78025556 foundations of law final

7/30/2019 78025556 Foundations of Law Final

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FOUNDATIONS OF CANADIAN LAW

BASIC THEORIES OF LAW

1. Legal Positivisma. Noble and Wolf- certainty of positivism, and the lack of certainty of relying on public policy and morality

i. Individual lots in the Beach OPines subdivision contained covenant that the lands shall not be sold or

transferred to any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood

ii. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is

best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only

iii. Constitutes a radical departure from established principle to deduce there from any policy of the law which

any be claimed to transcend the paramount public policy that one is not lightly to interfere with the freedom of contract

b. Reflects the belief that law is nothing more than the rules and principles that actually govern society (laws are made byhuman beings)c. Separation between law and morality- the existence of a law is one thing; its merit or demerit is another.

2. Natural law

a. Laws are only those rules which adhere to certain moral truths- external moral standard that holds across allsocieties.b. Natural law does not deny the necessity of positive law, but where positive law contravenes natural law, thecontravening positive law rules are held by natural law theorists not to be true law in the sense that a citizen owes no allegiance tothem

c. Re Drummond Wren [1945]-judge appeals to our moral conscienceLand was restricted by covenant pronouncing that it was not to be sold to Jews or person of objectionable

nationality. Grounds were that the racially restrictive covenant was void against public policy and that it contravened with theRacial Discrimination Act

Courts and eminent judges have warned against inventing new heads of public policy, I do not conceive that Iwould be breaking new ground were I to hold the restrictive covenant impugned in this proceeding to be void against public policy.Quoted from UN Charter and Racial Discrimination Act.

3. Feminist Perspectivesa. A normative theory, seeking to describe how existing laws fail to achieve an external objective.

b. Edwards v AG Canada [1930]- The question at issue in this appeal is whether the words qualified persons in that

section include a woman, and consequently whether women are eligible to be summoned to and become members of the

Senate of Canada. Their lordships are of the opinion that the word persons in s.24 does include women

i. To the object of the Act- namely to provide a constitution for Canada

ii. That the word person is ambiguous and may include members of either sex

iii. There are sections in the Act above referred to which show that in some cases the word person must include

females

iv. That in some sections the words male persons is expressly used

v. Under the Interpretation Act Lordships have come to the conclusion that the word persons includes both

male and female sex

c. Morganteler: Drs. Morgentaler, Smoling and Scott were each charged with conspiracy to procure a miscarriagecontrary to ss.251(1) and 423(1)(d) of the Criminal Code. In this case on the constitutionality of the abortion restrictions, themajority found them unconstitutional on procedural grounds. Justice Wilson, however, wrote a concurring opinion focusing onmuch more feminist topics, such as rights in a wider social context, the female experience, and far more emotional issues

i. Integral part of modern womans struggle to assert her dignity and worth as a human being. The present

legislative scheme for obtaining an abortion asserts that the womans capacity to reproduce is not subject to her own

control

ii. Right to liberty guaranteed under s.7 of the charter gives a woman the right to decide for herself whether or

not to terminate a pregnancy s.251 of the Criminal Code violates the charter

4. Critical Legal Studies


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a. Radical alternative to established legal theories; rejects that there is any kind of natural legal order discoverable by

objective means. Law is not independent or instrumental- it is simply another form of politics.

b. 3 stages governing the application of CLS ideas:

i. Hegemonic consciousness: Western laws are maintained by a system of beliefs that have their foundation ina liberal, market driven economy, which reflect interests of a dominant class

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

iii. Denial: Laws and legal thinking aid in the denial of real truths lead us to cope with vast storeouse ofcontradictions

c. R v R.D.S (SC 1997)

i. A white officer arrested a black 15 year hold who had allegedly interfered with the arrest of another youth.

The youth court judge weighed the evidence and determined that the accused should be acquitted. When delivering her

reasons judge remarked police officers had been known to mislead the court in the past and they were known to overreact

particularly with non white groups. Crown appealed-reasonable apprehension that judge was not impartial between the

crown and the accused?

ii. Requirement for neutrality dos not require judges to discount the very life experiences that may so wellqualify them to preside over disputesJudges must strive to ensure that no word or action during the course of the trial or

in delivering judgement might leave the reasonable, informed person with the impression that an issue was predeterminedor that a question was decided on the basis of stereotypical assumptions or generalizations. Still, although judges shdavoid making comments on generlizations when assessing the credibility of individual witnesses does not automaticallylead to conclusion that reasonable apprehension of bias arose.

iii. Judge benefits from presumption of judicial integrity -- distinction between findings of fact based exclusivelyon personal judicial experience and judicial perceptions of applicable social context, and the findings of fact based onevidence viewed through the lens of personal judicial experience and social context. The latter is proper, the former is not.

iv. Dissent: Our jurisprudence has repeated prohibited the introduction of evidence to show propensity. Therewas no evidence before the trial judge to support the conclusions she reached. The trial judge presumably called upon herlife experiences to decide the issue, which she is not entitled to do. Our jurisprudence prohibits tying credibility tosomething as irrelevant as gender, occupation or perceived group predisposition.

d. Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian Criminal Justice System

i. Charter litigation remains as important means of addressing fundamental injustice

ii. We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at ourborders and in our streets flourishes

iii. The problem is not with the Charter but with those who argue and interpret it - issues such as bail (becauseblacks are more likely to be detained), jury selection (because blacks are less likely to be found on juries), the use ofperemptory challenges and racial profiling, courts have refused to adopt critical race standards or arguments when they

were advanced.

iv. See, e.g.: R. v. Sawyer Sawyer, who is White, was tried together with Galbraith, who is Black, on a chargeof assault. Following the conviction, a juror contacted Sawyer and told him that she had been under undue pressure tocome to a verdict and that certain racial comments were made by other members of the jury. The accused argued thatthe common law jury secrecy rule needed to be altered under section 7 of the Charter to ensure that verdicts were

not tainted by racism. The argument was rejected.

e. Gosselin v Quebec (2002)- it was argued that s7 imposed on government a positive obligation to provide adequatewelfare benefits to those who were without other sources of income.

i. Her challenge was on age discrimination s 15 and on s7 and she failed on both grounds. Court helds.7 hasnot been extended to economic rights nor has it been interpreted as imposing positive obligations on the state to ensurethat each person, enjoyed life, liberty or security of the person.

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ii. Arbour dissent: The evidence demonstrates that the physical and psychological security of young adults wasseverely compromised during the period at issue and that the legislated exclusion of young adults from the full benefits ofthe social assistance regime substantially interfered with their fundamental right to security of the person and perhaps eventheir right to life. Freedom from state interference with bodily or psychological integrity is of little consolation to thosewho are faced with a daily struggle to meet their most basic bodily and psychological needs. In such cases, one canreasonably conclude that positive state action is what is required in order to breathe purpose and meaning into their s. 7guaranteed rights.

5. Law and Economics- efficiency

a. The traditional law and economics approach applies economics methodology to legal rules in order to assess whetherthe rules will result in outcomes that are efficient.

b. The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understandpublic policy. The theory seeks to understand why some government programs seems to run counter to the public good.This theory says that policy makers (e.g. legislators) act in order to maximize political support; they are not necessarilyattempting to maximize social welfare and are motivated by self interest

c. Duncan Estate v Baddeley (Alberta CA 1997)- This case dealt with the issue of how to calculate damages for an estate

arising out of a negligence action for wrongful death. Should future earnings be included or not? While the court did not do

any explicit calculations or economic reasoning, there was a clear subtext that the judge had to consider the wider social-

economic implications of allowing for recovery of future earnings or not. To recognize the capital of the propertied personbut not that of the unpropertied is to make an invidious class distinction. Claim for loss of future earnings survives death of

victim and shd be assessed.

d. Bhadauria v Board of Governors (SC 1981)- public choice theory behind the Court of Appeals decision; the CtAppeals Court recognised, on public policy grounds, a new intentional tort of discrimination under common law. But, atthe Supreme Court level, this idea was rejected this idea of a new economic tort.

i. There is a narrow line between founding a civil cause of action directly upon breach of a statute and as arising

from the statute itself and founding a civil cause of action at common law by reference to policies reflected in the statute

and standards fixed by statute. The Ontario Human Rights Code foreclose any civil action based directly upon a breach

thereof but is also excludes any common law action based on an invocation of the public policy expressed in the Code. The

code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit touse.

6. Private Actors v. Public

a. Hill v Church of Scientology

i. FACTS: Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hillbrought a common law libel action based on allegedly false statements the church made about him

ii. ISSUE: Is the Charter applicable to a private action based on a common law tort? Is the common law tort of

defamation inconsistent with the Charter (s. 2b)?

iii. Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charterright. The party challenging the common law cannot allege that the common law violates a Charter right because, quitesimply, Charter rights do not extend in the absence of state action. The most that the litigant can do is argue that thecommon law is inconsistent with Chartervalues. -and that, when these values are balanced, that the common lawshould be modified.

iv. HELD: Even though private parties owe each other no constitutional duties and cannot found a cause ofaction upon a Charter right, the Court concluded that the common law tort of defamation reflected an appropriate balance

between freedom of expression values and the legislative objectives underlying the law. As such, there was no need toamend or alter the legislation.

b. Societe de lassurance automobile du Quebec v Cyr

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i. Pursuant to s. 520 of the Highway Safety Code (HSC), The Socit de l'assurance automobile du Qubec(SAAQ) entered into a contract with the Centre de vrification mcanique de Montral (CVMM) to carry out themechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as anaccredited mechanic for the purpose of the SAAQ's vehicle inspection program. However, following notices of breach forfailure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked by SAAQ. Cyr andCVMM filed a motion for judicial review of the decision to revoke the accreditation, claiming that it had not been renderedin a manner consistent with the Act respecting administrative justice (AAJ).

ii. Can body will avoid public law duties when delegating its functions by way of contract or other form ofagreement?

iii. No- Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic forthe purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Delegations ofgovernment power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ wasgranting him the authorization to act on its behalf.

7. Rostam Josef Neuwirth, International Law and the Public/Private Law Distinction

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

i. Conflict of laws in its widest sense deals with 3 subjects: jurisdiction, choice of law and recognition offoreign judgments

ii. The body of rules called private international law fulfills a coordinating function between legal orders ofdifferent states, in search for a greater decisional harmony

b. Public international law, or the law of the nations, is defined as the system of law governing the relations betweenstates.

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

enacted gives rise to concern.

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SOURCES OF LAW

8. Common/Civil

a. Bijuralism signifies the co-existence of the English common law and French civil law traditions, within a country

organized along federal lines

b. History in Canada:

i. If a location was conquered or ceded, the local laws would continue to apply, modified only as far as was

necessary to integrate them into the Imperial legal system. For those territories that were simply colonized, the Common

law, as it stood at the time of first settlement, was imported (Cooper v. Stewart)

ii. For settled - rules of reception dictated that the entire body of English law, both statutory and common, was

imported into the settled colony

c. Common and Civil law

i. Common law : Common law is an English invention. It is judge-made law, developed through the common

law courts (as opposed to the Court of Chancery). Two fundamental ideas permeate common law theory: (1) Judges do

not make the law but merely declare it; (2) all the relevant past decisions are considered as evidence of the law, and

judges infer from these precedents what is the true law in a given instance

ii. Civil law : Quebec inherited civil law. Civil law is based on established laws, normally written as broad legal

principles. In civil law countries, legislation is seen as the primary source of law. Judgements normally rely on the

provisions of codes and statutes. Judicial reasoning is based extensively on the general principles of the rule or code. On

the other hand, common law methodology, even where statutory sources of law are present, employs analogical reasoningfrom statutory provisions to fill in gaps.

d. Common v. Civil Law Applicability- St-Hilaire v Canada (A-G)

i. FACTS: The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and asheir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay- public policyrule that no one may profit from his own crime. Applicable law was the law of successions defined in the Civil Code ofQubec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention tocommit the alleged crime and that the offence of manslaughter falls outside this rule. Civil or common law where fedstatute?

ii. Unless indicated otherwise, no document other than the Civil Code shall serve as ordinary law, inprivate law, in the federal legislation applicable to Quebec. Whenever a federal statute that is to be applied to Quebecresorts to a private law concept - Civil Code that supplies the necessary conceptual support for an intelligent application ofthat statute. The civil law is therefore called upon to fill in the lacunae or gaps left by federal law. I do not think there can

be any doubt that this part of the Act, which refers to "succession" without defining it, should be interpreted in Quebec inlight of the civil law.

iii. Civil Code of Qubec recognizes the principle that no one should profit from his or her crime (unworthy ofinheriting from his victim)- policy problems w/allowing manslaughter to inherit- It would be too easy for anyone chargedwith murder to avoid the civil consequences of a conviction for murder by pleading guilty to a reduced charge ofmanslaughter.

e. Operation of Common Law and Precedent

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i. Advantages/benefits : (i) Aids in the stability and coherence of the law, making it more predictable (ii)

Provides fairness in decision making; (iii) Promotes efficiency and eliminates sources of error (such as judicial bias); (iv)

Fulfills a symbolic role by recognizing the relationship between courts and the legislature; (v) Provides some certainty

(liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in

uncertainty of law); (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new

circumstances and the changing needs in society)

ii. Disadvantages/problems : (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to

be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people cant access it);

(iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (Give case

example); (v) Also some intellectual uncertainty (as the law is in constant evolution)

iii. Limitations on Stare Decisis-

1. Distinguishing- Canada Trust v. Ontario HRC (1990)- Allows P to come directly to ct to complain

abt trust which is only avail to Christians of Br. nationality, even though didnt exhaust HRC grounds. This isnt

discrimination case- its trust case HRC doesnt have power to change trust so resort to ct necessary. Question of law- no

facts in dispue, and mechanism under Trustee Act to come to ct.

2. Constitutionalism - Halpern v Canada (AG) (2003) - Exclusion of same-sex couples from

common law definition of marriage breaches ss.2(a) or 15(1) of the Canadian Charter of Rights and Freedoms in a manner

that is not justified in a free and democratic society under s.1 of the Charter? Yes. Sexual orientation is an analogousground that comes under the umbrella of protection in s.15(1) of the Charter.

a. Facts: Seven gay and lesbian couples wanted to celebrate their love and commitment to

each other by getting married in civil ceremonies. The Modernization of Benefits and Obligations Act extends federal

benefits and obligations to all unmarried couples that have cohabited in a conjugal relationship for a year, regardless of

sexual orientation Definition of marriage found at common law-

9. Statute

a. Parliament and provincial legislature are free, however, to enact new statutes to displace common law. Statutory rule

will supersede judge-made rule.

i. Bhadauria v Board of Governors (SC 1981)- Overturned Ct Appeals finding new tort (as evolution of

common law based on public policy against discrimination). Code itself has procedures for vindication of that public

policy, procedures which the plaintiff respondent did not see fit to use- policy embodied in statute. not only does the Code

foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an

invocation of the public policy expressed by the Code.

10. Equity

a. Equitys original function was to provide a corrective to the perceived harshness of the common law. Law as a body of

rules is by its nature concerned with generalities groups or classes of persons and events, rather than individuals and

discrete happenings. Because of this, law sometimes fails to achieve adequate justice in a particular case. Rules of equity

are now applied concurrently in all superior courts, with equity prevailing in cases of conflict. (E.g. specific performance

and injunction.)

b. Equity recently adapted to public law>> fiduciary obligations varying in scope

i. Guerin v. Canada (1984)- Private-like fid duty owed to Indians

1. Band of Indians suing to recover damages from Crown re: leasing of land to golf club. Section 18(1)

of Indian Act that reserves held by Govt for the use of Indian band for which they were set apart. Indian Band is prohibited

from directly transferring interest to 3rd party- any lease can only carried out after surrender- this surrender requirement,

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and responsibility it entails are the source of a distinct fid obligation owed by Crown to Indians to deal with land for

benefit of surrendering Indians.

2. Title is characterized by general inalienability, coupled w/fact that crown must deal w/land on

Indians behalf when interest surrendered. Royal Proclamation of 1763 provided that no private person cd purchase from

Indians any lands that Proclamation reserved to them that all purchases had to be by Crown. So that Indians wouldnt be

exploited.

3. Fid duties generally arise in private law. Crowns obligation is not a public law duty not a private

law duty in strict sense, but it is in the nature of a private law duty. So regard Crown as a fiduciary.

ii. KLB v. BC (2003)

1. Abuse in foster homes did govt. breach fid duty to children?

2. Content of fid duty- Ps say govt must act for best interests of children. Govt. says more narrow

duty- to avoid certain harmful actions that are breach of trus loyalty and disinterest not private fid duty. Cf. aboriginal

duties require govt to use due diligence in advancing particular interests of aboriginals.

3. Here narrow duty b/c statute evices clear intent that kids be in private home environment, eliminates

govt capacity to exercise close supervision in relation to parents day to day conduct. So duty is just conflict of duty andinterest and duty not to profit at expense of beneficiary. No evidence of breach of this duty.

11. International law

a. Treaties (contracts between states who take part in treaty) and

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

1. Otherwise executive wd be able to do an end-run around legis approval and division of powers

ii. Bakerapproach for a treaty to be considered implemented, it must be done so explicitly in the relevantstatute, but can consider as CIL

1. Convention on Rights of Child- never implemented, so Best Interest of Child no direct application

within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual

approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes

(3rd ed. 1994), at p. 330: [T]he legislature is presumed to respect the values and principles enshrined in international law,both customaryd and conventional. These constitute a part of the legal context in which legislation is enacted and read. In

so far as possible, therefore, interpretations that reflect these values and principles are preferred.

iii. Suresh approach - you can use unimplemented treaties to aid interpretation of charter/legislation. UNConvention Against Torture- expressly bars deportation to torture, but since this wasnt implemented in Canadianimmigration law, not applicable. Still, Treaty informed content of Canadian Charter s.7 fundamental justice- barringextraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected bys. 7 of the Charter. but didnt require compliance with it.

iv. De Guzman v Canada (2005) beginning to establish presumption of conformity?

1. FACTS: Ms Gs application to have her sons sponsored for admission to Canada was refused underthe Immigration and Refugee Protection Regulations. Ms G argued that the relevant provision is invalid - inconsistent with

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international human rights instruments to which Canada is a signatory, and which protect the right of families to livetogether and the best interests of children.

2. To conclude that the terms of the IRPA, which have been debated and approved by Parliament, areoverridden by a conflicting international legal instrument to which Canada is signatory does not respect the legislative

process in this country. Only express indication of such a principle by Parliament would allow such an outcome..

3. But In reaching its decision, the Federal Court adopted an unduly limited view of the effect of theburgeoning common law when holding that it was required to consider the international human rights instruments merelyas context when interpreting ambiguous provisions of the immigration law. This view did not take proper account of theexpanding role that the common law has given to international law in the interpretation of domestic law... The words shall

be construed and applied in a manner that complies with are mandatory and appear to direct courts to give theinternational human rights instruments in question more than persuasive or contextual significance in the interpretation ofthe IRPA. determinative of the meaning of the IRPA, in the absence of a clear legislative intent to the contrary.

4. Because the only international instruments relevant to this case are legally binding on Canada, it isnot necessary to decide here the effect of paragraph 3(3)(f) with respect to non-binding international human rightsinstruments[but] I am inclined to think that Parliament intended them to be used as persuasive and contextual factors inthe interpretation of the IRPA, and not as determinative.

b. Customary international law (entrenched norms binding on all states, except those who have repudiated them by

practice)

i. CIL Definition

1. State practice = Constant and uniform usage +

2. Opinion juris = Sense of Legal Obligation. It is the subjective element of customary internationallaw as it refers of beliefs. The other element is state practice, which is more objective as it is readily discernable.

ii. Once a rule becomes recognized as customary law, it is AUTOMATICALLY part of domestic law

. Jus cogens- Norm of general international law that is accepted and recognized by the international communityof states as a whole from which no derogation is permitted (Vs. CIL - allows intra-state genocide).

iv. E.g. Universal Declaration of Human Rights - UN 1948

c. Presumption of Conformity- Brunnee, Jutta & Stephen Toope, A Hesitant Embrace: Baker and the Application ofInternational Law in Canadian Courts:

i. Even when they invoke international law, Canadian courts generally do not give international norms concretelegal effect in individual case- appears to be a trend towards treating all international law, whether custom or treaty,

binding on Canada or not, implemented or unimplemented, in the same manner as relevant and persuasive, but notdeterminative .

ii. Vaguely-implemented treaties- When the purpose of a statute is to implement an international treaty, theCourt must adopt an interpretation consistent with Canadas obligations under the treaty. A court must rely on the treaty to

interpret the statute and on the international rules of treaty interpretation to interpret the treaty and resolve any textualambiguities.

iii. Implicit implementation- Surely there can be implicit implementation, e.g. by way of the Charter.

iv. Unimplemented treaties-If the treaty is in force and Canada has ratified it, the treaty is binding on Canadaas a matter of international law. So presumption of legislative intent to act consistently with Canadas internationalobligations (presumption of conformity). Courts should make every effort to interpret Canadian law so as to conform toCanadas international obligations. Criticizes Baker for basing holding on customary intl law instead of presumptionof conformity for unimplemented treaty.We argue Canadian cts have an obligation to interpret domestic law inconformity with the relevant intl norms as far as possible.

FUNDAMENTAL PRINCIPLES OF CANADIAN LEGAL SYSTEM

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12. Secession Reference constitutionalism, federalism, democracy, protection of minority rights. These principlesinform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based

a. Craik also says: rule of law, parliamentary supremacy, constitutional supremacy, statutory authority (executivepower), judicial independence

b. Reference re Secession of Quebec case confirmed that the Constitution contains unwritten principles, but recognized primacy of our written Const, so unwritten principles can only supplement gaps.

13. Rule of Law

a. Generally

i. Rule of law All government action must comply with the law, including the Consittiton. (Secessionreference)

1. Broader than the concept of constitutionalism, which requires that all government action complywith the Constitution.

ii. Not arbitrary- Roncarelli v Duplessis (1959)- even a fully discretionary power is subject to the rule of law

1. No legislative act can, without express language, be taken to contemplate an unlimited arbitrary

power exercisable for any purpose

2. Discretion necessarily implies good faith in discharging public duty. To deny or revoke a permitbecause a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyondscope of the discretion conferred

3. Facts: General manager of the liquor commission (ordered by Mr. Duplessis as Attorney General

and Prime Minister of the province) revoked license of Montreal restaurant owner who posted bail for Jehovahs Witnesses

b/c he hated Witnesses. Not only revoked existing licence but barred him one forever.

iii. Does not require prospective or being general in character-BC v Imperial Tobacco- manufacturers of

tobacco claimed that legislation enacted which favoured BC government in many respects violated principle of rule of law.

b. Definition (BC v Imperial Tobacco)- Rule of law embraces 3 principles-

i. Law is supreme over officials of the government as well as private individuals (i.e. one law for all)

ii. Rule of law requires the creation and maintenance of an actual order of positive laws which preserves andembodies the more general principle of normative order (i.e. must be positive laws)

iii. Requires that the relationship between the state and the individual be regulated by law

c. But doctrine of necessity - 2nd decision- Reference re Remuneration of Judges of the Prov Court of PEI (1997)

i. Certain statutes created by provincial governments interfered with judicial independence of provincial courts-every person found guilty by a provincial court in one of the relevant provinces while the unconstitutional laws were beingapplied has suffered a breach of his or her s 11(d) rights (right to be heard by an independent and impartial tribunal).The provinces have requested declarations that these decisions cannot be reopened (i.e. they remain valid)

ii. Dont need to be reopened- DOCTRINE OF NECESSITIY: recognizes that in some situations it is better tohave a non-impartial and independent judge to none at all. The doctrine of necessity finds its source in the rule of law: thedoctrine of necessity is applied to prevent a failure of justice. But there are 2 qualifications to the rule: (1) the rule will notapply in circumstances where its application would involve positive and substantial injustice; (2) when the rule does apply,it only applies to the extent that necessity justifies. Like res judicata, the doctrine of necessity recognizes the importance offinality and continuity in the administration of justice. However, these doctrines should be applied rarely, and with greatcircumspection, as both preserve the effects of an unconstitutional law

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14. Constitutional supremacy- Secession Reference (1998)

a. s 52(1) of the Constitution Act, 1982, the Canadian system of government now operates under a principle ofconstitutional supremacy

b. Hierarchy of law: Establishes the foundational law through which the rule of law can occur. The constitution serves

as a law to make law: the ground rules for law making and governance

i. Starting point in assessing the legitimacy of state action is the Constitution- all government action mustcomply with the Constitution

ii. Parliamentary supremacy outdated w/Charter- Principle ofparliamentary supremacy: Canadas federaland provincial legislatures are understood to be the sole sovereign holders of state authority, subject to authority beingdivided between them along the lines set out in ss 91 and 92 of the Constitution Act, 1867. But with the Constitution Act,1982, Canada adopted both a Charter of Rights and Freedoms and an express declaration of constitutional supremacy(which put new limits on the lawmaking ability of either level of legislature). Thus, the concept of parliamentarysupremacy was modified (and constitutional supremacy trumps it). But still in force subject to constitution.

1. Secession Reference: With the adoption of the Charter, the Canadian system of govt wastransformed to a significant extent from a system of Parliamnetary supremacy to one of constitutional supremacy.

iii. Singh v Canada -Parliamentary sovereignty: While the courts must determine the meaning of statutoryprovisions, they do so in the name of seeking out the intention or sovereign will of Parliament, however purposively,contextually or policy-oriented may be the interpretative methods used to attribute such meaning. Both before and after

1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution

c. Counter-majoritarianism: In a system of constitutional supremacy, the power to interpret and enforce theConstitution against majority preferences must be present- Constitutional supremacy represents a check on majoritariandemocracy. So amending beyond the scope of simple majority rule.

i. Otherwise majority might be tempted to ignore fundamental rights in order to accomplish collective goalsmore easily

d. Convention Patriation Reference (1981)

i. Constitutional conventions + constitutional law = total constitution (Patriation Reference)

1. Constitutional conventions are a species of unwritten constitutional norms. The British Constitutionwas understood to include certain conventions that govern the workings and interaction of the branches of the state.Because the Constitution Act 1867 sought to effect a Constitution similar in Principle to that of the UK, Canada inheritedthese conventions.

ii. Three key elements to convention: (1) precedent (2) intent to be bound by the convention & (3) reason for theconvention. (Patriation Reference) can not be enforced by courts since not law

1. Main purpose of constitutional conventions is to ensure that the legal framework of the constitution

will be operated in accordance with the prevailing constitutional values or principles of the period

2. Main reasons why conventional rules cannot be enforced by the courts is that they are generally in

conflict with the legal rules which they postulate and the courts are bound to enforce legal rules

iii. Re: Patriation Reference (1981)

1. Existing convention that a substantial measure of provincial consent is required. Since 1930 all 22amendments affecting the provinces were passed with provincial consent there were no exceptions. Precedent indicatedintent to have consent.

2. Reason- Confirms Canadas federal principle. Federalism cant be reconciled with state of affairswhere modification of provincial legis powers could be obtained by unilateral action of feds cant obtain by simpleresolution that which they could not accomplish by statute.

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3. FACTS: All parties agreed that proposed amended constitution would affect provincial rights andpowers. Opposition of eight provinces to a proposed Resolution containing address to Queen for statute provid ing for thepatriation of theB.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. Conventionally andlegally the consent of all the provinces was required for the address to be forwarded to Her Majesty? Legally provincialconsent was not required. Convention needs substantial measure of provincial consent -here, 8 provinces opposed theamendments. Insufficient provincial support.

e. Establishes the respective relationships between the institutions or branches of the state that perform the functionsnecessary to operationalize law in society

i. Constitutional interpretation cannot be performed by the same body that enacts the ordinary law (i.e. thelegislature). Our system requires that the legislature will be checked by the judiciary with the authority to interpret andapply the Constitution

ii. Separation of powers doctrine- Each branch is defined by its relationship to law: the making of law(legislature); the implementing of law (executive) and the interpreting and applying the law (judiciary)- The parliamentarytradition adopted by Canadas founders gives pre-eminence to the legislative branch, to which the executive is madesubordinate

1. Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) provides for separation of powers

2. Separation not so severe (Secession)

a. Canadian Constitution does not insist on a strict separation of powers. Statutory powerof the Supreme Court of Canada to give advisory opinions (a function not countenanced in systems of true separation of

powers such as the United States not even case or controversy required). (Secession reference)

b. Parliament and the provincial legislatures may confer certain judicial functions on

bodies that are not courts. (Secession reference)

c. Responsible govt- Under a system of responsible government, the ministry is accountableto the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain theconfidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in Parliamentfor the activities of his or her department

3. Delegation to Tribunals allowed, but review

a. Nova Scotia (Workers Comp Bd) v. Martin- tribunals established by legislature (as part ofexec branch) can be entitled to interpret and apply charter.

b. Crevier v. A.G. of Quebec - Professions Tribunal, with exclusive appellate jurisdiction overthe discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunalwere final. SCC overturns, right to judicial review of administrative agencies was constitutionally guaranteed on jurisdictionalissues.

4. Executive power- subordinate to the legislature

a. Executive derives any power it has solely from the laws or statutes passed by thelegislature. That is, the executive must locate any authority it has to act in Canadian society from a statutory source.

b. Legis overlaps with Exec (cabinet from Parliament)

15. Judicial independence

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a. Elemental constitutional doctrine, closely tied to the separation of powers- ensures that judges, as arbiters ofdisputes, are at a complete liberty to decide individual cases on their merits without interference (SCC, Mackin v. NewBrunswick). Federalism requires an impartial arbiter to settle jurisdictional disputes between the federal and provincialorders of government. Remuneration Reference (1997)

i. Babcock v Canada AG [2002]- DOJ lawyers sue for higher pay, ask for documents, govt refuses. SCC

Rejected challenge to S. 39 of Evidence Act, which allows fed govt to withhold cabinet docs from ct proceedings to which

docs are relevant case raises issue of when, if ever, Cabinet confidences must be disclosed in litigation between the

government and private citizens. Cabinet confidentiality is essential to good government. Cites Singh- based onparliamentary sovereignity in the context of unwritten constitutional principles- federal crown privilege is part of fed law

over which Parliament has no power to legislate- rule of law ok with class of documents that are treated differently than

private documents. (Based on long-standing reasons of constitutional principles and responsible govt.)

ii. Singh v Canada - Appellants position is essentially that any limitation on the jurisdiction of judicial bodies,precluding them in certain instances from engaging in the review ofgovernment decisions (not all documents providedto tribunal), is a violation of a constitutionally guaranteed independence of the judiciary. Here, Section 39 in no wayinterferes with the security of tenure, the financial security, or the administrative independence of judges as dealt distinguishable from Valente v. The Queen.

b. Guaranteed under 11(d) but recognizes unwritten- Ref re Independence and Impartiality of Judges of the Prov. Courtof PEI (1997)

i. Unwritten principle of judicial independence in Const - could have the effect of invalidating statutes thatreduced judicial comp (even though independence explicitly guaranteed in s.99 of BNA to superior courts), Ct requiredelaborate procedures be followed to remove a judge and even to set salaries.

ii. Reasoning: Independence necessary to maintain public confidence that justice will be done in individualcases, and that rule of law will be maintained. relationship between the judiciary and other branches of government must bedepoliticized so courts both be free and appear to be free from political interference through economic manipulation bythe other branches of government.

FACTS: A statute decreased provincial court justices salaries b/c of a provincial deficit. Concern that thiseroded judicial independence guaranteed under s 11(1)(d) of Charter. Held- Judicial salaries can be reduced, so long as (1)economic manipulation occurs through an independent body, combined with a judicial compensation commission (between thejudiciary and other branches of government) that would depoliticize the process. (2) No negotiations on judicial remuneration b/wthe judiciary and the executive/legislature. (3) Judicial salaries may not fall below a minimum level. Here, didnt happen so breachof section 11(d) of the Charter of Rights. As well as unwritten rule.

c. Scope of Independence

i. Core characteristics of judicial independence include: security of tenure, financial security and administrativeindependence. 2 dimensions of judicial independence for financial and security: individual (i.e. of the judge) andinstitutional/collective (i.e. of the court or tribunal of which that judge is a member). Ref re Independence and Impartiality

of Judges of the Prov. Court of PEI (1997)

. Security1. Individual security of tenure means that judges may not be dismissed until the age of retirementexcept breaches of good behaviour, which have been interpreted to include misconduct or disability.2. Institutional security of tenure means that, before a judge may be removed for cause, there must be ajudicial inquiry to establish that such cause exists, at which the judge affected must be afforded the opportunity to be heard3. Judges Act establishes the Canadian Judicial Council as the body responsible for investigatingcomplaints about the conduct of federally appointed judges. If the Council concludes that removal of a judge is warranted, it makesa report to the minister of justice, who may introduce a motion before Parliament.

. Financial

. Admin independence

1. Requires that courts themselves have control over the administrative decisions that bear directly on

the exercise of the judicial function . Canada v Tobiass (where SCC concluded that at least the appearance of independence wastransgressed)

16. Federalism

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a. Reference re Secession of Quebec- In interpreting our Constitution, the courts have always been concerned with thefederalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been thelodestar by which the courts have been guided.

i. Described federalism as a means of recognizing regional cultural diversity at the founding of Canada,particularly w/ respect to the distinct nature of Quebec as predominantly a French-speaking society. Notes experience ofCanada East and Canada West had been bad under the Union Act (1840)- new Const structure enabled French-speakingCanadians to form numerical majority in Quebec .

b. Hodge v. Queen (1883)- national and provincial legislatures were coordinate authorities with equal sovereign statusderived from Const.

17. Democracy (Secession Reference)

a. The democracy principle can best be understood as a sort of baseline against which the framers of our Constitution,and subsequently, our elected representatives under it, have always operated. . . Democracy is commonly understood as

being a political system of majority rule. Democracy encompasses a number of values, including: respect for the inherentdignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs,respect for cultural and group identity, and faith in social and political institutions which enhance the participation ofindividuals and groups in society.

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BASIC ARCHITECTURE OF THE CANADIAN LEGAL SYSTEM

1. Parliament Structure

a. Section 17 of the Constitution Act, 1867 creates a parliament of Canada consisting of the queen, and Upper housestyled the Senate, and the House of Commons

i. Queen is essentially Canadas head of state. Governor general, in practice, exercises Queens powers.Monarch appoints gov-general on the ADVICE of the PM (a constitutional convention).

ii. Also appears in executive

b. Senate

i. Canada has an unelectedupper chambers of the federal legislature; the Constitution expressly anticipates the

appointment of senators by the governor general (see s 24 of the Constitution Act 1867)

ii. Governor general follows the advice of the PM, as required by constitutional convention.

c. House of Commons

i. Conventions- After an election, the party with the most elected representatives usually becomes thegoverning party. The leader of this party becomes the PM, and chooses people to head the various governmentdepartments

d. General

i. Summoning: the calling of Parliament.

ii. Prorogation: once summoned, a given Parliament is generally divided into several sessions, separated by a

prorogation. A prorogation is the prerogative of the governor general, acting on the advice of the PM.

iii. Section 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least

once every 12 months (i.e. Parliament cannot be entirely sidelined)

iv. Dissolution: the dissolution of Parliament prompts a new electoral cycle, governed by the Canada Elections

Act. The Constitution Act, 1867 (s 5), and the Charter (s 4(1)) limit the duration of a Commons to 5 years, except in times

of war or insurrection. (Note that the PM must resign or seek parliamentary dissolution after a no confidence vote, as a

matter of constitutional convention)

2. Parliamentary Operations and Law

a. Scope of Power

Parliament is free to pass careless or bad laws, so long as it sticks within its Constitutional mandate (see

Bacon v Saskatchewan Crop Insurance, where the applicant failed in using the rule of law principle in an attempt to challenge anallegedly bad law).

Even if Parliament is tricked into passing a law by the executive, that alone is insufficient for a court to strike

it down; such an issue is not justiciable (see Turner v Canada).E.g. it has been held that there can be expropriation of property without compensation, so long legislation

makes such an intent clear (Authorson v Canada)

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b. Parliamentary Privileges - Houses of Parliament and the provincial legislative assemblies posses a set of powersand privileges that are necessary to their capacity to function as legislative bodies. (New Brunswick)

Privilege in this context usually means legal exemption from some duty, burden etc to which others are

subject. See Canada v Vaidfor an outline of the scope of parliamentary privilege; in this case, the dismissing of a chauffeur wasnot considered part of parliamentary immunity)

ii. Preamble to the Constitution Act, 1867- speaks of Parliament possessing parliamentary privileges, and

so doeas the Parliament of Canada Act.

New BrunswickBroadcasting Co. v Nova Scotia (1993) - unwritten doctrine parliamentary privilege

should be included in the s52(2) definition of Const. even though no mention of it. Strangers were excluded from the NovaScotia legislative assembly. Also includes freedom of speech in debate, including from legal proceedings for things said in debates.

It also includes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or theLegislature is in Session.

1. Does not include all internal affairs of employees of House chauffer of Speaker alleged that hedbeen constructively discharged on grounds forbidden by Human Rights Act, SCC denied Parliaments position that they wereinternal affairs of Parliament SCC held didnt fulfill test of necessity

2. Powers authorized by parliamentary privilege are not subject to the Charter Rights.3. The courts decision means the definition can be expanded.

Privilege reflects and enforces the separation of powers, specifically the separation between

Parliament/legislatures and courts

c. Standing orders internal operations. Statute relating to its internal procedure, as well as to determine the contents of such things as Standing

Orders on Procedure, without court intervention.. Standing orders are rules of procedure adopted by at least a simple majority vote of the members of theCommons. Standing orders constitute a fairly comprehensive code of Commons operations, including in relation to Commons lawmaking

d. Public bills:. Goes through 9 stages, the second reading being the most important stage (it is then that the principle andobject of the bill are debated/accepted/rejected; three types of amendments may be proposed at this stage)

. A bill becomes law when it receives Royal Assent. For Royal Assent to be given, the bill has to be passed inthe same form by both Houses (i.e. the Senate and House of Commons).

e. Private bills. A bill designed to exempt an individual or group of individuals from the application of the law is a private

bill. Private bills are subject to special rules in both Houses of Parliament, however, most private bills originate in the Senate wherethe fees and charges imposed on the promoter are less

. They are introduced by means of a petition signed by the interested parties and presented in the House by aMember who has agreed to sponsor it

3. Executive Brancha. Generally

. Notwithstanding the absence of a rigid separation of powers doctrine in Canada, it is still useful to speakabout a distinct executive branch of government

. A clear set of legal principles governing the boundaries of executive powers and manner by which executivepowers are to be exercised has been developed (namely administrative law)

b. Definition

The Crown: The entire authority of the executive branch is vested in the monarchy. Thus, the Crown is the

formal legal entity of the government, and the Crown is the bearer of both legal rights and obligations (s9 BNA)

1. The governor general is to exercise all powers and authorities lawfully belonging to the monarch inrespect of Canada - by constitutional convention these appointments are now made on the advice of the PM, who the Queen mustfollow

Prime Minister and the Cabinet

1. Ministers and the prime minister together comprise the ministry (which is used interchangeably withthe word cabinet). It is the prime minister who presides over the Cabinet

2. Responsible govt- Under a system of responsible government, the ministry is accountable to thelegislative branch both collectively and individually. Collective responsibility requires that the ministry maintain theconfidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in Parliament

for the activities of his or her department

Public Service - politically neutral

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. Administrative Agencies

1. Ocean Port Hotelcase draws the distinction between independence required by courts and thatrequired by admin bodies that are adjudicative. It is Parliament/legislatures that determines, by way of statute, the independencerequired by admin bodies.

. Crown corporations

1. Administrative bodies that have a legal personality separate from the government.2. Purpose of creating Crown corporations is that they may be useful where there is a strongcommercial aspect to the governmental service, which may require decisions to be made free from political influences that mayunduly interfere with the commercial objectives.

. Municipalities

1. Municipalities, which are created under provincial legislation, deliver a wide range of publicservices, such as the provision of road, sewer and water services

. Enforcement bodies: Police and Prosecutors

c. Sources of executive power

Prerogative powers - exercisable by the Crown that do not arise from a statutory grant of power to the Crown

1. Powers can be overridden by statute

Statutory powers

1. Majority of executive powers originate from a delegation of authority by the legislature by statute2. Legislatures can delegate power to executive, but cannot abdicate their power (seeRe Gray re:delegation of war time powers)

Delegated powers

1. Types

a. Rule making (i.e. delegated legislation). Benefits: Statutory process is much morecumbersome and time consuming than the process for enacting regulations (readjustment for range of circs); expertise.

. Most pervasive form of admin rule making is the regulation making power that isdelegated to the Cabinet through the governor in council; but admin rule making isnt restricted to this formb. Dispute resolutionc. Benefit or obligation determinationd. Enforcement decisionse. Other Issues

2. Substantive Ultra Vires- Can only exercise the powers granted by the enabling statute

3. Fairness duties

4. Judiciarya. S.96 provides that the federal exec shall appoint justices of the countrys superior, county and district courts (s.96).Provinces-establish these courts in their respective jurisdiction (s.92-14).

i. Federal Courts Act- trial level federal ct of Canada

ii. Supreme Court Act (1875)- created Sup Ct

b. Payment/Appt

i. Fed govt appoints and pays the salaries of provincialsuperior courtjudges

1. Federal appointments are made by the governor general, acting on the advice of the federal Cabinet.

A recommendation is made to Cabinet by the Minister of Justice; that recommendation is made from amongst the names

which have been previously reported by the committees to the Minister The recommendation for appointment as a judge is

made to Cabinet by the minister of justice, who has been advised by the judicial advisory committee

2. SCC judges normally appointed by governor in council

ii. Provinces appoint and pay the salaries ofprovincialcourtjudges

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c. Structure. First level is the provincial/territorial courts, which every province/territory has except Nunavut (there, thereis no territorial courtmatters that would normally be heard at that level are heard by the Nunavut Court of Justice, which is asuperior court)

. Second level is provincial/territorial superior courts (s 96 courts) (except for Nunavut, where the NunavutCourt of Justice deals with both territorial and superior court matters)1. Provincial appointments- Basic model is built on an advisory committee made up of a mixture of members from the legal community and laypersons, which makes recommendations to the provincial attorney general

. Third level is courts of appeal

. The highest level is the supreme court of Canada

d. Role of Judicial Review

i. JI is richly a constitutional concept; e.g. sections 96 to 100 of the Constitutional Act, 1867 provide for the

appointment, security of tenure and remuneration of federally appointed judges [Note: these provisions only apply to

superior courts]

ii. Constitutional Law Jurisdiction- role for an adjudicative institution to rule whether ordinary legislation has

violated the limits on legislative powers set by the constitution. Principle of Constitutional Supremacy presupposes role for

cts.

1. Federalism requires an impartial arbiter to settle jurisdictional disputes between the federal and

provincial orders of government. Remuneration Reference (1997)

2. Charter- s.52

iii. Administrative Law Jurisdiction- supervisory jurisdiction with respect to exercises of executive government

authority. Judicial review of exec power is hallmark of s. 96 jurix. (Admin-Crevier)

e. Limitations of judicial review

i. Justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial

determination.

1. Operation Dismantle v The Queen (1985) Americans testing cruise missiles in Canada, s.7challenge- cruise missile increases the risk of nuclear war. Court held it was ok to consider- no doctrine of political questions inCanadian constitutional law. If what we are being asked to do is to decide whether any particular act of the executive violates therights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the charter to do so, butcausal link between the actions of the Canadian government, and the alleged violation of the appellants rights under the Charter issimply too uncertain, speculative and hypothetical to sustain a cause of action

ii. Enforcement: Cts normally have to rely on the executive and legislative branches of government for the

enforcement of their decisions.

1. InDoucet Boudreau v NS, the issue of court usurping executive function arose (where the court

ordered the government of Nova Scotia to use its best efforts to build a French Language school to comply with its duties

under the Charter (minority language rights). Periodic reports on its progress was also ordered [How close is this to the

judiciary usurping the role of the executive?]

2. Reference re Language RightsUnder s 23 of Manitoba Act, 1870 (SC, 1985): But In 1890 , the

Manitoba Legislature enacted the Official languages Act which provided English Language only in records and journals

of the Legislature and in the pleadings and process in the Manitoba courts. Courts held that Manitobas Official Languages

Act was unconstitutional 4 times- but legislature didnt respond. Re Manitoba Language Rights (1985) SCC confirmed

that the failure to comply with s 23 requirement resulted in the invalidity of the purported statue. To conform with rule of

law, Court decided on a drastic remedy namely allowing the invalid acts to remain law until statutes were translated. The

constitution will not suffer a province without laws- avoiding a legal vacuum in Manitoba and ensuring the continuity of

the rule of law

3.

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iii. Legitimacy: A more prominent concern is that judges have to interpret vague statements in the Constitution;

when judges give concrete shape to vague ideas set out in the Charter for example, and then invalidate laws that do not

conform to their interpretation of these requirements, the rule of law may subtly be transformed into the rule of unelected

judges.

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RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE

1) Fed Power

a. Constitution Act, 1867, s.91(24) - confers power upon the federal Parliament the power to make law in relation to Indians, andlands reserved for the Indians.

i. Federal govt has taken a broad view incl matters otherwise outside its legislative competence:

1. e.g. Indian Act- provisions that govern: succession to the property of deceased Indians, administration of property of

mentally incompetent Indians and infant Indians

2. Are they in pith and substance in relations to Indians? Lysyk-doubts as to the validity of the Indian Acts forays into thelaw of property.

b. Power over Indians

i. Reserved for only Indians where they reside on, or have any connection with, lands reserved for Indians.)

ii. Federal Indian Act - defines the term Indian /establishes a register to record names/ and persons within this statutorydefinition are known as Status Indians. They can enjoy the right to live on Indian reserves.

1. Non-Status Indians some persons with Indian Blood and Culture-who are outside the definition. Metis People(French/Indian) outside reserve system most likely Indians Under s 91(24) & The Inuit or Eskimo people- are outsidereserve system but held to be Indians within the meaning of s91(24)

2. R v Powley- Courts lays down 3 indicia of Metis people

(a) FACTS: P charged with unlawfully hunting moose; P argues that, as Metis, theyhave an aboriginal right to hunt for food in the Sault Ste Marie area

(i) (1) Self-identification

(ii) (2) Ancestral connection

(iii)(3) Community acceptance

c. Power overlands reserved for Indians

1. Maybe exercised in respect of Indians and Non Indians so long as the law is related to lands reserved for the Indians.

2. St Catherines Milling and Lumber Co v the Queen (1889) - The title of the provincial crown is subject to theaboriginal rights of the Indians and of those rights along with other matters pertaining to the control and administration ofthe reserves are subject to the legislative authority of the federal government.

3. Delgamuukw v B.C. (1997)- the SCC went even further holding the phrase extends to all lands held pursuant toaboriginal title. For that reason, only the federal Parliament had the power to extinguish aboriginal title. Includes hugearea of land recognized by the Royal Proclamation 1763. This is all land within the territory covered by the proclamationthat was in possession of the Indians and that had not been covered by the crown.

d. Provincial Laws

i. General rule is that provincial laws apply to Indians and lands reserved for the Indians.

1. R v Hill (1907)- Ont. Court of appeal held that a provincial law confining the practice of medicine to qualifiedphysicians applied to Indians: an Indian was convicted of the offence of the unauthorized practice of medicine. ( not onreserve but it didnt matter)

2. Four B Manufacturing v United Garment Workers( 1979) The SCC held that that provincial labour law applied toshoe manufacturing business which was located on a reserve, which was owed ( through a corporation) by Indians, whichemployed manily Indians and which had been funded by the Department of Indian Affairs.

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3. R v Francis- (SC 1988)- the court held that a provincial traffic laws applied to an Indian who had been driving a vehicleon a reserve.

ii. Five Exceptions

1. A) Singling OutA provincial law that singles out Indians or Indian reserves for special treatment would run the risk ofbeing classified as a law in relation to Indians or Indian reserves and if so classified, the law would be invalid. R vSutherland [1980]

2. B) Indianness - basically anything that affects status or capacity- Kruger and Manuel v The Queen [1978]

3. C) Paramouncty- If a provincial law is inconsistent with a provision of the Indian act (or any other federal law) theprovincial law is rendered inoperative by the doctrine of federal paramountcy.

4. D) Natural Resource Agreement- Provincial laws cannot deprive Indians the right to take game and fish for food. TheNRA is part of the Constitution of Canada.

5. E) Section 35 has protected treaty rights.

2) Aboriginal Rights

a. Royal Proclamation of 1763, which reserved to the Crown the exclusive right to negotiate cessions of Aboriginal titlei. Aboriginal people were not to be "molested or disturbed" on their landsii. Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians".

Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown.iii. The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but

retaining their own internal political authority.iv. It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British

settlement-divide and share sovereign rights to the lands that are now Canada.

b. Constitution Act, 1982, s.35

i. Elevated existing common law aboriginal rights to constitutional status

1. 1 - The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

2. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

3. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreementsor may be so acquired

4. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) areguaranteed equally to male and female persons

ii. S.25- Charter doesnt detract from existing rts.

iii. Charter Challenges under S.15

1. Corbiere v Canada (1999)- the SCC struck down a provision of the Indian Act that made residence on the reserve arequirement for voting in band elections. Held: That the distinction between Indians who lived on the reserve( an couldvote) and Indians who lived off the reserve was a breach of s 15.

2. Lovelace v Ontario ( 2000)The SCC rejected a challenge to the distinction of the Casino Rama gambling profits thatwas limited to communities registered as bands under the Indian Act. The court held that the exclusion of non status

bands from the distribution of the profits was not a breach of s15.

c. Scope of Rights enforceable at c/l or s.35, protected by govt. fiduciary

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1. R v Van der Peet (1996): Definition of Rights w/I s .35

(a) Aboriginal rights not held by virtue of Crown grant, legislation or treaty but b/c the doctrine of aboriginal rightsexists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in NorthAmerica, aboriginal peoples were already here, living in communities on the land, and participating in distinctivecultures, as they had done for centuries..

(i) by reason of the fact that aboriginal peoples were once independent, self governing entities in possession ofmost of the lands now making up Canada.

(b) To identify an existing aboriginal right within the meaning of s35 of the Constitutional Act 1982.: identifying thecrucial elements of those pre-existing distinctive societies. Test - In order to be an aboriginal right an activitymust be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group

asserting the right.

(i) In order for the practice to be integral, the practice, custom or tradition must be of central significance to theaboriginal society : it must be a defining characteristic of the society, one of the things that made the culture ofthe society distinctive. (Not incidental to another practice.)

(ii) The practice must have been developed before contact that is, before the arrival of Europeans in NorthAmerica

1. cf. R v Powley ( 2003)- Held- for Metis claimants of aboriginal rights, the focus on European contact hadto be moved forward, not to the time of European sovereignty, but to the time of effective Europeancontrol. The focus should be on the period after a particular Mtis community arose and before it cameunder the effective political and legal control of European laws and customs in a particular area.

(iii)The practice can evolve over the years as the result of contact- ( ie bone hook-metal hook & bow and arrow-gun) but Do not qualify- contemporary practices that developed solely as a response to European influencesdo not qualify. See harvesting timber below.

(iv) the existence of an aboriginal right will depend entirely on the practices, customs and traditions of theparticular aboriginal community claiming the right

(c) Facts: Van der Peet- defendant had been convicted of catching and selling fish that she had caught under theauthority of a Indian food-fish license. The court held that fishing for food was part of the Sto:lo society as well withthe exchange of fish, but selling the fish was not an integral part of the Stolo culture. The exchange of fish took

place, but was not a central, significant or defining feature of Sto:lo society. No right to sell. Conviction upheld.

2. Sparrow-type obligations (rights) arise when the Crown must respect constitutionally protected Aboriginal or treatyrights and justify interferences with those rights no extinguishing rights(a) R v Sparrow ( 1990) The SCC unanimously recognized the aboriginal right of a member of the Musqueam Indian

Band to fish for salmon in the Fraser River. where his ancestors had fished from time immemorial

(i) The defendant had been charged with the violation of the federal Fisheries Act and because the charge related tofacts occurring after 1982 he was able to invoke the s35 of the Constitution Act 1982.

(ii) Held- That s35 did provide constitutional protection for the aboriginal right (existing language required that rthad to exist at time of 1982, not extinguished rights) -- gives a measure of control over government conduct anda strong check on legislative power. Court refused to imply an extinguishment from the admittedlyextensive regulatory control of the Fisheries Act b/c only if the intention to extinguish was clear and plain.The government is required to bear the burden of justifying any legislation that has some negative effect on anyaboriginal right protected under s. 35(1)- but s35 rights are subject to regulation by federal laws, provided thatthe laws meet a standard of justification.

(iii) Standard of justification test:

1. Is there a valid legislative objective that is compelling and substantial? Is the regulation sought to beimposed required to complete that objective?

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2. Consider the special fiduciary relationship and responsibility of government vis a vis aboriginals. Ask: isthe limitation unreasonable?

a. Fiduciary been interpreted as (Delgamuukw v British Columbia)

i. idea of priority, namely that aboriginal demands should be placed first; but this does not demandthat aboriginal rights always be given priority.

ii. whether there has been as little infringement as possible in order to effect the desired result;

iii. whether, in a situation of expropriation, fair compensation is available;

iv. whether the aboriginal group in question has been consulted with respect to the conservationmeasures being implemented)

(b) Ct enlarged the fiduciary duty the Government has the responsibility to act in a fiduciary capacity.

(i) R v Sparrow, which was the Courts first s 35 decision, extended scope of the relationship- the generalguiding principle for section 35 is that the Government has the responsibility to act in a fiduciary capacitywith respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, ratherthan adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light ofthis historic relationship;

(ii) "the honour of the Crown is at stake in dealings with aboriginal peoples (7)The special trust relationship and theresponsibility of the government vis--vis aboriginals must be the first consideration in determining whether the[infringing] legislation or action in question can be justified;

(iii) [t]he justificatory standard to be met may place a heavy burden on the Crown, while inquiries such as whetherthe infringement has been minimal, whether fair compensation has been available, and whether the affectedAboriginal group has been consulted may also be included in the justification test(8)

3. Other Rights:

(a) Not Selling fish: R v. NTC Smokehouse rights not established The practice of of exchanging fish was notsufficiently central to the aboriginal culture to qualify as an aboriginal right .

(b) Yes - Hunting/fishing on non-title lands: Rights to particular activities such as hunting, fishing and harvesting mayalso exist on land to which the aboriginal people do not have title to. ( Fishing- R v Adams [1996])

(c) Yes- harvesting timber, even if originally for survival purposes. R v Sappier(Even though a practice may havebeen undertaken for survival purposes, it can still be considered integral to an Aboriginal communitys distinctiveculture)(i) FACTS: Charged w/ unlawful possession or cutting of Crown timber to build permanent home ok? In

defence, they say they possess an aboriginal and treaty right to harvest timber for personal use.In the presentcases, the relevant practice for the purposes of the Van der Peettest is harvesting wood. The record shows thatwood was used to fulfil the communities domestic needs for such things as temporary shelter, transportation,tools and fuel. I would therefore characterize the respondents claim as a right to harvest wood for domestic usesas a member of the aboriginal community.

(ii) Evidence established that the wood was critically important to the Maliseet and MiKmaq people pre-contact,evolved into modern right to harvest wood by modern means to construct permanent dwelling. Further, even

though the practice may have been undertaken for survival purposes, it can still be considered integral toan Aboriginal communitys distinctive culture

(iii) Continuity: Although the nature of thepractice which founds the aboriginal right claim must be considered inthe context of the pre-contact distinctive culture of the particular aboriginal community, the nature of the rightmust be determined in light of present-day circumstances; logical evolution means the same sort of

activity, carried on in the modern economy by modern means . So, the right to harvest wood for theconstruction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to

be used in the construction of a modern dwelling. Any other conclusion would freeze the right in its pre-contact form.

(d) Yes- hunting in Sault Ste. Marie - R. v. Powley-Mtis community enjoy a constitutionally protected right to huntfor food under s. 35. The practice of subsistence hunting and fishing was a constant in the Mtis community, eventhough the availability of particular species might have waxed and waned. The evidence indicates that subsistence

hunting was an important aspect of Mtis life and a defining feature of their special relationship to the land.Evidence supports the trial judges finding that hunting for food was integral to the Mtis way of life at Sault Ste.Marie in the period just prior to 1850 (which meets the modified time frame test)

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(i) The main justification advanced by the appellant is that of conservation. Although conservation is clearly a veryimportant concern, we agree with the trial judge that the record here does not support this justification.

(ii) Legislation is invalid

4. Extinguishments of Aboriginal Rights

(a) by surrender (must be voluntary and to the Crown) R v Howard [1994

(b) by constitutional amendment R v Horseman [1990]

(c) legislation w/ clear and plain intention to extinguish aboriginal rights (Sparrow)

3) Aboriginal Title

1. Exclusive occupation of land, which permits the aboriginal owners to use the land in a variety of purposes. It wouldobviously permit the owners to hunt fish and harvest their lands .

(a) Aboriginal title vs non-aboriginal title

(i) Source of aboriginal title- derives from pre sovereignty occupation rather than post sovereignty grant from the

crown.

(ii) Range of uses to which aboriginal title land may be put.

(iii) Aboriginal title is inalienable, except to the Crown. The Crown has to act as an immediatry between theaboriginal owners and third parties. To pass to third parties, the aboriginals must surrender the land to Crown.

(iv) Aboriginal title can only be held communally.

(v) Aboriginal title is constitutionally protected.

2. Guerin-type obligations fiduciary w/r/t/ land - arise in situations where the Crown has a duty to act in the interests ofan Aboriginal group

(a) Guerin v The Queen (1984) . SCC recognized that the aboriginal title of Musqueam Indian Band to land in BC. alegal right derived from the Indians historic occupation and possession of their tribal lands. Aboriginal rights thathave not been extinguished are recognized by the common law and are enforceable by the courts

(i) Fiduciary duty: The aboriginal title to the land gave rise to a fiduciary duty on the part of the crown to dealwith the land for the benefit of the surrendering Indians.

1. The fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement,outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown; thisrequirement, which places the Crown between the Aboriginal group and third parties to preventexploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation intoa fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group;

(ii) Held- This fiduciary duty had been broken and awarded damages to the Band for lease of reservation land togolf club - $10mm.

3. Delgamuukw v British Columbia (1997) proceedings for a declaration that they had aboriginal title and selfgovernment right over a territory in northern B.C. The SCC did not grant the declaration sought and ordered a new trial.

(a) Test for Aboriginal Title

1. The land must have been occupied prior to sovereignty (Not prior to contact)

2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuitybetween present and pre-sovereignty occupation.

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3. At sovereignty, that occupation must have been exclusive

(b) Source: Aboriginal title is a common law interest in land - arises from the prior occupation of Canada by aboriginalpeoples; what makes aboriginal title sui generis is that it arises from possession before the assertion of Britishsovereignty.

1. Aboriginal title at common law is protected in full form under s.35(1)

(c) Scope: Aboriginal title encompasses the right to (1) exclusive use and occupation of the land held pursuant to thattitle for a variety of purposes doesnt have to be for aboriginal practices, custom and traditions. But its not feesimple(2) use must not be irreconcilable with the nature of the groups attachment to that land

1. E.g. occupation of land for hunting cant use it to destroy value for such a use (e.g. for strip mining)

2. held communally ,

3. May not be alienated- Other than Crown. Alienation would bring to an end the entitlement of theaboriginal people to occupy the land and would terminate their relationship with it

i. Extinguish: If aboriginal peoples wish to use their lands in way that aboriginal titles does not

permit, then they must surrender those lands and convert them in to non title lands to do so canexchange for non-aboriginal land in exahnge for fair consideration from Crown.

ii. The relevance of the continuity of the relationship of an aboriginal community with its land is thatit applies not only to the past but to the future as well as a result, uses of the land that wouldthreaten that future relationship are, by their very nature, excluded from aboriginal title

(d) Evidentiary Proof oral histories ok.

(e) Limitation: Rights may be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., Ct) governments.However, s. 35(1) requires that those infringements satisfy the test of justification.

4. Haida Nation v BC- duty to consultwhen the Crown (or province) has knowledge, real or constructive, of the potentialexistence of the Aboriginal right or title and contemplates conduct that might adversely affect it (esp. where aboriginalinterests are in the process of being proved), scope of the duty is proportionate to a preliminary assessment of thestrength of the case

(i) Duty to consult and accommodate- duty grounded in honour of the Crown, and embodied in s.35: In all itsdealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and theimplementation of treaties, the Crown must act honourably- requires that these rights be determined, recognizedand respected. Content of the duty varied with the circumstances - but may require it to consult and, wherereasonable, accommodate Aboriginal interests.

(ii) Scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting theexistence of the right or title, and to the seriousness of the potentially adverse effect upon the right or titleclaimed. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation

1. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or thepotential for infringement minor. In such cases, the only duty on the Crown may be to give notice, discloseinformation, and discuss any issues raised in response to the notice. At the other end of the spectrum liecases where a strongprima facie case for the claim is established, the right and potential infringement is ofhigh significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such casesdeep consultation, aimed at finding a satisfactory interim solution, may be required

2. Duty doesnt extend to 3d party

(iii)FACTS: This brings us to the issue before this Court. The government holds legal title to the land. Exercisingthat legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land (which issubject to a land title claim by the Haida people)- Haida people have not proven title to land. Govt duty toconsult??

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1. Held- The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests whereclaims affecting these interests are being seriously pursued in the process of treaty negotiation and proof even before final detrmination.

4) Aboriginal Self Government

a. Paramountcy of aboriginal law vs. provincial/federal?

i. Should be resolved by the Sparrow test.

b. Slatttery-The aboriginal right of self government must exist because aboriginal people wereliving in self government communities before the arrival of Europeans.

c. R v Pamajewon (1996) the aboriginal right to self government extends only to activities that took place beforeEuropean contact and only those activities that were an integral part of the aboriginal society.

1. SCC rejected a

78025556 foundations of law final

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