor isEnglish 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 traditionand the English language and
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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 inboth 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 theEnglish 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,
federallegislation 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 inthem terminology and wording that are respectful of the
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concepts, notions and institutions proper to the legal tradition of
their particular province or territory- One distinctive and often
difficult feature of Canadian bijuralism is the task of rendering the
common law in French and the civil law in English. More
specifically, howlegislative 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, itis now
readily recognized that this process should not rely upon the
technique of simply transposing the concepts of one legal tradition
into the corresponding functionalequivalents of the other legaltradition. 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. It means that both
language versions of a bilingual statute areoriginal, official and
authoritative expressions of the law. Neither version has the status
of a copy or translationand neither has paramountcy over the
other. This is known asthe "
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 consistentwith the context of
the provision. Where there is a blatant conflict between the English
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and French versions, courts must examine the legislative history of
the two linguisticversions 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
commonmeaning 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 theattainment 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 lawissues. 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 inquestion.
Consequently, there are several areas of law found in federal
statutory enactments which require harmonization with Quebec
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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 throughoutthe country in everyrespect. Our objective is legal duality, not necessarily to achieve one
rule to be applied uniformly across Canada; this requires respect
for the character anduniqueness of the concepts and principles of
each legal system
Convergence and Progress
There is evidence of a certain convergence between the civil law and
common law traditions in Canada. While the common law and civil
law families share common origins,
these legal systems have been moving farther and farther from
those origins.
This move can be seen as the result of
frequent contact with other legal systems
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,
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 enablethe 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 traditionnamely,
the trust.
Another instance of this "
rapprochement
" of the two traditions can be discerned from the current situation
where common law courts are required to apply and
interpretsubstantive civil law .e.g recent tort case where Court
made extensive reference and resorted to civilian authority
Chief Justice McLachlin stated that looking to how other courts indifferent jurisdictions deal with this issue provides perspective both
on the nature of theproblem and possible solutions.
Conclusions
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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 backgroundand needs. In the Canadian
context, it seems to me that a new analysis of the situation is also
needed
It is true that things have already changed substantially. The
codification of the law is increasingly extensive in both systems.
There are more and more new sources of substantive law, including
international law and native law. Translation, language training for
judges and jurists, and exchanges between law schools are far more
common. There is widespread access to criminal justice in French
at the trial level throughout the country. Some universities offer a
double law degree; others have organized one-yearwork 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 commonlaw 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. Onthe 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
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(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 theAct. 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 thelaw of successions defined in the
Civil Code of Qubec
and that under that law there is no unworthiness to inherit by
operation of law unless there is an intention to commit thealleged
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 silentconcerning 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 theCivil Code of Qubec
.
REASONING:
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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 likewise silent, or the federalstatute 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
intelligentapplication of that statute- In Quebec it is trite law that
the "ordinary law" of the province is constituted by the
Civil Code of Qubec
and theCode of Civil Procedure
-
Of course, 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, infurtherance 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 thecivil law plays an active role by applying
directly to complement federal private law statutes, just as it does
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with regard to provincial statutes of the same type. Most of the
time,of course, 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 withoutdefining 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 lawis 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 natureof the federal enactment at issue
but the fact, quite simply, that
the federal enactment in a given case must be applied to situations
or relationships that it has not defined and 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 theseActs 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. Thereis,
therefore, a
complementary relationship
between federal legislation and the
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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 theAct and
furthermore does not correspond to any concept that is defined in
the
Civil Code of Qubec
. The Act appears,
prima facie
, to constitute a completecode 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 argumentcannot 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
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law
- The
Civil Code of Qubec
recognizes the principle that no one should profit from his or her
crime
.
The question then is what the civil law understands by theprinciple
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
.
Shouldthe 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. Itwould 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 andavoiding 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
andconclude, from the scant evidence at its disposal, and given the
balance of probabilities, that there was a sufficient intention to kill.-
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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 capacityas 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
the complementarity of the Quebec civil law with federal law where
the latter is silent. It has also endeavored toharmonize 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 provesimpossible. The unworthiness to inherit under
subsection 620(1) of the
Civil Code of Qubec
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 Qubec
does not exclude from its purview all cases of manslaughter. Where,
as here, a person commits aggravated assault or inflicts seriousbodily harmlikely 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 disqualified
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Desjardin 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 isnecessary to refer to the
Civil Code
of Qubec
and not the common law. The
Civil Code of Qubec
is the foundation not only of all other Quebec laws, but also of the
relevantprovisions 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" isunworthy 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
thatprovision and could not receive the surviving spouse's annuity.
HELD
: Appeal allowed
Convention
- Constitutional conventions are a species of unwritten
constitutional norms. The British Constitution was understood to
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include certain conventions that govern the workingsand
interaction of the branches of the state. Because the Constitution
Act 1867 sought to effect a Constitution similar in Principle to that
of the UK, Canada inherited theseconventions.- 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 Resolutioncontained an address to be
presented to Her Majesty The Queen in right of the United Kingdom
and a statute, to which was appended another statute provid ing for
thepatriation of the
B.N.A. Act,
with an amend ing procedure, and
a Charter of Rights and Freedoms.
The proposed Resolution carried the approval of only two provinces,
Ontarioand New Brunswick. The opposi tion of the others, save
Saskatchewan, was based on their assertion that both
conventionally and legally the consent of all the provinces
wasrequired for the address to be forwarded to Her Majesty with theappended statutes. The proposed Resolution was adopted by the
House of Commons and by the Senate on April23 and 24, 1981.
ISSUES:
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All parties agreed that proposed amended constitution would affect
provincial rights and powers.2 key 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 wasprecedent. Since 1930 all
amendments affecting the provinces were passed with provincial
consent there were no exceptions. Precedent indicated intent to
have consent.Reason
confirms Canadas federal principle.
1. Legal Issue [7:2]The Majority
[CJ Laskin]
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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
amendmentsreveals 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 = totalconstitution- 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
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convention: (1) precedent (2) intent to be bound by the convention &
(3) reason for the convention.
HELD:
Convention needs substantial measure of provincial consent was
not supported by precedent arguably required unanimous
consent. But, here, 8 provinces opposedthe amendments it did not
matter. Insufficient provincial support.
topic 3
Fundamental Principles of the Canadian Legal System
Overview
- Rule of law- Parliamentary sovereignty and constitutional
supremacy- Separation of powers- Judicial independence
Creik Reading
Background- 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 on the basis of consent. In
comparison, the state holds all authoritative power (the state
mayimpose its dictates on persons without their individual
consent)- In a society governed by the rule of law, the state may not
act arbitrarily. The state must impose its will lawfully, and 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
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orbranches of the state that perform the functions necessary to
operationalize law in societyRule 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 tothe 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 (and 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 ma