public long summary

8/7/2019 Public Long Summary

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#General

1. What is “law”?

• Forcese: “Law consists of rules of action or conduct that restrict

and direct when and how power can be exercised”

2. Why do we have “law”?

• To exist in societies• To better marshal scare resources to fulfil wants and needs

(Economies of scale and scope)• Why do we need law for societies?

• To facilitate the pooling of effort based on sharedincentives rather than the application of coercive force(with law you have cooperation instead of coercion)

• Ensures that human effort is governed by something otherthan raw power• No law = no rules governing how we are to conduct

ourselves in relation to others in society

3. How do we create “law”?

• We create political institutions to give us law• More specifically:

• Positive law is created by political institutions for thecourts àaffirmative rules given to us by political institutions

• Positive law à Domestic law à Substantive law à Public Lawà Con Law and Admin Law

4. Why do we have constitutional law?

• To provide laws for the law-givers in order to insure that thosepolitical institutions that give us law survive desirable standards• Historically: The Magna Carta = constraining the sphere of the

king’s de facto power– Notion that the King could also be bound by the law, that

the law is more than what the King says it is– Origin of the concept of the Rule of Law: even the most

powerful are bound by the Rule of Law• In Cdn context, the Constitution (in written and unwritten form)

acts as this constraint though:– BNA 1867:

1. Division of powers2. Separation of powers3. Set up political structures (legislature, executive, judicial



branch)– Charter 1982: further limited power of all branches of govt

5. Why Courts?

• Courts perform 3 important functions:1. Enforce the law introduced by political institutions

• Precedent• Statutes and Regulations

2. Help develop the law• CML precedent (see above)

3. Enforce the constitution



Unwritten Rules for Law Givers

Overview of Written and Unwritten Constitution:

• Most of the potent limiters on exec or leg powers are in the form of the written C – The Charter is written down.

• It is not always the case that principles of C law are written down.Some are derived from courts own experience of CML law making.

– These are unwritten principles.• Our C is a mix of not just written norms and propositions but also

unwritten doctrines, some of which are of high legal significanceand very limiting. Taken together, the written and the unwrittenhave the effect of constraining political institutions.

Origin of the Unwritten Rules for Law Givers

• Nothing in BNAA talks about responsible gov• Unwritten come from the preamble• No mention of PM or Cabinet (person securing the confidence of

House of Commons and the Monarch having to follow that advice)• Also states that GG can refuse Royal Assent• How is then that we have the concept of responsible government

(RG) in Canada? – Because of the text found at the beginning of the C Act, 1867

that talks about us having a C similar to that of the UK • Preamble means we are the inheritor of the landmarks of all thestuff the UK did. Everything imported

– Unwritten C Law!!!

Scope of the Preamble:

1. Judicial independence2. Parliamentary governance and powers3. Democratic institutions

4. Ministerial responsibility and parliamentary sovereignty (notion thatP is supreme over all otherlevels of gov)

5. Political neutrality of Crown servants6. Rule of law7. Separation of powers8. Implied bill of rights



Kinds of Unwritten Principles

1. Conventions- Political practices of long standing significance- Norms or expectations that we have of our political institutions

- Not enforceable by courts (they are political creations)- To establish a convention:o What are the precedentso Did the actors in the precedents believe that they were

bound by a ruleo Is there a reason for the rule

2. Legal rules- Constitutional law- Enforceable by courts- E.g. independence of the judiciary

Quebec Reference CaseThree Questions:

1. Can Quebec unilaterally declare independence under CanadianLaw?2. Can Quebec unilaterally declare independence underinternational law?3. In the event of a conflict between international and domestic law,which prevails?- Answer to all questions = NO!

Holding: Quebec losesAnalysis:Courts may look to unwritten rules when applying the constitutionUnwritten constitution:

- A. Federalism à Distributes power to the proper governmentà Presumably according to level of government most

equipped to deal with that particular power- B. Democracy

à Fundamental valueà Must be consistent with the rule of lawà At some basic level in our society, power is

governed with the consent of the governedà Means more than tyranny of the ballot box: to befunctional, must adhere to the Rule of Law(elect a government that, in the course of conductingits affairs, adheres to this principle)

- C. Constitutionalism and Rule of Lawà Rule of Law means citizen’s have a stable,predictable and ordered



society in which to conduct their affairs becausethere is a law to create

stability and predictabilityà Key points for our purposes:

1. Rule of Law is supreme over arbitrary power

2. Equality before the law3. Rule of Law requires law**expanded upon below**

- D. Protection of MinoritiesWith re to Question 1, this means that Quebec can not declare

independence unilaterally To allow 1 vote to prevail auto would be to allow demo to

trump federalism and this is not constitutional (andpotentially also constitutionalism and the rule of law,and minorities)

To honour the above 4 principles, there must be:

1. A clear majority vote on a clear question, and then...2. Negotiation (beginning of legal separation, but not

the end)What would obligation to negotiation look like?: has to be in

good faith, outcome can not be pre-ordainedBut at the end of the day if the negotiation doesn’t meet

this standard, it is not the role if the courts to supervise(this is a “political question“)

Significance: Tells us that the SCC is unearthing UW principles of the

C even today! Playing formative as well as interpretive role reunwritten principles.

Rule of Law Expanded:

Principles1. Rule of law is supreme over arbitrary power

- Law, if exercised, must be in accordance with the rule of law.Power must be exercised lawfully (i.e. it must have a legal basis).Must be able to trace power to some legal authorization,

wherever it comes from (statute, royal prerogative, constitution,etc.)

2. Equality before the law- All people are subject to the law no matter what their wealth,

status, etc. Includes the PM3. Rule of law requires law

- Must have positive law out there that you can point to. Need acodification of these rules



As demonstrated in the case Law

Roncarelli v. DuplessisFacts: R kept posting bail for those arrested for work as Jehovah’sWitnesses; 1946 D initiated process to cancel R’s liquor licence; at

lunchtime of Dec 4 of 1946, police confiscated all alcohol; whencontacted by press, D said, “Mr R has paid the bail... “; R retains FrankScott, brings lawsuit and asks by what authority D purports to exercisethis power (don’t have divine right, not above the law - can only do thelaw‘s bidding) R wins $8 000; matter appealed to SCC

Holding: for R (D had acted without statutory authority)

Analysis:• Illustration of 2. equality before the law• All public officers are subject of the law

• Must act according to statute. Must give statutory justificationfor whatever you do

Manitoba Language Reference

Facts: All statutes in Manitoba in question; Supposed to be in Frenchand English but were in English only; All statutes unconstitutional;Consequence of declaring them all invalid would be chaos (no rule of law because there would be no law!)

Holding: SCC delays striking down the legislation. Said they had X

number of months to correct the deficiency. Didn’t do it right awaybecause it would negate the RL that lies at the basis of C

Analysis:Illustrates 1. Rule of law is supreme (government must obey

the law)Illustrates 3. Rule of law needs law (to strike down = no law,

obliges crt to suspend declaration of invalidity)



Written Rules for the Law Givers

Elements of the Written Constitution:

1. Assorted Imperial statutes (C Act, 1867, 1982)2. Assorted Imperial orders in council

- Exec order issued by Imperial Cabinet pursuant to its prerogativepowers

3. A few Canadian statutes- Statutes passed within Canada

o Create the provinces of Alberta, Manitoba, Sask forexample. Quasi-constitutional statutes

Constitution Act, 18671. Political Institutions

- Exec branch- Powers of Monarch- Privy Council- Parliament- Anticipates creation of a judicial branch

2. Federal structure (ss. 91 & 92)- Divides power between federal and provincial government- s. 91: Federal- s. 92: Provincial- Most important power is the catch-all powers (POGG)

3. POGG- Many new circumstances not listed in s.91 or s.92 (e.g.

Environment). To resolve this, we have POGG- Use Pith and Substance test to see if something falls within

s.91 or within s.92- For Feds:s.91All matters not assigned to the Provincial Governments:

- For Provs:s.92(16)“All matters of local or private nature in the province”Whatever this means is up to the courts to decide

- Judicial interpretation:Crts have varied in their enthusiasm for using POGG to favour

the provinces or feds



Historically:interpreted s.92(15) broadly, giving the provinces

substantial jurisdiction and reading narrow federal powersMore recently:SCC has reinvigorated federal powers (more pro-fed than

privy council)Examples where POGG power interpreted in favour of feds

include:Where there is a gap (ie regulation of offshore mineral

resources)Matters of national concern not covered by federal

power (national epidemics, narcotics control,aeronautics, marine pollution)

Matters of national emergency (Emergency Actenumerates number of powers that Feds can use incase of emergency that would otherwise violate DOP;

emergency defined as sudden, abrupt, large-scaleand temporary)Trade and commerce Criminal law (fed has excl authority to create crim

offences and provide for evidentiary rules but provpowers includes admin of justice; means provsactually est many of the crts, and prov prosecutorsengaging in most of the prosecutions; provs canimpose punishment by fine orpenalty/imprisonment...for provincial crimes)



Constitution Act, 1982

• S, 35 recognizes and affirms the existing treaty of AboriginalRights and Aboriginal Peoples

• Also gave us an amending formula for the first time (seebelow)

• Also gave us the Charter

Patriation controversy

Facts: Trudeau wanted to patriate the constitution (taking away thepower of the UK à removed our C from further amendments by the UK)

Question to the court: Could Trudeau go to the UK and unilaterallypatriate the country without consent from other provinces?



SCC Answer: No à needed consent

Analysis: convention test1. Were there precedents? Yes à had gotten majority consent 22times before when

amending C2. Did the actors believe they were bound by the rule? Yes3. Was there a reason for the rule? Yes à Federalism

Patriation Reference

Facts: Trudeau managed to get the support of all the provinces, butQue; Que argued that their support was a necessary condition forpatriation

Issue: Was lack of Quebec’s consent enough to prevent the Patriation,

to mean the Feds hadacted unconstitutionally?

SCC Answer: One province is not enough to vitiate otherwisesubstantial provincial consent.

Holding: Quebec Loses its case

Constitution Act, 1982: Amending Formula

1. S. 38: The general formula; requires the agreement of

Parliament, and the legislatures of at least 2/3rds of theprovinces having at least 50% of the population of Canada- 7 provinces having at least 50% of Canada- Meech Lake

o Charlottetown Accord2. S. 41: Unanimity of Parliament and all provincial legislatures

- Restricted to a short list of changes that you would wantto be made:



1) To get rid of the Queen2) To change the number of MPs in the HOC to be not

less than the number of Senators.3) Use of English and French language4) Composition of the SCC

5) The rule itself (can’t change the rule itself withoutall the consent)3. S. 43: Parliament, and the legislatures of just those provinces

affected by an amendment- See Hogan case below

4. S. 44: Parliament alone, with respect to its own institutions- Looks just like a piece of regular legislation going

through parliament- Parliamentary privilege

5. S. 45: A provincial legislature alone, with respect to the provincialconstitution

Hogan Case

Facts: NFL religious schools voted to go secular in the 1990s; Term 17of the Terms of Union brought NFL into the Constitution andguaranteed existence of denominational schools; To rid themselves of Term 17 they had to amend the C; Used s.43; all requirements of s.43met; GG then goes to announce the C change and there are supportersof the old system who are unhappy; Seek a declaration that theamendment was unconstitutional (on grounds of respect for minority,etc.); Said it was violation of unwritten principles

NFL CA Answer: Unwritten are supposed to be used when there is agap, not when we have concrete written things that say we should do ita certain way. Here the govt acted consistently with the amendmentformula. You can’t use the unwritten as a sword to spear theamendment formula found.

Constitution Act, 1982: The Charter



• Section 33 (Notwithstanding clause): Parliament…may expresslydeclare that the Act shall operate notwithstanding sections 2 or 7to 15.

– Preserved the idea of absolute P Supremacy – Can abrogate some Charter rights (s.2, 7 and 15)

– Can’t use s.33 to supersede the right to vote (s.3) – Other circumstances where s.33 has been used:• Signs in Quebec (Ford v. Quebec)• Back to work legislation in Sask

Ford v. Quebec

Facts: French Language signs

Holding: Can’t pass a law that says the Charter does not apply

Reasons: When using the notwithstanding clause to override Charter guarantees:

1) Governments must be explicit about its enactment (expressly inlegislation);

2) Cannot be used retroactively ;3) Governments have no legal obligation to provide justification for

its use;4) Can be used to override more than one Charter right;5) Sunset Provision à 5 year shelf life

Remember: Politicians less popular than the Charter so s.33 may notget a lot of support



Separation of Powers

Executive Branch:

• On paper: Queen, GG, Privy Council• By convention, includes:

o PMo Cabinet and the departments of government

• What makes the PM powerful:o Party discipline (contol of legislature w majority govt)O Choose his cabinet memberso Decides when to dissolve P

• GG acts at the request of the PM ALMOST alwayso Selection of GG

§ Actually done by the Queen, but on therecommendation of the PMo Chooses senators and SCC judges

§ on the recommendation of the PM

Legislative branch:

• s.17, Constitution Act, 1867: House of Commons, the Senate andthe Queen

o Note: Queen (GG) also an exec branch membero Role in Leg branch is to give Royal Assent (could refuse

statute, but convention = rubber stamp)

Judicial Branch (Courts):

• s.101 Federal Courtso s.101 says that P may establish and maintain courts to

administer the law of Canada and create the highest COA(SCC)

§ Supreme Court§ Federal Court of Canada

· Division between trial (Federal Court) and

Federal COA· Trial division: Exclusive jurisdiction over certainissues:

o IPo Judicial review of administrative action at

the Federal level (i.e. objection to theway a bureaucrat has acted)

· COA division:



o Appeal from the Federal Court trialdivision

o From here you can go to the SCC(assuming you can get leave)

§ Tax Court of Canada

· Limited s.101 court· Focuses on tax appeals (unhappy with revenueCanada)

§ Military Court· Small docket

o Note: Some decisions are made by the Exec level on a dailybasis, but they are not courts. They are administrativetribunals and thus are part of the Exec branch.

§ Exec can be structured in such a way as to look like acourt

§ E.g. Immigration and Refugee Board

§ HR Tribunal à Hears HR complaints in terms of federalsectors

• s.96 Provincial Superior Courts o Created by provinces under s-s.92(14), with judges

appointed under s.96o Default courts: key players on judicial landscape bc do

most of the judicial work§ Provincial superior courts§ Created by the Provinces/Provinces charged with

establishing infrastructure

o In Ontario:§ Ontario Superior Court of Justice

· Appeal to the Ontario COAo Judges appointed by the Feds

§ Reason: Thought there would be less patronage (Fedsmore removed from local concerns)

• “Provincial courts” (inferior)o Established by provinces; (non-s.96 courts)

§ Unilateral courts that perform different functionsthan s.96 courts

§ Provinces appoint judges to these courts§ Important but fairly limited jurisdiction: infractions of

provincial law, small claims, some family law, somelesser criminal law matters

Cooper v. Canada (Human Rights Commission)Facts: Looking at the roles and function of administrative tribunals



Issue: Are they able to invoke the Charter in claims coming beforethem?- Dealt with P providing to the executive court like functions- Is this appropriate in all circumstances??

Dissent: Canadian Human Rights Commission can apply Charter- Tribunal is able to apply law and the Charter is law so they

should be able to use itMajority: Because of Act, Commission cannot apply Charter

- Statute in question does not give them the power so theydo not have it (if it did though they would have no problemletting them have this power)

- Nothing wrong with the Tribunal applying the Charter solong as P speaks clearly about statute law

- Lamer: Concurring but for different reasons (See below)

Cooper v. Canada (Human Rights Commission): Lamer ’sArguments

- Lamer was concerned that the AT would use the Charter toscrutinize the legislature and that this would curtail and restrainthe authority of the legislative branch (parliament) which issupposed to be supreme to the Exec (based on PS)

- C status of the judiciary, flowing as it does from the SOP, requiresthat certain functions be exclusively exercised by judicial bodies

- Only courts have the requisite independence

- Don’t give the Charter as a sword to the Exec so they can use itto stab the Leg- Turns on its head the traditional pattern of the Exec being

subordinate to the Leg- Is Lamer on to something here or is he being too concerned with

legal formalism?- Who usually applies the Charter? Judiciary. They are

protected by judicial independence so they can make theirdecision free of interference and political manipulation. Thesame cannot be said for the AT – they are not independent

- But, so what that they are not independent, because their

decisions can ultimately end up in front of the SCC- Is Lamer’s concern accommodated?

- Possibly – if we have an AT that is sufficiently independent– either in its own right or in the appeal process. If we don’thave that then Lamer’s view-point becomes a lot morepressing!!

The Relationship between these 3 branches



Some judges articulate strict separation:“There is in Canada a separation of powers among the 3 branches of

govt...in broad terms, each of them is supposed to serve a differentfunction...” Dickson

McLachlin reiterates this idea, “fundamental to the working of govtas a whole that each of them plays there proper parts”

BUT...Entire Crt, “the Cdn Constitution does not insist on a strict separation

of powers” ...

The point: There is no robust separation of powers, no bright line in the same

way as American ConstitutionSometimes crts make law - take on role of legislature;

Parliament can give enormous power to executive à ie.Immigration and refugee board, even to apply the Charter of rights, might be able to assess whether legislation isconstitutional) - take on role of legislature and judiciary

V few constraints on the ability of parliament to delegatelegislative and judicial functions to the executive



Parliamentary Sovereignty

Parliament supreme: Traditionally...

1. Parliament can make or unmake any law (no check or balance)2. No body or person has a right to override or set aside Parliament’slegislation

• Dicey: Parliament has unlimited legislative authority bc. Mustconduct affairs wi zone of the power pie

Canada: Parliamentary sovereignty curtailed

1. Power divided and separated2. Charter of Rights3. Other unwritten principles

- SOP is a viable C doctrine, but it is mushy!- Can bestow powers on Exec that look like court powers- Can also give Exec Leg powers to make regulations

- How can we let them do this? Goes with PS- P Constrained only by the Constitution/Charter

- No body or person has a right to override or setaside P’s legislation unless it violates C (Example –DOP violation) or the Charter

- Courts can scrutinize the actions of P/legislature but onlyon constitutional grounds

à Within that piece of the power pie, the courts have no choice but toapply that statute as best as possible. Need to unearth what P reallymeant

Summary

• Exec à Power granted by constitution (limited) or statute + royalprerogative

• Some exec powers are C in nature (powers of queen forexample) but most exec powers come from the royalprerogative or statutes (majority from statutes)

• Leg à Parliamentary sovereignty: can do whatever wishes withinpiece of pie

• Within the residual piece, when P acts constitutionally anddoes not transcend the DOP, their P is sovereign and thesole role of the courts in applying the law that P passes is



interpret what P intended and follow those dictates



o So at the discretion of the Queen, sotechnically they can be in there forever

o Suggests the Queen is free to fire the GGat her discretion… *usually as a responseto the PM, not the Queen unilaterally

The Senate (General)

o 100 Senatorso Roughly equal to the HOC in terms of passing legislation.

Gives them substantial authority· NOTE: Money bills must originate in the HOC

o In relation to C amendments:- When it talks about approval by P (HOC, Senate and

GG), should the senate be equally entitled to bar a Camendment that the HOC thinks is a great thing? Yes

– but only to a point. 180 day limit. After 180 daysthey can be overridden by the HOC. Can only delay.Can’t block.

- Most ministers are sitting members of the HOC. Theyare rarely senators.

- Core arena of ministerial responsibility (that they areanswerable to people) is not shared by the senate

- Reason for S was to afford protection to the varioussectional interests in Canada

- “Voice of the Provinces” in the Fed legislative system

Senate Appointment

- Appointmento Regional representation à Const Act, 1867 says that the

Senate primary purpose is to ensure that provinces arerepresented at the fed level

§ Note: Historical formula codifies past demographicsand we get overrepresentation in some areas andunder representation in other areas

§ Can’t change this without amending the Co Appointed by the GG on the recommendation from

the PMo Currently have two Bills that would have the effect of converting the Senate into a democratic body, butmanages to get around some of the C challenges thatwould affect senate reform (see below)

Senate Appointment Changes



- For a long time PM’s have been appointing their friends to thesenate

- Provincial Senate Selection Laws: Unsuccessful in the courto Said GG’s power is discretionary and not subject to

legal constraint so the courts will not impose

substantive/procedural requirements in what has to betaken into account when selecting Senators- E.g. Alberta

o Put senatorial candidates names on the ballot when theyhave prov elections à Name forwarded to GG in hopes thatthey would be appointed à GG does not have to obey this à

Has been successful 1 out of 4 times (now 2)!!§ 1989 – Stan Waters. Appointed by Mulroney… done

because of politics. He was trying to get support forMeech Lake process

§ 1999 – Brown and Samson – not successful in being

named senator.

Brown

Sued the Fed gov (AG) for not appointing him. Argued that GG’sunilateral authority in 1867 Act to determine the identity of senator isunconstitutional because of the democratic principle seen in theQuebec Reference. He was not successful.Analysis: Unwritten does not trump written!

Sampson

Sought an injunction from appointing anyone from Alberta unless theywere someone selected by the Senatorial Selection law. Also tried toinvoke the Quebec Secession reference that the unwritten principle of Democracy Not successful.Analysis: unwritten principles and said that unwritten does nottrump written!

Tenure of Senators

- Mandatory retirement at age 75- Allowed to resign- Over grounds for vacancy (s.31 of the 1867 Act):

1) Absenteeism à miss more than 2 consecutive sessions of P2) Foreign nationality à If you denounce your Canadian

citizenship you are out



3) Bankruptcy à Fall below min financial requirements4) Conviction à Of a bad crime5) Failure to maintain minimum property requirements

- Who decides when there is a vacancy? The senate itself - How many times have they used s.31?

o No one has ever been kicked out.§ One Suspension à Thomson (for absenteeism) à TheSenator from Mexico

§ Cojur and Bunsten – Convicted of corruption. Was notkicked out though – resigned!

Senate Reform: A Problem with Incrementalism

- If we were to have an elected system for senators, once elected,the one-time election endures until their 75 years old

- Problem: If you have these people who have a democratic

mandate in senate they would view themselves asrepresentatives of the people and they would persist in this roleuntil they are 75 years old even though they were elected bypeople from years before

- Issue: Must deal with the tenure issue if we are to begin electingsenators

- Harper’s Approach (Bill S-4):o Term Limits on Tenure

§ Proposed 8 year term limit (or 75 years old)§ Means we would have to amend the C. Which

formula do we use?

· S. 44. Subject to sections 41 and 42,Parliament may exclusively make lawsamending the Constitution of Canada in relation tothe executive government of Canada or theSenate and House of Commons.(proceeds as abill)· S.44 Need a majority of MPs in the HOC

approving Bill S-4§ Only limits tenure, has nothing to do with regionalproblems, so likely s. 44 would be successful amendingformula

o Consultation on appointment§ Bill C-43§ S.12. (1) On issuing a proclamation referred to in

section 57 of the Canada Elections Act for theholding of a general election, the Governor in Councilmay order the consultation of the electors of one ormore provinces in relation to the appointment of



senators to represent those provinces. (2) An orderfor the consultation of electors shall (a) specify, foreach province specified in the order, the number of places in the Senate in respect of which electors areto be consulted;(b) direct the Chief Electoral Officer

to carry out a consultation in each province specifiedin the order; and(c) fix the date for voting, whichshall be the same as that for voting in the generalelection.

· Is this a C amendment?o Would we have to take away the GG’s

powers to appoint senators?· Have a consultation (referendum process)

o Ask people who they want as theirsenators à NOT binding

· Not actually changing the C as it is only a

referendum!· If we are to be more democratic, this dependson the PM honouring the outcome of the“consultations” when makingrecommendations to the GG. If we have toforce him to then we’d be changing the C

· Could become a C convention over time thatthe PM would only refer to people who havebeen selected in this matter to the GG forappointment



Right to Vote

Chronology of the Right to Vote

• Pre-Confederation – Restricted to men with sufficient property holding (usually tied

to land ownership)• Post-Confederation

– Right to vote in federal elections continues to be determinedby provincial laws until 1920

– Exclusions continue to be made on gender, race, and propertygrounds

• Franchise greatly restricted by these measures• Restrictions gradually removed, with restrictions on

status Indian voting lifted in 1960

Constitutional Voting Rights

- Section 3 of the Charter :o Every citizen of Canada has the right to vote in an

election of members of the House of Commons or of a legislative assembly and to be qualified formembership therein.

- Central focus of section 3, for the Supreme Court, “is the rightof each citizen to participate in the electoral process”

- Section 3 guarantees citizens “the right to play a meaningfulrole in the selection of elected representatives”

o Gone beyond the mechanics of voting of just putting aballot in a box. Right to meaningful participation andeffective representation

- S.3 does not have any qualifierso Talks about citizenship only

- Not subject to the notwithstanding clause

- S.3 Rights:o The right to participate effectively and have effective

representationo Right to play a meaningful role in the selection of

representatives



o Right to an informed electoral campaign that is notdrowned out by monetary interests

Figueroa

“participation in the electoral process has an intrinsic valueindependent of its impact upon the actual outcome of elections. … Theright to run for office provides each citizen with the opportunity topresent certain ideas and opinions to the electorate as a viable policyoption; the right to vote provides each citizen with the opportunity toexpress support for the ideas and opinions that a particular candidateendorses. In each instance, the democratic rights entrenched in s. 3ensure that each citizen has an opportunity to express an opinion

about the formation of social policy and the functioning of publicinstitutions through participation in the electoral process”.

- Importance of this case:o Intrinsic value in the electoral processo Opportunity to express opinions in the electoral processo Political parties enhance the meaningfulness of individual

participation in the electoral process for reasons thattranscend their capacity (or lack thereof) to participate inthe governance of the country subsequent to an election

o S.3 is basically a variation of freedom of speech

§ Element of expression in the section

Harper

“The right to meaningful participation includes a citizen’s right toexercise his or her vote in an informed manner. For a voter to be well-informed, the citizen must be able to weigh the relative strengths andweaknesses of each candidate and political party. … In short, the voterhas a right to be ‘reasonably informed of all the possible choices.’”

- Importance of this case:o Challenged 3rd party election spending§ People should be able to be informed and should be

able to have access to a reasonable amount of infoo SCC: If we had no limits the people with money would be

the ones with all the voice§ Fear is that if you allow unchecked 3rd party

spending then you are giving primacy to money



interests and we don’t want that!§ Goes beyond putting a ballot in a ballot box

Statutory Voting Rights: Canada Elections Act

- Canada Elections Act :o “every person who is a Canadian citizen and is 18 years of

age or older on polling day is qualified as an elector.”o Every elector is then “entitled to have his or her name

included in the list of electors for the polling division inwhich he or she is ordinarily resident and to vote at thepolling station for that polling division.”

- Voting is a right, not a privilege- Very detailed so that the incumbent executive could not in some

way gain an advantage with it in upcoming elections my makingregulations. Want it to be as transparent as possible andindependent! Want it handled by the legislature. Want it to befair vis a vis the opposing parties as well as the parties that arein power at any given time.

- Note the important differences between Canada Elections Act and section 3 of the Charter

o Age limit in CEA§ S.3 says nothing about age à it just mentions

citizenship.

§ Age qualification upheld under s.1

- Other constraints on voting:o CEO and assistant CEO cannot vote

§ CEO à Officer who administers the CEA· Want him to be impartial (no partisan vote)· Would be upheld under s.1

o Live outside Canada for 5 consecutive years§ Does not include military people§ Also would have to be defended under s.1 à probably

easier to win this one… hard to be minimally

impairingo People in correctional facilities:

§ Now struck down§ Contrary to s.3 and could not withstand s.1 analysis

- Also includes the right not to vote à spoil your ballot



Right to Vote: Age Requirement: The Fitzgerald Case

- Court concluded under s.1 analysis that there was a reasonablecoincidence between 18 years of age and sufficient maturity

o Is this really sensible? Think Kilburger vs. Bubbles J

o 18 is arbitrary, but what is the alternative?§ Can’t do a case by case basis – that would take toolong. Line has to be drawn somewhere

Statutory Voting Rights: Protecting the Right to Vote

Defensive measures:

- Designed to ensure that people exercising their franchise are notinterfered with in any way that influences their vote

- 1) Secret balloto Enables people to exercise their conscious without

influence from anyone else- 2) Limits on election advertising/partisan activity on

polling day and at polling stationso Even though this violates FOEO Illegal to wear or promote partisan interests at polling

boothsO Illegal to publicize voting intentions at polling boothsO SCC has been v generous in apply s.1 justifications on

these groundsPositive measures:

- Designed to encourage people to voteo 1) Time off work o 2) Advance polls

Concept of mandatory voting:

o Subsection 245(1) of the Australian CommonwealthElectoral Act provides that: ‘it shall be the duty of everyelector to vote at each election’.

The Right to Vote for Representatives

- Section 40 of Constitution Act, 1867 partitions countryinto electoral districts



o Number and geographic scope subsequently modifiedpursuant to the Electoral Boundaries Readjustment Act , creating (roughly) representation proportional topopulation

O Currently have 308 electoral districts

o We have a representative democracy. We do not speakfor ourselves

- Preface in C Act, 1867 says P can re-allocate thesedistricts as populations change

o Supposed to have rough parity between the number of MPsthat come from each province on a per capita basis

o Independent commission now performsreadjustments

o Allowed to deviate from absolute parity for the reasons of geography and regional differences

O Variation in electoral district population permitted so longas no more than (+/-) 25% of provincial average

- What does that mean in practice?o Not only do you have to reallocate MPs between

provinces, but also have to reallocate ridings withinprovinces so that urban areas that a lot of people aremoving to have adequate representation. Redeploymentwithin province.

o If you want your vote to be worth more you should live inthe far north

Electoral Process

Key Actors in Elections

1. Chief Electoral Officer2. Returning Officer3. Parties4. Party Leaders5. Nomination contestants and election candidates

CEO- Officer of P (independent of executive) who is charged withadministering the CEA

- Appointed by HOC (multiparty consultation)- Tenure lasts until 65 yr mandatory retirement- Can only be dismissed by the GG for cause (not at their

discretion) and has to be supported by an address by thesenate and HOC (a motion/affirmative vote in both HOC and



Senate)- Also has financial independence. Salary set in a matter that

allows the salary to be maintained independently of anyposition of the Exec

o Paid the same as a Federal Court Judge

- Role:1. Oversees most of the election administration2. Heads Election Canada Staff 3. Interprets CEA

Returning Officer- Reports the official total from a given district- 308 - One for every riding- Hires staff to run polling stations- Also has a substantial amount of discretion in observing where

the polling stations will be put

o Should be reasonable to reflect the distribution of thepopulation- Federal Accountability Act – Made returning officers independent

(do not favour either political party)o Hired by CEOO Merit-based criteria

Parties- Canada Elections Act : “an organization one of whose

fundamental purposes is to participate in public affairs byendorsing one or more of its members as candidates and

supporting their election.”O “one of whose” à They have more purposes than this oneO very generous definition of a political partyO opening door to potentially an enormous number of partiesO problematic because parties are eligible for public funding

= prospect of creating political parties of convenience

- Certain benefits to being a party:o Can issue tax receiptso Tax credit for political donations is 75% for the first $400

§ Can be an official party with just one candidate as

long as you also get the signatures of 250 voters tosupport the existence of the party

Figueroa

Facts: Cut off used to be 50 candidates; This was challenged in thecase as violation of s.3; not upheld under s.1; Gov couldn’t prove whythey used 50. It was too arbitrary; SCC implemented the 1 person rule



Issue: Minimum number of candidates for party to exist

Holding: Current rule: 1 candidate

Reasons: “Political parties enhance the meaningfulness of individualparticipation in the electoral process for reasons that transcend theircapacity (or lack thereof) to participate in the governance of thecountry subsequent to an election. Irrespective of their capacity toinfluence the outcome of an election, political parties act as both avehicle and outlet for the meaningful participation of individual citizensin the electoral process.”

Note:- Forcese says this is a stupid rule:

o Law school could create a party and then issue tax credits

o Also makes it easy to do an end run around 3rd partyadvertising rules that limit the capacity of non-party peopleto participate in the election process

§ 3rd parties form their own party and get to spendmore than if they were a non-party making the 3rdparty donation

Electoral District Associations- Store front offices where the MPs have their headquarters- Admin responsibilities- Reporting obligations re: money

Party Leaders- Determined by party rules and party members- Under regulated by law- Most important actors in the political system; especially

important due to party transitions- Power of party leader à potential candidate can only be

certified by the CEO if they bring in papers with the signature of the party leader

- Get to be PM if your party wins- Members of the party vote for their leader

o As leadership contestant the first thing you do is sign up asmany new members as you can and hope that they votefor you (build your own constituency)

- For a long time there was no rule on campaign financingo Now we have $1000 donation limitso There are transparency requirements and reporting

obligationso Still NO spending limits (independently wealthy



candidates), even after the Federal AccountabilityAct (FAA)

Nomination Contestants and Election Candidates

- Can be anyone who is allowed to voteo Exception: people who hold public office (P of Canada Act )

- Can’t run in more than one electoral district (but don’t have tolive there)

- Can run as an independent, for themselves, or for an establishedparty

- To get on the ballot you need:o 100 signature by electorsO A bond of $1000 (refunded if you adhere to thereporting obligations from the CEA after the election is over)

- If running for a party, must be endorsed (determined by partyrules)- For the purpose of electoral financing rules, a person becomes a

candidate from the moment he accepts a contribution or incursan election expense

How Elections Are Run

Triggering Elections

- General elections:o Triggered by proclamation from the Governor

General directing the CEO to issue a “writ” to eachreturned officer

O Polling dates set a minimum of 36 days after the writ date(typically longer)

§ GG usually dissolves P at the behest of the PM(some cases where the GG can do it unilaterally) à

prerogative power§ Now fixed election dates

· Bill C-16: from October 19 2009 onwards,

elections will be mandatory every 4 yrs, on the3rd Monday in October· Doesn’t preclude confidence measures

- By-electionso For one seat onlyo Held after Commons seat becomes vacanto Discretion to hold off calling a by-election: specific



minimum period before calling election, but no maximum= can have seats vacant for a long time

§ Raises some concerns re: democratic representationwhen there is a seat empty for so long

Electoral Financing

- Fact that money can influence elections is indisputable

- Effort to find a fine balance between expression andfairness

o Trend towards taking electoral financing out of the privatehands and making it more public so that financing is donethrough the tax system instead of private actors in society

- New gift-giving provisions under the FAAo Candidate cannot accept a gift or an advantage that would

appear to a reasonable person to then influence thecandidate if elected as MP

o must disclose a gift worth more than $500

Election Expenses (Spending):

- Formula in CEA that puts a cap on the amount of $ that thepeople in an electoral process can spend

- Party limits: No. of electoral districts with party candidates x$0.70/elector in those districts x inflation index = about $17.5million in 2004, for a national party

o Depends on the number of electoral districts they havecandidates running in

o Running in all 308 ridings à $17.5 million- Candidate limits: based on number of electors in the district,

with some adjustment for geographically large ridings = averageof $78,500 in 2004

o Based on the number of voters (electors) in your district

- Candidates for party nomination races: 20% of candidatespending limit- Note: All this is only DURING an election! If there is no

election going on these limits do not apply!- Person’s seeking the leadership of their party à not capped

in terms of spending!



Election Donations (“Contributions”)- Includes both monetary (money that is not repayable – i.e. not

loans as they are repayable) and nonmonetary contributions(includes the commercial value of a service other than volunteerlabour or the commercial value of the property used)

- Now limit is $1000 per person per party per year, adjustedby inflation (can also make equivalent donations to candidatesand riding association) (FAA)

- Ban on corporate and union donations to parties orleadership candidates (FAA)

o Until recently, these donations were permitted tocandidates (up to $1000 per candidate, adjusted forinflation), but have been eliminated by the Federal Accountability Act

Good reasons for the corporations/unions not to beable to donate:

o They can’t voteo They are profit making enterprises à maybe violating theirfiduciary duty to employees as there is no way to showthat making donation will increase profits

Public Subsidies:- Expense Reimbursement:

o Both parties and candidates can benefito Parties receive a 50% reimbursement if they win support of

at least 2% of national vote or 5% of votes in electoraldistricts in which they ran candidates

o Candidates receive a 60% reimbursement if they win thesupport of 10% of the votes in their electoral district

- Quarterly Allowance:o Parties winning support of at least 2% of votes cast OR 5%

of votes in electoral districts in which they ran candidatesreceive on a quarterly basis an annual subsidy of $1.75 xnumber of votes party receives, adjusted for inflation

- Tax creditso Very generous tax credit system for political donations:

§ 75 percent up to the first $400 contributed; 50% of the amount above $400, up to $750; and 33.3%percent of the amount above $750, up to $1,275

· Note: This is now capped at $1000§ Allegation that this opens the door for dubious

practices· Party gives you $100 for volunteering your

time, you donate $400, you get $300 back in



tax credits (so you break even) and the partygets $300

o System works really well because of the disclosure rules§ Must keep receipts etc.§ Must be professionally audited

§ Must file financial reports on a quarterly basis

Election Advertising- Defined in the Canada Elections Act :

o “the transmission to the public by any means during anelection period of an advertising message that promotesor opposes a registered party or the election of acandidate, including one that takes a position on an issuewith which a registered party or candidate is associated.”

- Issue with issue advertising:

o At what point do you consider it issue advertising?: partypositions shift so its hard to tell whether a given ad fallswithin the definition

o Issue advertising is especially important to third partyadvertising

Facilitating advertising:1) Signage

- Limits on the capacity of landlords to restrict your capacity to putcampaign signs in your window (must be reasonable in terms of

size, etc.)

2) Broadcasting time- Broadcasters must set aside 6.5 prime time hours for registered

parties during electionso Time portioned between parties according to a formula

that generally takes into equal consideration the % of totalseats the party has in the HOC and the % of the popularvote received in the previous election

o Green Party à no seats so accorded no partion of the 6.5hours

§ Alberta COA: No restriction on FOE (they could stillspeak, they just don’t get the prime time hours) andeven it if it was, the legislation could be upheld ons.1 grounds

- Broadcasters must also set aside free time of 2 minutes foreach party

- Transparency requirement à Must ID the person who is payingfor the commercial (i.e. which campaign) and that it has been



authorized by that party’s official representative

Restricting Advertising1) Polling day à no advertising2) Opinion surveys à can’t be published on election day

- Tend to be partisan à answer people give tends todepend on the questions they are asked- Used to be bared 3 days before the vote. Struck down

by SCC in Thompson Newspaper case as a violation of FOE

3) Foreign advertisers à campaign advertising from outsideCanada is not permitted

- Non-residents who are not citizens or permanentresidents cannot try and influence Canadian voterpreference

4) Third Party Spending Limits

- Current requirements:o Advertising expenses of an individual third partyduring a general election are capped at $150 000

o Not more than $3000 of the $150 000 is to beincurred to promote or oppose the election of oneor more candidates in a given electoral district

o Advertising can be related to a specific party or aspecific issue

O See case law below5) Government advertising

o Restrictions on incumbent parties on what they

can spendo Can’t have partisan messages by the incumbentgov during the election campaign

o CEA doesn’t preclude the “feel good” advertising,however

§ “Heath Canada, making the world a betterplace”

Third party Election Spending: Case Law

1988 Election: Summerville Case

Facts: Total of $10 million spent by non-parties on advertisingsupporting free trade; Persons opposed to free trade spent $1 million;Conservatives won (wanted free trade); In the wake of this there was aLortie Royal Commission which recommended there be some kindof restriction on 3rd party spending; In response, the CEA wasamended in 1993 and a $1000 cap was imposed; National Citizen’sCollation brought a Constitutional Challenge on 3rd party spending



(s.2(b) violation) (Summerville case, 1996)

COA: Alberta COA struck down the $1000 limit (not upheld on s.1because no evidence that election contests are influenced by thirdparty spending). No appeal to the SCC.

1997 Quebec Referendum: Lidman

Facts: Upset about QC referendum rules; Give primacy to the No or Yes campaign; If you are not in one of these camps, can’t spend moneyat all on ads; Libman wanted to spend money in neither one of thesecamps

SCC: Infringement of s.2(b) because you are compelled to associatewith one of the two sides; but suggested that some limits on

spending could be saved under s.1; expressly disapproved of Summerville

Significance: Feds amended the CEA = s. 350 places $150 000spending limit

Harper v. Canada

Facts: National Citizens Association (led by Harper) challenged s. 350;Argued that the limit was a violation on FOE because it gave noviable means for people to express themselves ($150 000 doesn’t buy

you much)

SCC: Limit is justified; more than that s. 350 ensures thataffluent groups or individuals do not dominate the politicaldiscourse, s. 350 promotes the political expression of those whoare less affluent or less capable of obtaining access to significantfinancial resources and ensures that candidates and political partieswho are subject to spending limits are not overwhelmed by third partyadvertisingParty of 1 Problem: At present, because you only need 1 candidateto be a political party, you (as a 3rd party) can arrange a situation in

which you have two candidates running in a densely populated areaand the cap that can be spent will be well beyond the $150 000 à

Incentive for 3rd parties to be political parties so they can get aroundthis donation cap due to the Party of 1 situation à Can spend muchmore as a party than you can as a 3rd party

IN SUM:(1) $150 000 spending limit on 3rd Party stands



(2) Not a violation of s.2(b) (promotes political expression)

After the VoteReporting on Election Results- Staggering the times at which polls are open across the country à

Reflects time zones- Banning of reporting of election results when polls still open

o Problem à not easily enforceableo Internet (R. v. Ryan)

Challenging the Results- Recounts

o Automatic if margin of victory is 1/1000 of all votes casto Contested Elections: CEA à Any elector can apply to a

superior court or Federal Court to contest an electionwhen there is fraud or corruption

o Enforcement and Penalties à – If convicted can be,

– De-registered as a party – Can be fined – Imprisonment is rare – Lose your right to sit as a member of the HOC



Bringing Elements of Parliament Together

Summoning and Prorogation of Parliament- Constitution Act, 1867 empowers the Governor General “from

Time to Time, in the Queen’s Name, by Instrument under the GreatSeal of Canada, [to] summon and call together the House of Commons.”

- Summoned parliament divided into “sessions,” separated by a“prorogation,” or partitioning of sessions, Constitutionalconvention: GG acts at the behest of the PM

Bill dies on the order paper (except for private members bill)Each new session has a speech from the throne - announces

the govt’s policy/priorities for the next session (allows govtto regroup)

A “recess” is for things like holidays

Dissolution- Except in times of emergency, maximum of 5 year duration,

under both the Charter and the Constitution Act, 1867- Timing of dissolution (in circumstances where 5 year limit not

reached) generally at discretion of PM; However, constitutionalconvention requires a PM to resign his or her government or seekparliamentary dissolution in the wake of a non-confidence vote bythe House

- Circumstances in which the Governor General may refuse adissolution: the so-called “reserve” powers of the Governor

Generalo n/a following a non-confidence voteo E.g. King-Byng Affair

§ GG can decline to dissolve when it is a new parliament§Can turn instead to the leader of the next largest party in

P, asking its leader if s/he is capable of forming agovernment: a chance to try to make a coalition thatwould have a majority and enjoy the support of parliament

§ Only arises when you have two parties making acoalition govt

- Fixed election dates: Bill C-16 now requires an election onceevery 4 years, unless there is a vote of non-confidence

Confidence Vote- To have a confidence motion you can have 3 main types:

– Explicitly worded motion of non-confidence• Consequences are clear: “this is a vote of confidence

that...”



• Almost always done by the opposition• Usually unsuccessful due to strong party discipline &

majority govts – Unilaterally declared - Possible to have a scenario where

the government is allowed to unilaterally declare

something a non-confidence vote when there is actuallynothing about confidence in the topic they are voting on – Implicit votes of non-confidence

• deemed to involve confidence, even though notdeclared to be so by a prior statement of the govt

• E.g. Vote on a money measure

– Address and Response to the Speech from theThrone

• also a kind of implicit vote of confidence• after the speech there open, fluid debate - the

govt puts forward a motion in support of speech• the opposition parties move their ownamendments to the motion - if any amendments arecarried then it is an implicit vote of non confidence and

the govt falls

Key Actors in Parliament

Political Parties- Two legal considerations favour party discipline:

o 1) Decision-making by a majority in the Commons

§ Matters in HOC are decided by a majority of voices§ Trouble getting agenda through if your party is notvery disciplined

· Extent to which free votes are allowed isdecided on a per party basis

o 2) Confidence convention§ If you have a party that is disciplined and voting en

masse it is easier to warn off the opposition trying toget a non-confidence vote

- Concept of “official party” status in the HOC

o Must have 12 MPs sitting in the HOCo Benefits:§ Get more money from the HOC itself for research

budget§ More time during question period, more funding,

allocation of MPs to committees



Speaker- In the Commons, selected by election by MPs- Presides over P sessions- Manages/Chairs HOC sessions- Selected at the beginning of P

o MP with the longest uninterrupted tenure in the HOCorganizes vote for speakero Typically the speaker comes from the governing party

- Does not vote unless there is a tie (then he votes topreserve the status-quo)

- Roles of the speaker:o Ceremonial

- Welcomes the GG- Conveys messages from the HOC to the Senate

o Quasi-Judicial- Has final say when matters of procedure are

contentious- Code of operations has detail but there may be

uncertainty as to the application of a particular rulere: P procedure à speaker rules on this uncertainty

o Administrative- Can name the offending member when someone is

out of line- Speaker can eject you from the HOC

Parliamentary committees- Perform the “detail” work in Parliament

- Six sorts of committeeso Standing Committeesà most important (see below)o Committees of the whole à plenary session, which is

basically the HOC§ Mostly done with procreation bills to approve govt

expenditureso Legislative Committee

§ Special committee established on an ad hoc basis todeal with a particular bill

§ Relatively uncommono Special Committees

§ Aka Task forces§ Ad hoc basis§ Examine particular public policy issues

o Joint committees§ Share membership between Senate and HOC§ Rare

o Sub-committees§ Sub divisions of existing committees



§ Sometimes a full committee decides that a task shouldbe sub-delegated so that the sub-committee can probean issue in more detail

§ Relatively common

Standing committees- Permanent existence- Have particular mandates that tend to coincide with departments- Powers set out in Standing Orders- Review:

o (a) the statute law relating to the department assigned tothem;

o (b) the program and policy objectives of the department andits effectiveness;

o (c) the expenditure plans and the effectiveness of implementation of these plans by the department;

o (d ) the relative success of the department; ando (e) other matters, relating to the mandate, management,organization or operation of the department, as thecommittee deems fit.

- Selection of members:o Mostly done by the party Whipo Chair determined by the majority of the committee

- Has substantial powero Can send for persons, papers and records, etc.o Can hold people testifying against them in contempt. E.g.

RCMP Commissioner



Parliamentary Proceedings (PP)

Purpose of “Parliamentary law” (rules governing proceedings)- PP à Rules for P to control and discipline membership

- Purposes (4):- 1) To protect a majority and restrain the improvidence ortyranny of a majority

- Gives opposition a fair amount of latitude for actingin the P process

- 2) To secure the transaction of public business in an orderlymanner

- 3) To enable every Member to express opinions within thelimits necessary to preserve decorum and prevent anunnecessary waste of time

- 4) To give abundant opportunity for the consideration of

every measure; and to prevent any legislative action frombeing taken upon sudden impulse.”- Due deliverance that leads to transparency

Source of “Parliamentary law” (rules governing proceedings) – Preamble of Constitution Act, 1867 and (in relation to

parliamentary privilege) its substantive sections – Unwritten and written norms – British P tradition incorporated into our laws by the

preamble of the C Act – Substantive section creates PP

– Parliament of Canada Act – Standing Orders – Rules of procedure that govern conduct in HOC and Senate – E.g. P itself decides how a bill becomes a statute

– Rulings of the Speaker, assessing usages, customs andprecedents

– Looks at circumstances that were not anticipated by thestanding orders

Concept of Parliamentary Privilege- Privileges are those rights “necessary to ensure that legislatures

can perform their functions, free from interference by the Crownand the courts.”

- Examples include: – 1) The parliamentary power to control and discipline

membership 2) Freedom of speech:

- immunity from what they say in P proceedings



o Roman Corporation à Trudeau announced adeal that fell through. At trial the judge saidthat since it happened in the HOC it isimmunized so Trudeau cant be sued forinducement of breach of K

o Ouellet à Privilege is designed to protect FOE,but only during P proceedings (HOC andCommittees). Does not include statementsmade to the media in the lobby outside thecontext of any P proceedings

– 3) Immunity from being summoned as witnessesduring Parliamentary sessions

- Extends to 40 days before and 40 days after asession of P- Has been reduced in some cases because this isantiquated

– 4) Control over Parliamentary proceedings- P can decide where budget speech will be given for

example – 5) The parliamentary jurisdiction over the

parliamentary precincts, facilities and personnel- P supposed to have jurisdiction as to what goes

on in its buildings.- Can not deny access to MP (violates PP)

- New Brunswick Broadcasting Case- Issue: Could NS Legislature control

access by media to their sessions

(violated s. 2(b))- Ratio: Charter did no apply bc NS

legislature was exercising constitutionalprivilege; one part of the constitution cannot be used to beat down another

- Jurisdiction over P personnel- PP to decide how to treat them- Raised the question as to whether PP is free to

discriminate on racial grounds? Can they act ina manner we would consider is inappropriatefor anyone else?

- Case law below tells us that not ALL employeesare subject to sole jurisdiction of Parliament(Vaid Test)

- Thomson case- Facts: former ee of former Speakerclaims sexual harassment; ON AG claimsPP on behalf of ON l egislature; claims PPprotects absolutely anything



- Ratio: PP doesn‘t protect absolutelyanything - “it cannot be clear without afull blown trial” whether or not PP protectsSpeaker in these circumstances

- Vaid case

- Facts: Speaker of federal parliamentfires chauffeur after some conflict;chauffeur claims dismissal was motivated

by racism; complains to CanadianHuman Rights Commission;Commission’s jurisdiction is contested- Issue: whether a past Speaker’salleged behaviour is i immunized by PP- Ratio: the privilege alleged bySpeaker does not extend as far aswould wish; have to analyse privilege very

carefully to see how far it reaches;test =(1) Look to jurisprudence: is privilege

one that has beenrecognized?

(2) If can’t establish the it has beenauthoritatively in existence, is itnecessary for the functioning of parliament? (necessity test)

Concept of Parliamentary Privilege: Constitutional Nature of Privilege- Note Article 9 of the Bill of Rights, 1689: The freedom of

speech and debates, or proceedings in Parliament, ought notto be impeached or questioned in any court of place out of Parliament”

- Constitution Act, 1867: The privileges, immunities andpowers held by Parliament and by its members, shall be asdefined by Act of Parliament but these privileges cannotexceed those held by the UK Parliament at the time of thepassage of the Act

Parliament ’s Legislative Jurisdiction

- Parliament’s legislation stands, so long as the law is constitutional(respects DOP and Charter)

Case law illustrating Parliament’s legislative jurisdiction



TurnerFacts: P passed changes that hurt his case

Federal CA: Charter does not apply here. NO cause of action. NoDOP issue, no BOR problem, so basically is argument is that “law is

stupid.”

BaconFacts: Provincial gov replaces the old crop insurance program with anew one that says any contractual claims you had under the oldprogram would now be cancelled; Bacon said it violated the unwrittenprinciple of the Rule of Law

CA: The Rule of Law cannot be used as a sword; can’t use it tobeat down other constitutional principle of Parliamentary supremacy;Public’s protection from the arbitrary use of power from the Leg is

protected only by the ballot box

*** But Parliament is not presumed to be so ill intentioned ***

WellsFacts: Legislation passed and Wells job ends 6 months short of himhaving a pension available à Sues for breach of K

Holding: P can vitiate K and there is no constitutional violation as longas the govt acts in accordance with the Constitution (no presumptionthat the gov intended to vitiate the K)

Rule: Presume that P intends to preserve K rights; if want to vitiate, Pmust provide -

• Very clear language (presume they didn’t have that ill-intention in their mind)

• Must be sufficiently empathetic in the legislation*rule of statutory interpretation

AuthorsonFacts: Funds weren’t being invested/growing so the pension

entitlement of the Veterans was not growing as much as it could havebeen; Veteran's sued, saying the govt had violated the fiduciary duty inadministering the funds; Seeking billions of dollars in damages; Ppassed a law in relation to this claim; “No claim allowed for anythingprior to 1990”; Barred by statute the claims that the veterans hadmade

Issue: Is the current process by which a bill becomes a statute



mandatory, or would changes to that process be constitutionallyinsulated by parliamentary privilege?

Holding: There is nothing in the BOR or any exterior law thatallows us to critique the process by which a Bill becomes a

statute. P is free to determine this.

Parliamentary Functions

1 . Ensuring Probity in Government – Concept of Collective Responsibility



– Confidence convention à P supposed to keep an eye onthe exec branch as they are accountable to P

– Speech from the Throne à Announces the govt agendain the HOC à if you can’t carry your speech from the Thronewithout having the amendments added on after debate

then this is a non-confidence vote. Ensures moreaccountability – Financial Controls

a) Ways and MeansHOC ultimate provider of money for exec’s

agendaIn principle, can exercise substantial control, but

not customaryb) Business of Supply

2. Legislative Function

– Terminological Issues – Act/Statute à Written law that has gone through theappropriate procedures in P

– Bill à Law project that is tabled in P that will become astatute if it makes it thought the process of enactment

– Money bills à can only be introduced in the HOC – Other bills à can start in the HOC or Senate

• Most start in HOC à viewed as the most democraticpart of P

– Private vs. Public Acts• Private à statute that confirms powers on a

particular group or individual.Narrow ambitProcess: bill à encourage Parl to intro bill through

petition à bill -à legislative process à act Tend to start off in SenateNot very important, fewIe. incorporation

• Public à statute dealing with public policyBroad ambit, general law Two subspecies: – Gov Bills (tabled by MPs)

– Less than 200 – PMB (tabled by someone other than an MP)

– 1000s – Very low success rate due to restricted

time of the legislature (1%) – Success rates go up in minority contexts

– New or Amending Acts• New à Acts that never existed before. Have an act



that is internally coherent from s.1 to its final section• Amending à Amending an existing statutes



The Legislative Process

Step 1: IDEA- General public à voice concerns to gov or MPs à Grassroots origin

- Minster à in response to proposals coming out of the publicserviceo Cabinet ministers champion the project at the Cabinet levelo Discussion papers à “here are things we are thinking about,

what’s your opinion?”o Press release and Speech from the Throne can also give

ideas about what is brewingo Public service ideas à two times a year from departments

- Committees à Can propose new law ideaso Standing orders of HOC in 1994 were amended to facilitate

law making ides being generated out of the HOC itself

o MP can now refer an issue to a committee and tell themhow to draft a bill- MPs à Gov bills can pre-empt PMB

o Gov doesn’t want to see the PMB enacted so it develops itsown bill that deals with the issue in a way that the govwants to approach it as opposed to the way the PMB isapproaching it

- Courts à e.g. Gov has one year to respond to courts by drafting anew law to correct the C deficiency

Step 2: Cabinet Approval

- Usually sought by the Minister of the sponsoring department- Done via Memo to Cabinet (MC)- RD à Record of the decision of Cabinet

Step 3: Drafting by DOJ

Section Function

Legislation Section - Provides advice on legislativewriting- Other specialists: Jury linguists- All bills have to be bilingual and if

you’re going to have this you bothversions to mean the same thing!

Regulations section - Specialize insecondary/subordinate legislation- If you are proposing to introduce aregulatory power in the Bill you talkto these people



Human rights law section - Any bill that would have to do withInternational law HR, etc.- Also anything having to do with theCharter- Esp. important for things in the

Criminal area!Constitutional and admin lawsection

- Consulted when there is questionsabout if the law falls within theappropriate DOP for example

International law section - Obligations that go beyond HRobligations- E.g. Compliance with internationalcopyright law

Criminal law policy section

Judicial affairs unit - Changing federal courts law or lawpertaining to the appointment of judges

Information and privacy lawsection

- Any proposed laws that have todeal with how information iscollected/distributed/disclosed

Native Law section - Things pertaining to aboriginalpeople

Others also involved: - The sponsor department

Step 4: Cabinet Approval of Bill

Step 5: Leave to introduce Bill in HOC (automatic)- MP gives 48 hours notice to fellow MP’s that they are going to

table a bill and then they seek leave to table a bill, which isautomatically granted

- Bill then becomes Gov property- Sponsoring group cannot then amend it without going

through the amending process governed by P’s rules.Can’t unilaterally amend it anymore

Step 6: First reading (automatic, no debate)- Doesn’t involve someone reading the bill out loud- Announcement that the reading has occurred- Automatic adoption on 1st reading- No debate



Step 7(a): Traditional process: Second reading (with debate)- Log jam for PMB

- Limited time- Once you run out of time debating something, the bill

you are debating gets bumped to the back of the order

papers if it hasn’t been decided- Debate on the purpose of the bill as a whole and debating itsmerits

- P sometimes employs closure rules which truncate debate (forgov bills)

- Rules of debate:- To speak you much catch the Speaker’s eye- Cannot engage in irrelevant/repetitious debate- Must relate to the purpose of the bill as a whole- Generally don’t debate matters that are before the court

(Sub-judici rule)

- Can’t talk to the person directly, must speak to thespeaker- Can’t insult the Queen

- Vote. Purpose then locked in and sent to Committee

Step 7(b): Sent to Committee and vote- Will have hearings and consider viewpoints from people, such

as public, interest groups, etc- Suggested amendments made- In Majority context, the committee is made up of mostly

majority people so if the gov doesn’t want an amendment to

be accepted it probably wont be- Cannot amend the purpose at this point!

Step 7(c): Report stage- Gov can revoke any amendments made by the committee- Also the sponsored member’s opportunity to make changes (must

give notice to propose amendments). Must be something not dealtwith in committee

- Then get a motion to concur with the bill in its entirety and thenmoves to third reading

Step 8 (a): Alternative process: Sent to committee- Allow committees to weight in on a bill much easier- Advantage of this: Scope of possible amendments that could

be brought up is much broader- No constraint on amendments not related to the purpose, etc.

seen above- Committees have greater latitude



Step 8(b): Joint report and second reading stage

Step 9: Third reading- Last change for HOC to pronounce on the merits of a bill- Can’t amend (Last opportunity to amend was in the report

stage)- All that is left here is to vote up or vote down the bill

Step 10: Three Readings in the Senate (if approved in HOC)- First à second à committee à third- Assume then that the senate wants to make changes to the bill

that has been approved by the HOC à for this to happen it has togo back to the HOC

- HOC then will be asked if it agrees. If it agrees with theamendments we are fine. If they disagree it then goes back tothe senate and if the senate agrees with the disagreement then

we are fine. If the senate doesn’t agree with the disagreementthen we have a conference between HOC and Senate (thisdoesn’t happen often à last time was 1947)

- If they can’t come to resolution in the conference, the bill dies

Step 11: Royal Assent- Classic form: A ceremony where the GG or deputy GG (often SCC

justice) gives a formal blessing/signature- C requirement for a bill to become a statute- Implications of GG refusing:

o C Act, 1867 à looks like the GG has a lot of authority torefuse royal assent, but really, there is no basis for royalassent not to be given

- Once you have royal assent the bill is now officially a statute- When does the bill then become law?

o Default à if you look at the Interpretation Act, the view isthat Royal Assent brings the provision of the Act into force

o However, it is possible for the statute itself to indicate thatthe coming into force will be at a certain date, orannounced by the GIC (Fed Cabinet)

§ Statute delegates Cabinet to decide when the lawwill come into force

Aside: ROYAL CONSENT à if something entrenches on an existingRoyal Prerogative you need to get approval

Step 12: Publication- Assented Act Service

o Mail order service- Part III, Canada Gazette



- Annual Statutes of Canadao Consolidated version of the statutes passed each year by P

- This year: SC 2007



PASSING LEGISLATION: A HEATHER MODEL!



Elements of a Statute

Section Explanation

Regnal year Session of P related to how long the

Queen has been sitting. No legaleffect.

Act NumberSC 1988 C-20

Reference to the order in which itwas introduced. i.e. 20th Act to getRoyal Assent in this particular P

Long Title Purpose of the statuteGives indication of where to look tosee if amendments are consistentwith the purpose

Date of Royal Assent When the act becomes legallyoperative

Enacting Words No legal significanceShort title Handle we used to refer to the

statute (s.1)

Headings Legal significance: ambiguity in aprovision? Can look to the headingsto see what they meant

Marginal Notes What the section deals with. Nolegal significance

Definition Clarifies and adds precision toambiguous words

Preamble Not required. Used when P wants toenunciate the reason for the statute.Provides further certainty as to whythe Act exists

Purpose Section Used to amplify the purpose. “thepurpose of the statute is…”

Table of Contents No legal significance

Parts and Divisions Operational tool. Partitions sectionsvia a common element. Used to helpclarify ambiguous terms

Schedules Detailed information that doesn’t fitelegantly into the statute. E.g. Howto calculate damages in a civilproceeding



Finding Statutes- Canada Gazette- SO (Ontario)- Amending statutes are usually just individual sections that have

been amended so its hard to read the entire statute (need a

consolidated version)- Revised statutes of Canada à Consolidated versions of thestatute including the amendments that were made

- Most recent à 1985

Executive Branch

Structure of the Executive Branch• Monarch/GG

– Give Royal Assent – Head of State (head of Exec branch) – S.9 of the 1867 Act

• Ministry: – Not the same thing as the Cabinet, necessarily – Not the same thing as the Privy Council – Ministry is just the generic term for everyone who is a Minster– No requirement that ministry overlaps with cabinet (BC PM

chooses; however usually the same) – Cabinet

– the collective decision making body (Ministers selectedby the PM)– not anticipated by law (the constitution)– instead there are references to the governor in council– Federal Interpretation Act: governor general acting in

association w Queen’s Privy Council – Queen’s Privy Council:

• The GG of Canada acting by or with the advice of or in conjunction with the Queen’s PC (QPC)

• What’s the Queen’s PC?• Found in the C Act, 1867

• Body that advises on the Gov of Canada• How does that help us in understanding what

Cabinet is?• All cabinet members when sworn in become

a member of the QPC (“the Honorable”)• How is it that these powers of the QPC are

exercised exclusively by sitting Cabinetmembers? Means the sitting cabinet



members are advising the GG and thereforeacting as GIC

• GIC à short hand for the GG acting at thebehest of the Cabinet

• The powers of the QPC are exercised exclusively

by sitting Cabinet Members (1867 Act)• Every time you see a federal statute thattalks about GIC that is code for the FederalCabinet

• Provincial Level: Lieutenant GIC

• Prime Minister – First among equals in the Cabinet system – Key power: to select and fire ministers themselves – Primus inter pares – Appointed by the Governor General on the basis of whether

can secure confidence of Commons – Resigns when incapable of retaining this confidence (usually

after an election in which another party obtains more seats inthe Commons; however, possibility of coalition)

• Ministers – Appointed by the Governor General on the advice of

the Prime Minister after you get elected – Dismissed by the Governor General on the advice of

the Prime Minister– Different types of Ministers:

• Most common/important à one that heads up adepartment

• Responsible theoretically for everything that goeson in the Dept

• Sub Ministers à Ministers of State• Assist the ones that head up a department• Abandoned after the last election

– Selection process– Typically members of Parliament (however no firmrequirement)

• Don’t want that situation to last for long because then

you have the head of the exec branch without anyconnection to the leg branch

– Political considerations in selecting ministers:• At least one minister for each province (exception: PEI)• Adequate Anglophone/francophone representations• Gender and Ethnic representations

– No security of TenurePM resigns à ministry also expires



No wrongful dismissal if the PM decides to let you go. Totally at his discretion.

• Public Service – Appointment: Appointed in keeping with the merit

principle in the Public Service Employment Act • PSEA designed to create a reasonably independentPublic Service

• Appointments must be made on the basis of merit andfree from political influence

De-politicized by:1. Admission tests: preserves emphasis on merit2. Restricting dismissal

– Tenure: Dismissed according to employment law rules• Can have different statutes (indeterminate has the

longest tenure, contract, etc.)

• Subject to union rules so it makes it hard to dismissthem

• Special rules on dismissal/discipline for overtpolitical activity: Osborne

• Three scenarios:• 1) You are a janitor at the DOJ and you are going

to run for liberal nomination in Toronto Centre.Minister of J finds out. Can he fire you?

• Osborne à s.3 claim à case that engaging inpartisan work leading to dismissal was aviolation of C guarantees such as FOE, etc.

Court concluded that it was not upheld ons.1 since it was an absolute provision. Itdidn’t matter what your job was. SCC wasnot persuaded that the neutrality of thepublic service (PS) was in jeopardy everytime anyone did something

• They distinguished between sorts of public servants. Under the new rules,most PServants are allowed to engagein partisan activity (there are someconstraints though – not an absolute

right)• Rules must stricter for those in higher

up positions (Scenario 2)• 2) Deputy Minister of DOJ and you are going to run

for liberal nomination in Toronto Centre. Can theminister fire you?

• Can only engage in voting… can’t engage inany other partisan activity



• 3) What if as a PServant I provide the Globe withsome inside info (whistle blowing)? To whatextent can you be disclosed for wrongdoing?

• Fraser:• Issue: Comments made about Trudeau

implementing the metric system. Got fired.Ended up at SCC. Could he be dismissed forviolating their duty of loyalty?

• Holding: Outer limit on the duty of loyalty.It is not reached by the meritic system, butit might be reached by info that the govengaged in illegal acts or the gov jeopardized someone's safety/heath/lifethen you do have the opportunity to voiceyour views (implicit whistle blowingprotection)

• Pre-Charter case• Your ability to release info about your safety,

etc. is basically a constitutional right (FOE)

• Governor in Council Appointments – Formerly, appointment not closely regulated by law,

producing claims of political favouritism – Appointments to boards, agencies, tribunals, etc. – Changes made by the FAA – Public Appointments Commissioner - Public Service

Commission

• Exclusive authority to make appointments to publicservice for govt of Canada

• Supposed to set out the ground rules for appointmentsof GIC appointees

• Also supposed to review/appoint/oversee theseappointees

• Some difficulty in actually getting this commission off the floor and into existence

– Tenure• Dismissal process depends on whether “good

behaviour” appointees or “during pleasure”

appointees• “During pleasure” à traditionally office is held at the

discretion of the GIC• In proactive we see “due process” and “good

behaviour” in the appointing instrument• Due process

• However, in practice though CML proceduralfairness the courts have grated on certain due



process standards, so even though you retain the job at the pleasure of the GIC they cannotdismiss without giving notice and giving theperson the chance to present their views(don’t have to have cause)

• Because of this grafting on there have beena number of cases of late where peoplesued after they were dismissed and weresuccessful in all cases

• Good Behaviour• May also have the situation where you stay

in office for good behaviour• If the GIC is going to fire you then they

have to have cause. Can’t just be on awhim

• GIC has to examine the conduct of the

individual to see if it was consistent withwhat we expect of a GIC appointee

GIC Appointment Independence: Ocean Port Case

*** Independence seen in the public service vis a vis the executive.When the Tories take over they can’t fire all the public service becausethey think it is tainted with liberals ***

*** Get even more robust independence where for various reasons P,

when it designs a certain agency or branch of the Exec, they say theywant to give it even more autonomy ***- E.g. Human Rights Commission à want more independence

because the litigants are often a complainant and thegov… so want them to be impartial to the gov so you get afair hearing and so their actions are subject tomanipulation by the gov

- E.g. Immigration and Refugee Board à Same situation asabove. Don’t want the person hearing the case to get a callfrom the Immigration minister trying to influence him

Create independence by:- Creating security of tenure so they can stay in office for a long

period of time (good behaviour appointments so they are firedonly with cause)

- Provide administrative independence so the person that will hearthe case is not chosen by the Minister (Minister has little abilityto influence)

- This case: Federal Human Rights Tribunal adjudicated this issue



- Even outside any C obligation there is a duty to createindependence. So where does it stem from? Approaching on PS

Issue: Whether there is an administrative law or C obligation thatthese agencies be independent. Is this just a choice P makes or is there

a broader imperative that drives this independence?

Facts: Alleging that the HR tribunal is not independent

Holding: Structure laid out by P and it said that it didn’t have to beindependent à Said that there was no constitutional basis so there wasno ground to make a claim à Reaffirming the notion of PS à If you aregoing to take a strike at something done by P you have to find a Cobligation and here there were no C obligations à Court’s engaged in judicial review of admin decisions must defer to the legislator’sintention in assessing the degree of independence required of the

tribunal in question (It is the legislature that determines the degree of independence required of tribunal members)

Note: One case where there is a C obligation to create anindependence:- S.7 in the Charter à where you have life, liberty or security of the

person at issue at a tribunal hearing you might argue that thisimports an obligation to be independent

- E.g. Parole Boards- E.g. Immigrant Refugee Board

GIC Appointment Independence: Campbell case

Facts: Concerns the tension between accountability and independencein the context of enforcement (police) à Part of the Exec, but unusualbecause they have the power to exert substantial force and authority à

Want police to be accountable to the electorate and to P à On the otherhand, we don’t want the Minister to dictate them à Don’t wantcommand control exercised over politicians to the point where policeindependence is impaired à Here, the police violated the law whenissuing the reverse sting à Crown said they are immune because theCrown is immune

Holding: SCC said they don’t get to enjoy the crown’s immunitybecause cops are at arms length from the Crown à Police areindependent when it comes to conducting their work à Very importantbecause you don’t want the police to respond to political direction inthe way they conduct their affairs

Outcome: SCC said cops don’t enjoy the crown’s immunity. Gov’s



response was to give statutory provisions so the police can break thelaw (s.25 of the Criminal Code)



Powers of the Executive Branch

– Federal executive is not a sovereign body – It has limited powers:

• Issued to the executive by the Constitution (very limited)• Royal prerogative (also very limited)Most important is conduct of Foreign Affairs and Defence

• Delegated to it by Parliament in the form of a statute(very expansive)

– Same goes for the provincial executive

Royal Prerogative & Constraints• Residue of monarchical power that has survived being extinguished

by the legislature• Can be limited or displaced by statute

• Can be limited by the courts: not all prerogative power are immunefrom judicial review

Black v. CanadaFacts: Conrad Black à Appointed a peer in the UK HOL over theresistance of JC à Chrétien called up the Queen and told her not to do ità Relied on Nichols resolution (not binding law, just a resolution) saidthat a Canadian citizen should not accept foreign honour withoutCanadian permission à Black suedIssue: Is the exercise of the prerogative subject to any controls fromthe courts?

Holding: Black loses because the source of the PM’s power wasprerogative. Court said the PM’s use of power RP was not amenable to judicial scrutiny à The source of power (RP or statute) does notdetermine what is reviewable by the courts à controllingconsideration is the subject matter, not the source! à amenableto judicial process if it affects the rights of individualsNote: Some powers are subject/amendable to judicial scrutiny (e.g.Passport stuff)

Delegated Power & Constraints:- Parliament has expansive capacity to delegate power to the

executive, via statutes- Can do this bc it is an exercise of parliamentary supremacy- Limits on what parliament can delegate:

1) Must comply with Constitution- The power delegated must be one the legislature

possesses- Thus, cannot transgress the constraints imposed by the

Charter and division of powers



2) Parliament cannot delegate its powers to provincial legislatures; vice versa

- However, P can delegate to provincial officials and viceversa though à E.g. Fed P might say it makes more sense in

terms of regulating Fed fisheries that the provincialfisheries agent do it- Can regulate a law that gives the provincial

enforcement officer those powers (works vice-versa à

Provincial legislatures can also delegate to federalofficials)

- Attorney-General of Nova Scotia v. Attorney-Generalof Canada (1951), SCC

3) The legislature cannot delegate to the executive the powers toset taxes.

- Constitution says taxing law must originate in the H of C

4) Parliament cannot surrender its powers to the executive(Delegation, Not abdication)

- Exception: War Measures Act (established by Re Gray,1918)

- SCC: “Parliament cannot, indeed, abdicate itsfunctions, but within reasonable limits at any rate itcan delegate its powers to the executivegovernment. Such powers must necessarily be

subject to determination at any time byParliament…”

- Outer limit à P must be in the position to revoke thatbestow of powers

5) Delegated powers must not be unconstitutionally vague (s.7)- Must have an intelligible standard so that citizens know

when they are violating the law

Key example of delegated power (Regulation Making):

Delegated Legislation– Most famous form is regulation – Process is determined by Statutory Instruments Act and government

policyNot a very robust procedureGov policy is mutable à Does not have to be followed if gov does

not want to follow it – What is a “statutory instrument” subject to the Statutory



Instruments Act ?• Basically, all delegated legislation of importance:

1. Everything described as a regulation in an Act;• SIA defines what we mean by regulations or

instruments that are subject to the SIA

2. Instrument made in the exercise of legislative powerconferred by or under anAct delegate legislation that is general rather than

specific to an individual

3. Instruments that if you violate them there is apenalty fine or imprisonment that is prescribed byor under an Act

Delegated Legislation: Procedure:

– 1. Cost/benefit studyObligation under gov policy to do a cost-benefit study when

making regulations – 2. Regulatory proposal

Summarizing cost/benefit analysis, among other things – 3. Examination of proposal

By, most important, the DOJAnd Clerk of Privy Council

Ask, is it in fact permitted by Statute, Charter, etc. – 4. Pre-published in Canada Gazette IIn Govt periodicalGeneral public has 30 days to respond

– 5. Regulation madeExecutive order is signed

– 6. Regulation registered: CIF (coming into force)Generally within 7 days of being made, registered with clerk

of Privy CouncilWhen registration occurs, the reg comes into force and in

theory is therefore binding law

– 7. Regulation publishedPublished within 23 days of being registered in the Canada

Gazette IIPerson can’t be penalized for violating the reg until it has

been published

Controlling the Exercise of Delegated Power (cont.)- Admin Law:



“In a system of responsible government, once legislatures havemade political decisions and embodied those decisions in law, itis the constitutional duty of the executive to implement thosechoices. Re Remuneration of Judges, [1997] 3 S.C.R. 3

Policing the bounds of the delegated power and ensuring that the

executive remains onside is usually the job of the courts, and isthe subject matter of an area of public law known asadministrative law.

2 broad classes of admin law (2 different ways courts can policeexec):

1. Procedural Fairness – A common law due process standard for administrative decision

makers– Even where statute is silence, courts are grafting on due process

obligations

– What is due process:1.Notice + opportunity to comment2.Before and unbiased decision-maker

– Test for trigger: Knight v Indian Head1) The nature of the decision is being made by the administrative

bodya. if final decision, it is more likely that procedural fairness

is requiredb. if administrative decision (narrowly focused on

individual), “”i.Legislative decision by exec à general decision that

applies to a large number of peopleii. Admin à applies to a more narrowly defined

group2) The relationship between the body and the individual affected

by the decision [impact of Dunsmuir?]a. Must be a public power that is being exercised

3) The effect of the decision on the individual’s “rights”a. Does the decision have a severe impact on the individual?b. Rights shouldn’t be read too narrowly: means interests,

property or otherwise. Not right as in the C sense or a rightin terms of a tort cause of action

– Test for content: Baker v. CanadaHighly variable and depends on the factsFactors to consider:

1) Nature of the decision being mademore alike to a judicial process, more due process

awarded2) Nature of the statutory schemeis there an appeal route?



3) Importance of the decision to the people affected by it4) The legitimate expectation of these people etc.5) The choices of procedure made by the agency itself especially where the statute leaves to the decision maker

the ability to choose its own procedures or when the

agency has an expertise in determining whatprocedures are appropriate in the circumstancesAt core, courts are pre-occupied with ensuring that you get robust

due process in light of the consequences (the more serious theconsequences, the more due process)

1. Substantive Mistakes– Courts have capacity to review “jurisdictional” errors by the executive (errors re:

what is within govt’s piece of the pie)

– Culture of restraint and deference influenced how willing courts were to intervene

– Ultimately produced a tripartite test to determine standard of review

Established 3 different types of deference:correctness (right or wrong)

patently unreasonable (most extreme form of deference - only intervene

when we think your decision is clearly irrational)

reasonableness simpliciter (ambiguous; akin to patently unreasonable)

– Impact of Dunsmuir : threw out tripartite standard review

Now only: correctness (aggressive) or reasonableness (deferential)

Cases

Knight v Indian Head

Facts: School board created by statute so his employer was a publicbody (branch of the Exec) à Knight is fired and is given a bit of notice à

Argued his dismissal was inappropriate and there wasn’t sufficient dueprocess appliedCourt: This was a special employer/employee relationship that fallswithin admin law à laid out the test to be followed to determine if thereis a CML duty of procedural fairnessRemedy for Knight: Gets notice and an opportunity to respond ormake his views known before the decision is made

Baker v. CanadaFacts: Baker was a citizen of Jamaica à overstayed visa by 10 years à

kids born in Canada à she’s ordered deported à kid was sick so she wasworried about this if she got deported. Also worried she wouldn't’ getback into Canada if she tried to re-enter à Seeks Humanitarian andCompassionate Relief so she can apply for residency inside Canada à

turned down by senior immigration officer à responds with judicialreview à said the member of the admin branch did not act properly à



argued procedural fairness à said she should have been givensubstantial reasons for the denial along with an oral hearingIssue: Does procedural fairness apply here? How much due processare you entitled to?SCC: Procedural fairness was owed here. She was facing someone

holding procedural power. Meets the Knight v. Indian Head test.



3. Criminal Code- Bribery of MPs- Breach of trust by “officials”- Influence peddlingPenalty: imprisonment for max 5 yrs for selling or offering to sell

influence with the govt for a feeAbility is irrelevantClassic manifestation is the Cogger Case : “[w]hat is required is

that the accused intentionally commit the prohibited act with aknowledge of the circumstances which are necessary elementsof the offence. Thus, to be guilty of an offence under this section,the accused must know that he or she is an official; he or shemust intentionally demand or accept a loan, reward, advantageor benefit of any kind for himself, herself or another person; andthe accused must know that the reward is in consideration forcooperation, assistance or exercise of influence in connection

with the transaction of business with or relating to thegovernment.”

4. Conflict of Interest Act- Applies to parliamentary secretaries, ministers and their political

staff, and some, but not all, Governor-in-Council appointees (eg,doesn’t apply to judges)

- s. 4 à “A public office holder is in a conflict of interest when he or sheexercises an official power, duty or function that provides anopportunity to further his or her private interests or those of his orher relatives or friends or to improperly further another person’s

private interests.”- s. 6 à a public office holder is not to make a decision that would putthem in a conflict of interest (recuse self)

- Various other specific prohibitions:1. No preferential treatmentCan’t make decisions driven by the identity of an individual

2. No use of inside informationCan’t deploy info you have access to

3. No influence peddlingCan’t seek to influence the decision of another person by

deploying your personal authority in gov

4. No treatment motivated by outside employmentReference to post-employment situationCan’t make present decisions with an eye to future

employment prospects5. No gift-accepting that might be perceived as influence6. No contracting with public sector entities under which they

receive benefitswith the exception of pension benefits) or possession of an



interest in a partnership or private corporation that has acontract with a public sector entity

- Rules on disclosure and divestment- Rules on post-employment

1. Absolute ban on some activities

Can’t represent someone on an activity you were actuallyworking on for exampleUsing insider information (info only obtained due to political

position)2. Cooling off” period for other activities2 years for Ministers, 1 year for everyone elseCan not accept service contracts or employment with an

entity with which you had direct and detailed dealings- Enforcement by Conflict of Interest and Ethics Commissioner

selected jointly by all parties (non partisan)Has substantial power (superior court judge)

Power to investigate based on complaint from parliamentarianor on own initiative

Appointed by GIC after consultation with all officialparties in the HOC

Security of tenure§ Only dismissed with cause

Certain qualifications:§ Must be former judge or member of some admin

tribunal somewhere in Fed or Prov tribunal that dealtwith matters of ethics or like issues

Reports to PM

§ Not obliged to do anything§ BUT transparency aspect: political price to pay if it turns

out that the PM didn’t do anything about a negativefinding on part of the Conflict of Interest and EthicsCommissioner

Ethical Codes of Conduct

- MP Ethics Code: Specific rules on:Prohibiting the exercise of public powers in response to private

interests

Prohibiting efforts to influence the MP’s conduct of publicbusiness

Requiring the disclosure of MP assetsEnforcement



Cases

CoggerFacts: Accepted money from two businessmen for trying to getsomething passed through Senate

SCC: Gave us language to understand influence peddling in thecriminal codeMens Rea requirement: have to intentionally commit the act withknowledge of the circumstances (have to know you are an official),intentionally demand compensation, and know that the compensationis in exchange for influencing the gov a certain way; don’t need acorrupt state of mind



Keeping the Legislative and Executive BranchesHonest: Lobbying

Lobbying as a Public Policy Issue

• “Lobby”: to seek support, to attempt to influence governmentdecisions either directly or indirectly“Lobbyist”: someone who is employed to direct the exercise of

power without bribing• The dilemma of lobbying: public service or suspect practice?

It is what makes democracy function (breaks isolationism of decision makers)

But moneyed interests can dominateWith lobbying, it is not a private interest that is being affected on

the part of government (public authority has no private interestin oil sands, for example)

History of Federal Government Lobbying• Growth of lobbying since the 1980s• Many failed attempts to regulate industry

Should Lobbying Be Regulated?• Lobbyist Registration Act (now Lobbyist Act )• Registration helps increase transparency in the process and

promotes the legitimacy of lobbyingBegs the question: how much transparency is there, and is it

enough?

Components of the Lobbyist Act• Requires public registration of persons paid to community with

public office holders in attempts to influence governmentdecisions

• Don’t have to register if you are doing it on a volunteerbasis

• Note that definition of public office holders (anyoneworking in the Federal Public Service) in this Act is broaderthan the equivalent term in the Conflict of Interest Act

• Must disclose a substantial amount of information:

• What are you lobbying on• Who are you lobbying• How are you paid• Who is your client• Are you using a grassroots technique

Components of the Lobbyist Act• Four basic principles set out in the Act’s preamble:



• Free and open access to government is an importantmatter of public interest;

• Lobbying public office holders is a legitimate activity;• It is desirable that public office holders and the general

public be able to know who is attempting to influence

government; and• The system for the registration of paid lobbyists shouldnot impede free and open access to government.

• Workings of the Act: – Geared towards registration and transparency – Registration is required where lobbying, with lobbying

defined as “communicating with federal public officeholders, whether formally or informally, in respect of either the making, developing or amending of federallegislative proposals, bills or resolutions, regulations,policies or programs; or the awarding of federal grants,

contributions or other financial benefits” – Mandatory Code of Conduct for LobbyistsLobbying is to be conducted according to the

highest standards with a view to conserving andenhancing public confidence and trust in theintegrity, objectivity and impartiality of government decision making

Focus on integrity and honesty, openness andprofessionalism

Standard of behaviour is mandatory but notenforceable

Consequence is bad publicity through report toParliament

Does the System Work?• Not according to Gomery:

• The Fact Finding Report concluded that certain individualswere paid to contact and influence public office holders onbehalf of advertising firms and other companies, withoutbeing registered as required under the Act

• The Government’s duty to enforce the requirements of theAct has not been fulfilled, and public speculation that there

is no political will to enforce compliance is justified. Justice Gomery specific comments:

No one has ever been fined or chargedActual limitation period has been quite short: if comes to

light few years down the road, then you are immune(should be increased to 5 yrs)

Official should have more independence, at arms lengthfrom exec govt



Should be reporting more readily and transparentlyIn wake of Gomery, a number of changes have been passed,

but not in force yet

Changes with the FAA

• Replace the Office of the Registrar of Lobbyists with anindependent Office of the Commissioner of Lobbying;• Grant the new Commissioner of Lobbying increased

investigatory and reporting powers as well as someenforcement measures;

• More transparency in terms of Commissioner’s reports• Prohibit any contingency fee arrangements by lobbyists;• Five-year lobbying ban on designated public office holders

(that is ministers, ministerial staffers or senior execs down to theassociate or assistant deputy minister level);

• Greater disclosure requirements on lobbyists, particularly

in relation to dealings with designated public office holders (mustid self, and whether you were a public office holder in the past)• Increase the monetary penalties for offences under the Act;

and• Provide longer limitation periods for the commencement of

summary conviction proceedings under the law.

Keeping the legislative and Executive BranchesHonest: Access to Info

Justification for Access to Information

• Information as the currency of democracy• LaForest J. in Dagg: “[t]he overarching purpose of access to

information legislation … is to facilitate democracy. It does soin two related ways. It helps to ensure first, that citizens havethe information required to participate meaningfully in thedemocratic process, and secondly, that politicians andbureaucrats remain accountable to the citizenry.”

• Allows for transparency and for us to hold the gov accountableUnless you have access to info, you can’t assess performanceof govt• Essential not just to citizens who want to know what gov is

doing, but also to back bench MPs (esp. opposition) to seewhat gov is doing and make sure they are doing it correctly

Scope• Applies to listed government institutionsProblem: when govtal structures change, requires prompt and

accurate updatingFAA now covers crown corps, but not in robust way



Includes very important “exclusions” from the ActMaterial entirely outside scope of act (not to be confused with

exemption)Cabinet confidences (memo to cabinets)2001: certain info related to national security can be carved out

Controversial: why do we need to exclude when we alreadyhave exemptions?Materials in museums and libraries reserved for public viewing

Purpose“To extend the present laws of Canada to provide a right of access to

information in records under the control of a government institutionin accordance with the principles that government informationshould be available to the public, that necessary exceptions to theright of access should be limited and specific and that decisions onthe disclosure of government information should be reviewedindependently of government.”

The Right to Access: Section 4Quasi-constitutional in nature à constitutional bc trumps other

competing statues as the right exists even when it comes incontradiction to any other statute; quasi bc Act of Parliament canalter it

Every Canadian citizen and permanent resident “has a right to andshall, on request, be given access to any record under the control of a government institution,” subject to other sections in the Act.

• Basic Mechanics of the ActMust request info in writing, form published on Treasury

Board WebsiteResponse within 30 days (sbj to letter of extension with

justification)• “Exemptions” under the Act

Exemptions mean the info IS amendable to disclosure underthe AIA but there is a justification as to why thatinformation cannot be released

Should be construed narrowlyIncludes :

“injury based”: info would cause some injury“class based”: falls into classification that is

exempted (need not injure)“mandatory”: don’t get it period (sbj to public

interest test)“discretionary”: may fall within class or injury, but

we as a govt ultimately have the choice to release itanyway



Class Test Injury Test

Mandatory

· Information received inconfidence from othergovernments or aninternationalorganization.

· Personal information asdefined in the Privacy Act .

· Trade secrets of a thirdparty.

Financial, commercial,scientific or technicalinformation that isconfidential informationsupplied to a governmentinstitution by a third party

· Information thatreasonably could beexpected to result inmaterial financial loss orgain to, or couldreasonably be expectedto prejudice thecompetitive position of, athird party

Discretionary

·Information obtained orprepared by listedinvestigative bodiespertaining to crimeprevention, law enforcementor threats to the security of Canada, if less than 20 yearsold.·Information ontechniques or plans for

specific lawfulinvestigations.·Trade secretsor financial, commercial,scientific or technicalinformation that belongs tothe Government of Canada ora government institution andhas substantial value ·Adviceor recommendationsdeveloped by or for agovernment institution or a

Minister.Information that issubject to solicitor-clientprivilege.

·Information that couldreasonably be expected to beinjurious to the conduct of federal-provincialaffairs·Information that couldreasonably be expected to beinjurious to the conduct of international affairs or to thedefence of Canada or an allied

state, or the prevention orsuppression of subversive orhostile activities.·Informationthat could reasonably beexpected to be injurious to lawenforcement ·Information thatcould reasonably be expectedto facilitate the commission of an offence·Information thedisclosure of which couldreasonably be expected to

threaten the safety of individuals.·Information thatcould reasonably be expectedto prejudice the competitiveposition of a governmentinstitution.Paragraph 18(d) –Information that couldreasonably be expected to be



materially injurious to thefinancial interests of thegovernment or its ability tomanage the economy or couldreasonably be expected to

result in an undue



Enforcement by the Information Commissioner/ GovernmentPerformance under the Act

Government Performance under the ActAnnual Report (evaluate different departments in terms of

compliance)Complaints:commissioner can only recommend that info should be

released only recourse is Federal Court review (Commissioner can

appeal for review on your behalf also)Federal court is only body that can order disclosure

Problems with backlog Triage system now implementsStill, inadequate funding prevents timeliness

Commentary on Government PerformanceInformation Commissioner : “Nothing undermined the right of access more, in the past twenty years, than the disdain shownfor it by two long-serving Prime Ministers. Their destructiveexample spread like a cancer through successive PMOs, PCOsand the senior bureaucracy. For twenty years, Canadians seekinginformation – especially about any subject the governmentconsidered “sensitive” – have been met by a wall of obstruction,obfuscation and delay.”

Gomery : “The Commission was given reason to believe that theGovernment’s response to access to information requests does

not always respect the spirit and intent of the existinglegislation.”



The Judiciary

The Courts: Background and Structure

Constitutional basis:• “Federal” courts• 101. The Parliament of Canada may, notwithstanding

anything in this Act, from Time to time provide for theConstitution, Maintenance, and Organization of a GeneralCourt of Appeal for Canada, and for the Establishment of anyadditional Courts for the better Administration of the Laws of Canada.

• Federal Responsibility :(1) Create Court structure(2) Appoint judges (by Fed Exec)

• s. 96 “Provincial” Courts:• 92(14). The Administration of Justice in the Province,including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, andincluding Procedure in Civil Matters in those Courts.

Provincial responsibility(1) create the structureBUT do not appoint judges...

• 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in eachProvince, except those of the Course of Probate in

Nova Scotia and New Brunswick.• Framers of constitutional reserved appointment forthe federal govt to ensure that qualified judges wereselected (so the argument goes)

• Distinguishing between s.96 and non-s.96 provincial courts• Non-s.96 courts (inferior courts) à judges appointed by the

province• Test: Residential Tenancies Reference (1996)

1. Power conform to that of superior court in 1867?Historical analysis. If yes...

2. Does provincial body exercise a “judicial power”?

(Do things that look like adjudication today. If yes...3. Is Judicial function central or incidental?

is adjudicating function something they do onoccasion, or the core of their job? If latter...

Then it is a s. 96 crt; judges have to be appointed bythe Feds



Ontario Court Structure• Ontario Court of Appeal

– s. 96 court

– hears appeals from:Superior Court of Justice

Divisional Court (with leave)Superior Court of Justice

– s. 96 – Broad trial jurisdiction – Was called Ontario Court (General Division) before April1999

Divisional Court – Panel of 3 Superior Court of Justice judges (so a s.96court)– hears appeal from Superior Ct of Justice of < $25000

• Ontario Court of Justice

– non-s.96 – has jurisdiction over those things assigned to it by statute

The Judiciary: Appointment

• Different possible models:1. Executive appointment

• Exec branch names the person and they are



appointed to the bench The classic way Canada appoints SCC (up until

Rothstein)• Flaw: Fear is that there is no checks and balances

2. Executive appointment + nominating committee of

some sort• Appointment preceded by a nomination process (avetting)

• Exec appoints from resulting pool of candidates• Non-SCC Fed appointments (s.101 aside from the

SCC and s.96 courts)3. Executive appointment + legislative branch

confirmation (Am approach)• Exec gets to appoint but that is conditioned

on/influenced by P• Had this for the first time with the Rothstein

appointment• Flaw: Fear is that this will become about politicalprocess

4. Direct election• Some US statesFlaw: highly political



Federal Appointment Processs. 96 Courts

Governor General in Council (GG at behest of cabinet)Mix of law, policy and convention

s. 101 Courts

Governor General in Council (GG at the behest of cabinet)appoints to:

1.SCC2.Federal Cts3.Tax Cts

Basic Criteria for appointments to s. 96 and s.101:Legislated1.Lawyer in a Canadian jurisdiction2.Member of Bar in good standing for a min of 10 yrs

(Judges Act)Conventional

SCC ACT3 Ontario2 West1 Atlantic3 Que (civil code)Fed COA4 Que

Issues of Patronage and Politics- Concerns that appointment may be manipulated by the Exec

(cabinet)

- CBA 1949 Report1932 à PM Bennett raised concerns about political patronage in

bench appointmentsPre WW2 à most appointments had held political office or ran

for it prior to the bench1949 à Consulting committee to advise Cabinet on electionsUncovered As of that date, 54% of the SCC are former

politicians- 1967 à system began to change

o Trudeau was justice ministero Agreed to a committee by the CBA

o Consulted and advised the Justice Minister on appointmento Four rankings by the committee: Very well qualified, well

qualified, qualified, not qualified- 1984 à Trudeau retired à successor was John Turner

o Trudeau promised 6 liberals on the bench on his way out. Turner said he didn’t have a choice but to do this

o At least one of these bypassed the CBA committeeentirely!



- 1985 à CBA study on patronage in the bencho Political favoritism not a factor in SCC selection, but it is

egregious at the Federal Court Level- 1988 à Mulroney's changes

o Political favoritism continued to have an impact in his first

term (Report from studies)o In 1988 we got a permanent committee in each provincecomprised of the bench, bar and public who would makerecommendations

§ Still have this today§ Supervised by a Federal body§ Three criteria for ranking: Recommend, Highly

recommend, could not recommend- 1994 à Only person who went through this vetting and got

recommended or highly recommended would beappointed

Federal Appointment Process (non SCC Judges)

- Appointed by the Governor-General in Council§ 1. Expression of Interest§ 2. Committee vetting§ 3. Assessments§ 4. Cabinet approves on recommendation of Justice

Ministero Controversy over the process

- Independent advisory committeeso 8 members (Harper added a law enforcement official)o Balance of powers lies with the Fed Govo Issue with law enforcement appointment to the committeeo CBA and Law Society has been very vocal. The Canadian

Judicial Council (CJC) has also weighed in on the issue:§ Advisory committees don’t seem to be fully

independent of the gov

- Step 1: Application comes in and the committee does thevetting

o Assessment is confidential

- Step 2: Confidential assessment: what should they look at:o Professional competenceo Social awarenesso Personal characteristicso Etc.



- Step 3: Committee then comes out with recommended, highlyand not

o Tories have reportedly fused recommended and highly sonow you get thumbs up and thumbs down

o CJC à this change raises questions about if the most

qualified individuals will be appointedo MOJ ultimately calls the shots

- What other criteria might drive the choice?o Seems that political considerations play a factor since the

pool of “recommended” and “highly recommended” is solarge

o One study indicated that 50% of the people appointedwere connected to a political party

§ Donations à Most were small donations and were anindication of political affiliation

The Judiciary: SCC Appointments• Traditional Process

– Closed-door consultation followed by GIC appointment – No one knew how it worked unless you actually

participated in it – No committee system – Two steps:

• 1) MOJ supposed to identify candidates somehow(thought his devices or though nomination)

• The candidates are always on the COA and

sitting judges• 2) Look at consideration such as professional

capacity, personality, jurisprudential profile (lookingat their judicial writings and assessing theirprecedent setting value i.e. how many times havetheir decisions been turned over, etc.). Minster thendiscusses candidates with the PM and the candidateis selected and the GIC makes the appointment

– Problem: No checks and balances that assess theappointment of goods judges

• Reforming the Process

– Failed constitutional amendments• Meech, Charlottetown

• Would have entrenched the regional and 10year requirements and gave the provincesmore power in the selection process

• Since that time most debate is abouttransparency, not the provincial role

– 2004 Parliamentary Committee



• Martin: Question to the Commons Justice Committeeà How should the appointment be done

• Wanted greater transparency• Report à Recommended there by participation in the

vetting of candidates by a committee and the

committee would include members of each officialparty, provinces, bar and the public (like theindependent advisory committee for non SCC judgesexcept the Parliamentarians would also play a role)

• MOJ would then appear before the court after theappointment to justify it

• NDP called for the minister to appear before the justice was appointed

• Conservative and the Bloc said the short list shouldbe publicly viewed and there should be publicratification (US style confirmation process)

– 2004 Appointment Process• Ad hoc• MOJ appeared before a P committee to discuss the

candidates• Decision finalized by GG

- 2006 Appointment Process- Harper Gov à Justice Rothstein - Took a hybrid approach. Built on Liberal system of

2004 and added in political feeder (chat with thecandidate themselves)

- Parliamentarians had no control

- Vetting + nominee appearing in front of P- CBA not happy à question of judicial independence

The Judiciary: Independence

Why judicial independence?- Independent adjudication essential in a free and democratic

system- Ethical Principles for Judges:

o “An independent judiciary is indispensable to impartial

justice under law. Judges should, therefore, uphold andexemplify judicial independence in both its individual andinstitutional aspects.”

o "Judicial independence is not the private right of judges butthe foundation of judicial impartiality and a constitutionalright of all Canadians."

http://www.scc-csc.gc.ca/AboutCourt/judges/rothstein/index_e.asp%20%5C%5C%20_parent

http://www.scc-csc.gc.ca/AboutCourt/judges/rothstein/index_e.asp%20%5C%5C%20_parent



What is judicial independence?- Ethical Principles for Judges:

o "Judicial independence thus characterizes both a state of mind and a set of institutional and operationalarrangements. The former is concerned with the judge’s

impartiality in fact; the latter with defining the relationshipsbetween the judiciary and others, particularly the otherbranches of government, so as to assure both the realityand the appearance of independence and impartiality"

1) State of Mind: Personal independence of the judge inperforming his or her duties- First qualification of judges is to render impartial positions on

merits, not their own pre-dispositions

Tobias:

Facts: No way they could have gotten citizenship unless they liedabout it à because they had lied about their past affiliation with warcrimes à the gov was trying to revoke their citizenships à Counsel forgov wrote a letter to the court administrator saying that it was a slowcase and they were unhappy about it à Chief Justice of the FederalCourt then had a chat with gov about how horrible these waits were. Tobias lawyer not present à then tells the Associate Chief Justice whowas overseeing the case to speed up and he did! à Crown haddisproportionate accessSCC Holding: Independence was compromised à undue influence bythe gov à “As a general rule, counsel for one party should not discuss a

particular case with a judge except with the knowledge and preferablywith the participation of counsel for the other parties to the case.” BUTcan be limited by statute (e.g. Terrorist and CSIS)Remedy: Slap the Fed Court on the wrist. Matter must be assigned toanother judge and that judge has to ignore the previous handlings andthe case will proceed in this wayTest: The test for determining whether the appearance of judicialindependence has been maintained is whether a reasonable observerwould perceive that the court was able to conduct its business freefrom the interference of the government and of other judges.”

2) Institutional arrangements: Insuring that independence isnot impaired by the structural arrangements between thebranches of government

* who determines when judges fired, who determines what paid, whichcases they take* 3 pillars given profound recog by SCC



- Talking about three things:o 1) Security of tenure

§ Can’t be fired for an unpopular decision§ Also, before a judge can be removed for just cause

there must be a judicial inquiry to establish the cause

exists and the judge must be given the opportunityto be heard*don’t want judge to tailor ruling so as not to be fired...

o 2) Financial security§ Crime to accept bribes§ Salary not related to decisions*don’t want...pay cut...

o 3) Institutional/Administrative independence of thecourt

§ Can’t play games with the judges§ Financial independence has been the most

troublesome in the last decade· Budget cuts à Many made at Provincial levelthat affected the provincial inferior court levels

o Courts sued in the PEI Reference Case*don’t want judge shopping

*1980s and 90s cases winding way through on these pillars* SCC weighed in on all these pillars...* concerned dispute bw inferior prov crt judges and several provs as

to their pay* at core, protesting judges took view that judicial independence

was constitutionalized (s. 11(d) )*I: whether prov govt could restrict pay wo impairing judicial

independence*Maj:

Why have it?*jud independence fundamental precept (public confidence)

Where does judicial indep come from?* s 11(d); constrained only to circs where dealing w crim offence* s. 96-100: fed govt to appoint judges of prov sup crts, other

guarantees ie sec of tenure, by GG, good behaviour* unwritten principles of C 1867: covers 101 Fed crts (have no crim

jurisdiction)= richly constitutionalized norm

What does Const req for jud indep to be met?*not just actual indep but also objective from perspective of

external observer



* 3 chars, goes on and says has 2 dimensions: individual andinstitutional (under at least 2st two)Ind = is a given judge penalized by having their pay cut?Ins = independent agency that interposes self bw govt and crt indetermining pay (vet gov), any changes in pay that are not

vetted are not constitutionalDec of body: rec should not be set aside lightly, to disregardmust justify = subs autonomy

PEI Reference Case

Question: Why have judicial independence?Answer: Serves important societal goals, including the maintenance of public confidence. Protects the rule of law: exercise of public powermust find as its source a legal rule

Question: where doles judicial independence come from?Answer:

- Sections 96-100 of the Constitution Act, 1867: protect superiorcourt judges

- Section 11(d) of the Charter: Any person charged with an offencehas the right (d) to be presumed innocent until proven guiltyaccording to law in a fair and public hearing by an independent and impartial tribunal

- Unwritten principle recognized in the preamble of theConstitution Act, 1867

Question: What is judicial independence?Answer: Requires not only actual independence, but the reasonableperception of independence on the part of a reasonable and informedperson

Test of independence à Asking whether the reasonable person whois fully informed of all the circumstances would consider that aparticular court enjoyed the necessary independent status

- Has 3 core characteristics:o Security of tenure

o Administrative independenceo Financial security

Financial Security:

- Independent and institutional dimension- Independent à Judge acts wit]rout influence



- Institutional à Separate judiciary from other levels of gov-

o Three aspects before salaries can be changed:§ 1. Salaries can be changed for judges as a class, but

there must be a salaries committee

· Government must establish these bodies· Salary changes must be reviewed by thesebodies to be constitutional

· Not binding, but to ignore these bodies’recommendations, there must be a rationalreason. Question as to if they are rational canbe adjudicated in the courts

§ 2. Judiciary cannot negotiate over remuneration withthe executive

§ 3. Salaries can’t go below a minimum level



The Judiciary: Dismissal

A. Retirement

• Federal Court Act, s.8(2), Supreme Court Act, s.9(2): A judge shallcease to hold office on attaining the age of seventy-fiveyears.

• Constitution Act, 1867, s.99: "A judge of the superior court shallcease to hold office upon attaining the age of 75 years"

B. Appointment during “good behaviour”

• Act of Settlement, 1701• Constitution Act, 1867, s.99: Judges of the superior courts shall

hold office during good behaviour, but shall be removable bythe Governor General on address of the Senate andHouse of Commons

• To be removed for cause you need the exec and leg to agree – Hard to get over this threshold

• S.101 courts àprovisions in the statute governing this• C Act, 1867 à s.99• Since confederation there have been 5 petitions to remove a

superior court judge – None actually came down to vote à 4 of them in the 19th

century à Not a busy area

Appointment during “good behaviour”: Landreville case

Facts: Judge in Ontario à Mayor of Sudbury prior to appointment à tooksome dubious payments à Royal Commission appointed to look intothis case

Test: "Would the conduct, fairly determined in light of all thecircumstances, lead such persons to attribute such a defect of moralcharacter that the discharge of the duties of the office thereafter wouldbe suspect? Has it destroyed unquestioning confidence of uprightness,of moral integrity, of honesty in decision, the elements of publichonour?"



Holding: Launderville had not acted properly. He resigned so therewas no formal vote in P

Consequence of this case: Decided that an independent body wasneeded to deal with these questions à Created the Canadian Judicial

Council

Canadian Judicial Council

- Established by Judges Act - Chaired by Chief Justice of Canada- Chaired by CJC (McLachlin)- Staffed by Chief justices of all superior courts- Most significant function is to consider complaints about

federally appointed judges- Not complaints about the merits in terms of a particularcase

- If the case doesn’t go like you want it to the recourse isthrough the appeal chain to the SCC if leave is granted



Steps in the dismissal process



- Takes a long time to get someone fired (and would ultimatelyhave to be done by a vote in P due to s.99 or its equivalentdepending on the court)

- Before a judge can be removed for cause, “there must be a judicial inquiry to establish that such cause exists, at which the

judge affected must be afforded an opportunity to be heard”

Step 1 à Complaint received by CJC

Step 2 à Complaints reviewed- If they see it is frivolous or you’re complaining about the actual

outcome and that it should go to the appeal route à step 2(a) à

dismiss- If they decide there is some merit to this, the file is not closed

and is instead referred to a panel of 5 judges à Step 2(b)

Step 3aà Panel then decides if it is frivolous. If it is they close thematter (dismiss it)- Write a letter to the judge though as a slap on the risk à a

warning given in any case even if it does get dismissed

Step 3b à not frivolous- Recommend an investigation which goes up to the full council

who then decides to proceed with the investigation or not

Step 4a à Full council can dismiss is frivolous

Step 4b à Complaint is serious enough so they hold an inquiry- Inquiry referring to the conditions/grounds under which a judge

can be dismissed according to the Judges Act (JA) à see below

Step 5 à Inquiry

Step 6 à Inquiry committee reports to CJC- With or without recommendations- Can recommend that the judge be dismissed

Step 7à Council as a whole takes up the matter and can have

additional supplemental hearings in which the person being questionedcan be asked to make submissions

Step 8 à Report to minister (s.65 JA)- May recommend the dismissal on grounds enumerated in s.65 of

the JA- Council takes a vote to decide if they should recommend

dismissal



- Grounds for dismissal:o Ageo Infirmity (Gone crazy)o Misconducto Having failed in the due execution of office

o Having been place din a position incompatible with the dueexecution of office (COI)- CJC has gone this far to recommend dismissal on these grounds

in one case only!!- Number of cases where the process has started off and in the

passage of time the judge has resigned

Step 9 à Minister considers

Step 10 àVote in Parliament

Example of the Complaint Process: Bienvenue ’s Case

“It has always been said, and correctly so, that when women -- whom Ihave always considered the noblest beings in creation and the noblestof the two sexes of the human race -- it is said that when womenascend the scale of virtues, they reach higher than men, and I havealways believed this. But it is also said, and this too I believe, thatwhen they devide to degrade themselves, they sink to depths to whicheven the vilest man could not sink…”

“Alas, you are indeed in the image of these women so famous inhistory. The Delilahs, the Salomes, Charlotte Tardif, Mata Hari and howmany others who have been a sad part of our history and havedebased the profile of women. You are one of them, and you are theclearest living example of them I have seen.”

“At the Auschwitz-Birkenau concentration camp in Poland, which I oncevisited horror-stricken, even the Nazis did not eliminate millions of Jewsin a painful and bloody manner. They died in the gas chambers,without suffering.”

Facts: 1985 à Superior Court Quebec Judge à Overseeing a murdercase à Verdict à guilty à Sentence of 10 years (min time) recommendedby jury à Bienvenue sentenced her to life and made the commentsabove à Gender issues! à Said the jury was idiotic and incompetent à

Bienvenue was then accused of sexism and anti-Semitism

CJC Inquiry:



Court Functions: Statutory Interpretation

• Courts breathing meaning into words of statutes: – Statutory interpretation: determining Parliament’s will

– Operating in the piece of pie where Parliament sovereign

Old view:

Judges simply discover and give effect to the intention of thelegislature

• Using the rules of language as supplemented by the rules of statutory interpretation, the court applies the law the legislatureintended to enact and determines how the law was intended toapply to the facts facing the court

• Judges are just discovering giving effect to the intention of thelegislature – Fits nice with PS – Also consistent with the notion of the rule of law

• Code of law applied (positive law à everyone knowswhat it is)

– Also consistent with SOP• P is passing statutes and the court is enforcing the

statutes – This view is a myth!! Cases often come up where the

facts are unique!!

• Cases where the courts have never turned their mindto the issue before.

• “True meaning” is a myth because this true meaningdoesn’t always exist

• There is creativity involved in SI

“New” view:

*** The task of the court is to give effect to the intention of thelegislature in so far as that intention can be discovered in the

language of the text, with the language of the text being analyzedwith reference to certain rules of statutory interpretation *** – If the intent is still fuzzy after application of the rules of

statutory interpretation, the judge must rely on his or herown judgment

- Give primacy to the words, to unearth their meanings, butif the words are still ambiguous even after you’ve lookedthe grammar and applied the words of SI, then the judge



just has to judge, and do their best- Does not follow the marching orders of the legislature- New view is more realistic but it does violence to the

theoretical constructs that we apply in terms of our C order

Rules of SI

- Not binding legal rules- Exception: Some rules of SI are in fact rules

- English and French text equally valid- Some codified (Interpretation Act)

- For the most part, courts are relying on CML habits of interpretation

- Begs the question: Does that mean they are binding?- Go to the appeal court and say that the trial court

got the meaning wrong. Don’t argue that the courtgot the rule applied wrong

SI: Examples:

R. v. Davie

Facts: 2 men + accused à 2 men said they were counseled on how tostart fire by accused à Accused preempts by approaching RCMP whereCst tells him to do a polygraph à goes to get the test done à card givenexplaining the function of the machine à told him to read it and thenthe two RCMP leave the room to go watch him through the mirror andthe room is wired à Davie doesn’t know that the RCMP are watching hisevery move à Record what is going in the room à see and hear Davieslide out of the chair and said “Oh god, let me get away with this justthis once”

Issue: is the statement by Davie admissible in court? Was Daviesprayer to god a private communication subject to the rules without oneof the exemptions stated in the Code?

Criminal Code Provision: 178.17 (1) a private communication thathas been intercepted is inadmissible as evidence against the originatorof the communication or the person intended by the originator toreceive it unless

(a) the interception was lawfully made; or(b) the originator thereof or the person intended by the

originator to receive it has expressly consented to the admissionthereof;



- "private communication" means any oral communication or anytelecommunication made under circumstances in which it isreasonable for the originator thereof to expect that it will not beintercepted by any person other than the person intended by the

originator thereof to receive it

COA:

- Looked at definition of private communication- No reason to believe that Parliament intended to exclude

people who were praying- “It cannot have been the intention of Parliament to exclude

from the protection of the provisions of the Protection of Privacy Act theists who believe that their private prayersare heard and considered. To hold otherwise would not only

violate what I perceive to be the purpose of the Act, butwould also, in my opinion, be repugnant to all who holdreligious beliefs and thus contrary to the public interest.”

Importance of this case:

- When P made these provisions on what private communicationwas, how many of the MP’s and Senators were thinking aboutconversations with god and if this should apply? ZERO!

- Here is an example where the court is confronted with aunique factual circumstance, is left with language crafted

by people who never considered this scenario and thequestion is if the facts apply to this!

Paccar v. Canada

Facts: Excise act à tax on A/C in vehicles à Definition of vehicles à

Autos, station wagons and trucks à Paccar makes 18 wheelers anddoesn’t want to pay 100 per 18 wheeler so they said it was a highwaytruck tractor! à Counsel argued that the truck bared a load and that the18 wheeler pulled so it wasn’t the same so they shouldn’t have to pay

the 100 à Paccar: trucks carry things; tractors haul things

COA Holding: Using rules of statutory interpretation, court concludedthat a “highway truck tractor” was a subset of “trucks”

Note: Again, an illustration to come up with the intent of P who neverhad an intent in this manner to start with



Approaches to SI

Old Approach:

- Many approaches to statutory interpretation:o 1) Plain meaning/ordinary meaning rule

§ Where the words are plain/unambiguous the courtmust construe them in their ordinary sense even if the end meaning is stupid

o 2) Golden Rule§ Ambiguous statute? Adhere to it unless the result is

absurd (inverse of plain meaning rule à the “goldenrule”)

o 3) Mischief Rule§ Heydon’s case§ What mischief did the leg seek to cure§ Driven by intent of legislation

- These are all contradictory so there has been an effort to make amodern rule of SI

“Modern” or “Words in Total Context” approach:

- “Today there is only one principle or approach, namely, the wordsof an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the schemeof the Act, the object of the Act, and the intention of Parliament.”

Driedger ’s 5 steps:

• (1) The Act as a whole is to be read in its entire context so as toascertain the intention of Parliament (the law as expressly orimpliedly enacted by the words), the object of the Act (the endssought to be achieved), and the scheme of the Act (the relationbetween the individual provisions of the Act).

• (2) The words of the individual provisions to be applied to theparticular case under consideration are then to be read in theirgrammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Actand the scheme of the Act, and if they are clear andunambiguous and in harmony with that intention, object and



scheme and with the general body of the law, that is the end.

• (3) If the words are apparently obscure or ambiguous, then ameaning that best accords with the intention of Parliament, theobject of the Act and the scheme of the Act, but one that the

words are reasonably capable of bearing, is to be given them.

• (4) If, notwithstanding that the words are clear and unambiguouswhen read in their grammatical and ordinary sense, there isdisharmony within the statute, statutes in pari materia, or thegeneral law, then an unordinary meaning that will produceharmony is to be given the words, if they are reasonably capableof bearing that meaning.

• (5) If obscurity, ambiguity or disharmony cannot be resolved

objectively by reference to the intention of Parliament, the objectof the Act or the scheme of the Act, then a meaning that appearsto be the most reasonable may be selected.



Doing the Driedger 5-Step: Step 1 à Read the act and its entire context

- Words are important in deciding the outcome of a case- Words on which you will rest part of your case over which you

want to argue

Step 2 à Give the words their ordinary meaning- Many sources- E.g. Dictionary

Step 2(a) à If the words are clear and there is no disharmony à applythe ordinary meaning à end of analysis

Step 2(b) à if the words are clear but in applying them there would bea disharmony between the meaning and the broader context

- Then you choose a non-ordinary meaning (one which is moreconsistent with the overall thrust of the statute

Step 3(c) à if the words are unclear- Driven by the understanding of the broader context- Look for the meaning that sits with the broader context



SI: Extra Notes

Ordinary meaning

NB: Interpreters are to take into account the ordinary meaning of thewords. Where there is no reason to modify or reject this ordinarymeaning, the ordinary meaning should prevail.

1) Dictionary meaning

- Could be regular or legal dictionary- Peril to using a dictionary à many words in English or French are

capable of bearing multiple meanings depending on thecontext

o Can’t be used to determine a meaning in isolation. Have tounderstand how the word is being used in the contextbefore the dictionary is useful at all. Must understandimmediate grammatical context

- Used by Cory J in this case à word “capable” in oxford dictionaryincludes an aspect of compatibility for conversion

- Broader context really drives this in this case

2) Bilingual legislation

- Both equally valid in law- May actually have differences between the two- Daoust case

o Facts: Sting operation à undercover cops tried to sell stolengoods to store owners à assistant said “we cant always behelping you to steal” à then charged with intent to transfer(laundering) à “Transfer” à what does that connote? To move à

Who was doing the transferring? The cops à Doust was“receiving”

o Issue: Does the word transfer also encompass “receipt”o Holding: English provision said “transfer and otherwise deal

with”. French version didn’t have this à Court said that bothversions are equally valid so we will take the French version asit was more narrow. They preferred the common elementbetween the French and English

- Chartrand Caseo Facts: Adult takes off with child to take photos of him à

Charged with abduction of a child under 14 à S.281 in the



English version said you have to be “unlawfully” taking thechild à French version didn’t have “unlawfully”

o Holding: Court concluded that again, applying the logicabove, the common element was the “enticing” and thatunlawful therefore was an error in the English version and was

not relevant. That is bad for the accused in this case

3) Plausible meaning rule à must be a meaning that the text can beargiven the grammar context

4) Technical meaning rule à In many cases the legislation is directedtowards a specialized area so maybe the meaning should be given thespecialized meaning

- Re Wittso Facts: Regulation governing horse racing à Word “sex” in

play à In the horse industry this refers to a broad

array/status of genders (stallion, colt, etc.)o Holding: Court said it was a specialized regulation and theterm sex has a specialized meaning due to this industry sowe can look to the technical meaning to see what the wordmeans

5) Drafting conventionso Binding obligation à “Shall”o Non-binding (discretionary) à “May”

Example: Hasselwander case:

Facts: Had a mini machine gun à Gun was seized under the Code à

Looking at the term “prohibited weapon” as described on the side à

“any firearm . . . that is capable of firing bullets in rapid successionduring one pressure of the trigger” à The actual gun, in the state it waspurchased, was sold in a manner in which you couldn’t shoot multiplebullets on a single press à Problem was, that it could be converted in amoment into a weapon that could shoot multiple bullets

Issue: Can the weapon be seized for being a prohibited weapon

If arguing for D:

- Look to the legislation and definition to find uncertainty that theweapon should not have been seized

- Focus on the word “Capable”o What is important about its immediate context? The word “Is”



à present sense of “To Be”… not “can be capable”o Argue that at the time the weapon is seized it must be

capable of firing multiple bullets. Here it was not so its not aprohibited weapon and he should not be found guilty

If arguing for the Crown:

- Broader context is more important- Starting point à “Capable”

o There is a capacity for it to fire in successiono Dictionary à capable can mean a POTENTIAL capacity

(amendable to)

Immediate context: Associated Words

- Can draw inferences from this that help unearth meanings of theword

Noscitur a sociis rule

à Says that the meaning of an uncertain word can be ascertainedby looking at the meaning of the words that surround it

o Doust case§ Apply the Noscitur rule à “Transfer” is surrounded by

a lot of other terms. Can look to those other terms

and their common element. That common elementcan then inform the meaning of the word “transfer”§ Said all words do not talk about “purchase”§ For that reason, the term transfer does not include

the factual situation we have in Doust

Ejusdem generis

à Look to words surrounding you word and the meaning of youuncertain word is based on the words that PRECEED it

o Order requiremento “this act applies to any tribunal, court or other body”o Lets assume you’re trying to see if the act applies to an

agency. Is it capable of being part of “other body”§ How do you figure out what “other body” means§ Right away you know it is not talking about a human

body due to the modifying terms before it§ Common element à a judicial or quasi-judicial



function

Implied Exclusion (Expressio unius est exclusion alterius)

à If the leg expresses one thing but fails to express another then itpotentially excludes that other thingo “All vehicles must register with the ministry…. And motor

boats must also register”§ Issue: Do you have to register your sail boat?§ Is your sailboat a vehicle? Look at dictionary à it is

possible§ What argument would you make to suggest you

don’t have to register your sailboat? Impliedexclusion of sailboats. If the leg felt the need toexpressly include “motor boats” that impliedly

excludes things like sail boats

Broader Context & Meaning

NB: interpreters are to read the legislation in context, including in thecontext of the rest of the Act and the legal context generally.Generally, an interpretation that is consistent with the context ispreferred over one that is not.

Internal: Act context: Relationship to the Rest of the Act

- Relationship to rest of Act: i.e. preambles, long titles etc.- Provisions that deal with similar context matter are usually

grouped together- Very thrust of the statute might tell you what the purpose of that

statue is

Hasselwander case (cont.):

Facts: Had a mini machine gun à Gun was seized under the Code àLooking at the term “prohibited weapon” as described on the side à

“any firearm . . . that is capable of firing bullets in rapid successionduring one pressure of the trigger” à The actual gun, in the state it waspurchased, was sold in a manner in which you couldn’t shoot multiplebullets on a single press à Problem was, that it could be converted in amoment into a weapon that could shoot multiple bullets



Issue: Can the weapon be seized for being a prohibited weapon

If arguing for D:

- Look to the legislation and definition to find uncertainty that the

weapon should not have been seized- Focus on the word “Capable”o What is important about its immediate context? The word “Is”

à present sense of “To Be”… not “can be capable”o Argue that at the time the weapon is seized it must be

capable of firing multiple bullets. Here it was not so its not aprohibited weapon and he should not be found guilty

If arguing for the Crown:

- Broader context is more important

- Starting point à “Capable”o There is a capacity for it to fire in successiono Dictionary à capable can mean a POTENTIAL capacity

(amendable to)

External: Related statutes (statutes in pari materia)

- E.g. ATIA and Privacy Act- May also have a “uniform statute”

o So you get consistency across the statutes

External: Case law interpreting other statutes

External: Model statutes

External historical, cultural and economic context

- Legislative history: materials brought to the legislature’sattention during enactment or considerations discussed bythe legislature

- Debate: Is legislative history admissible?- Morgentaler , SCC, 1993

o Legislative history has usually been held inadmissible inCanada under ordinary rules of statutory interpretation.But the interpretation of a particular provision of a



statute is an entirely different process from thecharacterization of the entire statute for purposes of judicial review. There seems to be no good reason whylegislative history should not be resorted to for thelatter purpose, and, despite some earlier authority to

the contrary, it is now established that reports of royalcommissions and law reform commissions, governmentpolicy papers and even parliamentary debates areindeed admissible.

o Court: Can use legislative history à Some people’sarguments more persuasive than others (minister has alot of persuasion)

“Presumed intention”

- Constitutionality à if you have two provisions (one C and onenon-C) then you take the C one, assuming the words can bearthat meaning

- Aboriginal/private rights à presumption that the legislaturewill be emphatic

- International law à presumption that the leg does not intend toviolate Canada’s International obligations

- Extra-territoriality à P does not intend to make a statute reachoutside Canada unless there is an emphatic basis for it

- Retroactivity à not meant to apply retroactively- Strict construction where individual rights affected à

presumption that says where an act is remedial we give it abroad and generous meaning- large and liberal construction where remedial

o Criminal law à stricto Remedial law à broad analysis (e.g. HR Law)

Summarize:

1. Statutory interpretation is the process courts are supposed to followto breathe meaning into the words of the legislature

2. Because under the doctrine of parliamentary sovereignty, thelegislature view trumps that the courts (where the statute isconstitutional), the courts must strive to determine the intention of thelegislature

o Only where this intention is uncertain in all the context areto courts to make their own decisions on what the wordsshould mean



3. In practice, courts apply a modern canon of statutory interpretation,reading words in an ordinary sense in their entire context

4. Courts read the whole act, then they determine the ordinary

meaning of the words from their immediate context and then, if thisordinary meaning is clear and consistent with the broader context,they stop.

o but if the words are unclear or they conflict with thisbroader context, then a reasonable meaning that accordswith this broader context is generally to be preferred

Applying the SI: Rizzo Case

- Read the words with a broader eye to the thrust and meaning of the statue

Facts: Bankrupt firm. Employees lost jobs à Did this give rise toseverance pay under provincial laws à Provision in statute said you getseverance when the employee terminates the employment à Problemhere: it was an involuntary termination

Holding:

• Look at the presumed intentions à It’s a remedial thing. Must give it

a large and liberal construction• Look to legislative history à Words in Employment Standards Actwere meant to include situations when the employees lose their jobdue to bankruptcy



Judicial Review of Legislative Action

- Courts policing the lines of power:o Police the boundaries of power (in terms of the written

constitution, via Charter of Rights of Freedoms)o Police the division of power, with reference to theConstitution Act, 1867

- Want to make sure they don’t violate the Rule of Law and thatthe PS is met

- Courts play an important role in policing the bounds of power

- Courts also play an interpretive roleo In the SI context the interpretive role is used so we know

how to follow Leg’s dictates

o In the C context, the courts have been less concerned withintent

- Courts are not only policing the legislature, they are also definingthe scope of the power pie (reigns in exec, etc)

Amax case, SCC:

“A state is sovereign and it is not for the Courts to pass upon thepolicy or wisdom of the legislative will. As a broad statement of principle that is undoubtedly correct, but the general principles must

yield to the requisites of the constitution. The Courts will not questionthe wisdom of enactments which, by the terms of the Canadianconstitution are within the competence of the legislatures, but it is thehigh duty of this Court to insure that the legislatures do not transgressthe limits of their constitutional mandate and engage in the illegalexercise of power”

Issue 1: How do constitutional challenges get before thecourts?

- 1. Reference cases à GIC refers a C question to SCC for its

consideration- 2. Legal disputes à DOP, etc.- 3. Constitutional challenges

o Standing:§ 1. Serious issue to be tried§ 2. Does plaintiff have a genuine interest in the

matter§ 3. Is there any other reasonable or effective way to



get the issue before the court

Issue 2: Remedies

- s. 52: constitution is supreme and any law that is inconsistent is

of no force and effect to the extent of the inconsistency- s. 24: anyone who’s rights have been violated can seek a remedythat the court feels is just

o Exclusion of evidence in the crim law context

What impact does the Charter have on Parliamentarysovereignty?

- Charter is a vague document whose words need to beinterpreted

- Hogg: "the Charter is for the most part couched in such broad,vague language that in practice judges have a great deal of discretion in applying its provisions to laws that come beforethem.”

- Hogg: "The process of applying the Charter inevitably involves‘interpreting’ its provisions into the likeness favoured by judges. This problem has been captured in a famous American aphorism:‘We are under a Constitution, but the Constitution is what the judges say it is’.”

- Hansard Debate: Eric Lowther (Ref.) in the House moved thefollowing in 1998, in response to a court ruling on same sex

partners in the Income Tax Act:o “That, in the opinion of this House, federal legislationshould not be altered by judicial rulings…”

The Rule of Law or Rule by Lawyers?: The Vriend Case

- McClung J. in Vriend v. Albertao “Adopting the maxim ‘All silent, all condemned’ as a

constitutional tool available to judges to reject a perfectlyvalid statute because they believe it does not go far

enough in their view of the ideal society, breaks new, andin my view, undesirable ground. Is it constitutionallyinexcusable for the Alberta government to decline tochoose between the platforms of the divinely-driven rightand the rights-euphoric, cost-scoffing left, by refusing toorder people of either sexual base to listen to governmentas to when they must forget that sexuality and contracttogether?”



o “The Order Paper of the Alberta Legislature is not to bedictated, even incidentally, by federally-appointed judgesbrandishing the Charter. While any legislative producttouching governmental activity is, of course, now subjectto Charter scrutiny, the practice of judicially upgrading that

product should be strictly disciplined. This is because of the spectre of constitutionally-hyperactive judges in thefuture pronouncing all of our emerging rights laws andaccording to their own values; judicial appetites, too, growwith the eating.”

- Iacobucci J. in Vriend v. Albertao Though the courts may in fact be invalidating legislation

and thereby negating the will of the majority, the conceptof democracy is broader than the mere notion of majorityrule

o Democracy includes respect for the inherent dignity of the

human person, commitment to social justice and equality,accommodation of a wide variety of beliefs

“Dialogue” between Court and Parliament

- Wilson J.:o “We can no longer rely on the doctrine of the supremacy of

Parliament as a reason for staying our hand. We have toexamine any impugned legislation to see whether itinterferes with the fundamental rights of the citizen and, if

it does, strike it down. …” o “I think the conclusion is inescapable that the scope of judicial review of legislative and executive acts has beenvastly expanded under the Charter and that, indeed, thecourts have become mediators between the state and theindividual.”

o “I think that the new role under the Charter represents afundamental reordering of the political balance of power. ... The judicial role under the Charter ... has, in my opinion,effected a major change in the relationship between thethree branches of government. It challenges the right of

government to enact certain laws at all and makes thecourts the watchdogs over the rights of citizen.”

What is the source of the court ’s power do to this admin law judicial review function?

- Courts have concluded that because of the overarching C



norms of Rule of law, PS, etc. there has to be some Cvalid reasons for them to do it

- Courts have breathed meaning into s.96 to conclude that thesection also preserves the inherent capacity of the superiorcourts to review exec action and make sure it is in the

boundaries of their delegated power- Federal Courts Act à Specifies that the Federal Court willreview all Federal boards, tribunals, etc

Grounds for Review

- Error of jurisdiction à if the statute says one thing and you dosomething else you have no jurisdiction and the courts should beable to step in

- Error of law à deals with the circumstance in which the admin

decision maker made an error in interpreting the law.Misconstrued the statute you were supposed to apply forexample

- Abuse of discretion à Circumstances where the exec officialdoes something to abuse their discretion. When the P gives youthe discretion to make a decision one way or the other and youmake the decision in a discriminatory manner, or in bad faith,etc. we are going to assume you are outside your power pie

- Error of fact à When you render a finding of fact that is wrong- Procedural fairness à See below

Pragmatic and Functional Test: CUPE

Facts: Looking at if the courts should be deferential to the execdecision making à Want the exec to maintain its integrity

Importance of this case: Pragmatic and Functional Test

- Series of variables that the court will look at to see howmuch defence the courts will give to the exec decision

maker- Three answers to this test:o Maximum (the most deferential you can possibly be) à

only intervene if the decision is “patentlyunreasonable” (standard of review)

o Intermediate defence à Standard of review you apply isreasonableness simpliciter

§ Clearly wrong!



o No defence owed at all à Courts are just as equipped.Apply the “correctness” standard of review (do I come tothe same conclusion you do?)

- Procedural fairness is the only thing that has not been swallowedup by the pragmatic and functional test

o Procedural Fairness§ Right to notice§ Right to be heard

Traditional remedies where grounds for judicial review madeout

1. Certiorari

- Send it back to be looked at again- Basically a re-trial- Most common remedy/order- Quashing the decision and then sending it back- Can send it back with instruction

2. Prohibition

- No decision has been made yet by the delegate and the courtsdecide that the delegate is not in a position to make thatdecision

3. Mandamus

- Order requiring the delegate to actually do something- Met all the criteria for doing something and then didn’t do it- Not available if the exec can choose something to do it and then

didn’t. They must have to- E.g. if you pass the driving test they HAVE to give you the

license

4. Quo warranto- Important when you have uncertainty as to whether an official

was a bona fide officer- Come to court to show you are actually the one entitled to

executive the functions



5. Habeas corpus

- Upon being detained the gov has to show cause as to why yourdetention is illegal

- Designed to prevent arbitrary decision (detention without legal

basis)

Note:- If the determination you are challenging is made by provincial

exec you go to the Ontario Divisional Court- If you have a grievance with the Fed Exec you go to the Federal

Courts under the Federal Courts Act

********************************************************************************************************

PEI REF CASESFinancial Security

Institutional dimension has 3 aspects1.Salaries can be changed for judges as a class, but

there must be a salaries committeeMust convene at times to make sure being increased

at regular rate To counter effect of inflation

2.Judiciary cannot negotiate3.Salaries can not go below a min level

Significance

3 core chars, individual and institutional dimensionsInd/Inst matrix on slides

Relationship bw core and chars and dimensions

Focus on secutiryt of tenure: how do you rid us of a judge1) die2) retire

A. RetirementFed Crt Act, S.8(2), SC Act s.9(2): A judge shall cease to hold

office on attaining the age of 75 yrsConst ct of 1867, s.99: specific same for judge of sup crtv. Hard to get out any other way*

B. Appointment during “good behaviour”Act of Settlement, 1701Stems from this settelemt: tied to notion that must be protected from

arbitrary dismissal



Need causeOnly 1 has been removed in over 300 yrsConst Act, 1867, s.99: “Judes in sup crt shall hold office

during good behaviour, but shall be removable by GG onaddress of the Senate and House of Commons”

Other crts must meet same standard imposed by statute

Landreville case Justice Rand: “Would the conduct...public honour?”Facts: inept law student, political involved in Sudbury, involved in gas

projects in mid-1960s, bunch of ON mayors offered free shares...etc,only after got municipal rights; he got shares and made substantialamnt of money; before details emerged, appointed to bench;commission recommended that Landreville be removed from bench

Rand proposed standard by which to measure whether goodbehaviour has been met or not

If answer yes - violated good behaviourRecs considered by Parl, and Landreville resigned (no formal vote on

removal)Why would there have to be formal rule?Not enough that violated gb standard

Act of Settlement, 1701Constitution Act, 1867, s.99: “Judges of the sup crts shall

hold office during good behaviour, but shall be removable bythe GG on address of the Senate and House of Commons”

In wake of Landreville...Canadian Judicial Council

Established Judges ActChaired by Chief Justice of CanadaPurposes includes considering complaints against

federally appointed judgesSet up as standing Royal CommissionWalk briefly through complaints system (see slides)

1. Complaints made judge has in some way failed to meet standard of good behaviour -

also includes being incapacitated)In writing, from public, sent to councilMins of justice and govt can also make complaint (some can short-

circuit process)Bw 1971 and late 1990s = 1678 complaintsA lot of complaints are bounced bc not supposed to complain in circs

where dislike outcome (should appeal); supposed to complain aboutconduct of judge



Over last decade = 165 (keep in mind over 1000 fed judges), so notthat many all things considered

2. Complaint reviewed by Chair of Conduct Committee

3. Reviews and dismissesVexationsOr improper but not serious enough

4. Referred to Panel5 members of council (excl judges from same crt as judge

complained of) They decide to ...

5. Dismiss (end), or

6. Recommend InvestigationComplaint has some validityConduct is quite seriousProvides report that specifies grounds that judge acted improperlyCouncil considers...

7. Dismiss (end), or

8. InquiryFederal justice min and AG can compel and inquiry (circumvent all

steps before)

Inquiry hearings Typically public and independent councilsV much formal proceedingReport to Council (w or wo recommendations)Recs will indicate whether judge should be removed or notSince 1971, there have been 9-10 inquiries (not common at all)

9. Council hearingsIf judge so requests, can appear before council or make written

submissionsCouncil then votes on its position

Reports to Min and may recommend dismissal4 grounds = age or infirmity, misconduct, having failed in due

execution of office, or having been place in a position incompatiblewith due execution (conflict of interests)

Council recommended dismissal once ( Justice Bievenue case)

10. Minister considers



11. Vote in Parliament

Justice Bienvenue Case (slides)7 decided shouldn’t be dismissed ‘1. Judges should be encourage to speak their minds

if discourage judges from expressing those views, they will justdisguise them)2. The question is whether judge impartialNo proof that bias effected his decision-making

Court functions: Statutory InterpretationCourts breathing meaning into words of statutes:2 broad theo views about what crts are about when interpretationRole of crts is to look at law and try to give meaning (not strict

dictionary meaning - can have 6 or 7 meanings - so process of definiting words and understanding what they say is contextual;

have to read them and interpret them as part of statute as awhole)Statute is how P expresses its view - provide marching orders to

crtsBegs Q: how do crts apply statute?Rules of interp = how crts are to interpretStatutory interpretation: determining P’s will (old view)Apply doctrines to statute to determine exactly what P wishedFits nicely into doctrine of parliamentary sovereigntyAlso consistent w rule of law (certain, consistent, even-handedly

applied)

Problem w this view: assumes P had an intent*; P can not predictall the circs that might come before the crt in a dispute; crts nowtake a more nuanced view on their role in statutory interpretation

Operating in the piece of pie where P sovereign (new view) To give effect to intention of legislature in so far as possible Then, after looking at these words and applying these rules, if

intent is still murky, apply more complex rules of interp; and if still murky, rely on own good judgement

Less responsive to Parliamentary sovereigntyLess consistent with rule of lawOn other hand, closer reflection of reality: at end of day, this is the

correct view (there is always ambiguity)

What then are the rules?500 yrs of inconsistent, sometimes ambiguous and inconsistent

doctrinesSome of them have been codified in Constitution (ie all statutes are

to be bilingual and equally valid as law)But for most part, they are Claw



Think of them as a series of tools that crts deploy to find meaning of statute

Open individual for good advocacy in terms of which tools to use They are not binding: failure to follow rule x is not an appealable

error à instead, if you are unhappy w crts decision, you appeal on

basis that it got law wrong (appeal outcome, not tool used)

2 examples on slides

public long summary

Documents