BASIC THEORIES OF LAW Public vs Private Law Public Law: body of law dealing with powers, rights and

obligations of the government and the governed. Private Law: body of laws administering relationships between private individuals. Can govern relations between state and individual where the state has no special privilege arising from its public status. Some instances where there is public law protection for private matters => Hill v Church of Scientology: even though the dispute involved private persons, the Charter applied. The CL (defamation) should not be rewritten, but needs to be interpreted in according to general Charter principles. Societe de LAssurance Automobile Quebec v Cyr: things that become privatised (ie the SAAQ), if carrying out a public function, can become part of public law. Legal Theories Descriptive Theories: Natural Law = rules for the guidance of human conduct; not just written rules but moral obligations VS Positivism = pure theory of law, just the rules, no moral aspect; laws are considered in the context of the legal system of which they form a part of, without reference to justice or merit => Cases: Similar facts (prohibitive covenant restricting Jews) different results based on the 2 theories: Drummond and Wren it appears to me to be a moral duty to lend aid to all forces of cohesion = remove covenant VS Noble and Wolf allowing public policy and morals to decide laws leads to confusion and uncertainty Normative Theories: used to present unified front with single common goals; today it is quite splintered; look at law and see how it failed. > Feminist = women, if given the chance to reconstruct society, would do a better job than men => R v Ewnachuck: law failed, judge made sexist comments and R v Morgentaler; one judge took feminist approach and asked whether law can force women to carry foetus to term. > Law and Economics: looks at law with ideas of efficiency in mind. Goal is to maximise everyones benefit. Prisoners dilemma. > Critical Legal studies: not really relevant, but some examples. Essentially claims that law legitimizes authority and power => R v RDS; court can recognise racism if a problem. HISTORY OF CANADIAN LAW Reception of British Law 3 ways: (i) terra nullis => empty land, absolute; (ii) Conquer => integration of the two, the laws of the country apply until the new ones are applied; (iii) succession => continue the institution and laws that were already there. No clear date of reception in Canada bc of French and Aboriginals; different rules applied t different parts of Canada. Important for legislation, not CL, courts start inventing dates. History => Add Quebec Act Colonial Laws Validity Act 1865: stipulated the English P could extend is legislation to the colonies and anything that the colonies passed that was inconsistent with it was of no effect. Actually liberating bc colonies could enact their own laws and only if GB said that the law didnt apply it didnt. Charlottetown Conference (1864): founding father, decided on a British North American freedom. Established the federal union, P and the basis of the constitution. Still need some work. Quebec Conference (1864): same leaders and came up with 72 resolutions that formed the basis of the BNA. They then went the provs, NFLD said no. London Conference (1866): why? Needed British consent, still not an independent country. Put it st before the HoCs, and became valid law July 1 , 1867. BNA 1867: renamed Constitution Act 1867, established Canada: HoCs, senate, Courts. We were a constitutional monarchy, a federation (2 levels of govt). Liquidators of the Maritime Bank of Canada v Receiver-General of NB: Each govt in each sphere of power is supreme, absolute control (division of powers). Major deficiency? No amending formula. SO whenever it wanted to change the constitution it had to go back to GB. The Canadian govt would consult with each prov and send a signed statement to GB. There was no statement that that was needed. Balfour Declaration (1926): All colonies of England are equal and independent. They can act on their own behalf, but really not legally enforceable. Just a declaration. Statute of Westminster (1931): Legally binding. Repealed the Colonial Laws Validity Act. Goal was to make Balfour enforceable. But the provs were worried that this would destroy the BNA and the separation of powers. Eventually s.7 was included: point was to confirm that the BNA would not be affected in any way shape of form. Just gave Canada international legal recognition. Pretty much complete and total independence except we couldnt amend out own Constitution. 1980s => FLQ crisis: Trudeau initiates martial law. Really just the same old problem, Quebec wanted more recognition. Quebec started gaining momentum. Rene Levesque elected, separation. Trudeau promised to reconsider the patriation of the constitution if Quebec voted no to the referendum. Quebec did vote no, Trudeau kept promise. Re Resolution to Amend the Constitution: Trudeau put proposal to provs, only Ontario and NB agree. Months go by and Trudeau says hes going to take it to GB without the provs approval. The other provs have a problem and go to the SC. Question was he can unilaterally take an amendment to GB without the prov consent. SCC: he doesnt need consent b/c the BNA never actually said that he needed approval of the provs, not legally obliged. So legally he could. But the provs put forward the fact there was a convention to do so, court agreed. Convention has no legal consequences though. The convention requires the substantial agreement of the provs. So Trudeau said he legally could, but there was a convention. SO what a happened? Trudeau decide to go back. Negotiations took place. Amendments happened: veto power, etc. Night of Long Knives: the gang of 8 negotiated out an agreement without Quebec. Sending the new Constitution to GB for ratification. Levesque announced his veto and that it would never be law of Quebec. In the end the constitution was patriated and had an entrenched Bill of Rights. It went back to the SCC because Quebec said that there was no substantial consent without Quebec. SCC never said what substantial consent was, but nevertheless said that it applied to Quebec. As Wilson J. explained in Operation Dismantle v The Queen, Canadian Constitutional supremacy was originally grounded in s.2 of the Colonial Laws Validity Act, 1865 (UK) which rendered void and inoperative any Act of a colonial legislature that was repugnant to an Act of the Imperial Parliament. Bc the BNA Act 1867 was an Act of the Imperial Parliament that was binding upon the colonial legislatures of Canada and its provinces, federal or provincial legislation that was found to be inconsistent with the BNA Act was therefore void for repugnancy with Imperial Statute. The Statute of Westminster, 1931 made Canada and its provinces free from Imperial legislation, but s.7 of the Act expressly exempted the BNA Act and its amendments from this freedom in order to preserve the principle of constitutional supremacy. Later, with the patriation of the Canadian Constitution in 1982, the principle of constitutional supremacy was enshrined in s.52(1). Common Law vs Civil Law Common Law: sources of law (judge made law), inductive reasoning = consists of generalizing from common points between distinct cases and then establishing legal categories with vague foundations and flexible limits. The ratio decidendi of a previous decision is ascertained, after which we proceed by way of analogy. Judges merely discover the law. Civil Law: emphasis on the primacy of written laws. It is codified law, not judge made

law. It is a deductive approach to legal reasoning, going from the general to the specific facts of the case. The other sources of law are the scholarship and prior judicial decisions (although prior judicial decisions are sources of law they are never source of legal rules). Bijuralism: existence of two legal systems in Canada, but how did we get the two systems? => Treaty of Paris 1763: end of the 7 yrs war. Eventually succeeded all N.A. territories to England. Royal Proclamation 1763 tried to assimilate the French colonies. Quebec Act 1774: restored the absolute authority of the pre-conquest law. They were no longer going to try and assimilate the French. This was in response to what was happening in the U.S.; wanted united against the U.S. Things integral to Bijuralism: (i) Language: high level of bilingualism must be attained in the legal profession; (ii) Legislation Equal Authenticity rule: both language versions of a bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translationand neither has paramountcy over the other. To properly interpret bilingual legislation of Canada, the English and French versions must be read in light of each other, taking into account the context of such legislation, including the intent of the legislature that each provision of the act be read consistently with the others and that the act as a whole be read in light of the legal family or system of law applicable in the particular jurisdiction (Eg: Gulf Oil Canada Ltd. v. Canadien Pacifique Lte). Highest common meaning: Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute (Eg: Reference re Education Act of Ontario and Minority Language Education Rights); (iii) Practical Application of Bijurialism and Harmonization => St-Hilaire v Canada (AG): gaps in the federal statute, what fills it in? The CL? The Prov code? CoA said that have to turn to the private law of the prov, so in this case the Quebec civil code and she was denied the benefits. Since then there has been a trend to try and harmonize, trying to make the federal law equal under the civil and CL. Aboriginal Canadians 3 major groups: First nations, Inuit, Metis. Connolly v Woolrich: recognised pre-existing aboriginal rights and werent extinguished b/c Europeans came over. Married according to FNs customs was a valid marriage. U.N.s summary: Canadas treatment not good. Jurisdiction: s91(24) CA Granted power to Indians and lands reserved for Indians. S35 CA 1982 English law governed the ranks, so native laws existed until extinguished. But the govt had a fiduciary duty to the aboriginal population, had to act in their best interests. All previous rights that the aboriginals had have constitution protection. Federal govt can override e a pre-existing aboriginal right only if it is justified on substantial policy reasons. Aside from that the rights are constitutionally entrenched. SOURCES OF LAW Precedent Typically comes from the CL,made up of principles from previous cases. The only binding part of previous cases is the ratio decidendi. Today precedent now incorporates equity (typically in private matters). Equity has started to develop into a public function: DeLuarier: foster parents had child for 10 yrs, real parents didnt like child being raised in foster care, wanted to go the catholic school. Court actually went in and decided the best interest of the child which was actually an equitable remedy. Here equity overruled the CL. Guerin: lease of aboriginal land to the golf course. An equitable fiduciary relationship exists between the Crown and the FNs. KLB v B.C.: girl abused in the foster home, ran away and kept being put in foster homes, sued the govt and that they owed her a fiduciary relationship. Court had to decide whether an equitable relationship applied to the govt, and it did. But the govt could not be responsible for the foster parents specifically, but once a problem is identified tit has to step in. GOVT HAS TO FOLLOW EQUITABLE PRINCIPLES. Statute Supersedes CL rules. The role between statutory law, CL and Constitutional law can be complex => Halpern v Canada: re-define marriage to include gay marriage, previously defined by CL, no statutory definition, OntCrtA told clerk to issue certificate, P reference to SCC, enacted legislation. Conventions Rules of the constitution not enforced by the law court, but govt feels obliged to follow. No legal repercussions. Altough not enforeced, conventions have been recognised by the courts => Patriation Reference. Compare to a usage: no obligation with usage, there is a general practice, but govt does not feel bound to it, but a usage might become a convention. If keep doing it out of a sense of obligation then might become a convention. International Law Generally governs states between states, but can be divided into to categories: (i) Private Law: A body of principles dealing with conflicts between the domestic laws of two or more states, and concerned with private matters arising in an international context. (ii)Public Law: how countries relate. The body of law established by sovereign states that regulates the conduct of states and other entities possessing international legal personality. Further Subdivided => (A) Customary: comes from past practice, uniform, consistent, general and durable. Has to be widespread state practice but also a legal belief that there is a legal obligation to do so (opinion juris). However some areas of international law are so vital that you cannot object to it (eg genocide). (B) Persistent Objector: constantly dont follow things that other consider customary. If youve been objecting to it from the get go then dont have to follow it. Without proving that you have to follow. (C) Treaty Law (Conventional Law): A body of rules in international law that deals with procedural and substantive aspects of treaties as a source of international law. A treaty is simple a contract between states. Bilateral: between 2 countries; Most common. Multilateral: more than 2, eg NAFTA. Most that people think are actually conventions. Signature vs Ratification: signature basically means that you promise not to act contrary to the treaty but not agreeing for it to be law of that country. But also cant speak out against it. Once ratified you are legally responsible and bound by the terms. Need to deposit a ratification instrument. The executive agrees to be bound by it. Canadian treaty making: Canada never actually had anything codified for implementing treaty. So essentially it is an executive act; if they want it they ratify it. It is purely an executive decision. If Parliament doesnt like it they can refuse to implement it. Harper: what it does is to formally table the treaty before Parliament after signing it but before ratification. Problem is that Canada may make a treaty but may not be bound by it domestically. How does International Law (Treaties) Become Binding? Dualism: international and domestic law are distinct and separate. DL starts from the will of the people and the objects of the law are the subjects whereas IL has its origin in the will of the executive and its objects are states => associated with the transfer approach; exec can sign up but must be transferred into DL. Monism: they are both components of a unified body. As soon as the executive signs on to a treaty it is domestic law. Treaty Implementation-Canada uses both approaches: for treaties (conventional law) = dualist approach => Ahani: (Heard concurrently with Suresh) The SCC actually stated that Canada has not replicated the specific clauses in Canada. So despite that the treaties having an absolute ban, domestically it provided for exceptions. For customary international law = monism approach => R v Hape: despite the courts silence in recent cases in the absence of conflicting legislation CIL should be adopted (actually confirming that CIL is actually adopted into domestic law). CIL is

automatically implemented. Role of the Provinces and Treaties: they do not have any international power, so they have no role. That was the case until Labour Conventions Case; decision upholds federalism. The federal govt cannot pass implementing legislation that is not within their sphere, unless they have provs consent, prov must implement. So implementation of a treaty has to follow the division of powers. International laws are not part of Canadian law unless they have been implemented BUT they might be considered: Baker; Convention said the childrens rights are of primary concern, but since it is not domestic law dont have to follow it. Nonetheless the court said that since the childrens needs were not considered the decision was unreasonable. It can be considered. deGuzman; Parliament intended them (conventions) to be persuasive and not determinative => they dont decide the issue they just help decide them, have to pay attention to them. CONSTITUTION AND UNDERLYING PRINCIPLES The Constitution Section 52(1) of the Constitution Act 1982: anything inconsistent with this act is of no force and effect. The composition of the Constitution of Canada is defined in subsection 52(2) of the Constitution Act 1982 as consisting of the Canada Act 1982 (including the Constitution Act 1982), all acts and orders referred to in the schedule (including the Constitution Act 1867, formerly the British North America Act but not acts prior to 1867), and any amendments to these documents. The SCC held that the list is not exhaustive and includes unwritten components as well > Secession Case. Unwritten Principles Secession Case Why the need? It has to be able to adopt and expand. How are principles and rules come about? They actually come from reading the constitution itself (history of how the constitution came about, why certain provisions were put in etc.). Only unwritten principles can be stated by the court; until it is stated it is not an unwritten principle. Do unwritten principles put an obligation on the govt? Can in some circumstances put legal obligations on the govt. So even though not codified, it can put limits and legal obligations put courts are hesitant to do that => SCC says must respect the unwritten principles. The principles cannot be viewed independently but all interact as part of the Constitutional framework of Canada. No single principle can be defined in isolation from the others, nor does anyone principle trump or exclude the operation of any other. Rule of Law What is it? => Dicey: (i) Rule under regular law, has to be a proper law, no one can suffer except for a breach of law proved in court; (ii) Equal accountability, extends to the govt; (iii) and rights and rule protected by the CL, includes results of judicial decisions determining the rights of private individuals. Finnis: 8 requirements: (i) all laws have to be prospective (any law that has a retrospective elements violates the rule of law); (ii) laws cannot be subject to various interpretations; (iii) there must be clear rules; (iv) rules actually have to sink with each other; (v) must be passed by an executive body (promulgated); (vi) they must be stable; (vii) all regulations under these rules have to have all these application (every rule has to apply under the above) and (viii) the people that make the rules must be subject to them and liable. => SCC endorses Dicey: enumerate 3 principles => BC v Imperial Tobacco: The Tobacco Damages and Health Care Costs Recovery Act authorised an action by the govt of BC to recover for health care costs associated with treating individuals exposed to those products. The appellants challenged the constitutional validity of the act on the basis that is violates, among other things, the principle of the rule of law. The act applied retrospectively, the burden of proof was put on the IT to prove that the disease did not relate to the exposure to tobacco. > The appeal was quashed and the court upheld the rule of law embracing three principles: (i) The law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power; (ii) requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order => => have to have law, a system of govt that is able to maintain and pass laws; (iii) the relationship between the state and the individual be regulated by law. Furthermore the court said the prospectivity is limited to criminal matters (constitutionally entrenched), and there are many laws are retrospective. A safeguard against retrospectively is that the law must expressly state that it is retrospective in effect, thus protecting the rule of law. IN Canada laws can be retrospective. Acts can specifically target certain people, so long as it doesnt target people in an adverse was that is unconstitutional. Role of the Constitution: tries to uphold (ii) and (iii). Establishes who can make law and the relationships between the state and individual. Why need it? Allows people to know the laws of society and what will happen if they break those rules => Roncarelli v Duplessi: R uses his money to post bail for JWs. D (PM and AG) doesnt like this and goes to the liquor board to rd invalidate his liquor licence, wholly irrelevant to the statute. Goes back to the 3 point above. The govt official cannot act in any way they want. The rule of law has to be properly governed. Acting outside of statute is improper. The govt always has to act within statute or else it is arbitrary. Constitutionalism Constitutionalism vs RoL=> Secession case: similar, but not the same. Difference is that Constitutionalism requires that all govt action must comply with the constitution; the RoL requires that all govt action comply with the laws as well as the constitution. RoL is broader. Constitutionalism is just the constitution part of the RoL. Why do we need amending formula? (i) occasions when a majority will be tempted to ignore the rights of a minority (so safeguards minority rights); (ii) also provides minorities with institutions to protect their rights; (iii) need institutions for people to ensure that rights are upheld. Ways to amend the constitution: (1) Judicial interpretation: people dont like, but judges do interpret the constitution. (a) Historical approach: the constitutional text is understood to have a single understood meaning. What was meant when it was written. If it doesnt have a contemporary meaning then might have to do a proper written amendment. (b) Progressive Approach: adopted by the SCC, the living-tree approach. The reason it is better is that the framers probably didnt have a single idea in mind. Eg: woman in the constitution. With this one dont always need a amendment; it is cotemporary the way the judges interpret it. Amending formula: (1)s.38: 7/50 rule, need P to agree and 7 provinces representing the majority of the population; (2) s.41: Unanimity clause (changing the make-up of the SC, or language, monarch): need all provinces and Parliament to agree; (3) s.43: Parliament and some the provs are going to be affected agree, need approval of prov legislature; (4) s.44: Parliament alone can change but very restricted. Limited to its own institutions; (5) s.45: Province alone can change its own constitution; * No mention of referendum. Some provs have passed legislation that requires a referendum for some issues. SCC said that although a referendum has no effect in a written sense, if there is a referendum and the majority decided something then cannot ignore the will of the majority. Protection of Minorities One of the key provisions underlying the enactment of the Charter and Constitution. There are specific constitutional provisions that protect minority rights: (i) language rights; (ii) religion; (iii) education rights. Obligation to minorities when amending the constitution: Nfld v Hogan: Nfld wanted to take out protection of denominational schools (s.23 of the Charter). Nfld put it to a referendum, 72% said yes, wanted a single school system. Because it was affecting minorities they needed s.43 approval as it was affecting language rights and denomination rights. Catholics said they needed a constitutional conference and sued, saying a failure to consult with them was unconstitutional b/c it didnt protect the minority. If youre going to change the constitution and its going to affect a minority then have to consult with them (action wasnt actually infringing a

Charter right, they could still practice their religions). Nfld CoA said no, said that the protection of minority means have to turn your attention to the fact that it might affect some people. The court also said that it needed a sober second thought in parliament and argued that one of the two steps will ensure that the minority rights are protected. Essentially there is enough systematic protection in place to ensure minority rights and therefore dont actually have to meet with people. Democracy Fundamental value of our constitutional law and political culture. Sovereign will of the people was what was argued by the Quebecers. Fundamental Principles Constitutional Supremacy Canada has a system of Constitutional supremacy: s.52(1), the constitution is the supreme law of the land. 4 Implications that arise from Constitutional Supremacy: (i) Hierarchy: some laws are better than others, Constitution is the supreme law; (ii) Adjudication: cant have a constitution if you cant give it effect, must be able to adjudicate disputes. But must be independent of those that pass the laws; body must be impartial (courts). Administrative decisions, such as tribunals are an exception to some extent but it is allowed b/c the decision is not final and can be appealed; (iii) Counter-Majoritarianism: have to have a check on majoritarian democracy. Must have somebody thinking about the minority; (iv) Amendment by Super-Majority: the constitution cannot be changed be the will of the legislature. Separation of Powers Each branch is defined by its relationship to law: the making of the law (legislature). The implementing and enforcing the law (executive). The interpreting and applying of law (judiciary). The BNA/CA 1867 divides public power into three separate branches: Part III = fed executive power; Par IV s17-57 = parliament fed legislative power. Need the same things for provinces: s58-68 & Part V 69-90 legislative powers; S96-101 = courts. 2 unwritten principles tie into the legislative power: federalism and parliamentary supremacy (Secession). Legislature & Parliamentary Supremacy Legislative Branch: divided between the fed legislature and the elected legislatures of each prov. Both derive their power to make laws from the Constitution. Parliamentary Supremacy: basic constitutional principle that Canada adopted from the UK, P is supreme (Secession Case). The reasons Canada needed a written constitution as opposed to an unwritten one like Britain was that we were creating federal state. Originally the only limit was federalism, now still has to follow the constitution. Cases: Babcock v Canada Balancing act; Parliament is still the supreme institution => it can enact things so long as it doesnt violate the constitution, rule of law or federalism. Singh v Canada Claimed confidentiality again. Arguments were based on the separation of powers (judiciary should decide what is disclosable); also the argument that EA violates Parliamentary sovereignty is not a good argument anymore. Rules? Sep of Pw isnt violated, consistent between with the Sep of Pow, they are just delineating proper lines. Parliamentary sovereignty is still a principle that must be considered. What are the consequences of Parliamentary Supremacy? Every Parliament is Equally Supreme: means that Parliaments cannot bind subsequent actions of the next Parliament. Parliamentary supremacy, interacting with separation of powers means that there is a hierarchical relationship between the executive and the legislature: means that based on the SoPs the executive is legally supposed to be subordinate to the legislature, executive gets its power from the statutes of the legislature. So parliament is higher than the executive. Limits? Federalism and the Charter. Legislature & Federalism Federalism: Primary achievement of the constitutional Act 1867, central organizing theme. Power is distributed between a central authority and several regional authorities in such a way that every individual is subject to the laws of two authorities. They are coordinate authorities: means that in a sense they are equal, but here equal doesnt mean economic equality. There has to be a guarantee of autonomy: each level of govt needs to have the power to legislate in an exclusive area to the detriment of the other. If they share everything that it is not a federalist state. Why Federalism? Recognises diversity, autonomism of certain areas, encourage democracy, facilitates the pursuit of goals of certain regions. Manifestation of federalism can be found in ss 91 and 92 of the Constitution Act 1867 => s91 fed, 92 is prov. Canada was described as a partial federal state: Why? POGG. Does it still apply? POGG and 92(13). Canada was originally established as a highly centralised nation. But it was problematic. Something not spelled out in the constitution goes to the federal power. The opposite is true in the states. But who decides what the constitution says? The courts. Until 1949 was the judicial committee of the Privy Council. It was against the centralised power and what happened was more power being given to the provs. Remember that the fed govt has the power to appoint the SC judges. Parliamentary Supremacy, Federalism & the Executive Executive: Replicates the duality created by federalism (both provinces and the federal government have an executive). What is the executive? More than just the cabinet and the PM, also includes the GG and all the ministries, the civil service, crown corporations, statutorily created bodies that carry out govt functions. It is subordinate to the legislature (at least legally speaking) => everyone of its authorities is delegated to it, has to be traced back to a statute of the govt => Roncarelli v Duplessis. By constitutional convention, responsible to the legislature. Perogative Powers: Executive retains some power not derived from Parliament (prerogative powers) Judicial Independence, Parliamentary Supremacy, Federalism & the Judiciary At some point, parliamentary sovereignty must cede to constitutional sovereignty...this line is judged by the Courts. Courts are discussed in ss 96101 of Constitution Act 1867: (s 96 judges and provincial court judges; s 101 led to Supreme court Act 1875; governs the SCC, does not form part of the constitution, so the SCC are not part of the constitution). Court has extended its powers and given itself two crucial public law powers: (1) Jurisdiction to rule on the constitutional validity of all ordinary laws in Canada (constitutional law jurisdiction) => SCC have decide that the courts in Canada have to power to rule on any laws in Canada; (2) Jurisdiction to supervise the activities of executive government and other statutorily delegated actors to ensure that they act within their statutory authority (administrative law jurisdiction) => also gave themselves power to review admin law decisions. Cooper case; went to the SCC and C was suing the Human rights commission. Issue was to whether or not regular executive board could actually rule on the constitution? Can a member of the exec decide on constitution issues? Decided that the courts must have exclusive jurisdiction when it comes to the constitutional law. Nova Scotia (Workers Compensation Board) v Martin; McLaughlins dissent from Cooper was followed. Tribunals and admin bodies can decide on constitutional issues. Reason is they dont really have the final say anyway. Unwritten Constitutional Principle of Judicial Independence: Judicial independence has been described as the lifeblood of constitutionalism in democratic societies => It ensures that judges, as arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference. Judicial independence is a constitutional norm guaranteed by the preamble of the constitution (a Constitution similar in Principle to that of the UK and UK has judicial independence) => Remueration case citing Beauregard v Canada. Judicial Independence...how far does it go?

Ref Re Remuneration of Judges of Provincial Courts; Facts? Had to focus on the Charter b/c s.96 didnt apply. Said needed a commission, if not independence is affected. In the end judges salary werent reduced, but other civil servants were; Court identified three fundamental requirements of judicial independence: 1) security of tenure, 2) financial security, and 3) some admin independence. Look at Mackin v NB=> Supernumerary judges. Similar facts, NB decided to review the supernumerary judges role. The question is not only decided on 11(d) grounds. Ask: whether a reasonable person fully informed, would they consider a certain court would be seen as an independent court. Anytime a govt affects the financial security or remuneration, it is going to trigger the question of judicial independence. However, if there is an independent commission it might be ok. Judicial independence can impact on govt action. Look at Therrien (Re) => convicted of assisting FLQ, pardoned, tries to th become judge, rejected 3 times, 4 time didnt disclose, accepted, past comes out and removed by Quebec conseil de la magistrature, he argued that he needed a formal appearance and address in front of the legislature. B/c 11(d) doesnt actually require it you cannot take an unwritten rule to expand the written rule, judicial independence only goes as far as the written text of the constitution. He was kicked out. An address of the legislature was not required by s 11 (d) of the Charter for the removal of judges of inferior courts of criminal jurisdiction. It was enough that there was a requirement of cause and a judicial inquiry into the existence of the cause... BRANCHES OF GOVERNMENT Legislature (Parliament) Sources of Parliamentary Law? BNA, Parliament similar to UK. What is parliamentary privilege? they can say anything (almost), rights necessary to ensure that legislatures can perform their functions free from interference by the Crown and the courts (Provincial Judges Reference). How far does it extend? Parliamentary Privilege is defined by the degree of autonomy necessary to perform Parliaments constitutional function, not a complete immunity from human rights laws => Canada (House of Commons) v Vaid; Speaker of the house fired his driver in an improper manner. PP does just as far as you need it to go. It is not possible to make oneself above the law. There is a limit to PP. If claiming PP have to reach necessity test: necessary to exercise that authority (Parliament would not function properly if not exercised). The Institutions that Make up Parliament The Monarch => represented by GG (Lloyd-Johson), considered the actual head of state, constitutional mandate in s.99. Essentially at the end of the day not that much power. Technically head of state is chosen by hereditary law. Technically they are part of Canadian law, but they breach the constitution ie cant be Roman Catholic. Challenged hereditary law => ODonohue v The Queen: the rules of succession are necessary for the functioning of our constitutional monarchy, therefore not subject to Charter scrutiny. Cannot unilaterally alter Cth Law, would need the approval of all Cth nations. But should Canada choose to alter it (even though not allowed), would need to pass law in every prov. The Senate => unelected, appointed by GG based on the recommendation of the cabinet. See Alberta Senatorial Act and Brown v Alberta; Brown said Chrtien did not follow procedures, but failed, it is legally not up to the provinces. Cannot stop PM from appointing anyone they want, a political process => Samson v AG of Canada. The House of Commons => 308 seats in P. Key Terms Summoning Parliament => by constitutional convention, codified in the Canada Elections Act, the GG calls Parliament to session on the advice of the PM. This is followed by: 1) the Formal Opening of Parliament; 2) Speech from the Throne; 3) Address and Reply to the Speech from the Throne. Prorogation => different from adjournment. P is an official end to that session, so everything on the table dies if prorogued. Adjournment is a break, so if a bill is at second reading and adjournment it will still be there when it gets back. How? PM asks GG to announce it or publish it on the Gazzette. Dissolution => P ends. an election must happen at least every 5 years (s.5 CA and Charter s.4(1)). In practice does not last 5 years, and the GG dissolves at PMs request. Elections are held. However convention requires the PM to resign his/her govt or seek dissolution after a vote of no confidence from MPs. Vote of Confidence => remember that the executive must have the confidence of the legislature. So if executive looses confidence must dissolve. How? (1) vote of confidence, simple majority; (2) sometimes a bill whether it passes or not, will be taken to be a vote of confidence; (3) implicit in the budget, so that if the rest of P does not agree with the executives budget then taken to be a vote of confidence. Standing Orders => rules of procedure adopted by at least a simple majority vote of the members of the Commons; Parliament is able to make its own rules to regulate itself. Key Players in Parliament Political Parties => dont have to be a member of political parties to run for P. Decision making in Parliament depends on swaying a majority of votes in each chamber. Motions are put to the house, debated and passed by majority voice. But advantages to being part of a political party => Confidence convention says that the individual commanding confidence of the Commons is appointed PM. The Speaker => Member of P elected to the position by other MPs. Role is defined by the standing orders of the HoCs. Speaker must maintain order in debate and to apply and interpret the practices and traditions of the House. Must be impartial. Who runs the election of the speaker? The longest running MP. Parliamentary Committees: 1) Cs of the House composed of the entire membership of the HoCs; 2) Standing Cs appointed for life of P to deal with subjects of continuing concern; 3) Legislative examine bills and may report bill to the HoCs; 4) Special task forces, study specific matters that the govt wants to look at; 5) Joint composed of members of both the HoCs and Senate, appointed under standing orders of each house or by special resolution of the 2 houses; 6) Sub-Cs - standing Cs delegate power to a smaller group. Special Cs may is House so decides, but legislative Cs can only create special Cs on their agenda (referred to as a steering c). Executive (Government) - (s9-16 & 58-68 CA) The Crown: s9 of Constitution Act 1867. The PM and Cabinet: the collective decision-making committee comprising the PM and ministers. But CA 1867 never mentions Cabinet, instead talks about Privy Council; technically theyre not the same thing. All Cabinet Ministers are privy councillors, but not all PCs are CMs. The Public Service: employees of the various ministries. Politically neutral and continue their employment regardless of what happen to the govt of the day. What does it mean to be neutral? Cant be disloyal to the govt of the day => Fraser v Canada; tax auditor, works for the govt (his employer). He calls radio talk shows and slams govt policies, get fired. He argued that what he does, his job, has nothing to do with what he was talking about (politics) and said that was a violation of his freedom of speech. The court held that the perception of the job is important as a member of public service. Dont have to vote for the political party, but have to be loyal, no matter how small you are on the public service. Independent Admin Agencies: executive functions are carried out by a variety of bodies that have a measure of independent from govt. Why are they necessary? Decisions sometimes need to be insulated from political considerations. Crown Corporations: Private and public objectives. Administrative body with a separate legal entity. Why? Where there is a strong commercial aspect of the govt service, it may require that decisions be made free from political influences that may unduly interfere with commercial objectives. Additionally, govt structure sometimes would not be appropriate for a business. Why not just wholly private? Crown corps have a public objective. Have to comply with the terms of the

Financial Institution Act. Municipalities: usually part of provincial executive, and executive creature. Exercise local control. Created under prov legislation, but operate independently from them and bc they are elected their democratic legitimacy is independent from the prov legislature. But ultimately, municipalities are subject to the regulatory qualifications of superior levels of government. Enforcement Bodies: police, both provincial and federal. Policing functions are the responsibility of both the federal and provincial governments. Police and prosecutors enforcement duties not subject to political oversight, but they cannot operate without accountability for their actions. Sources of Executive Power Prerogative Powers: powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown. They are residual in the sense that power of the Crown pre-existed that of the legislature and as a result are those powers that have remained with the Crown. In exercising those power the Crown is limited to executive acts. Statue can supersede the prerogative power, and this powers derives from Parliamentary supremacy. Egs of PP: appointment by the GG, foreign affairs such as declaring a war, issuing passports. Statutory Powers: delegation of authority by legislature statute. Few restraints on the legislatures ability to delegate powers to admin bodies. Again based on Parliamentary sovereignty. But legislature cannot delegate powers that exceed the legislatures own powers. Furthermore the legislature is incapable of delegating power that is not bounded by the purpose for which the statute was enacted; in other words a delegate cannot have absolute discretion (Roncarelli v Duplesis). Also, a delegation must not amount to a complete abdication of legislative authority (Re Gray). Cant do inter-delegation between fed and prov, why? Essentially undermining the constitution, violates the core of the constitution, SoPs. Judicial (Courts) Constitutional Authority: S 92 (14) of the Constitution Act 1867 => prov crt; S 96 of the Constitution Act 1867 => Sup crts; S 101 of the Constitution Act 1867 => fed crts. Four Basic Levels of Court & Inherent Jurisdiction (1) Provincial/Territorial Court => inferior or lower trila court, essentially the equivalent to a mag crt, these courts are created by provincial statute and only have the jurisdiction granted by statute. Accordingly, inferior courts do not have inherent jurisdiction; (2) Provincial /Territorial Superior Courts (s 96) => inherent jurisdiction (can hear cases about anything except those specifically reserved to other courts, ie fed crts), come from constitution. All divorce proceedings start in SCrt. Also a court of appeal for underlying crt system. Can be divided into division courts. Judges appointed and paid by the fed govt. (3) Appeal Courts => generally sit in panels of 3. Their function is to review decisions rendered by the superior-level courts and to deliver references when requested by a provincial or territorial government as the SCC does for the federal government. These appellate courts do not normally conduct trials or hear witnesses; (4) Supreme Court => Functions of SCC: final crt of appeal from all crts in the country. Has jurisdiction over anything. The court's duties include hearing appeals of decisions from the appellate courts and, on occasion, delivering references (i.e., the court's opinion) on constitutional questions raised by the federal government. Limited docket to 100 cases/yr. Must seek leave to appeal. Only right to appeal in limited instances: (i) Must demonstrate that it is important; (ii) Submission will be read by 3 members of the crt. If decide not to hear then stuck. Automatic right to appeal in certain cases, criminal matters where one judge has dissented. Also, where if the accused is found guilty on appeal. Make up: consists of nine justices, which include the CJ and eight puisne justices. Ont automatically has 3 members (members of the Ont bar). 3 members are from Qubec. 2 from western Canada. 1 from the east. Province doesnt get a say of who it is. Federal courts (including fed crt of appeal): The Federal Court and the more specialized Tax Court of Canada exists primarily to review administrative decisions by federal government bodies such as the immigration board and hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law. The Federal Court of Appeal hears appeals from decisions rendered by the Federal Court, the Tax Court of Canada and a certain group of federal administrative tribunals. Although the federal courts can be said to have the same prestige as the superior courts from the provinces and territories, they lack the inherent jurisdiction possessed by superior crts. Inherent Jurisdiction: SCrts the provs and territories, means that the jurisdiction is more than just what is conferred by statute, because the superior courts derive their authority from the Constitution, they can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal. The doctrine of inherent jurisdiction gives superior courts greater freedom than statutory courts (ie: SCC, fed crts, p&t appellate crts, lower level prov crts) to be flexible and creative in the delivering of legal remedies and relief. Judicial Appointments Prov Appointment Process: lower prov and terr crts made by local govt, selected by Executive Branch. How? Short-listing by Advisory Committee => Have a judicial advisory committee and theyll submit a list of recommendations to the executive. Fed Appointment Process: s96 Crts (Prov Sup Crt, Crt of Appeal, etc.), Federal Court and Tax Court Judges are all appointed in the same manner => Judicial Advisory Committees => background check based on 3 criteria: recommended, highly recommended and unable to recommend. Then goes to the minister of justice and they will sit on the list for 2 years. But really just patronage appointments, up to govt to decide, Crown appoints on advice of cabinet. SCC: No Judicial Advisory Committee. Appointed by Governor in Council on advice of cabinet and PM. Better Elected?: see below. Judicial Independence Remuneration Case Independence: whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent statusboth actual independence and perceived independence. Two Dimensions: (1) Individual Independence => judge himself has to be an independent judge himself, free from outside influences including the executive; (2) Institutional/Collective Independence => the court as a whole. Three Basic Requirements: (1) Security of Tenure => mandatory retirement at age 75. Age is also important bc only then do they get pension, after serving for 15 years. Constitutional guarantee. (2) Financial Security => worried about perceived control. Guaranteed for s.96 judges, but has expanded. (3) Administrative Independence => court themselves have to have control over the administrative process, ie when judges take break, hiring staff etc. Prevents the fed govt from coming in and saying that they have to decide a case. Judges Better Elected? method point out that the election approach could possibly threaten the judiciary's ability to be independent in its decision-making. As judicial independence is seen by Canadian law to be essential to a functioning democracy, the regulating of Canadian judges requires the involvement of the judges themselves. The Canadian Judicial Council, made up of the chief justices and associate chief justices of the federal courts and of each province and territory, receives complaints from the public concerning questionable behaviour from members of the bench. Interplay Between the Branches Interplay between the Executive and Legislature Wells v Newfoundland; Appointed and able to stay on the board till the age of 70 unless bad behaviour. The govt made the position redundant by restructuring. The govt relied on frustration and separation of powers saying that it was frustrated by an act of the legislature. Seperation cannot be blind and absolute, the govt can and does in some circumstance control the legislature. Conclusion: self-induced frustration.

Interplay Between the Executive/Legislature and the Courts Significant constraints on the legislative and executive power. In Canada, Constitution Act 1982 placed major constraints on government actions. Courts given important role to uphold Constitution. What are the limits on the Courts powers to hear cases? Cases must be justiciable and enforceable: (1) Justiciability is founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes => Operation Dismantle; section 7 Charter challenge to the Cabinets decision to let the U.S. test cruise missiles in Canadian territory. It was more of a political question. Any matter the govt decides on will affect the interests of the citizens. Limits? Issues may be non-justiciable not only bc they involve evidentiary difficulties, but also if they involve moral and political considerations which are not within the province of the courts to assess. But courts should not be too eager to relinquish their judicial review function simply bc they are called upon to exercise it in relation to weighty matters of state. The underlying theme is the separation of powers. * BUT as long as you are able are looking at the question from a legal perspective it doesnt matter how the issue may be otherwise characterized. (2) Enforceable (How far can a court go to ensure a judgment is enforced?) => Treatment Action Campaign; TAC wanted the court to take control and keep informed about the remedy. Court said that they could do that but that in this case it was not required. Doucet-Boudreau v Nova Scotia; Wanted straight French high school. Govt said would build, but never did. Applied to SCC under 24(1) to provide for a French language facility at the secondary level. 5/4 split said that they could keep tabs on the decision. This deference ends where the constitutional rights of the courts are charged with protecting begins. What are some of the problems with judicial review? Judicial activism usurping the power of legislators. Question of Legitimacy? How much deference must be given to the executive/legislature? => This deference ends where the constitutional rights of the courts are charged with protecting begins => DoucetBoudreau v Nova Scotia. Is there built in deference to the executive/legislature? Or is it a dialogue? Vriend v Alberta; V prf at a college, fired bc homosexual. He went to the human rights commission and they said that they he does not have a legal right bc in AB homosexuality was not a ground for discrimination. SO he had to go to court to argue that the legislation that did not include homosexuality was against the Charter. Trial agreed, the CoA said no, saying that they owe deference to the executive and that you can have legislation that does not recognize sexual orientation as a ground. The SCC said that it did violate and should be read in. But the debate was should the court be doing this? Does it owe deference? The Ab legislatue actually thought about include sexual orientation but did not. The SCC said that it did not owe that deference in this case. Agreed that respect for the legislature is important, the court does have to hold up the law. The courts only job is to hold up the constitution and uphold the law, even if the decision is unpopular. The court said that it could technically get out of it by using s.33. Is it a built-in deference of a dialogue? Both; dont have final say bc can go back to P, and P can change the legislation if it wants (deference is built-in). Went on to consider if it is a dialogue, not really a dialogue bc the P will actually use s.33 bc will be voted out if used. What are the most common grounds for judicial review? Constitution Act 1867 => jurisdiction issues (mostly). Section 91&92 arguments. QuAppelle Indian Residential School Council v Canada; fed or provincial jurisdiction? School argued prov bc deal with education. The Fed said no bc dealt with FNs. Court ruled federal bc treaties, aboriginal law, but also bc in the past the school council had agreed in the past that the proper boards for review were federal boards. Constitution Act 1982 => Charter of Rights and Freedoms; Unwritten Constitutional Principles? Most controversial one. Until recently the court was reluctant to accept that unwritten constitutional principles as enforceable. But it is to a very limited extent. Bell Canada; BC was brought before the tribunal on allegations that they discriminated against female workers. BC argue that tribunal was not independent bc HRs Commission guidelines, main argument was that the humans rights tribunal should have judicial independence and that should be extended to any tribunal that makes findings on rights. Guidelines allowed for by statute so ok. Generally have to marry an unwritten principle with a law itself. Judicial Review of Administrative Action Is it different from judicial review of legislative action? Courts whole role is policing, making sure that the executive has not gone to far, that the executive has acted within the confines that the legislation has delegated to them. What is the Standard of Review for Administrative Actions? Pragmatic and Functional Approach [look at four contextual factors from Pushpanahtam] => correct or reasonable decision? Whole case centres on the role of admin bodies and reviewing courts. PF approach: what level of review (standard?) determined by looking at 4 factors: (i) presence or absence of a privative clause or statutory right of appeal; (ii) expertise of the tribunal (more = more deference); (iii) purpose of the legislation, in particular the provision; (iv) nature of the question (legal or fact or mixed: legal = less, fact = more). Applied in Dr Q v College of Physicians and Surgeons; Q was a physician, went on to have physical and emotional relationship with a patient, and it was ruled that he took advantage of the situation. She lodge a complaint with the college of physicians and surgeons (a tribunal, makes sure that the physicians uphold standards). Q gets suspended and when he returned, there were very stringent conditions on him to place. He appealed the decision, and went to the SCC. RULES OF STATUTORY INTERPRETATION Sources Interpretation Acts: Every Cdn jurisdiction has one. Eg: Interpretation Act, s.11. The expression shall is to be construed as imperative and the expression may as permissive. Interpretation Rules in Acts and Regulations: (1) Definitions in the act itself, eg: Section 25 of the Canadian Human Rights Act says employment includes a contractual relationship with an individual for the provision of services personally by the individual; (2) Preambles dictate purpose behind the act, reflects values and anticipated benefits. (3) Commencement and Transitional Provisions.eg: Section 62 (1) of the Canadian Human Rights Act. Common Law Rules: Sullivan and Driedger on the Construction of Statutes => SC cites this book. History Mischief Rule => from equity, whats equitable, interpret in a way that met the object of the statute, meet the purpose or fill in the gap in law. Plain Meaning Rule => literal rule, stick to the text, as long as clear interpret that way unless contrary evidence that shouldnt. Golden Rule => mix of the two; read plain text but give notice to intention of P. * These things arent really applied anymore, theyve been amalgamated. Judicial Classification Judges normally fall into one of the four categories of interpretation: (1) Textualist: judge looks at the text, it is the best indication of Ps intention and they will not want to sway from that, give the plain meaning and by doing so is best serving the RoL; (2) Intentionalist: they believe that their job is to give effect to the intention of P, not really concerned with the text, look at history, why the statute was enacted; (3) Normativist: probably smallest group, look at law that maintains legal norms, reasoning is that legal norms apply to everyone and this is the best way to maintain the RoL; (4) Pragmatist: do what they want when they want, read statute and come up with what they think the statute means, theyll look at all the various ways that it may be interpreted, will consider counsels arguments but have their own interpretation. Very liberal language = broad meaning, but a restrictive wording = less liberal interpretation. Basically will choose from above; a grab-bag. Range of Interpretation Issues

Things that could be wrong with a statute that must argue on. Disputed Meaning: Where a word or sentence is ambiguous or unclear; have to establish what the preferred meaning is. NB: have to address both languages in Canada. Perrier Group of Canada Inc v Canada; arguing over the definition of beverage. Canada govt excise tax over beverage. P said not selling a beverage, beverage means combining different ingredients, putting carbon in water is not beverage. Court said no, it is anything that a human can drink. Static v Dynamic Interpretation: How the rules of law change over time. Harvard College v Canada (Commissioner of Patents); create a mouse, that had genes that could create cancerous tumours. Wanted patent, can patent invention, but not a life. Art process, machine, art etc. or composition of matter. Does composition of matter include a super-cancer mouse. Court said no. Preferred the static rule, P had not actually contemplated the patenting of higher life. Non-Application Argument: Legislation that is overly broad. Re Vabalis; married woman that wanted to change her name. When married did not take her husbands name, but according to the Marriage Act that didnt matter, husband would have to change his name too. Courts changed it. Incorrigible Gap Argument: Where the legislature has screwed up and left a gap in the legislation, courts can not generally fix the gap in legislation, the persons can take advantage and it goes back to the legislature to fix it. Beattie v National Frontier Insurance Co; B was drunk driving, got in an accident. Language said that only while the person was charged couldnt apply, but he was convicted and therefore he could apply. Corrigible Mistake: Obvious mistake, court can fix if small. Morishita v Richmond Township; spelling error in the legislation. Overlapping Provisions: Two codes that apply to the same situation. (i) Exhaustive code argument: a law is assumed to exhaust all other possibilities. Gendron v Supply Services Union of PSAC, Loc. 50057; G member of union, applied for a promotion. 3 other union members applied but didnt get it. They grieved and said that it was not fair that he got it. The union said that they couldnt do that. Company said that they were right, told G that the promotion was no his anymore. G goes to the union and grieves, they said no. G decided to sue the union in tort. Court had to decided whether the tort law applied or not, of whether the Canadian labour code applies. Said that labour code applies, it is exhaustive. (ii) Paramountcy Argument: overlapping fed and prov, federal law trumps. Insurance Corporation of BC v Heerspink; H sold marijuana out of his house, advertised in the paper, insurance company took away his house insurance, no big deal bc they could do so without reasons. H said that the BC Human Rights Code also applies which says that the cannot fairly remove things that are properly applied to the public without giving reasons. SCC agries with him, HRC trumps. Rules of Interpretation Rules about Meaning Ordinary meaning rule: what just pops into your head when you read it at first glance. But it is limited to a competent reader. That is the intention of P. Technical meaning rule: if trying to use the technical meaning, have to be talking about a specific statute. IN that situations if P uses a certain word then P was intending to use that meaning. Person asserting has the burden to prove. Shared meaning rule: have to come up and argue the one that applies to the both French and English version. Sometimes the English one will have two versions, but if French one has one go with that. Original meaning rule: some people argue that meaning of the word is fixed at the time that the legislation is drafted. Plausible meaning rule: normally follow the ordinary meaning, but if not, then whatever interpretation they have has to be plausible. It has to make sense in the text and cannot lead to all sorts of ridiculous things. Presumptions Relied on to Analyze the Meaning of the Text Straightforward Expression: court assumes that the legislature pick the most simple, straightforward way that the text could be written. Uniform Expression: the same words means the same thing throughout the entire legislation. No redundancy: means that courts assume that when the legislature wrote it every single word in the legislation counts. There are no extra words in the legislation. Internal Coherence: means that the entire piece of legislation must make sense. One part cannot be interpreted in a way that doesnt make sense in light of another section. Also have these maxims... Implied Exclusion (experssio unius est exclusio alterius): think that something should be in there but it is not, that is an implied exclusion; P intended that it not be put in there. Associated Words (noscitur a sociis): look at the words in context. Limited Class (ejusdem generis): when listing a whole bunch of different things, can add on to it, limited to the same sort of things in the list. The Legislature would have said x: reasons for rejecting a proposed interpretation: if that is what they meant they would have said it. Purpose and Scheme Analysis All legislation is created for specific purpose. Legislative Purpose: interpreters must always find the purpose of the legislation and adopt a provision that supports the purpose of the legislation. If it is possible, adopt that interpretation. If trying to adopt an interpretation that would defeat the purpose of the legislation it will not be adopted. Less specific the text, the more important the purpose is. Interpretation Acts: they all say that a statute must be interpreted in a large broad interpretation to give a meaning that fits within the objects and purpose of the statute. Legislative Schemes: have to look at the legislative scheme overall; look at the entire piece of legislation. Legislation is assumed to work together so have to look at all of the other parts so that they flow together. Look at things like the preamble, headings etc. Mistakes and Gaps in the Legislative Scheme Presumption that legislature doesnt make mistakes, but if they do Corrigible Mistakes: mistakes can be fixed, the act does not accurately reflect the goal that the statute was made to address. Incorrigible Mistakes: If it resulted from a gap in law then cannot be fixed. Supplementing Legislation by reliance on the common law (or civil code) => if there is a gap that can be filled with the CL the courts can use it. Presumptions of Legislative Intent Whenever P enacts things this is the meaning behind it. Strictly construed v liberally construed => How P intended the legislation to be read. Legislation that interferes with rights (penal laws) is considered that they have to be read strictly. Give the strictest interpretation possible. BUT give a wide interpretation if giving a benefit, liberally. Compliance with international law: P is assumed to comply with international law. So if interpreting a statute and one complies w/ international obligations and the other doesnt, the one that complies is presumed to be the correct one (Baker). Continuation of common law: CL can fill in the gaps. Non-interference with common law rights: unless specifically legislated, your CL rights continue to exist. Non-retroactivity: if want to apply retrospectively, have to spell it out in the legislation. Compliance with the Charter: every single piece of legislation is assumed t comply with the Charter. Have to choose meaning that is in line with the Charter. Avoiding Absurdity The meaning decided on cannot lead to an absurd outcome. Irrational distinctions/contradictory effects: eg: two like people being treated differently. Defeating purpose of legislation: or that undermines an efficient application. Undermining efficient application of legislation: cannot interpret in a way that defeats the purpose of the legislation. Violating norms of justice and fairness: must be fair. Relation to Other Legislation and Sources of Law

Have to look at the statue in the entire scheme of Canada as a whole. All of the following things are supposed be in the judges mind when reading a statute. Constitutional Law: => all legislation presumed to follow the constitution. But P sometimes passes laws that limits a constitutional right. Regulations: => are assumed to flow from the enacting statute. So not only does the legislation have to make sense, but all regulations have to be interpreted that way. Related Legislation: => make sense and tied in to related legislation. Common Law. International Law. Extrinsic Aids Sometimes judges need more help. Courts will generally look at what is put before them by counsel. As long as relevant the court will look at it. No general guide as to what is permissible. Generally willing to entertain anything. Legislative Source: agreements that came with the legislation. Eg: whatever P was looking at when modelling it. Legislative History: material that was actually brought when making the legislation: committee reports, debates, etc. anything that was part of the formation phase. Legislative Evolution: will actually look at past versions of the legislation to give scope and depth to the statute. Expert Opinion: => administrative opinion, scholarly publication ABORIGINAL LAW Federal Legislative Power Constitution Act 1867, Section 91 (24): Indians, and Lands Reserved for the Indians => exclusive jurisdiction to legislate on powers related to Indians. Why was it granted to federal government? recognised that they were distinct, before Canada became a country it was Britain that could decide on those issues so it made sense to give to the fed govt. Also it was protection so that local issues wouldnt affect decisions. Section 91 (24) gives rise to two distinct powers (1) Indians - Who is an Indian? (status v non-status Indians) => defined by the Indian Act, says that an Indian is a person that is entitled to register as such under the act, long list. Essentially traces back Indian relationship to past band members; can you trace heritage to past treaties? Definition is very limited, does not include Metis. Also does not include an Inuit. So Indians governed by the Indian act are the first nations. What type of Laws can be passed? => Fed govt has taken it to mean that they can pass laws anything that has to do with Indians. So eg, govt responsible for aboriginal health. So long as the legislation deals with Indian people they have power. (2) Land Reserved for Indians - What is land reserved for Indians? => This power can be extended and has been, to include land that has been used by Indians and not used by Indians, as long as it is tied to the Indian land itself. It includes reserves and land covered by aboriginal title. Restrictions on federal legislative power (1) Canadian Bill of Rights (still applies in light of charter) => R v Drybones; they made it an offence for an Indian to be drunk on a reserve. Someone was charged and they said that it wasnt fair. BoRs said that cant discriminate based on race. Law was struck down for being discriminatory under the BoRs. Pre-Charter case. (2) Charter of Rights => Corbiere v Canada; separate from s35. Have certain rights. Cs band had a restriction that said that you could only vote on band elections if you live on the reserve. Challenged, SCC struck down the provision. (3) Treaties => Sikyea v the Queen; prior to 1982, aboriginal treaties werent all that respected, and as long as didnt incorporate the treaty could do whatever you want. S was charged, they were hunting fowl, tribe entered into a treaty with the British govt in 1840 which guaranteed hunting rights for food anytime during the year. The Fed govt then passes the migratory bird conservation act. S was charged under that act. Went to the court and was pre-Charter so treaty rights were no protected. Bc the fed legislation failed to incorporate the treaty, the treaty rights didnt apply. This case would never happen post treaty. Prior to the treaty the Fed govt could legislate contrary to the treaty. Provincial Legislative Power General Rule Section 88 Indian Act The provincial legislature has the power to make their laws applicable to Indians and Indian reserves, so long as the law is in relation to a matter coming within a provincial head of power. Means that most laws that apply to others in the prov apply to the reserves Five Exceptions to the General Rule (1) Singling Out aboriginals: if it is specifically targeting aboriginals, it will not fall within the prov head of power => R v Sutherland; S and friends were hunting deer for food, using spotlights at night, actually managed to kill some deer, hunting on conservation land. Conservation land was considered Crown territory. Other legislation said that Indians could hunt on unoccupied land, but conservation land was considered Crown land that is occupied. Fed govt said that the prov was singling out the aboriginal peoples bc they were the only ones that could hunt on those lands. (2) Indianness: if passing a law that is affecting indianess cant do it. What is that? If it is a law that affects an intrical part of being an Indian then no good. Essentially anything that affects aboriginal rights and treaty rights you are affecting indianess. (3) Paramountcy => if prov law is passed and a fed law is also passed that deal with the same thing, then the fed law trumps. (4) Natural Resource Agreements; cant affect NRAs (see below). (5) Section 35 of the Constitution Act 1982; passing laws that affect s35 rights are restricted. Natural Resource Agreements 1930 Form part of the Constitution. Transfer of fed power to the provs to regulate hunting. Only involves 3 provinces (prairie provinces). Essentially they guarantee certain fishing and hunting rights, but limit it to support and subsistence and food both of which suggest no commercial. Also limited to unoccupied land, not private land. Those provs cannot pass legislation that affects those rights. Any prov law that runs contrary it not good law. Because enacted pre-Charter, extinguished old treaty rights, eg: if there was a treaty right to hunt for commercial purposes. Two important cases: R v Horseman; H had hunting rights, hunted for commercial purposes and was charged, H said that it was his right, the SCC said no, only have the right to hunting for food. Old treaty rights were superseded by this act. R v Blais; B was a metis and was hunting deer out of season. Caught deer and tagged them and was charged. Argued that Wildlife Act did not apply bc he falls under the Natural Resource Agreement. Metis were not covered by that definition. Section 35 of the Constitution Act 1982 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, Aboriginal peoples of Canada includes the Indian, Inuit and Metis People of Canada. => Broader than the IA. (3) For greater certainty, in subsection (1) treaty rights includes rights that now exist b of land claim agreement or may so be acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. Section 35 needs to be given a purposive interpretation => liberal/wide net. Not subject to section 1 or the notwithstanding clause => not part of the Charter, as such cannot use the NWC or s1 to uphold a contravention. The SCC developed the framework for the interpretation of section 35 (1) in R v Sparrow; Indian member of a band, charged under fed legislation. Issue was whether putting the net restriction contravened s35 of the Charter?

The Sparrow Test: 1. Claimant was acting pursuant to a right protected by section 35 (can be a treaty right or an aboriginal right). What is an aboriginal right? => Aboriginal Rights are rights held by aboriginal peoples, not by virtue of Crown grant, legislation or treaty, but by reason of the fact that aboriginal peoples were once independent, self-governing entities in possession of most of the lands now making up Canada. They have been called unique and sui generis. Answer to this question is determined by analysing the Van Der Peet test: In order to be an aboriginal right an activity must be an element of practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right. Van Der Peet; sold salmon. She claimed that she was exercising an existing aboriginal right. Issues was whether they had a aboriginal right to sell fish. To answer this need to know what an aboriginal right is. Test: (1) Identify the nature of the claim being made; (2) Is the right claimed based on the practice, custom or tradition integral to the distinctive culture of the claimant? Things to take into consideration: Oral evidence allowed (Guerin); Perspective of the aboriginal claiming the right; the nature of the action; the nature of the governmental regulation, statute or action being impugned; and the practice, custom or tradition being relied upon to establish the right. The court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive), nor can it look at those aspects of the aboriginal society that are only incidental or occasional to that society. Have to make sure that it is distinctive. The time period that a court should consider in identifying whether the right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior to contact between aboriginal and European societies. Change the Van der Peet test for metis: R v Powley; father and son metis, went moose hunting, killed it and tagged it, claimed it, and did everything in accordance with the law, but didnt have a licence in the first place. They claimed that they have a aboriginal right to do this, Ont govt said no bc their traditions could not have existed prior to European contact. The court said that the time frame is not prior to European contact for Metis, it is effective control of the regions. In this case that was 1850, and prior to 1850 it was a well established metis practice to hunt. 2. The right in question must be an existing right The right cannot be an extinguished right. Regulation of a right does not amount to extinguishment => has to be plain and clear intention by the fed govt for it to be extinguished, prov govt cannot do it. Only clear and plain intention by the federal government will amount to an extinguishment. 3. It must be determined whether there has been an infringement of the protected Aboriginal right. PF test, not an onerous burden, most often it is a pf burden if it affects the rights. (1) is the limitation unreasonable? (2) Does the regulation impose undue hardship? (3) Does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. 4. Can the infringement be justified? Aboriginal rights are not subject to section 1 but the Court has still concluded that they are not absolute. Two part test: (1) the impugned law must be enacted for a compelling and substantial objective => conservation is a good reasons. (2) involves consideration of whether an infringement unduly restricts the Aboriginal right in question, and whether the restriction can be accommodated with the Crowns special fiduciary relationship with Aboriginal peoples. Consider: (a) little infringement as possible? (b) in cases of expropriation, has there been fair compensation available? (c) whether the aboriginal group in question has been consulted. Treaty Rights Section 35(1) protects existing treaty rights. What is a treaty? According to Peter Hogg, five requirements: (1) Parties => one party automatically has t be the Canadian govt, provs cant enter into treaties. Anything before 1867 it is assumed to be the fed govt; (2) Agency => the people representing both parties must have the ability to bind both parties, need authority to bind the party; (3) Intention to create Legal Obligations => no intention then not a treaty, both sides have to recognize that there is legal duty; (4) Consideration => has to be a bargain, give and take; (5) Formality => means that both sides have to be aware that it is a serious matter, solemnity. *If one of these things are missing then no treaty. Two types of treaties: (1) Comprehensive Claim => things yet to be settled. Negotiations the fed govt is currently engaged in; (2) Specific Claim => govt has failed to uphold one of its prior obligations. R v Marshall (No1); Fishing eels out of season, 480 pds, charged with violating the fisheries act, admitted it but claimed a treaty right based on the Treaty of Peace and Friendship => truck houses, restrictive covenant. SCC said that if giving a right to sell stuff, have to be able to get it in the first place; w/out the ability to hunt and gather cant bring commodities to the truck house. Furthermore, if selling it, then selling it for commercial purposes. Said cant be restrictive in it s terms. What is impact of this broad interpretation? Precedent for other industries? Marshall 2: SCC did not reverse their previous decision, but limited and clarified it => rights do not exist in a vacuum, no absolute freedom, can be infringed. Scope of the treaty rights => (1) treaty right is a limited right; (2) paramount regulatory objective is placed on the Minister; (3) Ministers discretion extends to other objectives besides conservation; (4) Aboriginals should be consulted. Marshall 3: aboriginals started logging their territory contrary to their prov logging laws. So although the treaty did not expressly state logging, the aboriginals argued that they had been cutting down trees for various purposes, this did not translate into a logging right; their was not a traditional practice does not translate into a modern practice unlike fishing for eels. There has to be a connection, a logical flow. Extinguish treaty rights Since 1982, only two ways to extinguish: (1) Surrender and (2) Constitutional Amendment. Now equal Bargaining positions? Current Treaties =>Nisgaa Final Agreement. Should the same concession be given to the aboriginal people in modern treaties? Should ambiguity be resolved in favour of the aboriginal people? Both side now are likely in equal bargaining positions (in favour of equal treatment) but fed govt does have a fiduciary duty (in favour of deferential treatment). Self-government The aboriginal right of self-government must exist by virtue of the fact that aboriginal people were living in self-governing communities before the arrival of Europeans. They were governing themselves prior to contact, it is an inherent right. Is aboriginal self-govt protected by s35? Charlottetown Accord recognized it, but was not passed. Look at case of R v Pamajewon: A group in Quebec decide that they were going to have a casino on the reserve, and the laws that govern the casino would be the ones they passed themselves. These laws were contrary to the provs gaming licences, they argued that they had a right to make their own laws. Went to court claiming aboriginal self-govt. SCC didnt say whether it was or was not going to apply. Since aboriginal right to self-govern is actually a right, have to go through the test. Must be decided using Van der Peet test, and as such, aboriginal right of self-government extends only to activities that took place before Euro contact and then only to those activities that were an integral part of the aboriginal society. They did have gambling on the land before contact, but it was the same kind of gambling that occurs now. Self-govt could only be in relation to matters that they had control over prior to contact. The problem with that is

aboriginal self-govt cant be that limited. So aboriginal self-govt rights may or may not exist, and if they do they have to meet Van der Peet. Concern is slippery slope if let them out of criminal act. Aboriginal Title A right to the land itself; actually get the land, not just use of the land: Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies => Delgamuukw. Early Recognition of Aboriginal Title Aboriginal title is a legal right derived from the Indians' historic occupation and possession of their tribal lands => Calder. Dont need a treaty, actually owned the land pre-contact. "Aboriginal Indian title does not depend on treaty, executive order or legislative enactment". Indian interest in the land is inalienable except upon surrender to the Crown => Guerin. The Crown must hold surrendered land for the use and benefit of the surrendering Band => Guerin. Principles of Delgamuukw => (i) Title confers the right to exclusive use and occupation of the land => they can do anything they want on the land, and arent just limited to things that make them distinctive and aboriginal, but there is a limit... (ii) The use cannot be irreconcilable with the nature of the attachment to the land => so if used to hunting on the land cant just bulldoze land make a strip mall on land; (iii) Aboriginal title is inalienable, except to the crown => cannot sell to anybody but the fed govt; (iv) Aboriginal title is communally held => doesnt belong to one single aboriginal, entire tribe owns it, if it doesnt then nobody does. Van Der Peet test is altered for aboriginal title: (i) the land must have been occupied prior to sovereignty (nor prior to European contact bc aboriginal title does not actually vest until sovereignty bc that is when the land reverted to Crown land); (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation (issues with this => oral history is good bc aboriginal history wasnt written down; also occupation can be interrupted and thats ok), and (iii) at sovereignty, that occupation must have been exclusive (had to been able to deny others from using the land).