FOUNDATIONS - FINAL (Dec. 14)...2" PEI!Judges!Reference! 29! Tobiass! 31!...

1

KEY DATES & HIERARCHY OF SOURCES OF LAWS 3 Legal Theories: 4 HISTORICAL LEGAL INHERITANCE 6 KEY DEVELOPMENTS IN CDN LEGAL INDEPENDENCE 6

Relationship between Common Law and Equity 7 Canada Trust Co v. Human Rights Commission 7 Re DeLaurier 8 Guerin v. Canada 8 KLB v. British Columbia 9 Halpern v. Canada (Statutes and Common Law – complex mix) 9

Aboriginal Legal Inheritance 10 16 – 18th century 10 19th Century 10 Mitchell v. Canada 10 Delgamuukw v. British Columbia 11

INTERNATIONAL LAW 12 DUALIST COUNTRY – Domestic law and treaty law is separate * FEDERALISM 12 CUSTOMARY LAW 12

CANADIAN CONSTITUTION 12 CONSTITUTIONAL CONVENTION 12 UNWRITTEN CONSTITUTIONAL PRINCIPLES 13 PATRIATION REFERENCE 13 QUEBEC SECESSION REFERENCE 14

RULE OF LAW – Shields individuals from arbitrary state action 14 Roncarelli v. Duplessis 14 BRITISH COLUMBIA V. IMPERIAL TOBACCO 15 British Columbia (AG) v Christie 15 Reference Re Language Rights Manitoba 15 Babcock v Canada 16 FEDERALISM 16 SEPARATION OF POWERS 17 Canada v Khadr: 17 Doucet-‐Boudreau v. Nova Scotia: 17

Constitutional Amendment 18 Amendment Formulas 18 Reference re Senate Reform 19 Hogan v NFLD 20

The “Living Tree” 21 CANADIAN COURT SYSTEM 21 Court Hierarchy 21 Constitutional Framework 22 Justices of the Supreme Court of Canada 22 Alberta Court 23 Federal Courts 24

Judicial Selection 25 International Comparisons 25

SECTION 3: JUDICIAL INDEPENDENCE 27 Report re Bienvenue, J (P 333-‐348) 29 Justice Matlow 29

2

PEI Judges Reference 29 Tobiass 31 Re Residential Tenancies Act 32

Legislative Process 32 Parliament 32 O’Donohue v the Queen 33 Brown v Alberta 33 Samson v Attorney General Canada 34 Reference re Provincial Electoral Boundaries: 34 Figeuroa v Canada 35

Legislative Process 36 Public Bills vs Private Bills 36 Money bills vs Ordinary Legislation 36 Bringing Legislation into Force 36

Statutory Interpretation 37 Sources of Rules 37

Executive Branch of Government 43 Rise of Modern Administrative State 43 Modern Canadian Administrative State 44 THE CROWN 45 Fraser v. Canada (PSSRB) 46 Osborne v. Canada – p. 249 47

Independent Administrative Agencies 48 Ocean Port Hotel v BC 48 Bell Canada 49 R. v. Campbell 49 Kreiger v. Law Society (Alberta) 50

INDEPENDENCE OF PLAYERS IN EXECUTIVE BRANCH 50 Municipalities 51 East York v Ontario 51 Shell v. Vancouver 52 Spraytech v Hudson (Town) 52

Royal Prerogative 53 Black v. Chretien 53 Re Gray 54 PEI Potato Marketing Board v Willis 55 Nova Scotia Inter-‐Delegation 55

Justification for Constitutional Judicial Review 58 Marbury v Madison 58

Historical justification for constitutional judicial review in Canada? 58 Operation Dismantle 60

ENFORCEMENT 61 Where do courts get their power to enforce constitutional rights? 61 Doucet-‐Boudreau 62 Manitoba Reference 63

Legitimacy of Judicial Review 64 McLachlin Speech 64 Vriend v Alberta 65 PEI Judges Reference – LaForest Dissent 66

3

FOUNDATIONS – FINAL KEY DATES • Royal Proclamation 1763 [reserve land for Indians settlers can’t interfere; Quebec gets legislature; public & private

English law to be used] • Quebec Act 1774 – Reverses governance by English Private Law (no reversal of governance by English public law] • Colonial Laws Validity Act 1865 • 1931: Statute of Westminster à repeal CVLA except for BNA Act • Pre-‐1949: Judicial Committee of Privy Council (in England) highest court in Canada

o At this time, higher than SCC in hierarchy. o *Any pre-‐1949 decisions that have not been overturned are still binding on lower courts. Not binding on

SCC. • 1982 Canada Act NB: Pre-‐Reception, King could make laws and new English Statutes applied; Post reception, King can’t make new laws and new English Statutes no longer apply HIERARCHY OF SOURCES OF LAWS Constitution -‐ S. 52 explicitly states that all laws are subject to constitution. To the extent that other laws are inconsistent, they

are void and of no effect to the extent of the inconsistency Quasi-‐Constitutional Statutes -‐ Not part of Constitution, but seen as having impact that enables them to prevail over other statutes (e.g., Canadian

Bill of Rights – if a Federal law is inconsistent with the Cdn Bill of Rights, it will be invalid UNLESS it explicitly states that the law operates notwithstanding the Cdn Bill of Rights)

-‐ Moves backward and forward in time (typically new statutes repeal legislation enacted earlier)

Statutes -‐ Statutes overrule the common law -‐ Common law rules serve as guides to the interpretation of statutes (essentially fill in the gaps)

Delegated Legislation (regulations and bylaws) -‐ Legislation enacted pursuant to a statute. Statutes (passed by Parliament or the Legislature) can delegate authority

to enact laws regarding the content of the statute (e.g., Lieutenant Governor in Council, Municipality, Band Council, Territory).

-‐ Delegates can only create legislation within the power granted (has to fall within the enabling legislation) Common Law -‐ Law made by judges in the course of adjudication. (need to note hierarchy of the courts (p. 55 of Casebook)

Royal Prerogative -‐ Was once very important; still persists regarding matters of defence, honours, public recognition, executive conduct

of foreign affairs. The Executive can carry out these functions without being restrained by parliament. -‐ Note, it’s Prime Minister who exercises the power. -‐ Continue to be valid if nothing has overturned them.

Guidelines (non-‐legal guidance on how discretion will be exercised) -‐ Guidelines are not formally part of the law -‐ Example, immigration decisions.

4

Legal Theories: • Descriptive theories: how the legal system actually functions.

o e.g., how the law works; may not be desirable that it works that way • Normative theories how the legal system ought to function.

o try to explain why the law ought to operate in that way

Theory Objective Tenants Other

Positivism *Descriptive

Develop a notion of the internal logic of law to put debates about morality to one side and focus on what the law actually is.

1. Law comes from sovereign or state (not habit)

2. Law = set of rules or commands (could be enabling)

3. Legal sources of ordering are separate and distinct from others (e.g., social convention)

4. Law and morality are separate and distinct (something may be right thing to do, but not necessarily enforced by law)

HLA Hart Ronald Dworkin WW2 Challenge to Positivism -‐ “actions within the law of the time”

Cases: Noble and Wolf -‐ Schroeder, J. doesn’t follow Drummond Wren decision. Feels Mackay, J. erred in invalidating the covenant on ‘public policy grounds’. Stresses that is the job of the legislature and not of the judiciary. Job of judiciary is to ‘expound and interpret the law’, not create laws based on individual notions of what it should be.

Natural Law *Descriptive and Normative

Law is based on a natural legal order.

1. Legitimacy of law comes from sovereign or state compliance with higher order norms (either derived from religion or the natural world)

2. Legal rules are grounded in an overriding set of moral principles

3. Legal rules that are inconsistent with those principles are not really law and do not have to be followed.

Theoretical shortcomings in a secular and multicultural society: -‐ no state religion

Got a boost in Post WW2 Some generalized natural law concepts embedded into positive law (Charter of Rights and Freedoms)

Cases: Drummond Wren -‐ Mackay J. strikes down restrictive covenant on grounds that it is counter to public policy. Uses sources (e.g., historical speeches, international declaraions not binding to Canada as evidence of public policy). **note, those aren’t valid sources

Feminism *Normative

• Central concern with promoting legal recognition of women’s equality (idea that women ought to be legal equals of men in all respects)

• Look at extent to which women are disadvantaged by legal rules and institutions.

• Original focus: formal equality (same rules for men as you do for women … e.g., both allowed to be senators)

• Shift to substantive equality (ought to be treated equally, different rules for men and women may be required)

Evolution of legal theories promoting other equality seeking groups (e.g., critical race theory). Example case, hospital has obligation to provide sign language … question re: disability vs. difference *McKinnon & Dworkin

Cases: R V. Morgentaler / Edwards v. AG Canada Edwards V. Canada – JCPC overturns SCC decision that women aren’t “qualified persons” under S.24 of BNA Act (took living tree approach – used external (tradition) and internal (text itself) Morgentaler -‐ S. 251 of Criminal Code violates S. 7 of Charter (right to liberty)

-‐ Wilson, J. used feminist reasoning (need to look at effect of law on women) -‐ Majority used reasoning that the process put women at risk (potential for delay/complication)

Called into question the autonomy of law from broader social and political

• Inability of legal rules to be sufficiently precise to conclusively determine the outcome of legal disputes.

Late 19th-‐early 20th century American response to positivism • Realists didn’t think that their

5

Legal Realism *Descriptive Theory

considerations. • felt that there was too

much discretion as the law was being applied.

• Couldn’t say that the law was this force that had all the answers

•

• Attempt to identify non-‐legal factors that influence legal decision makers and imbed them within legal argumentation o What drove judges to one

interpretation, wasn’t the law, but also their ideas about society and how the world out to evolve.

ideas were corrosive to the idea of law. Felt it was “reality”. Need to take positive law and use it to make arguments that would be persuasive to decision maker in front of you.

Oliver Wendell Holmes William O Douglas

Cases:

Critical Legal Studies (CLS) *Descriptive Theory

Outgrowth of American legal realism but without realism’s acceptance of the legitimacy of legal decision-‐making Breaks down distinction between legal and political argumentation

• Maybe ought to be some discomfort with the degree of discretion that judges could exercise and the outcomes being produced o Builds on the foundation of legal

realism…in a more critical way • Focus on the way ideological assumptions of decision-‐makers consciously or unconsciously shape legal outcomes

Law institutionalizes and legitimates the authority and power of particular social groups or classes

Cases: R v. RDS White police officer arrest black youth for allegedly interfering with arrest. Youth court judge acquits youth; remarks to rhetorical ? that “police have been known to mislead the court in the past”. Crown felt remarks led to bias. -‐ SCC restore original trial decision. L’Heureux Dube and McLauclin subscribe to CLS ideas & think remarks are beneficial. Corey, J. feels words were out of place.

Law and Economics *Normative and Descriptive

• Explanation of legal doctrines with reference to wealth maximization and economic efficiency

• Use of cost-‐benefit analysis to shape laws

Normative project: Want to promote solutions to problems based on economic efficiency and wealth maximization. Solutions are originally founded in areas of economics (e.g., competition law) Descriptive: Tried to explain theories of tort/contract law etc. in terms of their promotion of economic efficiency. Common law is the way it is … in order to result in economic efficient behavior. •

Pareto optimality: Best possible outcome; maximize total utility. “Welfare of each of the relevant parties can no longer be maximized except at the expense of one of the parties” Pareto superiority: If you can create a situation where someone is better off and no one is worse off, you ought to make that choice. Efficient breach of contract: One party may be better off, but no one is worse off (no one loses)

Cases: Bank of America v. Mutual Trust Co. -‐ B/c of Mutual trust breach of contract, Bank of America suffers financial loss. Awarded compound interest for damages to compensate b/c dollar today is worth more than dollar tmrw.

Public Choice Theory *Descriptive & Normative

Focus on tendency of political actors to concentrate benefits and disperse costs •

• Assumption is that politicians will try to maximize their political support rather than to maximize social welfare.

o Concentrate benefits on margins.

o Disperse costs on everyone

Offshoot of law and economics approach

Bhadauria v Board of Governors of Seneca College (ONCA) (pg42)

6

HISTORICAL LEGAL INHERITANCE RECEPTION DATES – Date Colonial legislature is est. *Significant, b/c b4 reception, king could make laws and new English statute laws apply; Post-‐reception, King can’t make new laws and new English statute law no longer apply Settled Colonies: o General rule that English law prevails in “settled colonies” until date of reception except for laws not suitable to the

colony (Cooper v Stuart) o Evolving English common law continues to be part of colony after reception date (*up until 1949, changes in English

Common Law impact Canada) o Evolving statute law may or may not be part of the law of the colony after reception date.

o Imperial statutes enacted after reception that are intended to apply to the colony ARE part of the colony (e.g., Quebec Act 1774)

o English Statutes enacted after reception date are NOT part of the law of the colony Conquered Colonies: • Receive English public law but keep pre-‐existing private law until altered by colonial legislature [in settled colonies,

receive English private and public law] o *We pretend that PEI and NB are settled colonies

KEY DEVELOPMENTS IN CDN LEGAL INDEPENDENCE Event or Legislation Summary Significance

Royal Proclamation of 1763

• Reserve Indian lands for Indians (settlers can’t interfere)

• Establish a legislature in Quebec • Use English Law in Quebec (both public and private*not this wasn’t typical of conquered colonies)

• Before Reception (est. of Quebec legislature) therefore King able to pass it

• *NB: Use of English Law for Quebec private law will be overturned in Quebec Act

Quebec Act 1774 • Reverses governance by English Private Law (no reversal of governance by English Public law).

• Protect French language in institutions of Quebec. Protect Roman Catholicism.

• Imperial Parliament steps in (likely motivated by American unrest) o Imperial Parliament has a right to

legislate in Quebec; King George can’t because of Post-‐Reception (Quebec legislature est)

• Quebec realized that Americans likely didn’t have interest in preserving Catholicism and French Language, so if they sided with them, they’d likely lose that.

Constitutional Act 1791

• Imperial legislation separates Ontario from what is now Quebec

• French civil law rules in lower Canada

• **1792 – Upper Canada legislature established (Ontario Legislature can legislate for the jurisdiction)

Colonial Laws Validity Act, 1865

• Clarifies / Reinforces the relationship of colonial statute law and the common law; relationship of colonial statute law and imperial statute law

• Law passed by a colonial legislature is contrary to the common law of England is fine. Law would still be valid. *Colonial legislation could change common law for

7

the colony! • Colonial legislation would be invalid if it was contrary to imperial legislation that was either designed to address the colony specifically or the empire generally. Imperial power had interests in the colony (e.g., Navigation).

Civil Code of Lower Canada 1866

British North America Act 1867

• Federation of four original provinces, outlined division of powers. Retention of governor’s powers of reservation and disallowance – retention of CLVA

• *note; Powers reserved to both the Governor General in Council and to the Governor General to invalidate provincial laws or to send federal law to England to be reviewed to see whether they would be brought into force or not. Practice has attenuated using them…now constitutional convention that even though they are part of the text, we don’t actually use them.

• Because the BNA Act is an Imperial Statute, it is binding on the jurisdiction it proports to legislate for. This includes NS, NB, Ontario, Quebec and the territories. Doesn’t bind NFLD, PEI, BC or other Cdn provinces that get established later. Overtime different provinces agree to join and the general framework is established in the BNA, but everyone gets a special deal (e.g., BC wanted a railway)

Statute of Westminster 1931

• Establishes that the Imperial Parliament will no longer legislate for Canada

• NFLD is an independent Dominium as well!

• Repeal of CLVA except for BNA act

Canada Act 1982 • Ask Britain to make final amendment and then promise to never legislate for us again!

• Patriation, Charter, Other amendments

English establish colonies along Atlantic seaboard (all governed by Imperial law, but jurisdically distinct) o NFLD (Reception: 1832) o NS (Reception: 1758) o Quebec (Reception: 1763) o PEI (1769) and NB (1784) are separated from Nova Scotia. o Quebec divided into Lower and Upper Canada (1791) / reunited as Canada with equal representation from Canada

East and Canada West (1840) o Rupert’s Land & North-‐western Territory governed sep. until admitted to Can. as territories in 1870. Vancouver Island (1849) and British Columbia (1858) colonies established and merged into British Columbia (1866) Relationship between Common Law and Equity Court of Chancery: • English Administrators developed second court system in response to inflexibility of early Common Law, the Court of

Chancery as a way to introduce flexibility. Equity rules supreme over the common law 1870’s both court systems merged into one … Equity prevails over the common law Trusts = came from Courts of Equity [fiduciary duty] Hallmark of fiduciary duty = one party at the mercy of other’s discretion Canada Trust Co v. Human Rights Commission • Facts: terms of scholarship trust established in 1923 are contrary to public policy – restricted only to Christians of

British Nationality

8

o OHRC submit McKeown J should have deferred to the commission to exercise its jurisdiction in human rights code

• Issue: Did McKeown J have jurisdiction to determine this matter or should he have referred to jurisdiction of the human rights commission?

• Decision: In favor of plaintiff – trustee entitled to come to superior court to seek advice and direction • Reasons: Distinguished from Bhadauria:

o In Bhadauria the court attempted to “advance the common law” by creating a new tort of discrimination -‐ SC held not necessary because of the comprehensive scheme of the Ontario human rights code. But in the present case we are concerned with the administration of a trust over which courts have held jurisdiction over for centuries

o In Bhadauria concerned with allegation of discrimination brought against respondent -‐ which commission must enter into settlement. In present case the trustee has no authority to enter into settlement which would be contrary to terms of trust. Limited powers of the commission – mean they do not have the power to alter terms of trust or declare it void

Re DeLaurier Equity trumps Common Law • Facts: Plaintiffs applied to SCO for custody of their child who had for about 10yrs been in care of defendants

o Plaintiffs were catholic, defendants protestant o Plaintiffs relied on rule of “Infants Act” =”nothing in this act shall change the law as to the authority of the

father in respect to religious faith in which child educated” • Issue: • Decision: Parents don’t have a right. • Reasons:

o Relied on principle of equity: relied on Judicature act: “in questions relating to custody and education of infants and in all matter where conflict between rules of equity and common law the rules of equity will be prevail”

o Therefore father’s wishes conflict with child’s interest, therefore fathers interests must yield to child’s

Guerin v. Canada Crown has fiduciary duty to aboriginal people • Facts: Indian Band held land in Vancouver, 1958, the federal government, on behalf of the band, made a deal with

the golf club to lease 162 acres of the land in order to build a golf club. However, the actual terms of the agreement between the government and the club were not those that were told to the band. In 1970, the band discovered the true terms and protested on the basis that the government had a duty to properly explain the full extent of the deal.

• Issue: Was there a breach of fiduciary duty? • Decision: 1st trial: crown in breach of trust, SCC: found in favour of plaintiffs • Reasons:

o Dickson J., with Beetz, Chouinard, and Lamer concurring, held that the nature of aborignal title imposes an enforceable fiduciary duty upon the Crown. Dickson described the nature of aboriginal title as a sui generis = right that has no equivalent. It is an inherent right that existed prior to the Royal Proclamation of 1763 and is founded in historical occupation. This special right means that title to aboriginal land can only be alienable to the Crown and the Crown can only use it in the interests of the aboriginals.

o Where by statute, agreement or unilateral undertaking one party has an obliagtion to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowers become fiduciary

o Equity will then supervise the relationship by holding them to the fiduciary’s strict standard of conduct

9

KLB v. British Columbia • Summary: Abuse suffered by individuals in a foster home. Government may be liable because officials were

negligent, or responsible vicariously because of foster parents’ action. o Limitations Act was used to turn the ‘Win’ of government

• Decision: Majority found the Government not vicariously liable. • Reasons: Bazley v Currie distinguished. Foster parents are independent; not gov’t employees. • SCC Conclusions is that the government isn’t vicariously liable. Makes the distinction between KLB and Bazley V.

Currie. o Foster parents are independent. Not employee relationship. o Government in not direct control of foster parents. o Majority focused on the foster care relationship more like a family relation. Can’t have that if Government is

supervising. Can only attach liability if government has ongoing supervisory responsibility. • Commentary: Dissent by Arbour J – Govt is vicariously liable. NB: • SCC is there to do more than just discuss facts in front of them. There to give guidance to lower courts / govts /

parties about how matters should be resolved in the future. • SCC needs to discuss other stuff because it might apply in another case. Role of SCC – SCC says more than what it

needs to. What is vicarious liability? • Liability that you have as a function of your authority over someone else (responsibility lies on the person with

authority). This is done to assist with compensation (assume that the individual with authority has ‘deeper pockets’. Helps with deterrence of poor behaviour.

• Vicarious liability and negligence are different. Negligence was really about “did we check out to ensure its’ safety”. Once children are in care, not the same level.

• In the case of the foster parents, the question is whether the government was vicariously liable for the actions of the foster parents.

How did Arbour J. develop the argument to support her dissenting conclusion on vicarious liability issue? • Makes the case that Government does have responsibility over individuals. Halpern v. Canada (Statutes and Common Law – complex mix) • Facts: Seven gay and lesbian couples applied for civil marriage licenses from the Clerk of the city of Toronto. The

clerk did not deny the licenses but instead indicted that she would apply to the court for directions, and hold the licenses in interim. At roughly the same time, the MCCT (Christian church) that solemnizes marriage for its hetrosexual congregates decided to conduct marriage for its homosexual members. Did so because tradition of publishing banns of marriage was a lawful alternative under laws of Ontario to a marriage license . In compliance with Ontario laws, the MCTT submitted the requisite documents for marriages to the office of registrar – registrar refused to accept documents, citing alleged federal prohibition against same sex marriage

• Issue: Does common law definition of marriage prohibit same sex marriage? Does common law definition infringe on MCCT charter rights?

• Decision: In favor of plaintiffs • Reasons:

o Describes the relationship between the common law and charter as follows: constituion is the supreme document and the common law is below it -‐> traditional common law appears discriminatory – the charter is meant as vehicle for regulating government action

o Individuals can be discriminatory (i.e. you decide who you want to marry) BUT the government cannot be discriminatory because the constitution regulates government

o Government action is involved in Halpern because you require a government license to get married – this must be consistent with charter!

o Meaning of marriage is not frozen in time -‐> living tree doctrine

10

Aboriginal Legal Inheritance 16 – 18th century — Aboriginal people viewed as trading partners & military enemies or allies — Early treaties don’t include provisions for surrendering of land

o NB: Royal Proclamation of 1763 § “the several Nations or Tribes of Indians w/ whom we are connected and who live under our

protection, should not be molested or disturbed in the Possession of such Parts of Our dominions and territories as not having been ceded to or purchased by us, are reserved to them, or any of them, as their hunting grounds.

19th Century — Aboriginal ppl viewed as wards of the state or competitors for resources

o Partly b/c military strength of Aboriginal actions significantly sapped (diseases like small pox); strength of European soldiery

— Key aim of 19th and 20th century treaties = secure permanent surrender of land — BNA Act

o “exclusive legislative authority of Parliament of Canada extends to all matters coming w/in the classes of subjects next hereinafter enumerated; that is to say … Indians & lands reserved for Indians.

Indian Act — Indian Act = regime of reservation & wardship — Legal disabilities associated w/ indian status

o Pre-‐1960 Status Indians not eligible to vote o Legal ban on culturally significant ceremonies

— Enforced separation of children from families through Residential School System Evolution – series of changes to the way we have thought about Aboriginal People in the law • Evolving recognition of Aboriginal rights in modern context

o Aboriginal people have rights that flow from their status as descendants of people who lived here before English settlement

• Significance of recognition of Aboriginal title to land • Development of modern treaties and re-‐interpretation of historic treaties • Development of ancillary rights – e.g., duty to consult

o Aboriginal title to land, the government can do things with the land, but there is an obligation to consult with first nation about what the impact of the development is going to be. Duty to come to some accommodation. Recognition of impacts that have to be addressed! *significant in resource development. **lot of legal debate over what you have to do to satisfy the obligation to consult.

Case: Mitchell v. Canada • Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty and were absorbed

into the common law as rights unless they were: 1. Incompatible with assertion

of sovereignty 2. Surrendered

3. Extinguished

• Pre-‐1982 could be extinguished by ordinary legislation • Post-‐1982 – gov’t requires justification under s. 35(1) of the Constitution Act (need substantial and compelling public

policy objective) • General rule with respect to general rights – they have to be part of the essential character of the aboriginal society

(e.g., hunting right, fishing right … have to prove this is part of your identity as an aboriginal person) o Common law has to recognize it o Right has to be one that is compatible with the assertion of sovereignty (e.g., won’t recognize the assertion

of independent nation, entitled to rule self completely) o Rights can’t have been surrendered. o Rights can’t have been extinguished.

11

Case: Delgamuukw v. British Columbia • Source of legal recognition to Aboriginal title = Aboriginal group’s historic association with the land (Lamer, CJ) • Limits on Aboriginal title:

o Can’t be used in manner irreconcilable w/ nature of attachment to land *not limited to tradition use, though o Communal title (not owned by one) o Not alienable / Can’t be sold – land may only be disposed of to the Crown (further restrictions on making

money of land) • S. 51(1) of Constitution Act 1982 can limit title for substantial and compelling public objectives

o Aboriginal title isn’t absolute, but is constitutionally protected • Lamer, CJ reasons imply limited rights of aboriginal self government – communal title • Test for proof of Aboriginal Title:

o Land occupied prior to sovereignty o If relying on present occupation – must be continuity between present and past occupation o At sovereignty, occupation had to be exclusive

Distinction b/t aboriginal right and aboriginal title. • Title: demonstrate the land was your land, that it hadn’t been extinguished, then it is your land subject to the

limitation on Aboriginal title itself (can’t be incompatible with traditional connection to land / can’t be alienated except through treaty or surrender to govt)

• Right: have to be part of the essential character of the aboriginal society Modern Treaties and Modern Treaty Interpretation • Modern Treaties in BC, Quebec, Yukon, Nunavut • Various combinations of land claims, settlements, economic development agreements and limited self-‐government

agreements • Modern interpretation of historic treaties – R v Marshall (SCC 1999)

o 1760 peace and friendship treaty interpreted as preventing general Fisheries Act and Regulations on fishing and sale of fish w/o licence from restriction of Mi’kmaq indians from fishing for and selling eels

o Interpretation of phrase And I do further engage that we will not traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia or Accadia. (truckhouse or trade clause)

• Atlantic Canada – interesting that they are interested in historic treaty. NS, PEI, NB aboriginal people never surrendered the land.

• Reserve land isn’t held under aboriginal title. If they can lease land out of the Indian Act. If allocated through treaty process, that may define what is allowed to be done to the land.

12

INTERNATIONAL LAW

DUALIST COUNTRY – Domestic law and treaty law is separate * FEDERALISM • General Rule: treaties do not bind governments that are not a signatory and they do not become part of the law

of Canada, UNLESS the domestic legislation implementing the treaty obligation is enacted. • International law only becomes part of the law of Canada to the extent that it is incorporated into domestic law

of o Government of Canada can bind Canada by an international treaty, but if Canada doesn’t enact domestic

legislation, no one in Canada gets the rights from the treaty. • Advantages:

o Upholds values of a parliamentary democracy – parliament and provincial legislatures make the laws, the federal executive branch dominates treaty making

o Avoids allowing executive to short circuit parliament’s supremacy in law making o Arguably more democratic (doesn’t allow Administration to just go ahead and make laws)

• Disadvantages: o Concern may emerge if executive create treaty and provincial legislature/parliament doesn’t respond o Creates situations where legislatures may feel ‘forced’ to pass bills. Little room to disagree.

CUSTOMARY LAW • Binds all states except those who have been sufficiently persistent in rejecting it prior to its emergence as a

binding norm. Formed by general and universal state practice, undertaken by states with a sense of legal obligation (opinion juris)

• Once a rule becomes recognized as customary law, it is automatically part of the Canadian Common Law o Can be displaced by statute

• Customary law is common law made by nations behaving in a similar/consistent way (e.g., how countries approach pirates)

CANADIAN CONSTITUTION • Constitution Act, 1982, Section 52(2) states that

o Constitution includes Canada Act, 1982 (including Constitution Act, 1982), scheduled Acts and any amendments

• Unwritten elements of Constitution o Unwritten principles of the Constitution o Constitutional Conventions

CONSTITUTIONAL CONVENTION • Not legally enforceable (May be identified by the courts, but the most they can say is “this is the convention” • Arise because of political practice • Main purpose is to ensure the legal framework of the constitution will be operated in accordance with the

prevailing constitutional values or principles of the period. • Build on precedents established by the institutions of government. (generally in conflict with the legal rules) *Example:

1) Responsible government 2) Governor general appoints leader of house in majority 3) Fundamental requirement that if the opposition obtains majority at the polls the government must tender

its resignation 4) Prime Ministers must continually have confidence of elected branch of legislature-‐ individually and

collectively – should they lose they must reign or ask for holding of a general election Come into existence on the basis of three factors:

• Practice or agreement developed by the actors • Recognition by political actors that they are bound to follow the convention • Existence of normative reason – a purpose for the convention.

13

UNWRITTEN CONSTITUTIONAL PRINCIPLES • Considered to be part of the architecture of the constitution (they are the skeleton of the building, the frame …

don’t see it, but necessary to hold it up). Set of ideas that help us understand the text of the constitution. Not designed to change the written text of the constitution.

• Have binding legal effect. It is as if they were part of the written constitution. • Shaped by judicial understanding of the constitution. • Source: preamble – similar to the UK (ability to generate unwritten principles) • Note, SCC has said written text is still primary…reluctant to let the unwritten principles contradict the text.

However, PEI Reference Case demonstrates willingness to allow unwritten principles to shape the interpretation of the text

1) Rule of law – all exercises of legitimate public power must have a source in law, and every state official or

agency is subject to constraint of the law [All govt action must comply w/ constitution & ordinary law] a. Similar to constitutional supremacy (all govt action must comply w/ constitution, rule of law adds +

the ordinary law) 2) Constitutional supremacy – constitution is supreme law of Canada – and any ordinary law that is

inconsistent has no force in effect 3) Separation of powers – legislative, executive, judicial 4) Parliamentary supremacy – subject to the constitution the legislative branch of the state is holder of all

legitimate public power and may enact any ordinary statute law and delegate any of its powers as it sees fit 5) Federalism – legislative sovereignty in Canada is divided between a national legislature of parliament and

provincial legislatures according to a division of law making powers or jurisdictions set out in constitution 6) Judicial independence 7) Respect for Minority Rights

PATRIATION REFERENCE [CONSTITUTIONAL CONVENTIONS CASE] As a matter of law Federal govt could pursue amendment & patriation of the constitution w/ only the support of 2 provinces; however there was a Constitutional Convention that they needed provincial approval. (Precedent + Belief there was a precedent + Reason for the rule) • 1981 Pierre Trudeau tried to pursue amendment and patriation of the constitution with only the support of two

of the provinces (NB and Ontario) • SCC agreed with the 8 provinces that this “unilateral” proposal to amend the constitution breached a convention

of the constitution. o As a matter of law, the Federal Government could o As a matter of convention, no, they need provincial approval

• Answer came from the three part test: o Is there a precedent (practice of agreement developed by the actors)? – Yes! 22 instances of

amendments, approval of affected provinces had been reached. o Did actors believe there was a precedent (recognition by political actors that they are bound to follow

the precedent)? Yes! They previously behaved like agreement was necessary. More than 50 years of discussing amending formula also an indication.

o Reason for the rule? Yes, Preserve federal union. • Not legally binding: if Trudeau had wanted to go forward with repatriating the constitution following the

Patriation reference case, the court couldn’t stop him. Thatcher might have considered the convention and not agreed to make the law.

NB: Quebec Veto Reference – SCC rules that Quebec agreement not needed. Constitution Act 1982 came into force and effect with respect to entire country (Quebec included)

14

UNWRITTEN PRINCIPLES CASE – QUEBEC SECESSION REFERENCE Quebec can’t unilaterally secede; however if there is a referendum where clear majority of Quebecers express desire to leave Canada, unwritten principle of democracy says you can’t ignore it. [Constitutionalism, Rule of Law, Federalism, Democracy] • Two referenda in Quebec about secession, both brought by the Parti Quebecois

o Late 1970s/early 1980s – 40/60 split o 1995 – 51 to 49

• Decided important to identify rules of the game for secession … not something that Quebec could declare for themselves.

• Reference question had three parts: o 1) Is unilateral secession consistent with the constitution? o 2) Is it consistent with international law? o 3) If there is a conflict, which prevails?

• Federal government could send this directly to the Supreme Court. This is different than the Patriation reference … the provinces had to send it up through appeals.

• Federal Government argued that Part 5 of the Constitution set out the rules. Secession is an amendment to the constitution. Rules don’t allow for one province to amend the constitution on it own; require parliament + 7 provinces with more than 50% of the population. Province of Quebec couldn’t do that on their own.

• SCC decision: o Quebec can’t unilaterally secede. However, if there is a referendum where a clear majority of Quebecers

express desire to leave Canada, unwritten principle of democracy say you can’t ignore that. Other unwritten principles require Quebec to respect an orderly process on how it will deal with its clearly expressed desire to leave (need to respect other provinces, minorities, and aboriginals)

o Unwritten principles: Rule of law, democracy, federalism, constitutionalism • There was no constitutional convention • Brings up interesting commentary on the role of courts. Court goes beyond simply identifying the legal rules and

applying them to the facts. Instead, they identify a set of principles, come up with a creative solution that respects the range of interests and traditional roles of certain actors. Success story!! Everyone was happier with the outcome.

RULE OF LAW – Shields individuals from arbitrary state action All government action must comply w/ constitution & ordinary law 3 principles (established by Imperial Tobacco)

1) Law is supreme over officials of the government as well as private individuals and therefore preclusive of the influence of arbitrary power (i.e. legislation applies to all including the government)

2) Requires the creation and maintenance of an actual order of positive laws which preserve and embody the more general principles of normative order (i.e. legislation must exist)

3) Relationship between state and individual must be regulated by law (i.e. state officials actions must be legally founded).

CASES: Roncarelli v Duplessis, BC v Imperial Tobacco, BC v Christie, Reference Re: Language Rights Manitoba

Case: Roncarelli v. Duplessis Rule of law violated Executive has to exercise their authority in a manner that is consistent with the law. Summary: • Premier of Quebec upset that Roncarelli was posting bail for other Jehovah Witnesses. Government felt that this

was an assault on the church and thereby the state. Duplessis as Premier, gets the liquor commission to cancel Roncarelli’s liquor license.

Decision: • Duplessis’ action was contrary to the rule of law. Executive has to exercise their authority in a manner that is

consistent with the law (relationship b/t individual and state regulated by law). The powers are restricted; must follow rules. -‐ Court rejected the idea that any statute could delegate such power to a government official – or that

premier could manipulate his own powers to pursue a personal vendetta -‐ Statutory powers must be limited to the express purpose for which they were granted

15

-‐ Decision to deny or cancel a permit lies within the discretion of the commission – but that means that the decision is to be based upon a weighing of considerations pertinent to the object of administration

• No legislative act can be taken to contemplate an unlimited arbitrary power exercisable for any purpose How is the rule of law identified in Roncarelli v. Duplessis different than the rule of law principle identified in the Quebec secession reference? • Rule is that you have to follow the rules. Doesn’t say what the rules themselves are (if the liquor commission

rules had said Premier can do what he wants, the decision would have been ok). • As a constitutional principle the rule of law says something about the rule.

o 1) Supreme over executive authority o 2) There has to be a body of law. o 3) Relationship between individual and the state has to be regulated by law

CASE: BRITISH COLUMBIA V. IMPERIAL TOBACCO Mere fact a law is arbitrary doesn’t make it unconstitutional / against the rule of law. Summary: • Tobacco Damages and Health Care Recovery Act enacted by BC provincial government gave them a cause of

action to sue tobacco companies for the costs they impose on the health care system. • Tobacco companies argued that the Act was invalid and against the rule of law because:

o It’s a retroactive law o Targeted at a specific group o Gives the government sole benefits o Doesn’t’ ensure a fair trial since it’s actually a tax issue

• SCC Decision: Mere fact a law is arbitrary doesn’t make it unconstitutional o Retroactive laws are ok! Constitution says no retroactive criminal laws o Generality – most regulatory laws are targeted at particular industries (e.g., Authorson and Air Canada).

*Remedy for companies is with the political process, not the legal process o No rule to prohibit special privileges for govt. Examples like Provincial Attorney Generals ability to

intervene without requiring court’s permission. o Can have a variety of rules on how procedure ought to operate; parliament and provincial legislatures

are entitled to make the rules.

Case: British Columbia (AG) v Christie Rule of law does not include general right to legal counsel Summary: • Christie, a lawyer, decides to represent poor people for free or minimal cost. Social Service Tax Amendment Act

required that clients pay tax on value of services in order to fund provincial legal aid. • Christie argued that this interfered with his clients’ right to receive legal representation. The law as invalid

because it violated the rule of law. Decision: • SCC said jurisprudence and history of the concept does not support Christie’s contention that there is a broad

general right to legal counsel as an aspect or precondition to the rule of law. • Where there is text we shouldn’t use unwritten principles to modify/expand the content.

Case: Reference Re Language Rights Manitoba SCC found to declare all Manitoba’s law’s invalid b/c they weren’t written in French would create a legal vaccuum – breaching the rule of law principle

CONSTITUTIONALISM *Enhanced majority necessary to achieve constitutional change • Notion that the constitution is supreme. All laws and government action have to be consistent with the

constitution. [Constitutional supremacy > Parliamentary supremacy > common law] • Constitution entrenched beyond reach of majority rule:

o Safeguard for fundamental human rights

16

o Ensures minority groups endowed with institutions and rights necessary to maintain and promote their identities against the assimilative pressure of the majority

o Division of power between feds and provinces • Source:

o Post 1982: Section 52 “any law inconsistent with the constitution is of no force and effect. o Pre-‐1982: Colonial Laws Validity Act said that domestic legislation that was enacted by colonial

legislature was invalid if it was inconsistent with imperial legislation (to the extent of the inconsistency) o BNA Act of 1867 was an Imperial Statute meant to govern Canada. CLVA allowed courts to invalidate

laws inconsistent with the BNA Act § Note, when Statute of Westminster was passed, the BNA Act was one exception in order to

preserve constitutional supremacy. Imperial Parliament still could amend it when asked.

DEMOCRACY / PARLIAMENTARY SOVERIGNTY *richer than majority rule • Principle of parliamentary sovereignty: Court shouldn’t overturn legislation on the grounds that it isn’t “good

law” • Secession Reference – principle of democracy looks at electorate of society. Not Quebec legislature. Referendum

carries different consequences than a decision of the Quebec National Assembly • Limits to Parliamentary Sovereignty:

o Parliament can’t act in ways that are unconstitutional o Constitution outlines specific steps that must be followed if amendments are to be made o Can’t infringe on provincial powers o Charter protection

How does the principle of parliamentary sovereignty affect the outcome of: • Babcock v. Canada?

-‐ Court says you can’t use constitutional principles to overturn valid legislation. -‐ Court must respect parliamentary sovereignty.

• British Columbia v. Imperial Tobacco? -‐ Court said you Provincial government can enact legislation that is retroactive. -‐ Recourse is in the political arena.

PARLIAMENTARY SOVEREIGNTY – CASE BABCOCK V CANADA (AG) Unwritten principles must be balanced against principles of parliamentary sovereignty. “well within the power of legislature to enact laws that some may find draconian, as long as they don’t fundamentally alter or interfere w/ the relationship b/t the courts and other branches of govt. “ • Summary: Federal attorneys are looking for a pay raise. Trying to get access to documents.

o Govt sought to rely on statutory right of non-‐disclosure of Cabinet documents. DoJ employees sought to invoke unwritten principles (rule of law) to support the fact that disclosure should be required despite the statute (S. 39 of Evidence Act)

• Legal Issues: Is Section 39 of the Evidence Act Constitutional? What is the nature of cabinet confidentiality and the processes by which it may be claimed or relinquished?

• Decision: S. 39 does not offend the rule of law or doctrines of separation of powers and the independence of the judiciary.

• Reasons: Can’t use constitutional principles to overturn valid legislation; may not be ‘good law’…doesn’t’ justify court interference.

o Unwritten principles must be balanced against principles of parliamentary sovereignty. o “Well within power of legislature to enact laws that some may find draconian, so long as they don’t

fundamentally alter or interfere with the relationship between the courts and other branches of govt.”

FEDERALISM • Embodied in the text of Constitution (section 91, 92, 93)

17

• Recognizes diversity of component parts at confederation. *Autonomy of provincial governments to develop their societies within their respective spheres.

• Principle of federalism affected the outcome of the Quebec Secession Reference: o Provided rationale for Quebec not being able to unilaterally secede.

Difference between Patriation Reference (not legally enforceable rule preventing unilateral federal requests for constitutional amendments affecting provincial powers) and Secession reference? • Change in SCC thinking in regards to unwritten constitutional principles

o At time of Patriation reference, unwritten principles could be used to interpret, but were not stand alone principles divorced from the text. Not legally enforceable

o At Secession reference court was more comfortable with the relationship of text and underlying interpretive ideas.

• JCPC – limited POGG as source of Federal Jurisdiction (New Deal cases) • Since 1949, SCC has incrementally expanded scope of federal authority

SEPARATION OF POWERS • Legislative (law makers), executive (implementers), and judicial (interpreters and appliers of the law) power be

exercised by separate branches of government (US govt much more watertight-‐compartment than Cdn) • Attractive as a constitutional principle:

o Ensures checks and balances o Avoid abuse of power

• Inconsistency of Cdn system as strict doctrine of separation of powers: o No separation of executive and legislative branches o Chief Justice of SCC = deputy Governor General and fulfills other administrative roles (Cdn Judicial

Council, Chair Order of Canada) Canada v Khadr: -‐ SCC holds that Khadr’s S. 7 rights were violated when Cdn Govt officials participated in the interrogation. BUT

leaves it up to govt to address. -‐ SCC distinguishes Khadr from Burns:

o Khadr not under control of Canadian government o In Burns there were some degree of confidence that you’d get the assurances… o In case like Khadr, much more complicated foreign relations matter. More issues surrounding terrorism

than just ordinary criminal behavior. o Likely other info that it doesn’t have access to.

Why is judicial independence an unwritten constitutional principle?

- Want an impartial decision maker! - Want some degree of institutional separation. - Prevent some executive interference (e.g., remuneration, pay, etc…can’t be punished or rewarded.)

Doucet-‐Boudreau v. Nova Scotia: Separation of powers – Province argued that structural injunction (forcing govt to submit reports) upset the division of powers. [improperly placed court in role of administrator and usurped functions of executive govt] Facts:

-‐ Court dealt with challenge by provincial government to the constitutionality of s. 24(1) of Charter (anyone’s whose rights or freedom have been infringed or denied may apply to court to obtain a remedy as the court considers appropriate) order by a superior court judge that not only obliged Ministry of education to complete construction of new schools for minority French but also required it to report periodically to the judge

-‐ Province argued: structural injunction of this kind improperly placed the court in role of administrator and usurped the functions of executive government

Decision:

18

-‐ Court of appeal majority upheld trial judges order: constitution does not expressly provide for the separation of powers but functional separation has frequently been noted -‐ courts must be sensitive to role as judicial arbiters and not fashion remedies which usurp the role of the other branches of government by taking on tasks that those bodies are better suited for

Constitutional Amendment • PRE 1982:

o Cdn involvement in constitutional amendments was result of EXECUTIVE act, not legislative act. § Legislatures could be and sometimes were consulted

o Govt of Canada would make request to UK parliament § Just required agreement of “provinces” (provincial executive), not provincial legislatures.

• NB: some passed legislative resolutions, but that wasn’t req’d • POST 1982:

o Became LEGISLATIVE act rather than executive act § NB: Becomes particularly important in case of minority govt (when legislature doesn’t go on

what executive says necessarily) § NB: More difficult; but more democratic

Amendment Formulas SECTION REQUIREMENTS NOTES

S. 38 General Amendments 7-‐ 50 formula

Requires support of: • Senate & House of Commons

(S. 38 (1) (a)) • Legislature of 2/3 of provinces comprising

50% of population of Canada (S. 38 (1)(b)) • For derogation from provincial rights/powers

majority support for resolution (S. 38 (2)) o Means # @ vote imp. o Majority = all members

• Province can opt out of resolution (S. 38(3)) w/ compensation for power transfers affecting education or culture (S. 40)

• Proclamation issued by Governor General (s. 38(1)) no sooner than 1 year from initial resolution (s. 39(1)) and no later than 3 years from initial resolution (s. 39(2))

• Section 38(1) process required for matters enumerated in s. 42

• Means nobody gets a veto • Must have either Ontario or Quebec (to

get 50% pop) • Req’s at least 3 western provinces or 3

Atlantic provinces (or other combo) • Example re: Opt out (S. 38(3))

o Change re: education, opt out and get compensation

o Change re: securities, could still opt out, just no compensation

• E.g., Meech Lake Accord o Got all 10 Premiers @ Meech Lake to

agree (if that were pre-‐1982, that would be fine … but no legislature approval is req’d)

o Before 3 yr window up, not all agreed

S. 41 Unanimous Amendments

Requires: Parliament & all legislatures Protect particular kind of regional interest (e.g., linguistic or peculiar set of circumstances of particular province) • Changes to office of the Queen, Governor

General or Lieutenant Governor of a province (s. 41(a))

• House of Commons representation lower than Senate representation in 1982 (“the PEI rule”) (s. 41(b))

• Changes to the use of English or French language, except for English or French language use in a province (ss. 41(c) and (43(b))

• Changes to the composition of the Supreme Court of Canada (s. 41(d))

• Changes to the amending formulae (s. 41(e))

• If Canada wanted to become a republic (s. 41 (a))

• PEI rule Protects decreasing populations; operates to the disadvantage of the growth provinces

• NB: Changes to use in province don’t

require unanimity – province and parliament can change requirements w/

19

respect to use of Fr/Eng in the province; protection for linguistic minority is up to parliament.

S. 42 Exceptional Amendments

Require S. 38(1) process even though the would otherwise be subject to amendment using ss 43 or 44 • Proportionate representation of provinces in

House of Commons (s 42(1)(b)) • Power of Senate or method of selecting

senators (S 42 (1)(b)) • Number of Senators per province and

residence qualification of Senators (s. 42(1)(c))

• Supreme Court of Canada (other than composition) (s. 42(1)(d))

• Extension of existing provinces into the territories (s. 42(1)(e))

• Establishment of new provinces (s. 42(1)(f))

• E.g., If BC wanted to expand North into Yukon or if Yukon wanted to be a province.

S. 43 Bilateral / Multilateral Amendments

• Amendments to Constitution of Canada that affect one or more provinces but not all provinces

• Requires: o proclamation following resolutions of

both legislatures of affected province(s) and resolution of House of Commons & Senate

• Includes inter-‐provincial boundaries and use of English or French language within a province. o If AB and BC wanted to adjust

boundaries, just need agreement of Parliament and BC and AB Legislatures! § Different than if BC wanted to

expand into the Yukon!

• E.g., In Hogan v NFLD (parts of constitution that involve terms that are significant to that province/federal govt. *Idea that these changes can be made by agreement of parliament in provinces affected

S. 44 Federal Only amendments

• Amendments relating to the federal executive, the House of Commons and the Senate, except for matters covered by sections 41 and 42 can be made by Parliament (s. 44)

S. 45 Provincial Only amendments

• Amendments to the constitution of a province can be made by the provincial legislature, except for matters covered in section 41 (s. 45)

Reference re Senate Reform SCC seeking decision rre: Parliament’s ability to alter Cdn Senate

• Est term appointments (feds say S. 44) • Amend property requirement (feds say S 44) • Est consultative election process (not binding or given weight) (S. 44 or S 42) • Abolish senate altogether (S. 38 or S 41

20

CASE: Hogan v NFLD Can’t use unwritten constitutional principles to trump written text. Existing amending formula should be used. Fact: • NFLD held referendum to determine whether there is support to eliminate denominational schools. Referendum

passed w/ lrg majority. Followed S. 43 and sought resolution in parliament in order to pass amendment to Term 17 of NFLD Constitution.

• Hogan argued that provision protecting denominational schools was supported by unwritten constitutional principle of respect for minority rights (in the vein of Secession Reference) & that eliminating it would require use of general amendment formula.

o NB: this could result in absurd consequences – NFLD language right could be changed w/o their support Issue: Which amending formula required? Decision: Appeal dismissed. NFLD Court of Appeal found that S. 43 was correct Reasons: • Where an amendment is agreed to by the governments cited in the applicable part of amending formula (in the

case of s. 43 this is Parliament and government of Newfoundland) they need not take additional measures. o Legislature has said they want to get rid of denominational schools; Parliament has agreed! Both parties

to the amendment are able to effect that change. • The court disallowed Hogan’s reasoning because (1) it’s one thing to use these principles to interpret, it’s a

completely other thing to amend the Constitution itself with them, (2) unlike the Quebec Secession Reference, there is an existing procedure for intra-‐provincial linguistic rights that can be followed here, and (3) secession is special.

• NB: S. 43 is relevant amending formula as opposed to 38 or 45. Has to deal w/ govt funding of Catholic schools. o Term 17 = term dealt w/ Union of Canada (not just NFLD’s constitution) o Argument re: need for S. 38 (religious freedom of Catholic School)

Class notes: • How did the appellants seek to use the principle of respect for minority rights to advance the argument that

the constitutional amendment altering the right to denominational education in Newfoundland was invalid? o the provision protecting denominational schools was supported by the unwritten constitutional principle

of respect for minority rights (in the vein of Secession Reference), and that eliminating it would require use of the general amendment formula

• How did the Newfoundland Court of Appeal deal with this argument? o NFLD Court of Appeal tends to say the formula is the one that is set out.

§ The formula set out clearly shows that this is an amendment that can be done using S. 43 (to try to intrude minority rights and change the amending process through the use of unwritten constitutional principles would be problematic).

• Appellants … What about Quebec Secession Reference!?! SCC said there’s something more to it.

• Do you find the distinction the Court of Appeal draws between this case and the Quebec Secession Reference convincing? Why or why not?

o Quebec secession would affect the rest of Canada o Lack of ‘pre-‐existing’ arrangement for secession of a province

• NB: Implications for Senate Reference: o E.g., attempt to use unwritten constitutional principles to effect what clearly appears to be outlined in

statute. o Federal govt’s position is similar to NFLD took in Hogan; and Feds took in Secession. READ PART 5!

Doesn’t affect the fundamental character. …. BUT, you need to look at functionally whether there is something else significant going on that affects other interests.

§ In the case of Quebec secession, idea is that even though the text says that 7/50 is the right way to deal … there’s something functionally different, and it affects other provinces … not enough just to use the text! Need to use broader ideas!

Difference between federal position in senate reference and Brydon’s. … Brydon believes advisory elections changes the way the senate function (and it’s role within our system of government). … Provinces should have a say

21

The “Living Tree” • Two competing theories:

o Historical / Originalist Approach o Progressive / Living Tree Approach

• Adherence to living tree approach might reduce need for formal amendments in all circumstances. CANADIAN COURT SYSTEM

NB: Superior Courts (AB) = AB Court of Appeal, AB Court of Queen’s Bench

Court Hierarchy • Supreme Court of Canada • Provincial Superior Courts

o AB Court of Appeal o Alberta Court of Queen’s Bench

• Federal Courts o Federal Court of Appeal o Federal Court of Canada

• Specialized Federal Courts o Tax Court of Canada o Military Courts

• Provincial Courts o Provincial Court of Alberta

22

Constitutional Framework Constitution Section Subsection Note Section 96-‐100 (Provincial Superior Courts)

• Federal appointment of judges (s. 96) • Judges must be members of

provincial bar (ss. 97 and 98) • Judges removable only on joint

address of House of Commons and Senate (s. 99 (1))

• Mandatory retirement at age 75 (s. 99(2))

• Salaries fixed by Parliament (s. 100)

• Alberta Court of Appeal • Alberta Court of Queen’s Bench

Section 101 (Federal Courts)

• “The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.”

• SCC -‐ “General Court of Appeal” o Top of food chain on all matters (even Que

civil law) • Federal Court of Appeal • Federal Court of Canada • Tax Court of Canada • Military Courts Better administration of Laws of Canada = Federal Courts

Section 92(14) (Provincial Court)

• Exclusive provincial jurisdiction over “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.”

• Provincial Court of Alberta • Province creates and maintains BOTH superior

courts and provincial courts • Provincial court judges are appointed by the

province • Both the province and Parliament can confer

jurisdiction on provincial courts (most criminal offences are tried in provincial court)

NB: Court of Queen’s Bench has inherent jurisdiction

o All other courts (including the SCC) have statutory jurisdiction • Courts of inherent jurisdiction can only have their jurisdiction limited by statute • Courts of statutory jurisdictions have ONLY the jurisdiction conferred by statute Federally vs provincially appointed judges • Provincially appointed judges = judges of provincial court (paid by province) All others are federally appointed (SCC, Federal Court of Canada, Provincial Superior Courts); paid by feds Justices of the Supreme Court of Canada 9 justices – 3 must come from Quebec (all the rest divided out by custom – enough exceptions to the custom that it’s not clear it’s a constitutional convention)

23

Justice Notes Overall McLachlin U of A Law (Pincher Creek) -‐-‐ (BC) 1. Atlantic judges often from NB b/c they

are bilingual 2. Never been a NFLD justice appointed 3. Significant academic interest (all served

as sessional lecturers except Karakatsanis and Wagner)

4. General proposition, we have an extraordinarily accomplished SC. *Eras when judges on Supreme Court have been undistinguished. Post-‐Charter, outstanding individuals.

5. One issue that the Court faces is that from time to time people don’t want to leave their home jurisdiction. Not always the case that there is a huge pool of candidates, particularly if there is need for bilingual.

LeBel Quebec (PM Chretien) Abella

Born in Refugee camp, Canada Day 1945 Appointed to be family court judge Held series of administrative tribunals

(PM Martin) Rothstein

Transportation area (important for Manitoba) (Man – even though Fed Court) * (from him down – Harper)

Cromwell Bilingual – seen as obvious choice (NS) Moldaver Criminal defence lawyer

Judge less sympathetic to accused Karakatsanis

Public servant (deptuty attorney general) Provincial Court of Ontario; Ontario Court of Appeal

Wagner

Quebec Trial judge – Court of Appeal (father ran for Conservative leadership)

Nadon

Quebec – appointed from Federal Court Controversy is whether someone from Federal Court counts (currently removed himself from hearing cases)

Appointment - Informal consultation with judiciary and legal profession to create long list of candidates - Long list of candidates reviewed by 5-‐member Parliamentary Committee (3 members from Govt; 2 from Opposition) - Unranked list of 3 qualified candidates presented to Prime Minister - Nominee interview by Parliamentary Committee - Appointment by Prime Minister - Process developed by Martin govt, picked up by Harper. W/ exception of Cromwell, has been used to appoint SCC Has characteristics of all three 3 styles of appointment processes:

1) Patronage: no vehicle to apply; choice made by political actor; no requirement for reason why choice was made 2) Meritocratic: Ability to do the job dominant consideration (committee looks at candidates) 3) Democratic: Not purely PM decision. PM is bounded by role of screening by Parliamentary Committee (limited # of

candidates) *however, with 3 members of govt on Parliamentary committee, not fully independent. PM Committee does public interview of candidates.

Alberta Court

Court Level Chief Justice Court of Appeal *Court of Inherent Jurisdiction

Catherine Fraser + 16 Justices of Court of Appeal

Court of Queen’s Bench *Court of Inherent Jurisdiction

Neil Wittman (Calgary) Associate CJ: Rooke (Edm)

+ 75 Justices

Provincial Court Matchett Deputy: Allan Lefever

+ 108 Judges

Edmonton’s Current Law Courts • Combine provincial court, provincial superior court, court of appeal

Appointment Process: • Judicature Act and Provincial Court Act requirements

o Appointed by Lieutenant Governor in Council o Must be a Canadian citizen o May be considered and recommended by Judicial Council

24

• Details of appointment process not set out in statute • Alberta Judicial Council screens candidates and forwards candidates to Provincial Court Nominating Committee

appointed by Minister of Justice • Nominating Committee recommends best candidates to Minister of Justice for Order in Council appointment • Compare Ontario appointment model (Text pp. 302-‐303) [Much more formal] • NB: Don’t have to be a lawyer, but as a matter of practice, won’t appoint someone who hasn’t been @ the bar

for 5 yrs. Federal Courts

Court Level Chief Justice NB Federal Court of Appeal Pierre Blais +11 Justices

Federal Court of Canada Paul Crampton + 75 Justices Tax Court of Canada Gerald Rip + 24 Justices

Tax court used to be a federally administered tribunal; turned into a court.

• Must live in Ottawa • Court as an institution has to be able to provide service in English and French; but not every judge has to be

bilingual. … just need enough judges that can speak both languages. Appointments • Judges Act and Federal Courts Act eligibility requirements

o 10 year provincial bar or bar / “judicial” experience • Appointment process not set out in statute • Current process (see Text pp. 304-‐307)

o Application process o Use of Judicial Advisory Committees o Assessment criteria o “Recommended” or “Unable to recommend”

• Scope for Ministerial discretion (see Text pp. 308-‐310) Hallmarks of meritocratic system (applications, formal criteria, but ultimately decision after recommend / not recommend moves to political process)

25

Judicial Selection • Different selection systems exist in different jurisdictions at different times • Most systems are hybrids (combinations of more than one system)

Model Key Characteristics Notes

Patronage • Reward service o Reward for service/recognition of accomplishment

• Appointee Passive (don’t apply) • Value judgment, practical experience, political sympathy • Compensation based on status, NOT market indicators (not doing it for $$)

• Traditionally limited att’n paid to diversity • Traditionally NO involvement of outsiders in selection process

Advantages: - Majority represented - Efficiency - Indpendence

Disadvantages: - Unqualified - Corrupt - Are you getting better judges?

Meritocratic • Viewed as special form of employment requiring high levels of skills

• Appointees actively involved in appointment process (candidate must apply; may be encouraged to do so)

• Compensation based on market indicators • May not respond to diversity considerations (can be built into skillset, but not necessarily)

• May or may not include involvement from members of the public

• UK traditionally “closed meritocracy” – moving towards “open meritocracy”

• UK system based heavily on the fact that the Bar was in London. Only Barristers became judges

Advantages: good judges, fair / transparent, build diversity, recruitment Disadvantage: Expensive, time consuming, vanilla choices

Democratic • Judges are popularly elected (or may be confirmed by electorate after appointment)

• Judicial vulnerability to removal by the electorate gives rise to independence concerns

• If judges have to be re-‐elected, may be issues of vulnerability of judge to not being elected b/c of unpopular decisions. Worry about independent adjudication.

• E.g., Texas – insurance $ •

International Comparisons • US federal courts – Presidential nomination + Senate confirmation – Mixed patronage / meritocratic system / democratic

• Presidential nomination (appointment screening systems also used) • Confirmed through democratic hearing at the senate

• Historically Senate Confirmation was fairly mild mannered. Not seen as appropriate to make partisan type of arguments. Senate would say someone wasn’t qualified – flaw in character

• E.g., Nixon nominated Alabama judge w/ KKK affiliation • Lately Senate Confirmation has become more partisan

• US state courts – mix of appointment and electoral systems • “Missouri Model” – first election contested; second, no one runs against you

Requirements Re: Language [@ issue is SCC exemption from Official Languages Act Req’m] • Supreme Court Act

o S. 5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province. R.S., c. S-‐19, s. 5.

• Bill C-‐232 [NDP private members bill dies on order paper]

26

o Would have amended s.5: “(2) In addition, any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance of an interpreter.”

• Official Languages Act – SCC has an exemption! o obligation on the part of courts to provide services to people in both French and English. (doesn’t mean

that every fed court judge has to be bilingual). BUT it means that litigants get to choose the language. *has to be translation available. Can have trials where one litigant in English, the other in French.

• Debate: o Liberals: In support o Bloc Quebecois: Doesn’t go far enough, but support it o Conservatives: Bilingualism is good, BUT selection process should be based on merit

Example: Appointment of Justice Moldaver • Moldaver doesn’t speak French, but still appointed. • Brought in b/c he brought knowledge of criminal law Example: Controversy re: Appointment of Justice Nadon • ISSUE: Controversy over whether as Federal Court Judge who has been a member of the Quebec Bar for 10 years

can be appointed as a judge from Quebec for purposes of section 6 of the Supreme Court Act • DECISION: Justice Binnie – says that 10 years before counts! AND You have to read Section 5 and 6 together.

Need to look at historic origins of sections and account for the purposes of the sections. As long as justice has been advocate of province of quebec for more than 10 years … satisfy requirements of section 5 and 5 and can be appointed to SCC (and can be one of the judges from Quebec)

• NB: Historic reasons why Federal Court not explicitly referenced (SCC Act made in 1952; hasn’t been amended since creation of Federal Court)

27

SECTION 3: JUDICIAL INDEPENDENCE

Core Characteristics: 1) Security of tenure; 2) Security of remuneration; 3) Administrative independence

Dimensions of Judicial Independence: 1) Independence of the individual judge 2) Collective independence of the court

Purpose • Need to protect judges from interference from “passionate people” and the state

o Form of protection for litigants – ensure judges are assessing cases w/o being subject to fear or favour. Want judges to do what is right.

• Not the case everywhere: o Britain @ times wasn’t [one condition of restoration of Stewart Monarch – King can’t fire judges

anymore) o Judges killed by mafia in parts of southern Italy b/c of decisions

Importance? o Reasons of impartiality – not motivated by financial / political persuasions o Independence is a way of giving confidence to impartiality o Protects interests of public in confidence of decisions Test from Mackin v NBà JI = Actual independence + perception of independence (informed reasonable person)

Why protect judicial independence using an unwritten constitutional principle rather than simply relying on the text of the Constitution?

- Provisions have holes in coverage à pre 1982, no provincial court judge was protected; after 1982 11(d) protected PCJ in criminal matters

- In the case of judicial independence … Found it appropriate to expound that text to encompass those judges not protected by constitutional text.

- But what about other people who perform adjudicated functions? Should their independence be protected as well (e.g., administrative tribunals)?

- SHORT ANSWER: jurisprudence today says no; does not extend to administrative tribunals. BUT Provincial Court Justices are protected from judicial independence.

- Peter Hogg: Unwarranted expansion

Sources of Constitutional Protection for Judicial Independence 1) Sections 96-‐100, Constitution Act, 1867 (superior courts)

• S. 99 – provides guarantee of security of tenure (judge can only be removed by a joint address of the house of commons and senate and can only be removed for cause.

• Has to be misconduct or other kind of cause • *Section 99 is written as a life appointment provision. • 99 (2) – Added in pre-‐1982 /post 1931 era: Judges have to retire at age 75. *Provincial Court

judges have statutory provisions mandatory retirement earlier. • SS 100 – Parliament pays salary of Superior Court Judges

• Has been interpreted as being that Parliament has to fix salaries in a particular way; consistent w/ rules outlined in PEI reference

2) Section 11(d), Canadian Charter of Rights and Freedoms (courts trying “offences”) • Everyone who is tried for an offense is entitled to be tried by an independent and impartial tribunal. • Notice: only applies to people charged with offenses. (BUT, many offenses are tried in provincial court). • *so while Provincial court judges don’t get protection under section 99 … they get it under Section 11(d)

*Only source of constitutional protection for non-‐criminal courts ins the unwritten constitutional principles 3) Unwritten constitutional principle (all courts, including justices of the peace, but not all (any?) administrative

tribunals) • PEI Reference Case

28

Security of Tenure • Not absolute; Judges can be removed from office under the following circumstances:

o Misconduct § Not just making ‘wrong decision’; if SCC/court of appeal overturns decision, not enough for misconduct

• Justice Causegrove – decisions made by bias (pattern of decisions incorrect so often) • Justice Mattlow – involved in property dispute; took on advocacy role while a judge and

used official note paper (misconduct but not enough for removal from office) o Incapacity

§ Illness or other reason judge can’t continue job • Authority comes from:

o Section 69 of Judges Act Inquiries concerning Other Persons • Further inquiries • 69. (1) The Council shall, at the request of the Minister, commence an inquiry to establish

whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour other than

(a) a judge of a superior court, or (b) a person to whom section 48 of the Parliament of Canada Act applies, should be

removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d). • Applicable provisions

(2) Subsections 63(3) to (6), sections 64 and 65 and subsection 66(2) apply, with such modifications as the circumstances require, to inquiries under this section.

• Removal from office (3) The Governor in Council may, on the recommendation of the Minister, after receipt of a report described in subsection 65(1) in relation to an inquiry under this section in connection with a person who may be removed from office by the Governor in Council other than on an address of the Senate or House of Commons or on a joint address of the Senate and House of Commons, by order, remove the person from office.

o Section 65 of the Judges Act

• Report of Council • 65. (1) After an inquiry or investigation under section 63 has been completed, the Council shall

report its conclusions and submit the record of the inquiry or investigation to the Minister. • Recommendation to Minister

(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of

(a) age or infirmity, (b) having been guilty of misconduct, (c) having failed in the due execution of that office, or (d) having been placed, by his or her conduct or otherwise, in a position incompatible

with the due execution of that office, the Council, in its report to the Minister under subsection (1), may recommend that the

judge be removed from office. Role of Canadian Judicial Council in removing federally appointed judges • Under constitution, only way a judge can be removed is through joint address parliament and senate • In 1970’s Parliament imposes Canadian Judicial Council as a mechanism to hear, investigate, adjudicate and

recommend removal (if warranted) *FEDERALLY APPOINTED JUDGES • Can’t remove judge themselves; but they can hear complaints, investigate and adjudicate in way that leads to

recommendation for removal. Parliament ultimately decides if they will act on the complaint and pursue removal.

• Today – Canadian Judicial Council acts as a “administrative tribunal”; Authority comes from the Judges Act {parliaments delegate this authority}

- Each province has analogous body for provincially appointed judges.

29

CASE: Report re Bienvenue, J (P 333-‐348) • Majority of court said Bienvenue should be removed from judicial office b/c his conduct during trial and

statements made during sentencing indicated he lost his sense of impartiality o Undermined public confidence in the judicial system o Reasonable apprehension that the judge would not execute his office w/ objectivity, impartiality and

independence that public is entitled to from judge • Chief Justice McEachern comes to same conclusion as majority, but on narrower grounds • Badya writing for the minority doesn’t think there’s a strong enough link b/t the views and acting on the views in

a way that would make people feel that the judge was incapable of continuing to occupy judicial office and give fair trials.

CASE: Justice Matlow • Justice Matlow – engaged in advocacy campaign (went over the top). Sat on planning case for City of Toronto.

BUT he recognized his mistake. • CDC said it was a bad thing to do, will be reprimanded … but we’re not going to recommend your removal. PEI Judges Reference • A leading opinion of the SCC in response to a reference question regarding remuneration and the

independence and impartiality of provincial court judges • the majority opinion found that judicial independence applies to all judges, not just superior court

judges and inferior court judges concerned with criminal law, as the written constitution stipulates. § Included justices of the peace but not administrative tribunals as regulatory mechanisms

• Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation.

• Independent body (commission) will set or recommend level of remuneration for judges • Commission is required to improve the process designed to ensure judicial independence but the

recommendations need not be binding • Judges can not negotiate for their salaries – fundamentally at odds with jud indep • Any reductions can not go below what is a basic minimum level of remuneration as the public could

perceive judges as susceptible to manipulation (p 350) • Commission to determine/recommend remuneration must be: pg 350 details requirements

§ Independent – protection against extortion of political power § Objective § effective

• The reference also remains one of the most definitive statements on the extent to which all judges in Canada are protected by the Constitution

• A way to maintain rule of law through preservation of judicial function

Security of Tenure • Conditions of security of remuneration established in PEI Judges Reference and PCJANB v. New Brunswick

1. Governments can raise or lower judicial salaries of judges as a class (PEI para. 133) 2. Governments must use an independent, objective and effective body to assess judicial salaries (PEI paras.

133, 169-‐174) 3. Independent body’s recommendations are not binding on government but failure to follow

recommendations is judicially reviewable (PEI para. 133) 4. Government must give legitimate reasons for rejecting or varying independent body’s recommendations (NB

para. 25) 5. Judges cannot bargain over remuneration (PEI para. 134) 6. Judges must receive a basic minimum salary required for the office of a judge (PEI para. 135)

NB: Leading opinion of SCC in response to reference question re: remuneration & independence and Impartiality of provincial court judges. -‐ Judicial independence applies to all judges, not just superior court judges & inferior court judges concerned w/ criminal law (written text); but extends to justices of the peace BUT NOT administrative tribunals as regulatory mechanisms.

30

• Judges (both individually and as a group) shouldn’t be subject to manipulation

o (either rewarded for activity that is favourable to govt / other interest or punished for making decisions that are seen as favourable to particular subset).

• Count on judges to make decisions based on their understanding of the facts/ law … exercise discretion in judicious manner. Don’t want them to be subject to improper judicial manipulation

• Need to create institutional arrangements that gives us confidence that this will be the case 1) Govt can raise or lower judicial salaries as a class. PEI Reference case: govt reduced judges salaries as part of overall wage restraint policy.

o SCC says in it of itself, that’s not a violation of judicial independence. Not protecting particular salary level…protecting vulnerability from manipulation. *note, different if you are talking about raising/lowering individual judges.

2) Governments must use an independent, objective and effective body to assess judicial salaries (PEI paras. 133, 169-‐174)

Historically judge’s salaries were decided by provincial leg or parliament based on the policies of the govt of the day. Govts knew they couldn’t reward/punish individual judges; but they did think they could set judges salaries in accordance with their sense of what was appropriate.

o SCC says: no, that’s not allowed. Because the community needs some objective assurance that salaries are being assessed in a fair and appropriate way. *now federal /provincial judicial compensation commissions. Need to be : independent, objective, effective (recommendations need to be taken seriously) …

3) Recommendations not binding though o Failure to follow recommendation may be reviewed by courts. Judge will decide whether

recommendation was taken seriously. 4) Reasons must be legitimate

o Not good enough to say: “we don’t like numbers”. Must explain why you think that this set of numbers was too high in relation to some criteria about what’s appropriate

o Typically have comparison groups (judges in different jurisdicition, lawyers get paid $x …) o E.g., in NB, judges were successful in getting commission to make recommendation…gov’t said

no, too high. … NB CA and SCC agreed with NB govt. *there were legitimate reasons. Courts not role of saying right number. Just to confirm valid reasons were provided.

5) Judges can’t bargain:

- Judges can make submission to commissions about what is appropriate remuneration - PCJANB…. Takes collective position in relation to compensation matters and to make submission

to compensation commissions. *remuneration standard across country – Federal appointed judges get the same. -‐ Bargaining is unseemly … not appropriate because if you start bargaining over salary, maybe liable to say “if we take tougher line on crime, would we get more money??) 6) Judges have to receive basic minimum salary …

o Doesn’t say what basic minimum salary is, but has to be high enough to meet needs. o Want to make sure judges aren’t tempted to help themselves to compensation (e.g., take

bribes) o Parts of Southern US, situations where judges compensated by a portion of the fines **overtime

driven out of the system. Two areas of conflict: • Govt has said, “where does this all come from?” Elaborate system created by SCC out of principle of judicial

independence (unwritten consitutional principle). Jurisdictions were experimenting with similar systems

31

(commissions to est. pay), but not everyone was using the system (in fact minority were). Govt felt it was a big stretch – compensation very favourable to judges.

• SCC lays down rules, but there are escape clauses for legislature. Judges feel legislatures gets the recommendations, gives surface reasons … but really ignores process. [Provincial court judge … viewed PPCJANB v NB as beytrayal from PEI reference case]

o *degree of lack of satisfaction on both sides. Clear constitutionally mandated today. Very little likelihood it will be changed.

EXAMPLE: • Could GoA lawfully take unilateral action to freeze the salaries of provincial court judges to address the

province’s current financial situation? o No, requires going through Commission

• If the Alberta judicial compensation commission recommended that provincial court judges’ salaries be increased by 5% next year, what steps could the provincial government take to lawfully avoid implementing that recommendation?

o Need to have reasons

Administrative Independence Administrative independence includes: • Judges allowed to control the docket. • Judges control the allocation of who decides what case. • Goes as far as ability to control what happens in the court room. Security problem, the judge can say to Sheriff …

“I want the person removed”. Does not include: • Right to exercise control over the allocation of resources for court staff and facilities

o Doesn’t go to how many people are assigned to sheriffs office, how much they get paid, where court houses are built, what judges chambers look like, how much support staff they have … all that is run by Ministry of Justice.

• Contrast to US: Congress gives federal court judiciary a set amount of money; they allocate. Have control over those things

CASE: Tobiass Federal Govt interfered w/ administrative independence in approaching Chief Justice w/o other party. *NB: Perception of manipulation important. Facts: • Federal govt want to strip Nazi war criminals of citizenship. Lengthy court process (taking too long according to

Federal govt). Judge disinterested, despite govt pushing. • W/O knowledge of other party, Assistant Deputy Attorney General discusses moving trial along /w Chief Justice. • Action created perception that govt is manipulating process through encouraging CJ to talk to trial judge.

[interfered w/ administrative independence] Reasons: • the meeting between Mr. Thompson and Isaac C.J. and the subsequent conduct of officials of the

Department of Justice did indeed cause damage to the appearance of judicial independence o The question remains as to the extent of that damage and how it should be weighed in considering

whether a stay should be granted in these significant and important proceedings o whether a reasonable observer would perceive that the court was able to conduct its business free

from the interference of the government and of other judges • there is not sufficient evidence to support the conclusion that the Chief Justice and the Associate Chief

Justice did not in fact remain independent o However, the evidence does compel us to conclude that the appearance of judicial independence

suffered significantly as a result of what happened • as a general rule of conduct, counsel for one party should not discuss a particular case with a judge except

with the knowledge and preferably with the participation of counsel for the other parties to the case • as a general rule, a judge should not accede to the demands of one party without giving counsel for the

other parties a chance to present their views

32

• also should have gone to the trial judge and not to his superior (the CJ) • a reasonable observer would at least wonder whether the Government, through Mr. Thompson, had

succeeded in influencing the Associate Chief Justice to take a position more favourable to the Government’s interests than he would otherwise have done

o Making this conclusion even more likely is the undertaking of the Chief Justice and the Associate Chief Justice to Mr. Thompson that all reasonable steps would be taken to avoid a reference to the Supreme Court of Canada

• It is reasonable to suppose that the threat of appeal to a higher authority influenced the Chief Justice and Associate Chief Justice to act in a way that would otherwise have been unpalatable to them

o To interfere with the scheduling of cases because of delay is one thing but to pledge to take all reasonable steps to avoid a reference to the Supreme Court of Canada is quite another

o What is pertinent is to avoid delays, not to avoid appeals or recourse to higher courts • Given the vexing delay that the respondent had faced in the Trial Division, it is quite understandable that

Mr. Thompson would have wished to do something about it o We believe that Mr. Thompson’s motives were proper, it was his judgment that is questionable o What Mr. Thompson did was not done in bad faith

Re Residential Tenancies Act • operation of s.19 is subject to s.96-‐100 of constitution act • the ability of s.96 courts to carry out inherent jurisdiction could be ruined if a province is able to create

administrative tribunal and give it jurisdiction of a s.96 court o practical limitation = province cannot appoint persons to sit on tribunal that infringes on s.96 court

jurisdiction (as such that has to be done by federal government) Legislative Process

Parliament • Parliament has 3 constitutive elements:

o Queen (or her representative) o Senate o House of Commons

• Federal Statutes can’t be enacted w/o agreement of all three elements • Provinces now have unicameral legislatures, but Lieutenant Governor has same role in relation to provincial

statutes as GG Monarchy • How is Monarchy selected?

o Set of English rules § Statute of Westminster creates agreement w/ Common law countries that Act of Settlement

Rules will be used; if once country wants to change them, all have to change § Avoids situation where countries have different sets of rules

o Recent change to rules w/ respect to monarchy: § Princess Georgina would have been allowed

• Quebec argued that would have been a constitutional amendment b/c it changed rules of the monarch

• Why is the Act of Settlement’s prohibition on the Monarch being a Roman Catholic not a violation of the equality rights guarantee under the Canadian Charter of Rights and Freedoms?

o Court decided: Can’t have a constitutional provision inconsistent w/ another constitutional provision § Rules of succession not just statutory rules, constitutional rules. To change would require

convincing Parliament of all common wealth countries. • Governor General

o Appointed by queen on advice and consent of the PM o No constitutional constraints on choice

33

§ May be convention re: Canadian Citizen; maybe alternation b/t English and Frnech (though unlikely)

CASE: O’Donohue v the Queen Facts: Applicant claimed that certain provisions of the Act of Settlement are of no force and effect as they discriminate against Roman catholics in violation of the equality provisions of the Charter of Rights. Act of settlement states that Roman Catholics cannot accede to the Crown of England, nor be married to someone who holds the Crown. Decision: Application Dismissed Reason:

-‐ Charter cannot be used to amend or trump another part of our constitution

Finding that the rules of secession are justiciable would run contrary to the intent of parliament and constitutional convention among commonwealth nations Senate • AB has senatorial elections (don’t directly elect, but hope PM will take notice of public wishes)

o PM Chretien didn’t follow; Harper has. • Efforts been made by senatorial election ‘winners’ to force PM to appoint them; Court has dismissed both b/c

they didn’t raise legal issue. o CASE: Brown v Alberta

§ Decision (ABCA) Constitutional principle of democracy (unwritten) BUT expressly stated in Constitution that there is no limit on who they pick. Written text prevails!

• No constitutional convention re: appointment of senators from AB who have been elected: o While Harper has appointed ppl elected, difficult to est a convention since Chretien didn’t. If other PMs

start doing it as a sense of obligation, would become constitutional convention. • Reluctance to elect senators:

o Public policy: § Balance of power: current way elected House of Commons; when conflict, senate back down

(avoid jamming legislation) • Convention, if House of Commons passes legislation on second time, Sentate accedes

o Over rep in Eastern Canada; under rep in western Canada o Ought to be constitutional change

§ Requires debate; range of options to be explored § Better to just blow up senate and re-‐create. Just changing selection process doesn’t fix other

issues (e.g., representation) CASE: Brown v Alberta Written text of constitution prevails – while Democracy is unwritten principle … written text says there’s no limit on who PM picks for senate

o Decision (ABCA) Constitutional principle of democracy (unwritten) BUT expressly stated in Constitution that there is no limit on who they pick. Written text prevails!

Facts: wanted a motion which said the appointment of senators by Govenor General was contrary to democratic principles, and that to conform to those principles senators must be appointed according to provisions in the Alberta statute Decision: Application dismissed Reasons:

-‐ Appellant has not raised a legal issue based on the nature and extent of the relief he requests in his original notice -‐ thus court does not have jurisdiction to grant declaratory relief

-‐ Political not a legal decision

34

CASE: Samson v Attorney General Canada Facts: Applicants have applied for an interlocutory injunction to restrain the governor general from appointing to the Senate a qualified persons from Alberta, unless that person has been elected pursuant to provisions of senatorial act of Alberta Decision: Dismissed Reasons: Under the express and unequivocal terms of s.24 and 32 of the constitution the governor generals power to appoint qualified persons to the senate is purely discretionary – no procedural or other limitations restricting this power. Limitation can only be imposed by amendment. Claim is political not legal

-‐ Why is this not contrary to unwritten constitutional of democracy? Because the Senate does not normally interfere with the decisions of the elected house and electing them would change this dynamic

Why do the provisions of the Alberta Senatorial Selection Act not bind the federal government in appointing senators from Alberta?

Ø System is one in which PM gets to choose and is not bound by electoral process -‐> principaled argument behind this argument is that you create conflict between two elected bodies when have two electoral systems -‐> never any doubt which is the more legitimate body -‐> because composed of people we elect

Ø Senate can block governments legislative agenda – so PM does not want this -‐ What did the court of appeal decide in Brown v Alberta Ø Person selected by senatorial act brought a challenge for the failure to appoint him – didn’t say make

order for PM to appoint me, said make an order that failure to appoint me is contrary to unwritten principle of democracy

Ø Court said does not make those orders Ø All asking for is abstract declaration that may be politically useful for you – but we do not do those

kinds of things

Is there a constitutional convention requiring the appointment of senators from Alberta who have been elected? Why or why not? Ø NO – but if current PM continue to appoint from senatorial selection act does this create the convention

? No because not strong enough need three elements: a) Practice b) Practice obligatory -‐> this is tricky bit because just having one pM do it is not enough – of consistent

over twenty years or so then is a convention -‐> courts cannot enforce this but can identify it c) Must be reason for practice

• Bill C-‐7 (Unilateral legislative reform of Senate)

o Designed to est. scheme similar to AB scheme in all provinces that don’t have senatorial election § Wouldn’t apply to provinces w/ current scheme

o Sets term limits for Senators House of Commons • What distinguishes the roles of the House of Commons and the Senate?

– House of Commons is elected – Prime Minister is selected based upon ability to command the support of the House of Commons

(doesn’t need to command support of the Senate) – Money bills must originate in the House of Commons (raising revenue or spending money)

• How does the Charter affect the selection of members of the House of Commons? (see Saskatchewan Electoral Boundaries Reference and Figueroa v. Canada)

Reference re Provincial Electoral Boundaries:

-‐ Not every Canadians vote is worth the same amount, and generally speaking a vote is worth more in the less densely populated rural riding then in urban populated ridings

-‐ Is such unevenness in a voters capacity to influence elections consistant with s. 3 of the charter ?

35

Issue: to what extent does the right to vote enshrined in the Charter permit deviation from the “one person one vote rule” Decision: No violation of s. 3 Reason: • Purpose of the right to vote enshrined in s. 3 is not equality of voting power per se but right to effective

representation • Conditions of effective representation:

o Relative parity of voting power -‐ system which dilutes one citizens vote unduly as compared with another citizens vote runs the risk of providing inadequate representation to citizen whose vote is diluted

• But voting pariety is not the only factor to be taken into account to ensure effective representation o Interests, classes and localities should be fairly represented , principle of numbers should not be

only factor • Effective representation cannot be achieved without taking into account countervailing factors • Absolute parity is impossible – it is impossible to draw boundary lines which guarantee the exact same

number of voters in each system • Relative parity may be undesirable because it has effect of detracting from the primary goal of effective

representation

Factors such as geography, history, interests and minority representation need to be taken into account to ensure effective representation of the diversity of our mosaic CASE: Figeuroa v Canada • Examines the constitutionality of the restriction of political parties that have failed to get people in 50

ridings to receive tax breaks • Meaning of sec 3 – ability to participate meaningfully in elector system – deemed unconstitutional

Facts: Canada elections act required a resgistered party to run candidates in at least 50 electoral districts. Rule struck down Issue: is the 50 person rule interfering with the capacity of an individual citizen to play a meaningful role in the electoral process? Decision: Rule struck down, appeal allowed Reasons:

-‐ Purpose of s. 3 includes not only the right of each citizen to have and to vote for an elected representative in parliament or legislative assembly but also the right of each citizen to play a meaningful role in the electoral process

-‐ Right to run for office provides each citizen with the opportunity to present certain idea and opinions to the electorate as viable policy options; right to vote provides each citizen with the opportunity to express support for the ideas and opinions a particular candidate endorses

-‐ Rule undermines both the capacity of individuals to influence policy by introducing ideas and opinions into the public discourse and debate through participation in the electoral process and the capacity of individuals to exercise their right to vote in a manner that accurately reflects their preferences

36

Legislative Process

Public Bills vs Private Bills Public Bill Private Bill

• Matter of Public Policy • Can be introduced by Government member or

other member

• Matters of Particular interest or benefit to person or persons

• Affect only interest of particular individuals • Classic: Bill of Divorce

Government Bill Private Members Public Bill

• Brought by Cabinet Minister

• Govt bills get special advantage in process (govt gets to control process

• Introduced by “ordinary” MP/MLA (either govt or opposition)

Money bills vs Ordinary Legislation • Bills re: appropriation of revenue or taxation must:

o 1) Have to originate in the house of commons (nothing to stop bill (other than a money bill) being introduced by a senate … both houses have to agree)

o 2) Have to get GG Warrant – have to originate from government. (e.g., NDP can’t get GG warrant … in control of govt)

Bringing Legislation into Force • Royal Assent required b4 legislation will have “force of law”

o Constitutional convention: GG & LG give Royal Assent upon the advice and w/ the consent of the PM / Premier

• Even after Royal Assent, legislation may not come into effect immediately if: o Legislation has “come into force date” written (may be for entire statute or individual sections)

§ Allows org. time to adapt o Legislation indicates that statute (or relevant sections) come into effect on proclamation

• General principle: Comes into effect when it receives Royal Assent (if legislation is silent on come into force date, this is assumed)

37

Statutory Interpretation

Sources of Rules • Statutory Sources

o Interpretation Acts § Purpose: Clarify rules, embed certain substantive norms (e.g, law doesn’t apply to x, y, z), result

• S 8(1) – start w/ assumption that law applies across the country unless a contrary intention is expressed

• S 11 – “shall” = imperative; “May” = permissive • S 12 – every act deemed remedial

o Note, contrary to Common Law Principles (e.g., Common law holds that statutes that impose criminal sanctions should be viewed strictly)

• S. 17 – Laws of Canada don’t bind the Crown unless explicitly stated § Can be w/in Statutes

• E.g., Canadian Human Rights Act includes purpose clause and def’n clause • Common Law Sources

o Historic Approaches § Mischief rule (legislative intent) – Heydon’s Case

• Oldest, origins in Common Law • Basic concept: when Parliament enacts a law, we should interpret that law in a manner

that is consistent with the objectives of parliament. o Can look at problem Parliament was trying to address o Interpret law in the way that enables parliament to achieve that objective o Assume legislation is purposive

§ Plain Meaning Rule (making rule reliable for citizen) – Sussex Peerage Case • 1) If we want to know what parliament intended, best way of knowing is by assuming

what they said is what they meant. o Look at words parliament chose, will tell us what parliament meant. o Shouldn’t focus on background guessing of what parliament had in mind.

• 2) Make law reliable for citizens. o One problem with legislative intent is how do you know what legislative intent is

(would require background understanding that wouldn’t always be obvious)…if you are just looking at the textual meaning, you just need the text!

§ Golden Rule (avoid absurdities) – Grey v Pearson • Rule that causes the most problems (often “unacceptable results” means “results

unfavourable to my client” • Want to make sure the law is not used to produce results that are unacceptable. • If we can interpret law in a way that avoids absurd results, we ought to.

• Driedger’s Modern Rule

§ Adopted by SCC -‐ Re Rizzo and Rizzo Shoes (p. 405) § “… the words of an Act are to be read in their entire context and in their grammatical and

ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

§ Mix of contextual, plain meaning and mischief rule • Text • Purpose / Intent • Practical consequences

o Place text in context (not just the key words, but their place within the overall scheme) § Consider meaning of words that come up in different sections (should be consistent). Consider

how words play out in the whole act. o Textual analysis is purposive – achieving statutory purpose is important

38

§ All pieces of legislation are intended to accomplish something. Important to bear in mind what the purpose is. *it is legitimate to make arguments about the purpose, but these should be done in reference to the text (to the extent possible)

o Avoiding absurdities / assessing practical consequences tends to be absorbed by effort to achieve statutory purpose / legislative intent

§ There may be situations where the text and purpose are incompatible (court may ignore the text if it’s obvious – e.g., refer to section 5 not 6)

Problems • Ambiguous, vague or incomplete text / Disputed meaning (most common problem / argument) • Evolving context / Static vs. dynamic interpretation

o Legislation is drafted at a particular time … world moves on. o Meanings of words change (e.g., meaning of word “persons in BNA Act may not have included women;

192-‐‘s political circumstances changed, would be silly to say women weren’t included) • Overinclusive text / Non-‐application

o Overbroad – really didn’t mean to include this situation • Underinclusive text / incorrigible gap in scheme vs. supplement with common law

o Words too narrow, would like to capture a different situation o “incorrigible gap in scheme” – problem with structure (political problem to be solved) o Can be supplemented with common law

• Contradictory or incoherent text / corrigible mistake • Overlapping provisions / is there conflict -‐ paramountcy

o Constitution trumps! Arguments • Disputed Meaning Argument:

o “the interpreter claims that, properly interpreted, the provision in question has a particular preferred meaning.

o He or she must establish that this preferred meaning is the ordinary meaning, an intended technical meaning, or at least a plausible meaning.

o If the legislation is bilingual, the interpreter must address both language versions” o Example Case: Perrier Group of Canada v. Canada

§ Issue was whether Perrier water was a beverage for the purpose of income tax provisions. § Perrier = things that people make. (Perrier isn’t beverage, just bring it out of the ground) § Court looks at provision in context, looks at ordinary meaning; ruled that Parliament intended to

cover Perrier water. From purposes standpoint, makes sense that it should be included • Static Versus Dynamic Interpretation Argument:

o “the interpreter claims that the text should be interpreted as it would have been when the text was first enacted (static interpretation) or interpreted in light of current understanding of language and social conditions (dynamic interpretation)”

o Example Case: Harvard College v. Canada (Commissioner of Patents) § Harvard College Case – SCC chose static meaning (onco mouse can’t be an invention) § Onco Mouse = genetically modified -‐-‐ Harvard College wanted to patent § Question: can living being be an invention?? § SCC decision:

• Policy issues around patenting living organisms should be addressed by Parliament, not courts. (took conservative approach)

§ Persons Case – took dynamic interpretation (law moves with the times) • Non-‐application Argument:

o “the interpreter identifies a reason not to apply a provision to the facts even though, given its ordinary meaning, it would otherwise apply. A provisions may be ‘read down’ in this way for any number of reasons—to promote legislative purpose, to avoid absurdity, or to comply with the presumptions of legislative intent”

o Example Case: Re Vabalis

39

§ Varbalis Case: the statute said that if someone wants to change their name, they have to change the name of their spouse and their minor children at the same time.

§ Ms. Varbalis didn’t change her name to her husband name. § Ontario court said statute based on certain assumptions that were not true; still valid statute,

still purpose to be served in certain circumstances … § Non application – not saying it’s not valid, simply staying that it doesn’t apply because that

couldn’t have been what was intended. • Incorrigible Gap Argument:

o the interpreter claims that the legislation as drafted cannot apply to the facts even though, given its purpose, it probably should apply;

o whether this omission is deliberate or inadvertent, the court has no jurisdiction to fill a gap in a legislative scheme or otherwise enlarge the scope of legislation

o Example Case: Beattie v. National Frontier Insurance Co. § Beettie Case: statute that said when people are charged with offence, suspend payment of no

fault insurance until after a court determines whether or not they are found guilty of the offence.

§ Beetie convicted … said “where’s my money”. § Statute silent on what happens after the conviction. § Court said, that’s an Incorrigible Gap … can’t deprive someone of a benefit that they are entitled

to on the face of the statute • Supplementation Argument:

o the interpreter concedes that the legislation as drafted does not apply, but claims that the common law does apply so as to supplement the under-‐inclusive legislation

o Example Case: Beson v. Director of Child Welfare for Newfoundland • Corrigible Mistake Argument:

o “the interpreter claims that the provision in question contains a drafting mistake, which must be corrected before determining whether the provision applies to the facts.

o He or she must establish what the legislature clearly intended and what the text would have said had it been properly drafted.” This is common in the bilingual context

o Example Case: Morishita v. Richmond (Township) • Paramountcy Argument-‐

o “the interpreter claims that there is a conflict between two provisions or between a provisions and the common law and that one takes precedence over the other on the basis of some principled reason—

o for example, legislation prevails over the common law or the specific prevails over the general” o Example Case: Insurance Corporation of BC v. Heerspink.

Rules About Meaning: Often in legal problems dealing with disputed meaning. A particular term in a statute could potentially mean different things. Series of rules – not designed to supplant the general rule that we look at the text, purpose, effect. *These rules help us understand how we deal with the text. • Ordinary Meaning Rule: *dominant rule

o Ordinary meaning is the meaning that spontaneously comes to the mind of a competent reader upon reading a legislative text.

o This is presumed to be the meaning intended by Parliament. o However, the presumption can be rebutted by evidence suggesting that some other meaning was

intended o Not necessarily the dictionary definition. However it is very common to use dictionary to establish

ordinary meaning (idea is that ordinary meaning isn’t one that you pick from official dictionary – can take the dictionary meanings and say that t one best captures what the ordinary meaning would give to the words.

• Technical Meaning Rule: o Presumed that legislatures use words in their popular, non-‐technical sense. However when legislation

that deals with specialized subjects and uses language that people governed by the legislation would understand in a specialized way, that specialized understanding is preferred over ordinary usage.

40

o Requires two things: § Establish that context requires technical meaning § Need to explain what the technical meaning is and why it would be appropriate in this context

o Example – Case re: sex of the horse (Witts) • Shared Meaning Rule:

o If there is a discrepancy between the versions in a bilingual statute, the meaning that is shared by both versions is presumed to be the intended meaning

§ One clear, one ambiguous – clear one prevails § Both ambiguous, one broader, one narrow – narrower meaning is shared

• Original Meaning Rule: o Meaning of words used in legislative text is fixed at the time of enactment, but its application to facts

over time is not fixed. o Static interpretation: text is applied as it would have been when legislation was first enacted o Dynamic interpretation: text applied in light of circumstances and assumptions existing at the time of

application o Language that is technical, concrete, and specific tends to attract a static interpretation o Language that is general or abstract attracts a dynamic interpretation

• Plausible Meaning Rule: o If the ordinary meaning of a text is rejected to give effect to the actual or presumed intention of the

legislature, the meaning adopted must be one that the text is capable of bearing. Textual Presumptions / Maxims of Interpretation • Straight forward expression (economy of language)

o Legislation is not drafted to be interesting o Need to focus on each word, not overall impression o Legislature chooses the clearest, simplest, and most direct way of stating its meaning

• Uniform expression (same words have same meaning throughout) o Important as a drafting and interpreting rule o Different words mean something different o The legislature uses the same words and techniques to express the same meaning and different words

and techniques to express different meaning • No redundancy (each element has a separate meaning / purpose)

o Theory is we only say things once. If it is said again, it must mean something different o There are no superfluous words in legislation; every word, every feature of the text is there for a reason

and plays a meaningful role in the legislative scheme • Internal coherence (elements of a scheme fit together)

o All the provisions of a legislative text fit together logically and work together to achieve the purposes of the legislation

• Implied Exclusion (exclusion unius rule) o Failure to mention where mention would be expected implies exclusion o The fact that the statute doesn’t expressly mention something isn’t enough to apply the implied

exception rule … need to provide reasons why you would have expected to see it. • Associated words (noscitur a sociis)

o One word colours the meaning of another o E.g., “docs, cats, gerbils” – does ‘cat’ include tigers? From biological perspective tiger is included, but

based on features the other words have in common (domestic animals), would be excluded • Limited class (eusdem generis rule)

o Requires list + general words o General words interpreted in manner compatible with list o *need to look at what purpose of the legislation is

• Alternative expression (legislature would have said x … ) Need to provide the alternative expression that would have been used • Legislative purpose – key element is how to determine purpose (see external aids)

41

o Assume they meant what they said (use the text first) o External factors help

§ Purpose clauses / other parts of the statute § Background events § Evolution of legislation

o Interpreters must always try to determine the purpose of legislation and in so far as the text permits, adopt an interpretation that promotes or is at least consistent with those purposes

o Interpretations that would defeat legislative purpose are considered absurd o The vaguer the language of the legislative text, the more discretion if conferred on the tribunal or court

that applies it, and the greater is the importance of purpose in adopting an appropriate interpretation. • Federal Interpretation Act – s. 12 tends to be makeweight argument

o Every interpretation act includes a provision that directs interpretation to give every enactment “such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects”.

o An interpretation that promotes the purpose of legislation is to be preferred over strict construction . o Notice, however, that when legislation has been drafted in an overly broad fashion, a narrow

interpretation will be the one that best ensures the attainment of its objectives. • Legislative scheme – statutory context within which relevant words are interpreted

o The provisions of an act are presumed to work together as parts of a coherent scheme designed to implement the legislatures goals.

o It is often helpful to look at the titles headings, and subheadings and the sequence of marginal or sectional notes to get an indication of the scheme.

• Mistakes vs. gaps o Language doesn’t correspond with understanding of the purpose

Mistakes and Gaps in the Legislative Scheme • Corrigible Mistakes

o Legislature presumed not to make mistakes; but from time to time mistakes happen o Text does not accurately reflect the rule the legislature intended to enact. o Courts have jurisdiction to correct the mistake – UNLESS the mistake amounts to a gap in the legislative

scheme. • Incorrigible Gaps

o Courts will almost always deny jurisdiction to cure a gap in a legislative scheme or to otherwise cure underinclusive provisions by making them apply to facts outside ambit of the language of the text.

o Curing an under inclusive scheme or provision = ‘reading in,’ which is generally considered a form of judicial legislation, as opposed to ‘reading down’, which is not.

• Supplementing legislation by reliance on common law (or civil code) o Although the courts cannot cure underinclusive legislation by expanding tis scope beyond what the text

allows, it can rely on supplemental sources of law to complement what the legislative scheme provides. o In doing so it must address the difficult question of the relationship between statute law and common

law. Presumptions about Legislative Intent 2 broad types of presumptions for legislative intent:

1) True presumptions a. Background legal norms

2) Normative Canons a. The legal system background set of ideas that may or may not be shared with the legislature.

Legislators must show that they are not accepting it. 1. Strict construction in:

o Criminal Law o Laws Expropriating Private Property o Cases of exceptions to well established legal principles

2. Liberal Construction in: o Social welfare legislation

42

o Quasi constitutional legislation (Human Rights)

Presumptions about Legislative Intent • Presumed compliance with constitutional law and constitutional law values • Presumed compliance with international law • Presumed continuation of common law • Presumed compliance with rule of law • Presumed non-‐interference with common law rights. • Presumption against the extraterritorial application of legislation • Presumption against the retroactive application of legislation • Presumption against the interference with vested rights • Presumption against applying legislation to the crown and its agents Avoiding Absurdities • Presumed that the legislature does not intend its legislation to produce absurd consequences. Therefore an

interpretation that avoids such consequences is preferred over one that does not o Clear text = larger absurdities needed to depart from text o Presumed to avoid irrational distinctions, contradictory or anomalous effects, defeating the purpose,

undermining the legislation, and violating norms of justice or fairness Extrinsic Aids • Legislative source (external model)

o Consists of agreements that the legislation in question is intended to implement or of legislation (whether domestic or foreign) on which the legislation has been modeled in whole or in part.”

• Legislative History o Reports as a means of determining legislative purpose o Legislative debate as a way of determining purpose / intent o Consists of material formally brought to the attention of the legislature during the legislative process,

including ministerial statements, committee reports, recorded debates, and tabled background material. • Legislative evolution (transition from one statute to another)

o Consists of successive amendments and re-‐enactments a provision has undergone from its initial enactment to the time of application;

o NOTE: subsequent evolution is not a legitimate aid. • Expert opinion

o Consists of precedent, administrative opinion, and scholarly legal publications as well as expert testimony

43

Executive Branch of Government

Importance to Lawyers • Significant performance of law making and dispute resolution functions by executive institutions • Primary role of executive institutions in key areas of legal practice

o Municipal law and land use planning (real estate) o Regulated industries and professions (e.g., agriculture or food service industry – deal w/ regulatory

bodies) o Labour, employment and human rights o Immigration and citizenship o Energy and environment (eg. AER, AUC, NEB)

Rise of Modern Administrative State • Still evolving (in diff. ways – some mvt more twds regulation, other to more market driven) • Public vs. Private provision of services

o Mvt to greater role of govt in supporting individual (e.g., social welfare, pensions, socialized medicines) § In past, provided by other institutions (e.g,, family, church, other organizations)

• Traditional role of govt: o Providing defence, security & dispute resolution o Collecting revenue

• Expanded role of govt o Promoting Economic Development o Promoting Social Welfare o Providing Goods and Services

§ 19th & 20th centuries started seeing expanded industrial economy & expanded role for govt • 50s, 60s, 70s – airfare regulated • 80s onwards – airfares deregulated, but still role for safety & security regulation

Time Period Features & Notes

Rise of Canadian Administrative State (1867-‐1939)

19th Century Govt: • Security, Transportation & Tax Collection • NB: Cdn Administrative State began pre 1867 • Interest in facilitating commerce through transportation (“Nation Building

Project” – BC wanted railway) Early 20th Century: • early efforts to regulate modern economy: Consumer protection, OH & S WW1: State Control of Economy to Serve War Effort • Entire economy was for war effort • Govt developed sophisticated apparatus for regulating food production, safety,

etc. o While it was dismantled after WW1, people realized you could do this

through govt action. Not matter of marketplace providing what you needed! Regulation of economy was possible.

Inter-‐War Years: Combatting the Depression • During 1930’s govts started to feel that it was important to take action to deal w/

economic dislocation of depression o Schemes of unemployment insurance, relief, etc. govt construction

projects to employ individuals o Initiatives undertaken during the 1930s persisted in different forms ever

since. • Govt involved in “social regulation” to ensure people are taken care of

1939 – 2013 The War Effort & Fiscal Federalism • Govt became interested in new technologies and facilitating spread throughout

44

society (telephones, electricity, airlines, broadcasting • Govt created utility companies or took over private utility companies (ensure rural

access) • Reinvigoration of govt control over economy during WWII

o Rethink way Canada operates financially as a federation (sense that provinces were jurisdiction rich and resource poor [health, education, social security]

o Highly differential capacity for provinces to raise revenue o Federal govt re-‐distribute taxing revenue in a way that would ‘equalize’

services across provinces. Post-‐World War II: Health, Education & Social Security • Federal govt want to enhance services in health, education, and social security

(try to induce provincial governments to expand services in these areas) o Socialized medicine o Post –Secondary Institutions [post-‐WWII: govt subsidized service people

to go to school] • 1970’s significant expansion in post-‐secondary [UofC, UVic, University of Windsor] Rise of Municipalities 60s and 70s: Human Rights and Social Justice • Rise of anti-‐discrimination law; tribunals to administer The 80s and 90s: Deregulation and Privatization • Growth of govt questioned (realizing some forms of regulation not effective in

producing goals) *not just by conservatives. • Should mix of private/public services be adjusted?

o E.g., should some health services be provided on private basis? (e.g., WCB & Military contract w/ private providers)

o Airport security & US penitentiaries The New Millennium: 9/11 and the Refocus on Security • Reemergence of security as a concern. Bigger security apparatus @ state level and

private level (e.g., Campus security)

Modern Canadian Administrative State Changes in institutional apparatus of Govt

• Early history most institution at Federal or Provincial level were either divided into military/policing institution that tended to be separated from other; and departments (e.g., transportation, etc.)

• Continue to have Minister/Ministry as important part of how govt organized

From Patronage to a Professional Civil Service

• By latter part of the 19th century and beginning of 20th century, started to move towards wanting a “professional civil service” removed from role of patronage.

o Patronage didn’t disappear entirely … still things like road contracts that could have a patronage element to them.

The Rise (and Fall?) of the Independent Regulatory Agency

• Halfway between Court and Ministry • Not like court: highly specialized, people who populate it may change

w/ government. Not necessarily lifetime. • Designed to operate at arms length of govt. • Question – how long is the arm?

o Too close o Too far? What about goals of govt we elect?!?

The Rise of the Independent • Not immune from govt impact

45

Adjudicative Tribunal

The Rise (and Fall?) of Crown Corporations

• One way Govt historically provided services [BC Hydro, CBC] • Some Crown Corporations have been sold [PetroCanada, Air Canada]

The Growth of Municipal Government

• As municipalities have grown, more sophisticated municipal govts. Start taking on bigger roles in local planning, local decision making.

Evolving Mechanisms for Providing Public Services – Government Finance as a Regulatory Instrument

• Govt starting to pay others to provide services (Child Welfare Services) – no typically contracted by various voluntary agencies (some religiously based) *govt controls through contract. *contract administrators in govt . V delivery of front line

• Elder care, home care etc

The Legal Implications of Private Sector Organizations Performing Traditional Governmental Functions

• Implications: Relationship b/t person getting services governed by private law or public law? [private provision of prison services; governed by contract law or public/constitutional rights associated

• University: governmental acts (does Charter apply)

THE CROWN Constitutional role of Monarchy • S. 9 of Constitution Act, 1867 (p 243)

o “Executive govt over Canada is vested in the Queen” • Queen can exercise the authority personally, though she rarely does [last occasion on April 17, 1982 when she

gave Royal Assent to the Constitution Act 1982] o Normally authority given to the Governor General through Letters Patent and comparable documents that

est. authority of each provinces Lieutenant Governor Privy Council • Privy Council @ Federal Level = anyone who has been a Cabinet Minister

o Constitutional Convention – current members of Cabinet get to exercise authority of Privy Council • Authority of the Political Executive typically in text of constitution given to Privy Council

o PM = First Minister of the Privy Council [All power that PM exercises as a matter of law comes through ability to control activity of Privy Council]

• Section 13 of the Constitution Act, 1867 (p. 244) o References to Governor and General in Council should be construed to … [Provision that says that when the

GG exercises authority; GG does that on the advice of Privy Council] • Constitutional Convention central to govt functioning:

o Know Queen, GG, Privy Council doesn’t exercise authority o Authority exercised by Cabinet who directs GG & LG to exercise authority

Prime Minister and Cabinet • Evolving role of PM and PMO

o The “presidential role” of PMs or Premiers has not arisen b/c of law or constitutional conventions, but as a result of the evolution of politics

o Was a time when individual members of parliament, elected based on individual personal reputations. @ Federal Level carried role of regional representation. *had significant role in shaping govt. Individuals seen as actors who’s interest had to be accommodated.

§ Focus now is more on leaders; the power of the leader has grown. Power of individual member / regionally powerful cabinet ministers have decreased.

46

o Other parliamentary democracies function differently § UK: Thatcher fired by caucus! § Australia: Caucus effects changes in leadership § Canada – leader can only be kicked out through party, not caucus.

o Even though legal rules haven’t changed, politics have caused shift in “power” • Ministerial responsibility

o Principle of ministerial responsibility part of larger “responsible govt” § Different than Congressional Government (e.g., Obama doesn’t need support of Congress) § PM needs support of House of Commons; Premier needs support of legislative assembly *if

they lose support, can no longer serve. Either have to step down and call election or be replaced.

o Individual ministers are responsible to the legislative assembly § E.g., House of Commons vote of no confidence in a Minister (can be booted out of Cabinet)

• Also responsible for action of officials to Parliament o Could be asked to resign. o Practical matter, tendency for Ministerial Responsibility to be more and

more attenuated … pretty rare to see Cabinet Minister to resign for misdeeds of their officials.

• The delegation of the statutory powers of Ministers o Ministers in their role as being responsible for Ministry, have general authority over Ministry

§ Authority must come from legislation itself o Very often when legislation is designed to have ministries carry out certain functions – will say

“minister may” or “Minister shall” … that power typically can be delegated by Minister to lower level officials

§ Ministers power itself is delegated by legislation to minister. o Ministers have general managerial authority; authority to carry out program of ministry typically

come from statute § E.g., to have investigation, to give grants, etc.

The Public Service Part of executive branch. • Ministerial responsibility for actions of public servants

o Minister held politically accountable for all matters arising within department • Public Service neutrality – public service is neutral, apolitical, loyal

o civil servants should carry out their responsibility loyally to the government in power w/o regard to their own political views.

• Public service anonymity – Minister is face of the Ministry o Bureaucrats should be held accountable to their political overseers, but they are not answerable to

parliament CASE: Fraser v. Canada (PSSRB) Loyalty of public servants assessed considering whether 1) performance of job or 2) perception of impartiality is being compromised. Whistleblowing allowed Facts: • Mid-‐level civil servant particularly vigorous in his criticism of policy of govt re: metrification. Engaged in open

debates through media. He didn’t have anything to do w/ administering policy of metrification, but govt still said he was being unloyal.

Decision: • Administrative tribunal and SCC agreed he was being unloyal Ratio: • In assessing loyalty, must consider whether 1) Performance of Job or 2) Perception of Impartiality is being

compromised • Activities re: whistleblowing OK; loyalty not compromised if illegal, immoral act going on – e.g., if public safety in

jeopardy • Appellant adversely affected his own ability to conduct the affairs of the department in which he worked

47

• Public servant cannot be allowed under the rubric of free speech to cultivate distrust of the employer amongst members of the constituency whom he is obliged to serve

• Displaying such a lack of loyalty to the Government was inconsistent with his duties as an employee of government.

Related issue to matter of public service loyalty is the extent to which members of the civil service can engage in partisan political activities. The statutes governing public service employment include restrictions on the kinds of political behaviour that certain bureaucrats can participate in – these statutes have been subject to judicial scrutiny:

a) OPSEU v Ontario – Ontario legislation restricting provincial civil servants political activities was upheld as valid provincial legislations

b) Osborne v Canada – question was if such restrictions were consistent with the charter – federal statute struck down as contrary to right of free expression. Found that legislation was over inclusive because it failed to make distinctions between the kinds of work the employee may be involved in and his/her level of responsibility within the civil service

Ø Both cases acknowledge the existence of a constitutional convention of public service neutrality

CASE: Osborne v. Canada – p. 249 Rule preventing public servants from engaging in political actions ruled as overbroad; need to look at nature of work someone is doing in order to determine the extent that they can be involved w/o compromising their ability to do their job. Facts: • Constitutional challenge to restrictions on the ability of public servants to engage in certain political actions.

What is the extent of duty of loyalty that public servants has to govt? How can the duty be reconciled w/ freedom that individual public servants have under constitution?

Decision: • SCC said generalized restriction was over board and result was parliament restricted the rules. Federal statute

struck down as contrary to right of free expression. Ratio: • Need to look at nature of the work someone is doing in order to determine the extent that they can be involved

w/o compromising their ability to do their job. Commentary: • Today: ability to take part in political process is a function of where you sit within the system of the public

service • E.g., DM wants to run for office, DM disqualified from running for office

• Minister is allowed to rely on the lack of political activity of DM • Lower down, may need to take a leave, but there is nothing to prevent you from running.

OPSEU v Ontario – Ontario legislation restricting provincial civil servants political activities was upheld as valid provincial legislations • Both cases acknowledge the existence of a constitutional convention of public service neutrality Traditional Executive Bodies Non-‐Traditional Executive Bodies • Governor General • Lieutenant Governors • Federal & Provincial Cabinet • Govt Departments & Ministries

“Administrative Bodies” • Board, Commission, Authority, Council, Agency • Typically arms length • Created by statute

48

Independent Administrative Agencies • Give govt flexibility to combine rule making, investigative, & adjudicative functions into a single organization

o ISSUES: § Impartiality (judge, jury, & executioner) § Separation – “checks and balances”

o BENEFITS: § Specialization (knowledge) § Efficiency and effectiveness

• saving $ & helping to inform better processes o *understand and address problems in a comprehensive way

• Some agencies only perform adjudicative functions. • Why not use court?

• Cheaper • Specialized area of law • Court load (want to speed up efficiency) • Sense that judges view of the world might not be consistent w/ legislature’s statutory objectives

• WCB, Labour Relations • Tort mindset (v. No-‐Fault WCB) • Employment common law v. collective bargaining •

• Independence from govt? o Series of common law rules that are designed to prevent political interference in independent

adjudication of decisions by administrative tribunals. o Court concerned with institutional independence (objective guarantees that there won’t be

consequences for adjudicators who make decisions that are politically unpopular • Not independent from govt?

o Ocean Port decision: Ministry and Ministers retain significant control over security of tenure over adjudicators (e.g, may retain right to dismiss at pleasure, or short terms of appointment)

o Ocean Port argue: If constitutional principle that protects independence of provincial court judges … how can it be that a body that is supposed to be independent adjudicative body that is much more significant don’t have guarantees of independent?

§ SCC says, it’s not in statute • Also, they are extension from govt (part of executive). Distinct from courts – who

are part of the judiciary. • In the Ocean Port decision, why does the Court reject that application of the unwritten principle of judicial

independence to the B.C. Liquor Appeal Board? CASE: Ocean Port Hotel v BC -‐ SCC draws distinction between administrative tribunals and decision makers as emanations of the

executive that must take their policy direction from the legislature and the courts which are protected by the constitutional principle of judicial independence.

o SCC rules: Administrative tribunals = extension of govt (executive); distinct from Courts Facts: Ocean Port argued that the Liquor board lacked sufficient independence to make the ruling and impose the penalty it had, and that as a result it must be set aside.

-‐ The court of appeal concluded that members of the Board lacked the necessary guarantees of independence required of administrative decision makers imposing penalties

-‐ Held that tenure enjoyed by the board members was insufficiently secure to preserve the appearance of independence

-‐ Appellant argues that absent a constitutional challenge a statutory regime prevails over common law principles of natural justice – argued that Court’s decision effectively struck down this valid provision without reference to constitutional principles

Issue: Do agencies need to be as independent as courts?

49

SCC: not open to court to apply a common law rule in the face of clear statutory direction. Courts engaged in the judicial review of administrative decisions must defer to the legislations intention in assessing the degree of independence required of a tribunal. This reflects the difference between tribunals and courts SCC says no charter protection although when administrative bodies are making decisions that effect individuals there is a responsibility to be fair Note On tribunals: • Superior courts are constitutionally required to possess objective guarantees of both individual and

institutional independence • Tribunals : lack this constitutional distinction from the executive. They are created for the purpose of

implementing government policy. The implementation of that policy may require them to make quasi judicial decisions. Therefore they span the divide between the executive and judicial branches of government. Given their primary policy making function it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.

• The degree of independence required is a matter of discerning the intention of Parliament CASE: Bell Canada 1) Issue: Bell arguing that Human Rights Tribunal was not independent enough because tenure is short

a. SCC says that security within in a given tenure is enough 2) Another Issue: The commission is entitled to issue guidelines that are binding on the tribunal but they are

also a party to the case before the tribunal a. It is not incoherent to have multiple functions and still have them consistent with fundamental

justice ie. Cabinet 3) Tribunals are on a spectrum – some required to have a higher degree of fairness

a. Admin ßàadjudicative Decision: Some tribunals are executive end of spectrum whose primary purpose is to develop or supervise the implantation of particular government policies. Other tribunals are closer to judicial end of spectrum – their primary purpose is to adjudicate the disputes through some form of hearing . These tribunals possess court like powers and procedures. These requirements bring them within the stringent requirements of procedural fairness including a higher degree of independence The CHRT though not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence must act impartially and meet a relatively high standard of independence both at common law and under s. 2€ of the Canadian bill of rights Crown Corporations • Why would govt set up Crown Corporation to deliver public services?

o For some types of service delivery, was thought that corporate structure / corporate method of operation would be more efficient particularly when those services in some other settings be provided by private sector operators

• What types of Crown corporations have been created in the past? o E.g., Broadcasting (CBC), Airline services (Air Canada), Gas (PetroCanada), Electrical Utilities (BC Hydro)

• What types of Crown corporations have subsequently been privatized? Why would a government want to privatize a Crown corporation?

o Crown corporations face challenges; if corporate structure is really better … why not privatize?? Enforcement Bodies CASE: R. v. Campbell Policing activities = independent from government control; RCMP is not the Crown and shouldn’t have crown immunity in tort action. Facts:

50

• RCMP claims they should have “crown immunity” in tort action. Police engineered a sting operation by arranging the sale of narcotics to the accused and the charging them with the conspiracy to traffic. Stay of proceedings was sought on the basis that the police had engaged in a serious breach of the law. Crown argued that any illegal conduct should be subject to crown immunity from statutory offenses

Decision: • SCC says no, RCMP is not the Crown. While there are situations where the RCMP is acting under the direction of

the Solicitor General, in policing activities (e.g., the investigation of criminal activity), they are independent from govt control.

NOTES: • Benefits of police independence:

• Avoid police state • Need to investigate govt officials • Don’t want politicized policing apparatus (want them to be dedicated to the enforcement of the law)

• How are the police held accountable for their actions in carrying out criminal investigations? • Police complaint mechanisms, • Civil actions for wrongful arrests, etc.

CASE: Kreiger v. Law Society (Alberta) Prosecutorial discretion – non-‐justiciable (can’t be reviewed by courts or law society); however complaints about conduct during trial fall outside of prosecutorial discretion. Facts: • Law society of AB receives complaint re: conduct of Crown Prosecutor. Prosecutor argued that Law Society

couldn’t review conduct b/c independent Decision: • SCC said yes, prosecutorial discretion can’t be reviewed by courts or law society; however, complaints about

conduct of prosecutor during trial (or some other activity that isn’t exercise of prosecutorial discretion), law society does have authority over individual.

NOTES: • As a practical matter, how does the Attorney General avoid the concern that partisan political considerations

may influence the exercise of prosecutorial discretion? • For politically sensitive cases, typically will bring in special prosecutor (often respected criminal defense

lawyers) Keep it arms length from Ministry - Both cases interesting because they illustrate principle that in criminal justice system, we want both policing and

prosecution to be independent of politics. And at same time, we know that they are govt services, paid for by govt. Want to have some kinds of mechanisms of accountability… How do we achieve accountability?

§ Police: (political control of budgets, cars, bicycles, etc. … but independent in relation to investigation) • What if they abuse their power in relation to investigation?

§ Open to civil actions (wrongful action)…tort liability. **Civilian complaint systems so that people can make complaints about policing to a body that is separate from police force [complaints investigated by police force that is different / arms length review]. Also, if police violate constitutional rights, could be basis of due process

INDEPENDENCE OF PLAYERS IN EXECUTIVE BRANCH Crown Very limited independence from political branch of govt

Queen exercises constitutional authority on advice and w/ consent of Privy Council * Might have some vestigial reserve power (not clear w/ GG to do w/ Harper’s desire to prorogue parliament to avoid non-‐confidence motion.

PM & Cabinet Core of political branch of govt

51

Indpendence almost non-‐existent (Cabinet minister could resign) Public Service o Senior public service level obligation to give candid advice to

ministers; but ultimately has obligation to do what Minister tells them to do

o Lower level a little different o Whistle blowing exception o Some level of opportunity for partisan political

participation (e.g., take a leave) o Ultimately policy direction & responsibility comes from political

branch of govt

Independent Administrative Agencies

• Need to separate government interference from decision making from structural independence that courts enjoy

• Legal doctrines prevent political actors from interfering to encourage / direct independent regulatory agency/tribunal to make particular type of decision

o E.g., Can’t call up chair of labour board and say they want the case determined in particular way

• BUT don’t have same constitutional status as Courts (e.g., security of tender, remuneration, administrative independence that is guaranteed by the constitution.

• To the extent that the guarantees exist in Common Law, can be trumped by statute

Crown Corporations • Set up in order to be independent or arms length from government

• Have a structure that is familiar to corporations o Directors manage the company independent from wishes

of shareholders (shareholder can fire directors) o Independence is less powerful in crown corporation than

in normal private corporate sector because govt is sole shareholder

• Govt have not hesitated to remove board of directors during periods of inactivity

Enforcement Bodies o Note: Criminal prosecution occurs w/in Ministry setting in most jurisdiction (Ministry of Attorney General); except Nova Scotia

o AG has different relationship w/ govt than other Ministers. In the context of prosecution, there’s a tradition of keeping it separate from politics.

Municipalities • Municipalities are not separate orders of government; they are creatures of the provincial or federal legislature

that est them. o Can be created, abolished, powers expanded or contracted.

CASE: East York v Ontario Municipalities are creatures of Provincial government; have ability to grant, take away, change powers. Facts: • Govt of Ontario creates GTA and abolishes all of the local municipalities (merge into a mega local govt). East York

says provincial government can’t do that (long history, independent operation). Decision:

52

• ONCA Court says that’s a political argument to make to voters at the polls, but not a legal argument. Upholds idea that they are creatures of Provincial Government.

Ratio: • Once province creates a municipality, the Municipality can exercise its powers independently in same way an

administrative tribunal can. (province can remove powers) • Amalgamation of Toronto, municipalities being collapsed challenged that it was not being done with their

permission • Court held that they did not have standing to challenge as they exist at will of the province • Provinces have the power to take away/give all power relating to municipalities. CASE: Shell v. Vancouver Municipalities must exercise powers in accordance w/ municipal function [can fall outside typical water, sewer, etc., but there are limits … international relations statement is outside limits] Facts: • Vancouver City Council pass resolution that they won’t deal with companies who deal w/ South African

companies. Shell says you can’t single them out. Issue: • Shell Canada brought forward application to court saying Vancouver City Council didn’t have authority to make

resolution Decision: • Majority said municipalities have to exercise powers in accordance w/ municipal functions; resolution fell

outside what would be considered a municipal function • Can be construed as broader than water, sewer, etc. but there are limits.

• International relations statement is outside limits • Court held that this went too far outside scope of good governance • Court will only interfere where municipalities are doing something outside scope or jurisdiction,

municipalities given leeway in performing duties in public interest and welfare of cities inhabitants (despite broad approach, Vancouver goes to far, not local but international issue)

Commentary: • Minority: Justice Mclauchlin took expansive view on power. Courts shouldn’t micromanage the activities

Vancouver can undertake • Cities have general control over their ability to purchase goods (intra vire) • Courts must award proper respect to the democratic responsibilities of municipal officials & the rights of

those who elect them. • A generous approach to municipal powers will aid the efficient functioning of municipal bodies and

avoid costs and uncertainty attendant on excessive litigation (i.e. avoid public funds being spent by municipalities in defending the validity of their exercise of statutory powers)

• this action fell within the powers of the municipality. Courts should respect the democratic will of the people that voted the city council to office.

CASE: Spraytech v Hudson (Town) Municipal purposes include environmental protection; municipal bylaw allowed. Facts: • Spraytech was looking whether municipality can take measures for broad environmental purposes using general

powers. Decision: • SCC takes a somewhat more expansive view of Municipal purposes in relation to environmental protection Still clear, City has to be able to point to something in enabling legislation that authorizes what it is doing! • Municipal purpose still required; Spraytech says environment can be included. • Spraytech says province regulates environment not municipality so they cant decide • decision upheld their ability to do this > if it is appropriate to focus on this in a local area, they will interpret

mandate more broadly o doctrine of subsidiarity: law making should occur at level of governance both affective and

closest to affected people and thus most responsive to their needs

53

Royal Prerogative Source: • Historical origins (middle ages, Kings had general authority to make laws, raise taxes, etc.). Overtime Parliament

constrained exercise of Royal Authority o Authority of Kings shrunk in relationship to parliament o W/in Parliament executive role took over by PM

§ Whatever formal authority king/queen had was exercised w/ advice and consent of PM • Where have we seen that type of prerogative power used?

o E.G., At the time British colonies est. in North America, King able to legislate for colony (e.g., Royal Proclamation of 1763)

§ Limited prerogative until legislation est. then crown restricted to executive acts • After a colony has a legislature, the Royal prerogative is restricted to executive rather than legislative acts. • The exercise of the Royal prerogative is residual and can be displaced • Areas in which the Royal prerogative continues to exist include:

o Foreign affairs § PM doesn’t have statutory authority to speak for Canada

o Defence § PM doesn’t have statutory authority in order to Command Cdn troops.

o Honours o The prerogative of mercy

• How can the Royal prerogative be displaced? o Powers typically conferred on Ministers by statute

CASE: Black v. Chretien Exercise of royal prerogative judicially reviewable if it affects rights of individual. IN this case, it was in relation to an honour, which is not judicially reviewable. RP can be exercised by PM directly. Facts: • PM advice to Queen that Cdn citizens could not be appointed to House of Lords (Black wanted to be appointed

to House of Lords, England happy to oblige, PM said he had to rescind his citizenship first) • Black brought application to Superior Court of Ontario to have decision judicially reviewed (his argument: PM

was not exercising RP, was simply giving Queen legal advice – court could give Queen correct legal advice) • Federal government said it wasn’t “legal advice”, it was advice as outlined in RP “exercise power on advice and

w/ consent of” Decision: • Court said b/c it was in relation to an honour (not a right), this exercise of RP was not judicially reviable. Ratio: • RP can be judicially reviewed if it affects right of individual. • RP can be exercised by PM directly (e.g., when PM speaks for Canada in matters of foreign affairs, does so

directly). o Royal prerogative – arbitrary authority at any time left with the crown – courts state that this is common

law rule, and powers and privileges accorded by the common law to crown o Laskin J: Court says GG acts on advice of PM (constitutional convention), discretion that GG cannot follow

PM is very limited – both PM and GG could exercise the prerogative in question, PM can communicate directly to queen.

o GG, LG, cabinet (ministers) can exercise royal prerogative as they are members of privy council o Unquestionably, the granting of honours is the prerogative of the Crown. Because no statute in Canada

governs the conferral of honours, this prerogative has not been displaced by federal law, nor has it been limited by the common law

o Should it be reviewable by court? Advice given to queen about policy of benefit conferral is not reviewable – 1960s prominent role of courts was to decide – determined

• the action complained of in this case – giving advice to the Queen or communicating to her Canada’s policy on the conferral of an honour on a Canadian citizen – is not justifiable

54

• Only those exercises of the prerogative that are justifiable are reviewable. § `The court must decide “whether the question is purely political in nature and should,

therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch”

• The refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where important individual interests are at stake, and no CDN citizen can have a legitimate expectation to receive an honour

§ The PM's action is not judicially reviewable o Charter modifies extent to which govt can review RP because it lies with parliament, charter is

applicable and reported violation can seek a review (generally only when review is amenable to judicial process, courts can only review RP if there is an action that affects indiv right or legitimate expression)

o Here, charter violation was not invoked, courts consider on policy and issues dealing with public interest, no judicial review is expected unless charter is violated

o Rights & legitimate interest – not denied w/o procedure fairness, which can be reviewed § Conferral of honour is not a right or legitimate interest – no citizen has right to receive or

expect, no adverse issues arise as a consequence § Pardons, passport denial, charter claims = justiciable § Foreign affairs, high policy (declaration of war), honours = not justiciable

Statutory Power • Most executive authority is conferred by statute • As a general rule, the lawfulness of executive exercise of statutory power is reviewable in court • The bases for that review will be considered in subsequent cases • Legislation typically confers authority to perform executive or judicial acts. • Legislation typically provides some guidance on the proper exercise of authority • It is also common to leave some discretion in the hands of the person on whom authority is conferred • How do we avoid the arbitrary exercise of discretion

o Have some constraints on how discretion will be exercised. § E.g., Roncarelli & Duplices – SCC said yes power to cancel licenses but needs to be consistent w/

purpose of legislation • Legislation can also confer the power to enact delegated legislation • Delegated legislation itself has the force of law

o Examples of delegated legislation: § Regulations passed through Orders in Council @ Federal or Provincial Level § Municipal Bylaws

Limits on the Power of Parliament or Provincial Legislatures to delegate legislative authority? CASE: Re Gray War measures act valid b/c Parliament hasn’t completely delegated all power; always open for Parliament to amend War Measures Act. SUMMARY: • Remarkable case that established pretty broad scope to delegate legislative authority • War Measures Act passed @ beginning of WW1; gave Governor in Council broad powers (some constraints re:

need to satisfy condition of war) • Gray was conscripted pursuant to a new set of rules passed by the GoC – Governor in Council used War

Measures Act to change the rules and expand scope of who is eligible for conscription o Under previous Military Service Act 1917 Gray would have been exempted from conscription

ISSUE: • Gray challenged validity of the Act – shouldn’t more have been required? DECISION: • Majority of SCC felt it was lawful exercise of power conferred on the Governor in Council

55

REASONS: • SCC held that they hadn’t given full power up. Always open for Parliament to amend War Measures Act (haven’t

abolished Parliament) o Likely wanted to enable the govt to be able to act quickly!

• Efficiency argument – forcing everything through funnel of legislature constrains (bottleneck created). To get job done, need enabling legislation [e.g., Power given to Territorial Govts to make laws for territories]

COMMENTARY: • Minority – Felt that ability to repeal act of parliament went too far. NB: Need to retain authority to reassert power to make rues; can’t give up full power PEI Potato Marketing Board v Willis Facts: desire to create a national scheme for regulation of potato market – delegated to a provincial administrative body Decision: Feds can delegate to administrative bodies

o did not detract from legislative expectation of the public, did not deal with delegating powers to another govt, but in fact delegating executive powers to admin body

o limits on exercise of delegated authority -‐ recipient to delegated authority must be within the confines of the legislation and what powers are being exercised and how it is being exercised (based on stat interp. if so, ultra vires) § power must be exercised by appropriate delegate -‐ delegated power cannot be redelegated, or

subdelegated -‐ if leg. branch sees fit authority to be performed by a certain body, it must be held • i.e. Parl delegating power to enact rules on long gun registration to federal admin agency -‐ not

allowed, because it must be legislated by Parl. itself (therefore abdication of authority), delegating enacting of rules governing registration to provincial legislature would not be allowed either, but delegating enacting of rules to admin body is fine [see govt to govt = no go]

CASE: Nova Scotia Inter-‐Delegation Provinces can’t delegate power to Federal government; Parliament can’t delegate power to provinces. Concern re: upsetting balance of federalism FACTS: • Great Depression, lot of debate re: need for national system of unemployment insurance. Courts ruled that

unemployment insurance fell w/in Provincial Responsibility. • Tried to delegate power from Province to Parliament *get enough provinces delegating power = national

Scheme DECISION: • SCC said NO! REASONS: • SCC worried about being able to “reassert” power (take power back) *NB: Federal govt asked UK Parliament for BNA Act Amendment • Why was the Nova Scotia legislature unable to delegate its power to enact unemployment legislation to

Parliament? • SCC felt it would be tough to get power back

• Why was it less problematic for Parliament to delegate to a provincial marketing board the power to make rules concerning the export of potatoes in PEI Potato Marketing Board v. Willis?

• One thing to give it to another legislature; Administrative inter-‐delegation seen as less problematic. • did not detract from legislative expectation of the public, did not deal with delegating powers to

another govt, but in fact delegating executive powers to admin body • limits on exercise of delegated authority -‐ recipient to delegated authority must be within the

confines of the legislation and what powers are being exercised and how it is being exercised (based on stat interp. if so, ultra vires)

56

• power must be exercised by appropriate delegate -‐ delegated power cannot be redelegated, or subdelegated -‐ if leg. branch sees fit authority to be performed by a certain body, it must be held

• i.e. Parl delegating power to enact rules on long gun registration to federal admin agency -‐ not allowed, because it must be legislated by Parl. itself (therefore abdication of authority), delegating enacting of rules governing registration to provincial legislature would not be allowed either, but delegating enacting of rules to admin body is fine [see govt to govt = no go]

Limits on the AUTHORITY to delegate legislative power • Parliament or a Legislature cannot completely abdicate legislative authority to another body (Re Gray) • Parliament cannot delegate legislative authority to a provincial Legislature (and vice-‐versa) (NS Inter-‐delegation) • Parliament CAN delegate legislative authority to an provincial administrative agency (and vice-‐versa) (PEI Potato

Marketing Board v. Willis) Limits on the EXERCISE of delegated authority • Limits what the recipient can do • Must be within the confines of the legislation, and if not it will be ultra vires (can attach to both WHAT powers

are being exercised and HOW they are exercised) o Statutory delegate can only exercise authority that has been granted in the statute that confers

authority. o Can’t exercise power you haven’t been given; need to consider scope of authority you have been

given (e.g., Shell v Vancouver – resolution exceeded authority given to City by the Province)

• Must be exercised by the appropriate delegate too (rule against unauthorized sub-‐delegation of authority) Unauthorized Sub-‐Delegation • Presumption against sub-‐delegation in the absence of express or implied authority

o When does sub-‐delegation take place? (formal rather than functional test) o Express authority to sub-‐delegate is common in benefit / obligation and enforcement settings o Implied authority to sub-‐delegate will often be found in “administrative”, benefit / obligation and

enforcement settings, rarely in rule making and adjudication • Where there is sub-‐delegation, it is important to identify person to whom authority has been delegated Types of Delegated Power • Rule Making

o Body of regulations and municipal by-‐laws greatly exceeds body of statute law o Valid regulations have the force of statute o Regulations come into force when enacted or when specified in the regulation itself o Complex consultation / assessment / publication rules for the enactment of federal regulations

• Dispute Resolution

o Dispute resolution through use of administrative tribunals is extremely common o Can include o resolution of bi-‐party or multi-‐party disputes o adjudication of regulatory offences o appeals of benefit / obligation decisions o Different dispute resolution techniques often applied in different settings o Strong presumption against sub-‐delegation

• Benefit or Obligation Determination

o May be done through civil service (immigration / social assistance) or through independent agencies (worker’s compensation / employment insurance)

o Decision-‐making authority is typically sub-‐delegated expressly but may also be implied o Not unusual to have multiple layers of reviews / internal appeals / external appeals

57

• Enforcement

o May be done through traditional policing, civil service or independent regulatory agencies o In practice providing information / advice and inspection are as important as (often more important

than) use of formal enforcement proceedings o Note significant use of “soft law” – guidelines that shape the exercise of discretion but do not have the

force of law o Enforcement discretion often highly decentralized

• Overlapping Functions

o Ability to have overlapping functions in a single agency one of the justifications for use of independent regulatory agencies

o Recognition that overlapping functions creates concern over lack of impartiality o Some agencies address concerns by creating internal separation of functions

EXAMPLES: Could Parliament delegate to a federal administrative agency the power to enact rules governing the registration of long guns in a province, including the power to decide whether or not there would be a requirement to register long guns at all?

- Federal delegation to Federal administrative agency - Assuming it falls w/in Parliaments scope of legislative authority. - Is it full abdication? [only constraint]

- No! Likely valid delegation. Could Parliament delegate to the Alberta legislature the power to enact rules governing the registration of long guns in the province? No! [Contrary to Nova Scotia Inter-‐delegation decision] Could Parliament delegate to an Alberta administrative agency the power to enact rules governing the registration of long guns in the province? Yes! [Allowed -‐ PEI Potato Marketing Board v. Willis] As long as there is no abdication, Administrative inter-‐delegation is ok. If the Immigration Act says the Minister may decide to grant a visa and the Minister relies on the advice of officials in making the decision, is that a sub-‐delegation?

- No sub-‐delegation [even if advice tends to be pretty directed … as long as minister signs off]

If the Immigration Act says the Minister may decide to grant a visa and the regional director of the Ministry makes the decision, is that a sub-‐delegation?

- Yes: Regional Director is making the decision [doesn’t mean it’s unlawful…need to consider whether it is expressly or impliedly authorized]

If the Immigration Act is silent about delegating decisions to issue visas and the Minister allows regional directors to issue them, is that an unauthorized sub-‐delegation?

- No express authorities; relying on implied authorities. Question is whether the Court will see this as an adjudicative function (Court won’t imply); or see it as a beaurocratic administrative benefits (where they will be more likely to imply) …

- ** Likely fall under “beaurocratic benefit”: Court will likely be more comfortable Vs: Immigration & Refugee Board … Court likely to say no. If the Immigration Act gives the Minister the authority to make procedural rules and is silent about delegating rule-‐making authority, is it an unauthorized sub-‐delegation it the Minister allows regional directors to make procedural rules? No – rule making … courts don’t tend to be comfortable w/ implying rule making authority.

58

Justification for Constitutional Judicial Review • What justification for judicial review at the constitutional level does Chief Justice Marshall offer in Marbury

v. Madison? — US EXAMPLE – US Supreme Court — Relationship b/t constitution and legislation — Decision:

• Courts have right to determine that legislation was contrary to constitution – able to invalidate the legislation on basis that it is inconsistent w/ Constitution

• Law inconsistent w/ constitution not valid law; court has obligation to obey constitution • Chief Justice Marshall’s explanation is an elegant piece of legal reasoning, but were any other options open

that might have led to a different result? — Need to draw distinction b/t relationship b/t constitution and statute AND who gets to determine

what the relationship b/t constitution & law — Not logical necessity

CASE: Marbury v Madison

o case offers a principled account of constitutional supremacy and the role the judiciary plays in ensuring that the written constitution prevails over ordinary legislation

o Constitution is supreme and judicial department role is to interpret laws • Historical origins of the constitution in CAN are different than the US

• We made choice for judiciary as decision maker, US had to infer as they didn’t have benchmark • Americans created their constitution as result of revolution • We created ours as a result of legal evolution

Historical justification for constitutional judicial review in Canada? -‐ Pre 1982: Colonial Laws Validity Act *our principle of constitutional supremacy comes from Imperial

History; imperial statutes get to prevail (even though in 1931, Statute of Westminster … didn’t repeal CLVA in respect to the BNA act.) Our Constitutional Supremacy continued to follow until 1982.

-‐ Post 1982: S. 52 of the Constitution Act, 1982. S. 52 says explicitly – Supreme law of Canada … any law that is inconsistent is invalid to the extent of the inconsistency

• Is it possible to preserve constitutional supremacy without conferring on ordinary courts the power

to review the constitutional validity of statutes? • Consider German Constitutional Court • Consider declaratory power conferred on courts in UK Human Rights Act • Consider interpretive approach taken in New Zealand Bill of Rights

1) Set up a special court that just deals w/ constitutional questions a. Germany (federal constitution): when there is a constitutional question that involves the validity of

legislation … that matter has to be heard by the German Constitutional Court i. Special body that is set up – members are jurists; chosen b/c of particular expertise ii. Special set of arrangement re: function

b. Benefits: i. Efficiency – avoids appeals ii. Specialized organization; requires special skills iii. A challenge of our SCC is that it is so broad!

c. Challenges: i. Directly to constitutional court, don’t get as rich of context as you do through all of the

appeals ii. Could also be ‘too specialized’ iii. Costs

1. * forces you as a litigant to go straight up … might be decided at Provincial Superior Court.

2) UK – Human Rights Act a. UK has rights obligations as a member state b. Act gives citizens the opportunity to make claims in UK courts that either govt action or laws

violated the European convention on Human Rights

59

c. Challenging conduct -‐ Can get courts to say that it was contrary to Human Rights Act d. Challenging legislation – all court can do is say “this legislation is contrary to Britain’s obligation…

can’t strike down legislation” 3) New Zealand – Bill of Rights (interpretive tool to either say govt action is inconsistent w/ bill of rights … or

to interpret statutes in way that a. Ultimately – Inconsistent legislation prevails over Bill of Rights

CANADA – Can people raise constitutional challenges in administrative tribunal decisions?

-‐ Not practical to say that every official is entitled to make decisions on constitutional validity. o E.g., police officer interpreting criminal code inconsistent/consistent w/ Constitution

-‐ What about Labour Relations Board or Human Rights Tribunal? o Should we be asking them to make decisions re: validity? OR should we say that is something you

need to go to court? §

SCC APPROACH: Presumptively if the tribunal is the kind of tribunal that has authority to deal w/ questions of law that INCLUDES the right to deal w/ constitutional issues. Therefore, you can make the argument re: validity of constitution. [NOT CONSTUTIONAL PRINCIPLE -‐ Parliament can choose not to confer that jurisdiction … in BC Administrative Tribunals Act confers that jurisdiction on a few tribunals … takes it away from others] AB – operates closer to BC regime (similar to American regime); Ontario most tribunals do hear constitutional arguments. Why would AB/BC approach (tribunals can’t hear those arguments?)

-‐ Expertise of tribunals [not always lawyers / not always constitutional law expertise] -‐ Both parties might not want to have constitutional argument [think about efficiency argument] -‐ Make a constitutional challenge before administrative tribunal and lose … that’s great, carry on. If you

win … can be guaranteed that govt going to take you to court. *will fight about it. [ACCESS TO JUSTICE]

Justiciability -‐ Court look at whether the questions that are being put before the court are in fact justiciable. -‐ SCC addresses the issue of justiciability of questions touching on foreign affairs and national defence in

Operation Dismantle • Other cases where we have seen the courts address questions of justiciability?

— Black v Chretien – challenge Mr. Black wants to make, not one you can make in court — R v Brown — Electoral boundaries — O’Donahue v Queen — Khadr – are courts able to order executive to extradite Khadr — Quebec Secession Reference – intervener said this is a POLITICAL question

Possible situations in which it could be argued that a dispute is “non-‐justiciable” – There is no “correct” answer to the question

o these really aren’t legal questions. Philosophical questions, no meaningful answer. (e.g., when does life begin) How do we know Cruise Missile Testing will make it more or less likely there will be nuclear war. **No answer. At best, different kind of guesses

– Judges do not have the necessary skills to correctly answer the question o There may be answers to the questions, but judges don’t have skill to come up w/ answers.

Process we use to make the determination in court don’t lend themselves to coming up with sensible determinations. • E.g., Complex mathematical question

– Authority to decide is allocated to another organ of government o Really about where we allocate authority. It’s not that we can’t use legal processes to come up with

answers … Authority might be allocated to another organ of govt (e.g., Black V Chretien -‐ Ont. Court of Appeal said it wasn’t legal advice , rather it was political position)

60

o Political in the sense that the responsibility was assigned to the political branch • Which, if any, of these approaches does Justice Wilson use in Operation Dismantle?

— Wilson – takes the 3rd approach (all a matter of sorting out who has authority to answer) o she doesn’t know whether best course of action for Canada is to allow Cruise Missile testing … but

that’s not her job. Her job is to decide whether ppls’ right to life, liberty, etc… -‐-‐-‐-‐ her answer to that is no!

CASE: Operation Dismantle FACTS: Peace group seeks declaration that cruise missile testing is contrary to S. 7 of the Charter. Feds say claim should be dismissed w/o trial (believe it’s not a justiciable question). ISSUE: Macro issue: Is cruise missile testing contrary to charter; micro issue: do you need to have a trial to make that determination. DECISION: Majority OD can’t prove it -‐ causal link between governmental action and increased threat of nuclear war cannot be proved REASONS: • Justice Dickson’s approach – causal link between governmental action and increased threat of nuclear war

cannot be proved — Dickson – not going to decide on basis of S. 7 of Charter b/c don’t need to. OD has no prospect of succeeding

in proving its case. • Justice Wilson’s approach – the possibility that governmental action will increase the likelihood of nuclear war

does not breach s. 7 of the Charter — Wilson – on a motion to dismiss the case you have to take the facts that are alleged in the statement of

claim as true. They allege that Cruise missile testing going to enhance likelihood of nuclear war … [even if it’s right … still not a good claim]

• Justice Wilson – comes to same conclusion, but decides to not dismiss the case not on the grounds that it couldn’t be proven, but instead that even if it could … not type of deprivation of liberty /security that s. 7 was intended to protect for. No violation of s. 7 … therefore no point in trial. — — Key question is not whether courts CAN deal with issues but whether they SHOULD deal with issues — Courts should not usurp decisions allocated to other branches of government — Courts MUST fulfill their role of constitutional adjudication

• Majority view on justiciability (“I agree in substance with Madame Justice Wilson’s discussion of justiciability” – p. 439 per Dickson, J.) —

• Background: — One of first charter cases. First section 7 charter case — Why did OD want to bring the action? -‐ they weren’t going to win

o Wanted publicity!! • Question was why should this go away? “why was important to SCC”

-‐ SCC didn’t want the Charter to become a dead letter like Cdn Bill of Rights -‐ BUT also didn’t want to run amok right at the start of charter litigation

• Why did the SCC majority decide the case on the basis that the facts could not be proved rather than

on the basis that the facts alleged did not constitute a violation of s. 7 of the Charter? — “Hard cases make bad law” — This is the first s. 7 case the SCC faced – difficulties of addressing meaning of s. 7 in context of atypical

fact pattern o During period b/t 1983 to 1993, SCC face a lot of fundamental issues re: structure of the charter

(how was it to work, what do concepts like S. 7 & s. 15 mean … and how did the substantive rights in S. 7 relate to S. 1 of charter)

o Judges were reluctant to get too far out on a limb in terms of making decisions that might have long term consequences w/o having a good factual basis

61

o SCC really didn’t want to decide an early charter case based on non-‐justiciability … afraid it would expand scope of govt action that was immune from charter review (were reluctant to come to that conclusion)

§ Remember, Charter came out of experience that Cdn Bill of Rights let us down. [SCC really didn’t want to blow this one!!)

— Majority approach difficult to reconcile with traditional reasoning on applications for dismissal for

failure to state a claim — Majority result difficult to reconcile with acceptance of Wilson J’s reasoning on justiciability

• Why did Wilson J. prefer to decide the case on the basis that s. 7 was not violated?

— Justice Wilson – comes to same conclusion, but decides to not dismiss the case not on the grounds that it couldn’t be proven, but instead that even if it could … not type of deprivation of liberty /security that s. 7 was intended to protect for. No violation of s. 7 … therefore no point in trial.

• Is the majority approach to the issues in Operation Dismantle simply another way of saying that the dispute

is not justiciable? • Why do you think the majority did not agree with Justice Wilson that cruise missile testing did not violate

section 7? - Justiciability = whether or not it is the courts role/ part of the job. [If it’s not part of the job … shouldn’t

do it] - Khadr = Court’s job is to give remedy to the client; his constitutional rights have been violated

[just saying it isn’t relief] - SCC says – job is the constitutional part; foreign relations isn’t.

ENFORCEMENT

Where do courts get their power to enforce constitutional rights? Four types of sources courts can use to enforce constitutional rights (whether they are Charter or rights that flow from Division of powers, or other principles) – Section 52 – Constitutional Supremacy Clause

o Laws inconsistent w/ Constitution are of “no force and effect” to the extent of the inconsistency… o All purpose source of remedial power (negative remedy); whatever govt says is the law isn’t the

law. Doesn’t say what rights/benefits someone might have. – Section 24(1) – “just and reasonable” remedy for Charter violations

o restricted to violations of constitutional rights that are found in the charter, courts can make orders that are just and reasonable.

o Pointed remedial power [court can do whatever is just and reasonable to vindicate the rights] o Has been tendency to think about what is just and reasonable in terms of more traditional common

law remedies the courts have used in the past (e.g., injunctions that say govt official can’t do this anymore OR compensation (damages for harms or injuries) …. BUT tend to be at least a bit cautious about going further … making broad mandatory injunctions (Saying govt. officials must do this and this …)

§ Doucet boudreau = example of how far court will or will not go in making mandatory injunction orders

– Section 24(2) – exclusion of evidence where admission “would bring the administration of justice into disrepute” o special remedy/rule where evidence will be excluded if violation of charter rights was done when it

was obtained o Thought was that we didn’t want to operate on the assumption that every time there was a violation

of someone’s constitutional rights automatically meant that evidence was not admissible. o Previously, no barrier for excluding illegally obtained evidence under common law o Contrast to American system – if evidence is obtained illegally, presumption is that evidence can’t

be admitted o Court have tended to come to conclusion, that admission of evidence obtained by charter violation

normally will bring administration of justice into disrepute – Role of common law remedies

o Available more broadly

62

CASE: Doucet-‐Boudreau Facts: Language rights provision of the Charter (minority language education rights protected for francophones outside of Quebec & Anglophones in Quebec). Declaration had been made that the arrangements for French language schooling in a particular part of NS violated rights of Acadian families. Doucet-‐Boudreau asks court to do something. Court made order that govt should make progress on vindicating the rights. Court wants reports on what is being done. Issue: what can the court do in the way of a remedy for a violation of these minority language rights? Was that an appropriate use of the Court’s remedial power? [(1) Can court go beyond declaration?? (2) Can court retain jurisdiction and continue to monitor whether or not its orders are being obeyed?] Decision: Ruled that trial judge acted appropriately. Accepted Doucet Boudreau’s arguments Reasons: • Arguments in favour of Courts involvement? (Doucet-‐Boudreau)

— Put feet to fire of govt. Plaintiff’s entitled — Government can force litigation costs on plaintiffs … could theoretically get their way by doing nothing.

• Arguments opposed (govt view) — Separation of power principle, court shouldn’t interfere — Monitoring isn’t part of court’s job — Cases don’t go on forever … point at which there is an order made, if we need further instruction … can

come back to Court and get further instruction … shouldn’t be acting as a monitor. Not job of the job. DISSENT: MINORITY – if the court had simply specified that these are the things govt must do… would have been mandatory injunction, then court should step away. Reasons: Iacobucci and Arbour JJ

• It is well accepted that the Charter should be given a generous and expansive interpretation and not a narrow, technical, or legalistic one

• a purposive approach to remedies requires at least two things. § First, the purpose of right being protected must be promoted: courts must craft responsive

remedies. § Second, the purpose of the remedies provision must be promoted: courts must craft effective

remedies. • in the context of constitutional remedies, courts must be sensitive to their role as judicial arbiters and

not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or bodies are better suited (enforcement follow up)

• The order in this case was in no way inconsistent with the judicial function. § Hearing evidence and supervising cross-‐examinations on progress reports about the

construction of schools are not beyond the normal capacities of courts. • Reviewing courts, for their part, must show considerable deference to trial judges’ choice of remedy,

and should refrain from using hindsight to perfect a remedy. § A reviewing court should only interfere where the trial judge has committed an error of law or

principle. Lebel and Deschamps JJ (dissent)

• we dissent because we believe that constitutional remedies should be designed keeping in mind the canons of good legal drafting, the fundamental importance of procedural fairness, and a proper awareness of the nature of the role of courts in our democratic political regime, a key principle of which remains the separation of powers

• A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting inappropriately on two levels.

§ First, by attempting to extend the court’s jurisdiction beyond its proper role, it will breach the separation of powers principle (court becomes a regulatory body)

§ Trial judge was acting outside of the jurisdiction of courts § Second, by acting after exhausting its jurisdiction, it will breach the functus officio doctrine

§ Latin for "having performed his office" § There would be no finality to the decision

Should the court have been concerned about getting into the kinds of remedies that Doucet Boudreau was asking for?

63

— Not really what court is supposed to do (e.g., may not be good at) — American judges essentially were acting as substitute school boards (making decisions about minutia of

how school district should be run) • Enforcement of positive rights often presents problems for courts if governments are unwilling or

unable to comply with declaratory orders. • What options are available to courts in these circumstances? • Does the enforcement of negative rights ever present comparable challenges for the courts? • Distinction b/t Positive Rights and Negative rights:

— Positive = right to something — Negative = right from interference

• Complicated for courts to figure out what the right positive remedy would be and to monitor if that positive remedy is accomplished.

CASE: Manitoba Reference FACTS: Long history of non-‐respect for Francophone minority language rights in Manitoba; produces series of challenges in terms of how one would remedy the problem. Manitoba Act guaranteed equal rights to use French & English in legislative assembly in Manitoba (provisions similar to NS, NB, Federal Govt). B/t 1870 and 1890 big wave of Anglophone settlers … weren’t terribly enthusiastic about living in a bilingual society. Used Majority in Manitoba legislature to say that Manitoba laws to be passed only in English (no more publication / debate in French). At the time, judges said it was a violation of Manitoba Act (part of Constitution); Manitoba legislature said tough – going to do it anyway! ISSUE: Would rule of law be undermined if Court made order that all laws in Manitoba not passed in both languages were invalid? DECISION: Rule of law would be undermined if court declared all laws invalid; need to create a more practical remedy. REASONS:

— SCC decided that it would undermine the rule of law if the Court made order that all laws invalid (would undermine respect for the legal order).

— Instead decided to validate everything that was done before & FWD looking remedy (all new laws must be made available in French and English and old laws must be translated)

— Timelines: Court comfortable w/ letting Manitoba come back for new order for extension Issues/Reasoning:

• In the present case the unilingual enactments of the Manitoba Legislature are inconsistent with s. 23 of the Manitoba Act, 1870 since the constitutionally required manner and form for their enactment has not been followed. Thus they are invalid and of no force or effect

• The difficulty with the fact that the unilingual Acts of the Legislature of Manitoba must be declared invalid and of no force or effect is that, without going further, a legal vacuum will be created with consequent legal chaos in the Province of Manitoba

• This would undermine the principle of the rule of law • rule of law requires the creation and maintenance of an actual order of positive laws

which preserves and embodies the more general principle of normative order • even determined Manitoba legislature would be invalidated if all laws were stuck down

• The only appropriate solution for preserving the rights, obligations and other effects which have arisen under invalid Acts of the Legislature of Manitoba and which are not saved by the de facto or other doctrines is to declare that, in order to uphold the rule of law, these rights, obligations and other effects have, and will continue to have, the same force and effect they would have had if they had arisen under valid enactments, for that period of time during which it would be impossible for Manitoba to comply with its constitutional duty under s.23

• Impossible for Manitoba gov to re print all legislation overnight – allowed period of non compliance

• the Constitution requires that temporary validity and force and effect be given to the current Acts of the Manitoba Legislature from the date of this judgment, and that rights, obligations and other effects which have arisen under these laws and the repealed and spent laws of the Province prior to the date of this judgment, which are not saved by the de facto or some other doctrine, are deemed temporarily to have

64

been and continue to be effective and beyond challenge. It is only in this way that legal chaos can be avoided and the rule of law preserved

• Why did the Supreme Court of Canada refuse in this case to make the normal declaratory order that

laws that did not comply with constitution requirements are invalid? — Rule of law would be violated (undermine respect for the legal order).

• Does that mean there is no remedy for Manitoba’s breach of the constitution? — Fwd looking remedy

• What remedies, if any, would be appropriate in this case? Practical considerations: • How does practical part of enforcing constitutional rights affect sense of what is appropriate to ask judges

to do? At what point is the fact that govt may well say no a consideration in deciding whether or not a) a litigant should ask or b) court should say yes.

Legitimacy of Judicial Review • Why is the legitimacy of judicial review of the constitutional validity of legislation an issue?

— At one level, legitimacy shouldn’t be a question. Read constitution…it says courts are supposed to make orders that laws are constitutionally invalid. How could it be illegitimate for courts to do what constitution allows them to do.

• What do we mean when we use the word “legitimacy” in this context? Example: Christie Blatchford National Post Article • Comments on an Ontario Superior Court of Justice decision removing Mayor Ford from office based on a

violation of conflict of interest rules, a decision later overturned by the Ontario Court of Appeal — “In the post-‐Charter of Rights and Freedoms world that is the modern Canada, citizens have grown

accustomed to taking their laws as much from the courts — the Supreme Court and Superior Courts all across the country — as they do from the Parliament. Indeed, it is often celebrated when the courts overturn laws made by the federal government, especially the Stephen Harper government.

— On Oct. 25, 2010, 383,501 Torontonians voted for Rob Ford, 93,669 more than voted for the runner up, George Smitherman, and just 1,813 fewer than all of those who voted for third-‐place finisher Joe Pantalone.

— Not a one of them voted for Mr. Magder, Mr. Ruby or Judge Hackland.” • NB: Perception that in post-‐Charter era getting away from “government from people”

— BUT … this was a municipal bylaw; not a Charter case CASE: McLachlin Speech • The variations of the legitimacy critique

— 1. Courts should never overrule democratically elected legislators o Democratically elected legislators ultimately should always have power over courts (just as

common law has to yield to statute law, so in a democracy, you can’t have judges who overrule democratically elected)

— 2. Courts are pursuing their own political agenda o Courts when they are overturning legislation are just carrying out their own political agendas

(political actors in drag); they are not legitimately engaging in constitutional review — 3. Judges should simply apply the law to resolve constitutional disputes

o Problem is that judges aren’t simply applying the law. Would be not a problem if judges were simply applying law to constitutional disputes. But people argue that ppl are going beyond simple application of law to these disputes

— 4. Judges are not institutionally competent to make difficult public policy choices o Judges just aren’t competent to make some of these decisions. E.g., how to run school board,

conduct foreign affairs, etc.

65

• How does Chief Justice McLachlin respond to the four variations of the legitimacy critique she identifies 1. Courts should never overrule democratically elected legislators

- In UK as a unitary state you can have kind of system where judges aren’t allowed to overrule legislation

- In Canada, we have constitutional supremacy regime (court referees b/t parliament and provincial legislatures)…have continued that fwd w/ charter (referees b/t citizen and state); if court stop doing that job, they would be abandoning one of their functions.

2. Courts are pursuing their own political agenda - Would be problematic if you could find political agenda; evidence just isn’t there. If you look at

the rung of decisions dispassionately… don’t see a patterns … see group of ppl trying to do difficult job. Have disagreements. Sometimes majority goes in one direction, sometime it goes in the other. Part of healthy judicial system. [if you are going to make accusation … show proof]

3. Judges should simply apply the law to resolve constitutional disputes - Law is not cut and dry - When you look at text of constitution, there are concepts like equality, liberty, freedom

expression, association … not just things that can be identified in b/w. … require interpretation, has to be understood in particular historical context.

- Part of art of judging is trying to see what kinds of arguments people are making and deciding if they are persuasive or not persuasive.

4. Judges are not institutionally competent to make difficult public policy choices - Judiciary have little choice in the matter. “guilty as charged” - Within limits, opportunities to use not-‐withstanding clause

- At provincial and territorial level has been use of not withstanding clause - One vehicle to allow reassertion of political will over what rights are required.

- Governments can provide more evidence to help courts understand - Dialogue theory “Justice Iacobucci” – idea that when courts strike down laws as

unconstitutional, its often the case that they don’t say this is an unconstituonal pubilc policy objective … they say that you just can’t use this vehicle … may be ok using a different vehicle.

CASE: Vriend v Alberta Facts: AB was only jurisdiction in Canada that didn’t prohibit discrimination on the basis of sexual orientation. Vriend was teacher at community college; was fired b/c he was gay and wanted to bring challenge to action, but couldn’t under AB Human Rights Legislation Issue: Was Alberta in violation of S. 15 by not protecting his rights under AB Human Rights Legislation [NB: by the time Vriend was litigated, the trend in jurisprudence was that discrimination on basis of sexual orientation ought to be protected under S. 15] Decision: Court re-‐writes AB Human Rights Act, to read in protection on the basis of sexual orientation; therefore Mr Vriend can bring case before AB human rights authorities. Then at least he’ll have the vehicle to bring the case forward. Reasons: Court split on what to do about the situation. 1) Majority: read in protection for gays and lesbians in AB Human Rights Act Alternatives 2) Equality w/ a vengeance – Invalidate the entire human rights scheme

a. Invalidate the entire human rights scheme (if not willing to protect gays and lesbians, can’t protect anyone). **it’s offensive to protect some and not others

3) Declare that it is a violation of S. 15 and hope that govt of AB will do something about it. a. Problem from Vriend’s perspective is that he doesn’t have remedy for violation of his human rights

& what happens if govt of Ab doesn’t decide to do anything Commentary: - Legitimacy of unelected judge: Funny that judges can strike it down; ppl get more upset when judges say

you can read in • According to Iacobucci, J., how does the Charter build in deference to the roles of the legislative and

executive branches of government?

66

— Said that the Charter contains different kinds of vehicles to rebalance or at least to allow Govts to have some flexibility in terms of balancing of rights and interests

— Section 1: — S. 33: Notwithstanding clause (Section 2 rights are subject to S. 33; S. 7 -‐15 also subject to s. 33) –

Would have been possible for klein govt to say “not withstanding the Vriend decision, we’re going to leave human rights law the way it is”

— Reasonable limits clause built in (most modern constitutional rights instruments have it built in; American mechanism is old – absolute rights) *”reasonable violation [don’t expect perfection, margin of appreciation w/ respect to some rights that have multiple interests]

• What does Iacobucci, J. mean by the “dialogue” theory of judicial review using the Charter?

— when a court strikes down a law, doesn’t automatically follow that that’s the end of the idea. Means that the govt needs to reconstruct/ restructure in order to accomplish the same end, but in a way that is less damaging to the rights that the charter is built to protect.

— Court sets certain standards; possible for govt to achieve their objectives in a way that is less intrusive of rights

• Do you believe that either the idea of “built-‐in deference” or the “dialogue” theory helps to justify the SCC’s

decision to rewrite Alberta human rights legislation in Vriend? — Concerns re: political suicide to use S. 33

Case: PEI Judges Reference – LaForest Dissent La Forest J (dissent): takes issue with the Chief Justice’s view that the preamble to the Constitution Act, 1867 is a source of constitutional limitations on the power of legislatures to interfere with judicial independence

1. The critique that judges are making it up is a major critique> You cannot just blow it off § When you get into unwritten constitutional principles they are coming very close to

making it up § Creates authority for judges that looks like a power grab

2. Having to need a good answer to using unwritten constitutional principles makes it very hard to expand the use of the unwritten principles

• i.e. Imperial Tobacco case > The court refused to expand the idea of the rule of law 3. If you believe that unwritten const principles are a really bad idea and we should get rid of them

(you need to be able to come up with some other reasoning for the Quebec succession reference)

• w/o unwritten constitutional principles they would just have to write that they need to read the amending formula

• “judiciary derives its public acceptance and its strength from the fact that judges do not initiate recourse to the law; rather they respond to grievances raised by those who come before them seeking to have the law applied, listening fairly to the representations of all parties.”

• “Unlike other branches of govt, the judicial branch does not initiate matters and has no agenda of its own” • “troubled since the question involves the proper relationship b/t the political branches of government and the

judicial branch, an issue on which judges can hardly be seen to be indifferent, especially as it concerns their remuneration”

• Takes issue w/ the view that the preamble of the constitution is source of constitutional limitations on the power of legislatures to interfere w/ judicial independence à no historical baiss for the idea that Parliament cannot interfere we/ judicial independence [@ time of Confederation (and indeed to this day) the British Constitution did not contemplate notion that Parliament was limited in its ability to deal w/ judges]

• Fundamental components of judicial independence set out in Constitution Act 1867 o majority expressed that trying to strike down legislation based on unwritten constitutional

principles is likely the court overstepping boundaries. Judicial review is only legit if it invokes interpretation of authoritative constitutional provision (text)

• How do the dissenting reasons of LaForest, J. contribute to the debate about the legitimacy of

judicial review of the constitutional validity of legislation? -‐ “institutional conservative”

67

— Raises points that SCC is aware of … why some arguments using unwritten principles on a whole don’t succeed; but ALSO explains why SCC keeps them around (allows them to do important work)

— When we engage in conflict w/ govt (and have to overturn legislation that has been enacted by elected legislators)… do it from position of weakness, so legitimacy as opposed to power is important to preserve. Legitimacy comes from the idea that they are working w/ the law {taking set of commitments that Cdn parliament, legislatures, have made to citizenry] *Judges job to enforce rights against the political arm of govt; but don’t make it up!

• Do those reasons call into question the entire notion of unwritten constitutional principles, or only their use in this case? — Objection to LaForest:

o Unwritten constitutional principles have proved useful in Secession Reference [can’t get the answer to the question that SCC gave w/o the unwritten constitutional principles] *good thing for the country!

— Argument in favour of living tree: o Constitutions are forever. Not productive to be tied to what individuals 100 years ago intended. o Doesn’t mean we don’t respect text, boundaries.

• SCC – pretty cautious at least today in applying unwritten constitutional principles. Original intent –

too close to us (many of drafters still alive. How successful have the courts been in crafting decisions that have significant public policy impacts:

— Might argue that w/ both abortion and gay marriage, there was a historical resolution that had been in place that was becoming increasingly political unacceptable; or was also seen as a poison pill [court broke log jam and invited legislatures to come up w/ different resolutions]

o Abortion: history – after Morgentaler, Mulroney did introduce legislation that would have recriminialized abortion in some circumstances…was defeated in Senate [Patricia Carney voted no]

— In doing so, Court changes the default position. [highly contentious issue, controlling default = power] — BC Judge – thinks S. 33 should be used more; would create different ‘balance’ b/t govt and courts [shy to

use]

FOUNDATIONS - FINAL (Dec. 14)...2" PEI!Judges!Reference! 29! Tobiass! 31!...

Documents

Transcript of FOUNDATIONS - FINAL (Dec. 14)...2" PEI!Judges!Reference! 29! Tobiass! 31!...