Legal Foundations of Canadian Law Exam Notes

LEGAL FOUNDATIONS OF CANADIAN LAW EXAM NOTES:

TUTORIAL 1- SOURCES OF LAW

1. Basic theories of law: Positivism v Natural law Feminist perspectives on law Critical legal studies Law and economics

Reading:

1. Craik, Chapter 2, pages 7-47 2. Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 3. Socitie de l’assurance automobile du Quebec v Cyr [2008] SCJ No 13 4. International law and the public/ private law distinction: http://www.collectionscanada.gc/obj/s4/f2/dsk/ftp03/MQ64296.pdf 5. The Charter of Whiteness- twenty five years of Maintaining Racial Injustice System (2008), 40 SCLR (2nd) 655-686 <http://

cronus.uwindsor.ca/users/t/tanovich/bio.nsf/9d019077a3c4f67685698a00593654/cbb2df71007aadcb852572300067cb7a/$FILE/TheCharterofWhiteness.pdf> CHAPTER 2- Setting the Stage: Sources of Law -Reflects English common law. LEGAL POSITIVISM: Reflects the belief that law is nothing more than the rules and principles that actually govern or regulate a society and separates law and morality and focuses on describing laws without reference to justness or legitimacy. NATURAL LAW THEORY: Looks at law reflecting moral truth ex. Criminal law based on morality. -Therefore, law must deal with specific and detailed problems and objects, whereas morality is usually framed in general and open-ended concepts. Natural law and positive law may conflict. These two cases below represent attempts to appeal to our moral conscience, while the judge in Noble relies on positive law. RE DRUMMOND WREN: (natural law) F- WEA purchased lot in Toronto intended to build a house and raffle it off for fundraising purposes. There was a covenant pronouncing that it was not to be sold to Jews or persons of objectionable nationality. The WEA tried to declare the covenant invalid under public policy grounds. Mackay J states- “any agreement which tends to be injurious to the public or against the public good is void as being contrary to public policy” (Halsbury 7). In the Charter of the United Nations, art 1 and 55 pledge to promote “universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to sex, race, language, or religion. Held in the case that the restrictive covenant is void under public policy grounds. He states, “my conclusion therefore is that the covenant is void because it is offensive to the public policy of this jurisdiction”. He argued it was against the Racial Discrimination Act 1944 too. RE NOBLE & WOLF: F- cottage lots for sale at Lake Huron. There was a restrictive covenant that they could not be sold or transferred to any Jewish, Semitic, Negro or colored race or blood. Wolf relying on Re Drummond Wren tried to have the covenant removed on public policy grounds, but the community and property owner argued for the covenant since there was a community among its members and cottage value would be lost if any change to its character occurred. Schroeder J Held- He disagrees with Mackay’s judgment and states that they were looking at the validity of the covenant and here the facts were about a recreation home not a residential home for shelter in Toronto. He suggests that public policy is not a clear principle and often creates uncertainty in the law since it is decided based subjectively on that lawyers upbringing, education, experience etc. He states that public policy should not interfere with the freedom of contract. He says, “I cannot conceive of any established principle of law or any principles recognized in the courts or by the State as part of our public law which enables me to conclude that the covenant under review should be struck down as offending against the policy of the law”. It is up to the Parliament or the Legislators to discuss what is for the public good and therefore I hold the covenant valid and enforceable. * REFORM- The law has changed and these decisions are unsatisfactory, s22 of the Conveyancing and Law of Property Act 1990, “Every covenant made after the 24th day of March 1950, that but for this section would be annexed to and run with land and that restricts the sale, ownership, occupation or use of land because of race, creed, colour, nationality, ancestry or place of origin of any person is void and of no effect”. Both positivism and natural law are descriptive theories in that they are principally concerned with identifying what law is, as opposed to what law ought to be. Natural law approaches, while they identify law with reference to normative criteria, are nevertheless engaged in describing law exists. FEMINIST PERSPECTIVES ON LAW: Feminist legal philosophy began in the late 19th century. It began with voting rights for women and reform of marriage laws. They were successful and then the next stage were attacks on discriminatory employment practices and criminal laws. It was not until the 60s that feminism matured into a defined movement and developed widespread.

Early Formalist Feminism: It began with women getting the vote with the suffrage movement in the early 20th century. Prior to 1916 women in Canada could not vote. During that time women in Manitoba, Saskatchewan, and Alberta had political struggle. They were then allowed in vote. In 1918, Parliament passed the Women’s Suffrage Act 1918, which gave every British female over 21 the right to vote, as long as she possessed the same qualifications required for men. But, women could not hold a seat at Senate. They relied on s24 of the British North America Act (Constitutional Act 1867, now), which said only “qualified persons” were eligible to be appointed to the Senate. Gov’t argued that women were not qualified persons when the act was passed. In 1926, Judge Emily Murphy, Nellie McClung, Louise McKinney, Irene Parlby, and Henrietta Muir Edwards petitioned to have the Gov’t direct the Supreme Court to rule on the constitutional question whether s24 whether women could be considered candidates for the Senate. They found that qualified persons did not include women. They appealed to the Privy Council. The case was Edwards v AG Canada [1930]- The PC looked at how the word “persons” is ambiguous and may include members of either sex. He held that since other sections of the Act refer to only male members, s24 “persons” includes members of both male and female sex and therefore, women are eligible to be become members of the Senate of Canada. Appeal allowed. Contemporary Feminism: Over the last 30 years abortion has been a large public debate. In R v Morgentaler [1988]- the Supreme Court had to decide whether s251 of the Criminal Code- criminalizing the procurement of abortion unless authorized by a physician was contrary to s7 of the woman’s right to life and liberty of the Charter of Rights and Freedoms. F- 3 doctors were charged with conspiracy to procure a miscarriage contrary to s251 and s423(1)(d) of CC. The law prohibits abortions unless a woman obtains a certificate from an abortion committee and then requires the abortion be carried out by a physician other than the member of the committee in an approved hospital. There must be 3 doctors on the Committee. Many women were seeking abortions. Wilson said, “given that the right to liberty guaranteed by s 7 gives the woman the right to decide for herself whether or not to terminate the pregnancy does s251 of the CC violate this right? Clearly it does”. ‘The fact that a decision to terminate a pregnancy is in the hands of a Committee is just as great a violation of the woman’s right to personal autonomy in decisions of an intimate and private nature as it would be if a committee were established to decide whether a woman should be allowed to continue her pregnancy. Both violate her right to liberty by deciding for her something that she has the right to decide for herself’. S251 takes the decision away from the woman at all stages of her pregnancy. It’s a denial of her right under s 7 and does not meet the proportionality test under Oakes. Justice Bertha Wilson’s judgment changed the law and feminists heralded her for showing a true understanding of the plight of women in Canadian law. Critics argue she used the Charter to expand the role of a judge beyond her jurisdiction. CRITICAL LEGAL STUDIES: Critical legal studies theory developed in the 80’s in the USA. They reject that there is any kind of “natural legal order” discoverable by objective means. A. Thomson argues that CLS is a direct attack on traditional legal theory, scholarship and education. Law does not look at justice but institutionalizes and legitimates the authority and power of particular social groups or classes. The rule of law is not a rational, quasi-scientific ordering of society’s norms, but is indeterminate, full of subjective interpretation and a large degree of incoherency. Much of CLS theory is post-Marxist and leftist. Three key stages govern the application of CLS ideas to legal thought: 1) Hegemonic consciousness – argue that most western laws are maintained by a system of beliefs that have their foundation in a liberal, market-driven economy. They reflect only the interests of a dominant class. 2) Reification- those beliefs are reified into a material thing: they are presented as essential, necessary, and objective. The laws that prop up this belief system necessarily follow suit, becoming equally incontrovertible. 3) Denial- laws and legal thinking aid in the denial of real truths: they assist in our coping with a vast storehouse of contradictions that would be too painful for us to hold in our consciousness. For a CLS scholar, the denial occurs between the promise of a certain state of law- such as equality-and the reality-such as the vast amounts of discrimination or racism that can be found so readily in society if only we look. Therefore the law for CLS is a form of politics. Judging with CLS: A Case Study- It is very theory driven, radical and philosophical. It is likely it would not get acceptance outside of the academia. It did though impact law students in the 70’s and 80’s. R v R.D.S [1997]- F- A white police officer arrested a black 15 year old boy who had allegedly interfered with the arrest of another youth. The accused with charged with three offences of dealing with unlawfully assaulting and unlawfully resisting a police officer. There were no witnesses and the events from the cop and youth differed widely. The youth court weighed the evidence and determined that the accused should be acquitted. The Crown stated that police officers had been known to mislead the court in the past, that they had been known to overreact particularly with non-white groups, and that would indicate a questionable state of mind but that her comments were not tied to the police officer here. The crown appealed to the Supreme Court that the trial judges remarks gave rise to a reasonable apprehension of bias. The majority held that: they will allow the acquittal of the appellant R.D.S. All judges found different reasons such as in Nova Scotia there were many documented reports of officers falsely arresting black males etc. However, Major J in his dissenting speech states, “this appeal should not be decided on questions of racism but instead on how courts should decide cases. A right to a fair trial is based on bias free; did the judge make her decision based on evidence or something else? In my opinion the comments of the trial judge fall into stereotyping the police officer. The trial judge erred in law by failing to base her conclusions on evidence. *Which of the opinions reflect the CLS theory? The majority or minority dissenting judgment?

LAW & ECONOMICS: Law and economics theories look at law from another perspective, grounded less in moral theory and more in ideas about efficiency. Scholars have applied economic analysis to explain contract law, crime, torts, family law, property, legislation, abortion, and more. Much of the ideas here originated in the Chicago school in the 70’s which had a strong free-market, neo-liberal philosophical base. The economic approach assesses whether the rules will result in outcomes that are efficient. Public Law & Economic Theory: An economic approach similar to that employed for private law can therefore be used to understand policy goals in the public realm. The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understand public policy. It attempts to explain government intervention as a “corrective” to market failure. The theory seeks to understand why some Gov’t programs seem to run counter to the public good, or at least do not maximize the public good. Policy makers are assumed to act in order to maximize political support. They are not necessarily attempting to maximize social welfare, therefore, but are motivated largely by self-interest. In Duncan Estate v Baddeley [1997]- Consider how the CA relies on economic theory, public choice, legislative policy, common law jurisprudence, and morality in this decision. F- Family wanted to sue the tortfeasor for loss of future earning of the deceased. The Alberta court had to decide if they would allow such a claim. The question was whether the potential to earn income is an actual loss? Cote JA states, “why should the tortfeasor escape scot-free if the plaintiff dies the day before judgment is pronounced? Worse still, why should the tortfeasor who has made death imminent escape scot free if he manages to drag out the litigation long enough that he produces the very death in question, before judgment?”. They involve justice! (Here is a economic and moral perspective). Lieberman JA (dissenting) disagreed with the majority, concluding “it was the intent of the legislature in framing the survival or actions act to eliminate the claim of the victim, who died instantaneously as a result of the tort of a wrongdoer, for damages for loss of expectation of life including the loss of future income”. He also could not agree that a victim who was killed instantaneously as a result of a tort has suffered ‘actual’ as opposed to a ‘potential’ or a ‘speculative’ loss. (This is a more literal/ positivist perspective). Bhadauria v Board of Governors of Seneca College of Applied Arts & Technology (1979)- This case provides an interesting backdrop to the idea of public choice theory. Notice how the Supreme Court and CA define the legislative choices differently. F- Lady qualified for the jobs not given interview alleges because of her ethnic background (east Indian). She claimed under a writ for damages instead of the Human Rights Code. She claims to have loss of opportunity and suffered mental distress, frustration, and loss of dignity and self-esteem. Wilson JA-“in my view, they give rise to a cause of action at common law, while no authority is cited to us has recognized a tort of discrimination, none has repudiated such a tort”. Found- it is unnecessary, in my view that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action. I would allow the appeal”. [1981] Supreme Court: Laskin CJ- the issue is whether this court should affirm the recognition by the Ontario CA of a new intentional tort. The tort was recognized to protect against unjustified invasion of his or her interest not to be discriminated against in respect of a prospect of employment on grounds of race or national origin… there is no authority and the claim cannot succeed. If the CA is correct in its conclusion, is a species of an economic tort, new in its instance and founded, even if indirectly, on a statute enacted in an area outside a fully recognized area of common law duty. Appeal allowed.

Hill v Church of Scientology of Toronto [1995] 2 SCR 1130- The appellant M, accompanied by representatives of the appellant Church of Scientology, held a press conference on the courthouse steps. M, who was wearing his barrister's gown, read from and commented upon allegations contained in a notice of motion by which Scientology intended to commence criminal contempt proceedings against the respondent, a Crown attorney. The notice of motion alleged that the respondent had misled a judge and had breached orders sealing certain documents belonging to Scientology. The remedy sought was the imposition of a fine or his imprisonment. At the contempt proceedings, the allegations against the respondent were found to be untrue and without foundation. He thereupon commenced an action for damages in libel against the appellants. Both appellants were found jointly liable for general damages in the amount of $300,000 and Scientology alone was found liable for aggravated damages of $500,000 and punitive damages of $800,000. This judgment was affirmed by the Court of Appeal. The major issues raised in this appeal are whether the common law of defamation is consistent with the Canadian Charter of Rights and Freedoms and whether the jury's award of damages can stand. Held: The appeal should be dismissed. The common law strikes an appropriate balance between the twin values of reputation and freedom of expression. The protection of reputation is of vital importance, and consideration must be given to the particular significance reputation has for a lawyer. Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. Further, reputation is intimately related to the right to privacy, which has been accorded constitutional protection. The "actual malice" rule should not be adopted in Canada in an action between private litigants. The law of defamation is not unduly restrictive or inhibiting. Freedom of speech, like any other freedom, is subject to the law and must be balanced against the essential need of individuals to protect their reputation. -8- setting and the persons involved gave the coverage an aura of credibility and significance that must have influenced all who saw and read the accounts. The misconduct of the appellants continued after the first publication. Prior to the commencement of the hearing of the contempt motion, Scientology was aware that the allegations it was making against the respondent were false, yet it persisted with the contempt hearings, as did M. At the conclusion of the hearings, both appellants were aware of the falsity of the allegations. Nonetheless, when the libel action was instituted, the

defence of justification was put forward by both of them. Although M withdrew the plea of justification, this was only done in the week prior to the commencement of the trial itself, and Scientology did not withdraw its plea until the hearing of the appeal. Finally, the manner in which the respondent was cross-examined by the appellants, coupled with the manner in which they presented their position to the jury, in light of their knowledge of the falsity of their allegations, are further aggravating factors to be taken into account. Aggravated damages may be awarded in circumstances where the defendant's conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. The factors that a jury may properly take into account in assessing aggravated damages include whether there was a withdrawal of the libellous statement made by the defendant and an apology tendered, whether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, a prolonged and hostile cross-examination of the plaintiff or a plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for a jury to consider the conduct of the defendant at the time the libel was published. In this case, there was ample evidence upon which the jury could properly base their finding of aggravated damages. Every aspect of this case demonstrates the very real and persistent malice of Scientology. Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. They should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence. Unlike compensatory damages, punitive damages are not at large, and consequently courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose, as they did in this case. Further, the circumstances presented in this exceptional case demonstrate that there was such insidious, pernicious and persistent malice that the award for punitive damages cannot be said to be excessive. Per L'Heureux-Dubé J.: Cory J.'s reasons were generally agreed with, except with respect to the scope of the defence of qualified privilege. The common law of defamation, as it is applied to the parties in this action, is consistent with the values enshrined in the Charter. There is accordingly no need to amend or alter it or, in particular, to adopt the "actual malice" rule. The defence of qualified privilege, however, is not available with respect to reports of pleadings in purely private litigation upon which no judicial action has yet been taken. The defence is available only with respect to reports of judicial proceedings. While there is a right to publish details of judicial proceedings before they are heard in open court, such publication does not enjoy the protection of qualified privilege if it is defamatory.

Socitie de l’assurance automobile du Quebec v Cyr [2008] SCJ No 13- Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ) entered into a contract with the Centre de vérification mécanique de Montréal (CVMM) to carry out the mechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program. However, following notices of breach for failure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked. Cyr and CVMM filed a motion for judicial review of the decision to revoke the accreditation, claiming that it had not been rendered in a manner consistent with the Act respecting administrative justice (AAJ). The Superior Court concluded that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights and dismissed the application. The majority of the Court of Appeal set aside the decision, holding that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid the obligations codified by s. 5 of the AAJ.

HELD: Appeal dismissed with dissent. Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considered a party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was granting him the authorization to act on its behalf. Moreover, the authorization in the present case is specifically provided for in s. 520 of the HSC. The legislative origin of the authorization further confirms its administrative nature. Consequently, section 5 of the AAJ and its procedural requirements are applicable to the present matter because (1) the revocation of Cyr's designation is a "decision concerning a permit or licence or other authorization of like nature", and (2) Cyr is a "citizen" as contemplated by the AAJ. Not all acts of the SAAQ are subject to public law, but the act of authorization has specifically been deemed worthy of procedural fairness protection by the legislature.

International law and the public/ private law distinction: http://www.collectionscanada.gc/obj/s4/f2/dsk/ftp03/MQ64296.pdf The Charter of Whiteness- twenty five years of Maintaining Racial Injustice System (2008), 40 SCLR (2nd) 655-686 <http:// cronus.uwindsor.ca/users/t/tanovich/bio.nsf/9d019077a3c4f67685698a00593654/cbb2df71007aadcb852572300067cb7a/$FILE/TheCharterofWhiteness.pdf>

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2. Sources of Law: • Early Relations with Aboriginal Peoples • Reception of English Common Law • French Civil Law and Bijuralism • Convention • Statute • Treaty

Required Readings: - Craik, Chapter 2, pages 47-77; - “Bijuralism and Harmonization: Genesis” available on the Department of Justice website: http://canada.justice.gc.ca/eng/dept-min/pub/hfl-hlf/b1-f1/bf1g.html ; - St-Hilaire v. Canada (Attorney General), 2001 FCA 63, [2001] 4 F.C. 289; - John Borrows, “Indigenous Legal Traditions” (2005) 19:167 Journal of Law and Policy; available on line: http://law.wustl.edu/journal/19/p167Borrows.pdf - Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (skim headnote for factual context, read paragraphs 69-71, 78-81); - Brunnee, Jutta & Stephen Toope. A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts in David Dyzenhaus (ed.), The Unity of Public Law, Hart Publishing 2004 extract available on Google Books: http://books.google.com/books?id=DIO_DF_3Qe4C&pg=PA357&lpg=PA357&dq=stephen+toope +international+law+hesitant +embrace&source=bl&ots=6zwtFETThE&sig=uPSygsuXstx0mgNBagcPO2zL7HA&hl=en&ei=u3 OmSvCDKoSKNv7vlNcP&sa=X&oi=book_result&ct=result&resnum=1#v; - De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436. 4Federation of Law Societies of Canada

National Committee on Accreditation TOPIC TWO: CHAPTER 2 P-47-87 CANADIAN LEGAL INHERITANCES: The system, structure, and organization of laws and government in Canada were not created in a vacuum. Aboriginal interests and concepts have emerged as a source of law in Canada. This area will focus on aboriginal people and common and civil law. Law and Aboriginal People: The term aboriginal peoples is used to refer to three major groups of people: the Indians, Inuit, and Metis. The UN report states that now “much of aboriginal peoples land has been taken away and whatever land is left to them is subject to constant encroachment. Their culture and their social and legal institutions and systems have been constantly under attack at all levels, through media, the law and the public education systems…they have a right to continue to exist, to defend their lands, to keep their culture, their language, their social and legal institutions and systems and their ways of life, which have been illegally and unjustifiably attacked” (Martinez Cobo, UN, Problems of Discrimination Against Indigenous Peoples at 49). S91(24) of the Constitution Act 1867 the Federal Parliament has power over “Indians” and “lands reserved for the Indians”. But this was supposed to be from exploitation by local settlers, which is not the case. In 1982, aboriginal rights were constitutionally entrenched in s35 of the CA 1982, and “protects existing aboriginal and Treaty rights of the aboriginal peoples of Canada”. Mitchell v Canada (Minister of National Revenue) [2001]- McLachlin CJ- The nature of aboriginal rights: “European settlement did not terminate the interests of aboriginal interests and customary laws were presumed to survive the assertion of sovereignty and became common law rights unless they were 1) incompatible with parliamentary sovereignty 2) surrendered voluntarily through a Treaty 3) The Gov’t extinguished them” [9-11]. Delgamuukkw v British Columbia [1997]- regarding interpretation of s35 CA 1982 in regards to the scope of protection afforded by the section in regards to land. Lamer CJ- “They have the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes which need not be aspect of those aboriginal practices, cultures and traditions which are integral to distinctive aboriginal cultures”[117]: which means the content of the aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. Nor does the aboriginal title amount to a form of inalienable fee simple [124]. The second is an inherent limit: “Lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the Land which forms the basis of the Group’s claim to aboriginal Title” [117]. This limit on the content of aboriginal title is a manifestation of the principle that underlies the various dimensions of that special interest in land- the sui generis interest, which is distinct from other proprietary interests such as the fee simple [125]. Also, lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place [128]. The land cannot be used in a way, which will destroy the bond such as building a parking lot. At [131] if aboriginal people wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and concert them into non-title lands to do so. [133] Aboriginal title at common law is protected in its full form by s35.

The test for the Proof of Aboriginal Title: [143] the land must have been occupied prior to sovereignty; if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between the present and pre-sovereignty occupation; and at sovereignty, that occupation must have been exclusive… CANADA’S COMMON AND CIVIL LAW TRADITIONS: How were Canada’s dominant common and civil law traditions received from their European origins? William Blackstone in his Commentaries on the Laws of England, best summarized how colonial laws were to apply in the new world. The laws in force depended on whether colonies were simply settled, or were conquered or ceded by indigenous peoples. In latter case, pre-existing laws of the indigenous sovereign remained in force, subject to the Crown or Parliament where needed to operate. The English common law was to have little or no authority. In the case of settlement, by comparison, a legal vacuum existed that must be filled. The PC in Cooper v Stuart (1889) highlights the basic principles surrounding the rules of reception. Lord Watson provides a general overview of how British colonies adopted English law. *As the discussion and case suggest, the applicable rules of reception varied between conquered and “settled” colonies. In North America, the problem of determining which of these rules of reception would apply was compounded by two facts: (1) aboriginal peoples were already present, so true “settlement” in Blackstone’s definition could not apply; (2) France also had an interest in much of British North America, and claimed part of New France. In practice, the rule of conquest was applied to central Canada, and the rule on settlement everywhere else. Civil law was created, which consisted of the Coutume de Paris supplemented by Roman law, legislation and Canon laws. The Civil Code of Lower Canada codified these various sources in 1866. The Maritimes and western provinces were regarded as “settled” although Peter Hogg states 3 of the Maritime Provinces were acquired by cession from France, but ended up with reception of English law and have been explained falsely as “settled” when they were NOT. ([30-31] Constitutional Law of Canada, 2004, sec. 2.1). The rules of reception dictated that the entire body of English law, both statutory and common, was imported into the settled colony. Local exceptions and variances were allowed where the received laws would be unsuitable to the circumstances of the colony. With statute law, the date of reception was important because it was used to determine which English statutory law applied: all statutes passed prior to such date were automatically received unless clearly unsuitable and remained in force. Those passed after such a date did not apply unless, expressly or by clear implication, they were intended to apply. The date of reception for Common law decisions operated retrospectively and applied to colonies equally since once a decision was made all common law jurisdictions were bound. Therefore the common law is 1) judges do not make the law but merely declare it 2) all relevant past decisions are considered as evidence of the law, and judges infer from these precedents. The 18th century view is that the common law is perceived as a set of fixed rules, unearthed by judges from cases through deductive legal reasoning, analogy, and application of precedent. Civil law arises out of Roman law of Justinian’s Corpus Juris Civilis. The civil law is based not on cases but established laws, generally written as broad legal principles. Common law & Precedent: Reliance on past cases is called the principle of stare decisis (let the decision stand) and is related to the doctrine of precedent. Precedent serves a variety of purposes: it aids in the stability and coherence of the law, making it more predictable; it provides fairness in decision making; it promotes efficiency and eliminates sources of error, such as judicial bias; and it fulfils a symbolic role by recognizing the relationship between the courts and the legislature. It therefore has independent value. In Canada Trust v Ontario Human Rights Commission (1990) – Tarnopolsky JA invoked the cy-pres doctrine to bring the trust into accord with public policy by removing all offensive restrictions, thus permitting it to remain a scholarship. Common Law & Equity: Equity developed by the Court of Chancery in 1873. Courts of Chancery were originally separate from the common law courts. Its original function was to provide a corrective to the perceived harshness of the common law. It is anti-formal and anti-establishment. There is no strict doctrine of precedent. In Canada is plays a role in private law. In 1873, equitable and common-law systems were infused by the Judicature Acts. Since then, equitable principles have continued to develop alongside the common law and equity are now applied concurrently in all superior courts, with equity prevailing in cases of conflict. In Re DeLaurier (1934) is an ex of the equitable doctrine of fiduciary was invoked to protect the religious upbringing of a child. Crocket J held that “with the rules of equity which in virtue of the express provisions recognize the welfare of the child as the predominant consideration. If the general welfare of the child requires that the fathers right in respect of religious faith should be superseded, the courts in the exercise of their equitable jurisdiction have undoubted power to override them as they have the power to override all other parental rights but in doing so must act cautiously looking at all factors such as emotional physical, intellectual etc.” The equitable doctrine has also extended to the public realm. In Guerin v Canada [1984] Dickson J held “in my view, the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the Courts. It is a fiduciary duty. Whereas in K,L.B v British Columbia [2003]- McLaughlin CJ held that a the relationship between government and children is fiduciary in nature. Although it was held that the Government was negligent for tort but did not breach their fiduciary duty. International Law: domestic law is the body of principle most people encounter most of the time. It exists in legislation enacted by legislatures of made as regulations by the executives. International laws are treaties and customary international law. When the treaty binds two states it is known as bilateral treaty and when it binds a larger number of states it is a multilateral treaty. Customary international law is very different concept. Treaties are binding on the states that are parties to them, and generally on no others. Customary international law binds all states, excepting only those that been sufficiently persistent in rejecting it prior to its emergence as a binding norm. It is soft law and an example is the Universal Declaration of Human Rights introduced in 1948.

International law as part of Canadian Law: The Federal branch negotiates treaties on behalf of Canada. Once a Treaty is signed and ratified, Canada is bound and must comply with it. The government must ensure that the domestic law does not run counter to international law. Canada is a dualist jurisdiction. An international treaty may require Canada, as a matter of international law, to change its domestic law. But in the dualist tradition, that treaty has no direct effect in domestic law until domestic legislation is passed to “transform” or “implement” it into Canadian law. In constitutional law, when a treaty deals with provincial matters, it is the provincial legislatures who must legislate the treaty into domestic law. Dualism responds to concerns about the democratic legitimacy of the treaty-making process by factors elected legislatures back into the equation. The dualist dilemma: dualism may be driven by legitimate concerns. It does, however, create real problems. When parliament fails to implement treaty laws into domestic law the result is an unfortunate legal quandary: Canada is bound by the Treaty as a matter of international law, and yet its policy-makers need not to abide by the treaty under the terms of domestic law. This problem is remedied if the Federal government delays ratification until Parliament and the provincial legislatures revise laws to bring them into compliance with the anticipated international obligation. As globalization increases, this dilemma will become progressively more acute. The uncertainties of dualist reception: there are no clear rules on when a treaty has been transformed or implemented into Canadian law. In many cases, existing statutes already conform to these obligations; in other cases, Canada can meet it international obligations through the formulation of policies. When the law needs to be changed subsequent to the treaty, there are clear ways to achieve this. In Baker v Canada [1999] that looked at the “best interests of the child,”the court did not describe how this implementation might be achieved. In Suresh v Canada [2002] the court considered whether the deportation to torture violated Canadian constitutional law. Canadian immigration law at the time permitted deportation of refugees on national security grounds even when their life or freedom would be threatened. It was silent on the question of torture- a treaty which Canada has ratified- expressly bars deportation to torture. The Supreme Court considered it had not been implemented but still followed it. This approach is a problem because courts are now prepared to seek inspiration from unimplemented treaties. Since Canada is dualist it because the treaties are not really law and courts may ignore the actual requirements of these treaties and devise some hybrid standard of their own. Customary international reception: Canada’s approach to CI law is very different from its dualist treaty reception doctrines. Once a rule becomes recognized as a C.L, it is automatically part of the Canadian common law. With C.I.L, Canada is a monist rather than a dualist jurisdiction. Several obvious issues are raised by this approach. First, when a legislative does legislate in a manner that displaces customary international law, Canada may be subsequently in violation of its international obligations. Second, if customary international law is part of the common law of Canada, its existence as domestic law is a matter determined by the courts exclusively. This C.I law is itself created by the international system in an organic rather than negotiated fashion. If customary international law is subsequently incorporated directly into Canadian law by the courts, there may never be any clear and direct input by political branches of government into the rules by which law in Canada is binding. On a third, related point, since the content of customary international law is sometimes uncertain and disputed, courts asked to apply it as the domestic law of Canada, rely on expert testimony from international lawyers and academics, raising further questions of legitimacy. Statutory Law: statute law will supersede common law. In Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1979]- Here the courts grappled with how to treat the relationship between common and statutory law where the legislative enactment has not specifically responded to a common law rule. Laskin CJ, “the view taken by the Ontario CA is a bold one and may be commended as an attempt to advance the common law. This is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the code. Complexity of the Law: the following excerpt from Halpern v Canada (2003) gives a brief glimpse into the intricate relationship between the custom, common law, civil law, and constitutional law that exists in contemporary Canada. This case was regarding same-sex marriage. In the aftermath of this case, the federal government decided to accept the result reached by the Ontario Court of Appeal and thus did not seek leave to appeal to the Supreme Court of Canada. Two interveners, the Association for marriage and the Family in Ontario, and the Interfaith Coalition on Marriage and Family, tried to have the Supreme Court hear an appeal. In July 2003, the federal government produced a draft bill that would redefine marriage which led to same-sex marriage. Now, in the Marriage Act 2005.

“Bijuralism and Harmonization: Genesis”- The Honourable Mr. Justice Michel Bastarache, Supreme Court of Canada: There are relatively few countries in the world in which fundamentally different legal regimes co-exist. Canada represents such a country. Bijuralism or "bijuridisme" in Canada signifies the co-existence of the English common law and the French civil law traditions, within a country organized along federal lines. While we find the coexistence of these two legal systems and traditions in Canada, I must profess that I do not consider it correct to speak of a "common law" or a "civil law" per se. Rather, in my opinion, there is one legal family in Canada which contains the common law systems and another legal family which contains the civil law systems.

• (i) Common Law Tradition The common law tradition can be distinguished from the civil law tradition essentially by its method, that is, its rules of interpretation, the hierarchy of its sources and its inductive reasoning. The principal characteristic of the common law is this inductive process, which consists of generalizing from common points between distinct cases and then establishing legal categories with vague foundations and

flexible limits. The ratio decidendi of a previous decision is ascertained, after which we proceed by way of analogy. To practitioners, the common law means that they have access to a fragmented law that they will discover incrementally as needed. This leads to the legal fiction that a judge does not make the law but discovers it, as a legal vacuum is impossible. Thus, there is also intellectual uncertainty, as the law is in constant evolution. Of course, this evolution is not anarchical. On the contrary, each development must be justified by linking it to a principle drawn from the preceding cases. According to Oliver Wendell Holmes, the law is only what the judges say it is. Everyone is familiar with his famous assertion that: "The life of the law has not been logic: it has been experience".

• (ii) Civil Law Tradition Perhaps the most important feature of the civil law tradition differentiating it from the common law tradition, is its emphasis on the primacy of written laws. Rather than proceeding from the ratio decidendi of previous judicial decisions, the emphasis in the civil law tradition is on the written, or codified law, which is the primary source of law. The civil law is therefore not "judge-made law" but codified law. Another defining characteristic of the civilian tradition is its conceptualism as the civil law tradition is characterized by its emphasis on abstract concepts. Flowing from this is the civil law deductive approach to legal reasoning, proceeding from the general to the specific. The theory in civil law drafting is therefore to enunciate general principles. Judges therefore proceed from the general to the specific, deriving conclusions through interpreting the rules set out. The second source of law in the civilian tradition is legal scholarship "la doctrine" and the third source of law in the civil tradition are prior judicial decisions. While prior decisions are sometimes a source of law in the civil tradition, they are therefore never the source of legal rules as in the common law tradition.

Language One integral issue relating to Canada's bijuralism is that of "language". It is very important for me to stress that I consider language to play a crucial role in the evolution of law. Linguistic duality has been a constant concern in our country. Both the English and French languages are solidly embedded in our history. I cannot stress enough the judiciary's responsibility to protect language rights enshrined in the Canadian Charter of Rights and Freedoms and to promote efforts toward true bilingualism. This would help continue our path in Canada towards increasing access to justice. The sources of the common law were established in the English language. Translation often results in some very significant problems for the practice of the common law in French. The same holds true for the practice of civil law in English. Some concepts are quite hard to translate. It is hard to avoid confusion when civil law terminology must be relied on. It is also hard for lawyers to present their arguments in French in courts where the judges are not fluent in that language. Fortunately, this situation has improved significantly, especially in the Supreme Court of Canada, the Federal Court and the courts of New Brunswick. Nonetheless, to attain a high level of interaction between Canada's two legal systems, a high degree of individual bilingualism must be attained within the legal profession. Indeed, the history of Canadian bijuralism supposes an ability to function in the two languages. At present, there is still reason to fear that we are less than well equipped to meet this challenge. The suitability of judges educated in the common law tradition hearing cases involving civil law issues has been the subject of some debate in Quebec and has even led to some opinion favouring a distinct Supreme Court for Quebec or a separate civil law division within the existing Supreme Court. There is also a perception that while Ontario courts often serve as persuasive authority in other Canadian provinces, decisions of Quebec courts that are rendered in French are not fully heeded in other jurisdictions, undoubtedly due to the language barrier. Indeed, much of Quebec civil law and Quebec French unilingual commentary or decisions, even on non-civil law matters, "remains a closed book to those outside Quebec". I do not think that any of you would contest that the rest of Canada would only gain insight from their knowledge of Quebec jurisprudence and doctrine. One question that often arises is whether the common law system is intimately linked to the Anglo-Saxon mentality and language? Is the system of values of Francophones inconsistent with the common law tradition? And if Francophones integrate French into the practice of the common law, will they change the course of development of the common law as a result of their French influence? Likewise, the same questions can be asked of the civil law tradition and whether it is intricately linked to the French language? In this regard, I cannot emphasize enough that my experience has taught me that French is not the exclusive linguistic vehicle for the expression of the civil law tradition nor is English the exclusive vehicle for the expression of the common law. I highly doubt that there is any mystical connection between the French language and the civil law tradition and the English language and the common law tradition. Today, several law faculties have successfully undertaken multi-traditional or multi-lingual legal training. In particular, the faculties of Ottawa University and McGill University offer both civil and common law degrees. The faculties of Moncton and Ottawa offer common law programmes in French and McGill University offers the civil law programme in English. A number of faculties have instituted student exchange programmes and the Federal Government has sponsored an annual summer programme in which students from both legal traditions undertake comparative legal studies. Top of page Bilingual Legislation It is perhaps trite to state that federal legislation in Canada is intended to apply consistently across the provinces and territories—that the same federal law must apply in both Quebec and in Ontario. While this may be the ultimate goal of federal legislation, in practice this goal is not easily attained, since federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Canada is blessed with four different legal languages and federal legislation must not only be bilingual but bijural. Indeed, federal legislation must simultaneously address four different groups of persons:

1. anglophone common law lawyers; 2. francophone common law lawyers; 3. anglophone Quebec civilian lawyers; and 4. francophone Quebec civilian lawyers.

It is crucial that these four legal audiences in Canada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory. This task is easier said than done and the courts should play a role in fostering this task.

One distinctive and often difficult feature of Canadian bijuralism is the task of rendering the common law in French and the civil law in English. More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. With respect to the process of drafting federal legislation, it is now readily recognized that this process should not rely upon the technique of simply transposing the concepts of one legal tradition into the corresponding functional equivalents of the other legal tradition. In many areas, a new vocabulary must be forged. Certain problems arise where federal legislation is drafted on the basis of the common law system alone, or based on rules or institutions that exist only in the common law. This problem has now been addressed directly through a project of which you have been informed. Interpreting Bilingual Legislation In their interpretation of bilingual legislation, Canadian courts should and do play a role in fostering Canada's bijural legal system and in avoiding the perpetuation of the inequalities referred to above. The requirement in Canada that legislation be enacted in both English and French has important implications. It means that both language versions of a bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translation—and neither has paramountcy over the other. Notwithstanding the repeal of section 8 of the Official Languages Act in 1988, Canadian courts have consistently affirmed that the English and French versions of a statute are equally authentic and authoritative. This is known as the "equal authenticity rule", which must be applied by courts in interpreting federal bilingual legislation. This rule was first formulated in 1891 by the Supreme Court in C.P.R. v. Robinson wherein the Court stated: I take it that whether the article was first written in French or in English is immaterial . . . In the case of ambiguity, where there is any possibility to reconcile the two, one must be interpreted by the other. The English version cannot be read out of the law. It was submitted to the legislature, enacted and sanctioned simultaneously with the French one, and is law just as much as the French one is. By virtue of the equal authenticity rule, therefore, the English and French versions of statutes and regulations of Canada are equally authoritative. Indeed, as professed by the Quebec Superior Court and confirmed by the Court of Appeal in Mekies v. Directeur du Centre de détention Parthenais, "le Tribunal canadien a non seulement le droit mais aussi l'obligation de prendre connaissance des deux textes officiels et de les interpréter l'un par l'autre." This means that to properly interpret bilingual legislation of Canada, the English and French versions must be read in light of each other, taking into account the context of such legislation, including the intent of the legislature that each provision of the act be read consistently with the others and that the act as a whole be read in light of the legal family or system of law applicable in the particular jurisdiction. The Policy on Legislative Bijuralism, adopted by the Department of Justice in June of 1995, formally recognizes that when reading federal statutes and regulations, the reader, regardless of his or her language or legal system, must be able to find the terminology and wording that are respectful of the concepts and institutions proper to the legal system in effect in the relevant jurisdiction. This policy and approach is also followed by judges in their interpretation of bilingual legislation. A case in point where one can see the importance of reconciling the French and English versions of a provision within the specific context of the applicable legal system is that of Gulf Oil Canada Ltd. v. Canadien Pacifique Ltée. At issue in this case was a provision of the Federal National Transportation Act wherein the English version provided that carriers were not liable for loss caused by "acts of God" while the French version provided non-liability for "cas fortuit" or "force majeure". The Quebec Superior Court took into consideration the civil law system in interpreting this provision, concluding that, while the acts of third parties do not meet the definition of "acts of God" in the common law system, they nevertheless may constitute "cas fortuit" or "force majeure" in Quebec law. The Court in this case recognized that, in its English and French versions of this provision, the legislature sought to take into account the two legal systems in Canada. The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extract the "highest common meaning" from the two versions that is consistent with the context of the provision. Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute. One must therefore go further than mere verbal comparisons, looking to the highest common meaning of the two versions. This approach can be seen in the Ontario Court of Appeal decision in Reference re Education Act of Ontario and Minority Language Education Rights, wherein the Court of Appeal dealt with the interpretation of subsection 23(3) of the Canadian Charter on minority language rights. Specifically, the English version of the section referred to "minority language educational facilities" while the French version spoke of "établissements d'enseignement de la minorité linguistique". While a common meaning of these terms reduced to their lowest common meaning was equivalent to a guarantee of classrooms, the Court of Appeal opted for the highest common meaning, reading the two versions together, and accorded a guarantee of schools managed by francophones—the linguistic minority, rather than mere physical facilities within the language facilities of the majority. In a recent decision of the Supreme Court in Doré v. Verdun, Justice Gonthier maintained that a court is free to reject a shared meaning between the two versions of a statute if it appears contrary to the intention of the legislature. Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit, intent and meaning of an enactment and that best ensures the attainment of its objectives. Harmonization The interaction of law emanating from the federal and provincial levels and the potential conflicts between them and possible harmonization is a complex issue. Over the years, pursuant to the division of powers under the Constitution Act, 1867, Parliament has enacted a considerable number of laws aimed at regulating private law issues. These matters include, inter alia, marriage and divorce, bankruptcy and insolvency, bills of exchange and promissory notes, maritime law, and copyrights and patents of inventions. For example, in order to have effect, legislation concerning bankruptcy, bills of exchange or bank security depend on the existence of contracts such as loans, sales and hypothecs. One can also look to divorce and the extra-contractual liability of the Crown, or the Income Tax Act, which determines the tax consequences of sales, assignments of claims, gifts and legacies. These examples illustrate that certain public law statutes, when applied in Quebec, require that recourse be had to the Civil Code of Quebec to identify the precise nature of the juridical act in question. The Bankruptcy and Insolvency Act contains several provisions that demonstrate the required reference to the Civil Code for its effect. For example, s. 95 of the Bankruptcy and Insolvency Act allows the trustee in bankruptcy to void a preferential payment made within three months preceding the bankruptcy. However, s. 95 does not apply where "a debtor-creditor legal relationship does not exist" between the bankrupt and the third party. Thus,

if no legal transaction exists pursuant to the Civil Code of Quebec, the payment shall not be voided. Similarly, s. 95 of the Bankruptcy and Insolvency Act provides that preferential payments are nevertheless enforceable against the trustee if the juridical act was agreed to prior to the three month period, again, requiring the application of the Quebec Civil Code. Section 136 of the Bankruptcy and Insolvency Act also requires looking to the Civil Code to determine the status of creditors under the Bankruptcy Act. There are therefore many examples where the Civil Code governs private law relationships that come into contact with federal law which determines the consequences of such relationships. There are also situations where the civil law plays an active role, directly applying to private law federal statutes. As such, civil law is called upon to fill the gaps left by the federal law. Consequently, there are several areas of law found in federal statutory enactments which require harmonization with Quebec private law, expressed primarily in the Quebec Civil Code. In an effort at harmonization, the Supreme Court decided in 1977 in the case of Quebec North Shore Paper Co. v. Canadian Pacific, that there is no general "federal judicially-created common law" which fills the gap where Parliament has not legislated on a certain matter. In other words, the law of Quebec is called upon as the droit commun even with respect to some matters within the federal competence when that jurisdiction has not been exercised by the federal Parliament. In so doing, the possibility of a further duality of common laws within Quebec was avoided—namely, a judicially created one by the Federal Court in addition to that already in place in Quebec by reason of French civil law in matters of property and civil rights and English law in non-civil matters. While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not be applied uniformly throughout the country in every respect. Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly across Canada; this requires respect for the character and uniqueness of the concepts and principles of each legal system. The fact that provincial legislatures may pursue distinctive legal policies which might each be different as well as different from those of Parliament, is a principal justification for federalism. Indeed, as professed by Jean-Maurice Brisson and André Morel: While it is true that these laws "apply to the whole of Canada", as subsection 8(1) of the Interpretation Act states, it is nowhere stated that they must apply uniformly in all places and in all respects. Does not the division of powers between the federal and provincial governments indicate the contrary? As one writer has pointed out, in addressing this supposed uniformity: "If all aspects of the law should be exactly the same across the country, why have a federal system?" This statement merits re-emphasis—If uniformity was our goal, what would be the purpose of our federal system and bijural culture? The need to recognize diversity should not, however, inhibit the need for coherence and the need to reduce conceptual and linguistic incongruence. Convergence and Progress There is evidence of a certain convergence between the civil law and common law traditions in Canada. While the common law and civil law families share common origins, these legal systems have been moving farther and farther from those origins. This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of international law, the mobility of persons, the influence of the media, the production of indigenous reference works and the growing use of legislation, even in common law jurisdictions, to enable the law to adapt quickly to societal change. This move may also result from the commercial activity of Quebec enterprises outside of Quebec coupled with the desire to attract foreign investment into Quebec. Such activity creates pressures to adopt commercial law devices from Anglo-American jurisdictions. One often-cited example of the convergence of the two legal traditions in Canada focuses on the acceptance in Quebec of specific institutions of the common law tradition—namely, the trust. In a number of celebrated decisions, the Supreme Court forged a sui generis conception of ownership in the trustee, nowhere envisaged in the Civil Code itself, in order to reconcile the genius of this common law institution to the Quebec legal system whose infrastructure with respect to the concept of ownership was entirely different. The new Civil Code of Quebec later put in place the idea of a trust upon the basis of the patrimony—a concept of civilian derivation—in order to avoid importing the concepts upon which the common law trust functions. This new formulation rejects the vision of the Supreme Court in which the trustee was attributed a sui generis title. In the spirit of this comparative technique, however, the goal was to seize upon the experience gained from the common law tradition with a view to adapting it to Quebec's own "pensée juridique". The result can therefore be seen as the same, yet the principles adopted remain consistent with Quebec's legal tradition. Another instance of this "rapprochement " of the two traditions can be discerned from the current situation where common law courts are required to apply and interpret substantive civil law. Consistent with civilian countries, statutes are at the apex of the hierarchy of sources in Quebec. However, jurisprudence is no longer so much of a secondary source in Quebec. No doubt, decisions of the Supreme Court have had a profound effect on Quebec law. One can also not deny that lawyers pleading in Quebec will invoke and abundantly cite "la jurisprudence" to support their arguments. Top of page Throughout its history, the Supreme Court of Canada has been preoccupied with the reciprocal influences of the civil and common law traditions and has demonstrated its willingness to contribute to a process of "cross-fertilization". In a recent tort decision of the Supreme Court from British Columbia, in Canadian National Railway Co. v. Norsk Pacific Steamship Co. Ltd., the Court made extensive reference and resorted to civilian authority for resolution of a common law tort case. Chief Justice McLachlin stated that looking to how other courts in different jurisdictions deal with this issue provides perspective both on the nature of the problem and possible solutions. Such decisions demonstrate the utility that can be derived from our bijural tradition. Constant change and evolving institution and concepts are the essence of law. Bijuralism in Canada is more than the mere "co-existence" of the two legal traditions. It involves the sharing of values and traditions. Conclusions It is of course too soon to draw definite conclusions, but even so, I want to mention some possible signs that things have improved as the last century has ended. The basic question relates to the legitimacy of the existing legal system. Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone. It must evolve in light of our background and needs. In the Canadian context, it seems to me that a new analysis of the situation is also needed. I feel that the inter-penetration of the two legal systems is seriously flawed. It should give way to an exercise that would determine how the concepts of the two systems can be reconciled. It is no longer enough to compare them, or even to interpret one system for the purposes of the other. In my opinion, comparative law must evolve to become a true legal discipline and contribute directly to the development of the law. Canada has the qualities to be a living model of comparative law.

It is true that things have already changed substantially. The codification of the law is increasingly extensive in both systems. There are more and more new sources of substantive law, including international law and native law. Translation, language training for judges and jurists, and exchanges between law schools are far more common. There is widespread access to criminal justice in French at the trial level throughout the country. Some universities offer a double law degree; others have organized one-year work terms for students studying the other system. POLAJ is doing important work. There is a summer exchange program for students of the two legal systems. The development of multi-jurisdictional law firms has also increased awareness of the important contributions of both legal traditions to legal issues of national and inter-provincial dimensions. The equal authenticity of the two versions of the Canadian Charter of Rights and Freedoms, a "first" in Canadian Constitutional law, should encourage judges and jurists alike to draw from the best elements of both traditions. The existence of a second authoritative version of our Charter marks an important step in Canada which can only serve to enrich its bilingualism, bijuralism and multiculturalism. It can also be said that, as a result of the advent of the Canadian Charter of Rights and Freedoms, and of the Charter's influence on all legal fields, we are moving farther and farther from the traditional common law method of interpretation and of application of precedents. The same is true in England, where the case law on human rights has given the House of Lords and the Privy Council much difficulty. The negative side is that French-language books, articles and cases from Quebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. I have also noticed that the bilingualism of many young Quebec jurists is insufficient to give them full access to English-language legal sources. On the flip-side, if French is not understood in most of English Canada, how can we be expected to make use of the insights it offers in resolving legal disputes? There are not enough points of contact between the two systems, which is an obstacle to the harmonious development of the law in Canada. I consider it to be so important to make an effort to bring the legal community of Quebec closer to the communities of the common law provinces and territories. A sense of belonging must be developed and a desire to make a positive original contribution to the development of the system must be instilled if we want to benefit fully from the extraordinary treasure of "bijuralism" in Canada. Canada is the only country in the world where the common law and civil law systems co-exist as the two fully-fledged vibrant legal systems of a sizeable population. Internationally, Canada is already a leader in the well-balanced co-drafting of bilingual legislation. Jurisdictions such as Switzerland, Belgium and Hong Kong consider our country as a source of inspiration. Adding bijuralism to bilingualism only creates increased interest within the European community, where common law English-speaking countries, Great Britain and Ireland, are co-members with civil law countries. However, as has been pointed out by the late René David, "some are tempted to consider Canada as the promised land for comparative law, but the pilgrims are still in the desert". Canada has not yet mined the full potential of its bijuralism. No doubt, as our legal systems continue to unfold to meet societal changes and needs, the need to harmonize into a coherent whole will be ever-present. We must all recognize the uniqueness of Canadian bijuralism. Canada's bijuralism is an integral part of our legal heritage and identity and truly defines an important aspect of our country's greatness. St-Hilaire v. Canada (Attorney General), 2001 FCA 63, [2001] 4 F.C. 289; This was an appeal from a Trial Division decision allowing the respondent's application for a declaratory judgment that would recognize her right to the benefits provided by the Public Service Superannuation Act, and ordering the Treasury Board to pay her the sums she claimed. In February 1995, the respondent killed her husband during a violent domestic quarrel. Charged with second degree murder, she pleaded guilty to a reduced charge of manslaughter. The husband was a public servant who had worked for the Canadian Coast Guard for 25 years and had been contributing to the Superannuation Account under section 4 of the Act and the Public Service death benefit account opened under section 56. The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. The respondent then applied to the Federal Court, Trial Division for a declaratory judgment that would recognize her right to the benefits provided by the Act. Allowing the application, Blais J. ruled that the applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. The main issue on appeal was whether the civil law of Quebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Quebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under subsection 620(1) of the Civil Code of Québec. Held (Décary J.A. dissenting in part), the appeal should be allowed. Per Létourneau J.A.: The Federal Court of Appeal has on many occasions recognized the complementarity of the Quebec civil law with federal law where the latter is silent. It has also endeavoured to harmonize the effects of federal statutes in order to avoid possible inequities as a result of disparities while acknowledging a right to be different where harmonization proves impossible. The unworthiness to inherit under subsection 620(1) of the Civil Code of Québec attaches to the person convicted of making an attempt on the life of the deceased. The wording of this article creates serious difficulties since there is no offence in Canadian criminal law of making an attempt on the life of the deceased. In our criminal law, manslaughter is a residual category which encompasses whatever is not otherwise assigned to murder and infanticide. The three categories of offences in the Criminal Code (murder, manslaughter and infanticide) are far from being mutually watertight and it would be an error to hide behind the label "manslaughter" and conclude that each and every attack on life that falls within that category cannot be a source of unworthiness to inherit by operation of law. Moreover, one could not infer from the presence of the word "involontaire" in the concept of "homicide involontaire coupable" (manslaughter) a lack of intention to kill or to produce the death. Subsection 620(1) of the Civil Code of Québec does not exclude from its purview all cases of manslaughter. Where, as here, a person commits aggravated assault or inflicts serious bodily harm likely to cause death, knowing that death may result but being indifferent as to whether or not it results, that person is by operation of law unworthy of inheriting from his victim. This act fulfills all the conditions of murder prescribed in subparagraph 229(a)(ii) of the Criminal Code and constitutes a murder. The respondent wanted, if not to kill her husband, to at least cause serious bodily harm to him likely to cause his death. She consciously and deliberately made an attempt on the life of the deceased within the meaning of subsection 620(1) of the Civil Code of Québec. Therefore, she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse annuity.

Per Desjardins J.A.: To determine the meaning of the words "surviving spouse" and "succession" when the federal statute in question, the Public Service Superannuation Act, is silent, it is necessary to refer to the Civil Code of Québec and not the common law. The Civil Code of Québec is the foundation not only of all other Quebec laws, but also of the relevant provisions of the Act in question. The first paragraph of article 620 of the Code, which states that "a person convicted of making an attempt on the life of the deceased" is unworthy of inheriting by operation of law, does not rule out the applicability thereto of some cases of manslaugther, let alone the manslaughter committed by the respondent. If the Quebec legislature had actually intended to exclude any recourse to the courts of civil procedure in article 620 of the Civil Code of Québec, it could have borrowed the terminology peculiar to the criminal law in drafting the first paragraph of article 620, but refrained from doing so. Since the respondent was "convicted of making an attempt on the life of the deceased", she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse's annuity. Per Décary J.A. (dissenting in part): The benefit in the form of a monthly allowance contemplated in subsection 13(3) of the Act is payable to the "surviving spouse" and the "children". There was no child herein and the respondent was the "surviving spouse". The parties erred in assuming that the respondent and her husband's "succession" were one and the same. The Criminal Code of Canada recognizes three kinds of culpable homicide: murder, manslaughter and infanticide. In the case at bar, the respondent, in criminal law terms, intentionally caused serious bodily harm that resulted in the death of her husband. At the relevant time the Public Service Superannuation Act did not contain any provision concerning the disqualification of a beneficiary for attempting to take the contributor's life. In Quebec the "ordinary law" of the province is constituted by the Civil Code of Québec and the Code of Civil Procedure, although these are statutory documents. A judge who must interpret and apply a federal enactment that is silent in a dispute concerning civil rights in Quebec must know that, as a general rule, the suppletive law is the civil law. The Attorney General's submission that the eligibility for benefits of federal government employees is a question of administrative law governed by the rules peculiar to public law, and therefore by the common law, had two flaws. First, the Public Service Superannuation Act is not a statute that is exclusively administrative in nature. Second, the common law rule that a person may not profit from his crime is not a rule of public law but a rule of private law. What should determine whether it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. When the latter are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. The civil law applies in Quebec to any federal legislation that does not exclude it. A federal statute, albeit one characterized as public law, that refers to a private law concept such as succession without defining it, should be interpreted in Quebec in terms of civil law. Since it is the civil rights of the surviving spouse and the heirs that are in dispute, Parliament's silence should be interpreted as an acquiescence in the application of the principle of legal asymmetry that characterizes Canadian federal law. The Civil Code of Québec recognizes the principle that no one should profit from his crime. Article 620 of the Civil Code of Québec, which states that a person convicted of making an attempt on the life of the deceased is unworthy of inheriting by operation of law, has not substantially altered the previous law, at least within the context of the legal succession. The solution that appears to be the most restrictive, the most objective, the most certain and the only one that can entail automatic exclusion should be adopted. This solution is likewise the one adopted in France by the majority of judges and legal scholars. Under the current Quebec law of succession, the respondent, in her capacity as heir, was not unworthy by operation of law. Since she has not been judged unworthy by judicial declaration and the limitation period within which successors may seek a judicial declaration of unworthiness has expired, the respondent was entitled to claim from the Treasury Board, as the heir of her husband's succession, the sum of $81,750 payable under subsection 55(1) of the Act as the supplementary death benefit. However, under article 2443 of the Civil Code of Québec which governs the present situation, an attempt on the life of the contributor by the beneficiary entails the forfeiture of this beneficiary. The circumstances of the crime in the case at bar lead to the disqualification of the respondent. The description of the events revealed a clearly settled intention to take advantage of the opportunity that was presented to "stick it to" the victim once and for all. This was an attempt on the life of the victim within the meaning of the law of insurance and the respondent would profit from her crime if she were allowed to receive the benefits payable to a surviving spouse. The respondent was forfeited from her entitlement to the benefits payable to a surviving spouse under subsection 13(3) of the Act, but she was entitled in her capacity as heir, to the minimum amount of $75,202.50 payable under subsection 27(2) of Part I of the Act and to the supplementary death benefit of about $81,750. - John Borrows, “Indigenous Legal Traditions” (2005) 19:167 Journal of Law and Policy; available on line: http://law.wustl.edu/journal/19/p167Borrows.pdf The recognition, implementation and harmonization of indigenous legal traditions would involve other Canadian legal institutions. Provincial law societies would play a role in facilitating indigenous legal traditions. In the United States, the recognition of indigenous legal traditions has led to the development and existence of indigenous law societies. The Indigenous Bar Association (IBA) could be developed to take on a governance role in accreditation or coordination of lawyers or other practitioners who may participate in indigenous legal systems. The IBA could be an educational and disciplinary body, as its members would have expertise with most indigenous groups in Canada. The further recognition and implementation of indigenous legal traditions would also create a greater role for indigenous legal education. The First Nations University of Canada and other indigenous educational institutions could work with indigenous leaders to develop programs specific to indigenous groups and their laws. The First Nations Governance Centre could provide valuable information and education as well. First Nations law schools or programs would facilitate the dissemination and acquisition of knowledge necessary to implement these traditions. There are numerous other societal initiatives that could be undertaken to support the dissemination and application of indigenous legal traditions throughout the country. CONCLUSION Canada’s balanced, and somewhat decentralized, federal state is one of the country’s great strengths. It facilitates the reconciliation of diversity with unity. It creates the potential for experimentation in the “social laboratory” that each constituent part of our federation encourages.239 More explicit recognition of indigenous legal. Indigenous Legal Traditions in Canada could lead to useful experimentation and innovation in solving many of Canada’s pressing problems. Furthermore, affirmation of indigenous legal traditions would strengthen democracy in the country by placing decision-making authority much

closer to the people within these communities.240 Aboriginal peoples would be better served in Canada’s federation if they had the recognition and resources necessary to refine the law in accordance with their perspectives. This is important because central and provincial governments are more remote from Aboriginal peoples, both physically and culturally, and tend to be less responsive to the Aboriginal electorate than would their own governments exercising greater responsibility for their own affairs.241 Greater recognition of indigenous legal traditions could provide some counter-weight to the bi-culturalism and bi-elitism that sometimes infects Canada’s polity. The recognition of indigenous legal traditions in the Canadian state is bound to be contested and create difficulties in law and policy.242 Laws dealing with indigenous peoples must take account of the totality of cultural practices and expressions that belong to them.243 Recognizing and affirming indigenous legal traditions would facilitate the rule of law within indigenous communities as they lived closer to their values and principles. It would enable the exercise of greater responsibility for their affairs, and allow them to hold their governments and one another accountable for decisions made within their communities. If properly implemented and harmonized with Canada’s other legal traditions, such an approach would be consistent with their human rights as peoples while ensuring that other’s rights were not abrogated. Creating a national framework to facilitate the implementation of indigenous legal traditions would help to ensure that non-indigenous rights and interests are also respected. It is easier to envision fairer and more effective laws when rights are determined on more even playing field, with greater indigenous influence and participation. The proposals outlined in this paper are directed at creating laws and institutions that will find an appropriate balance between the interests of recognizing and respecting indigenous cultural, political, economic and social integrity and the interests of society as a whole.244 The paper advocates formal indigenous participation in dispute resolution because there are problems in treating questions about indigenous knowledge as a discrete, de-contextualized subject of inquiry to be used and judged by other normative systems, rather than treating it as an active system that contains its own values, norms, uses, standards, criteria and principles for the use of such knowledge. To avoid this difficulty, indigenous intellectual methodologies that express indigenous legal concepts must be embedded in the very structure of indigenous dispute resolution.245 Aboriginal vantage points should form part of an appropriate balance from a rights perspective when judging issues of indigenous legal traditions. This paper has tentatively suggested ways in which indigenous norms could provide criteria for such judgment. As indigenous normative concepts are extended into dispute resolution regimes at the local, provincial and national level, a greater range of options will be available to tailor solutions that fit particular issues and disputes. This is consistent with the sui generis approach to judging indigenous rights outlined by the Supreme Court of Canada.246 It would also meet the task outlined in R v. Van der Peet: The challenge of defining [A]boriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures; consequently there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined . . . a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives.247

-­‐ Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (skim headnote for factual context, read paragraphs 69-71, 78-81);

[69-71]: (b) International Law Another indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children’s rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:71 - 48 - [T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.] The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: see, for example, Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), at p. 266; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), at p. 367. It is also a critical influence on the interpretation of the scope of the rights included in the Charter: Slaight Communications, supra; R. v. Keegstra, [1990] 3 S.C.R. 697.

The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that “childhood is entitled to special care and assistance”. A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child “needs special safeguards and care”. The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power.

[78-81]: IACOBUCCI J. - I agree with L’Heureux-Dubé J.’s reasons and disposition of this appeal, except to the extent that my colleague addresses the effect of international law on the exercise of ministerial discretion pursuant to s. 114(2) of the Immigration Act,79 80 - 52 - R.S.C.,1985,c.I-2. Thecertifiedquestionatissueinthisappealconcernswhetherfederal immigration authorities must treat the best interests of the child as a primary consideration in assessing an application for humanitarian and compassionate consideration under s. 114(2) of the Act, given that the legislation does not implement the provisions contained in the Convention on

the Rights of the Child, Can. T.S. 1992 No. 3, a multilateral convention to which Canada is party. In my opinion, the certified question should be answered in the negative. It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation: Capital Cities Communications Inc. v. Canadian Radio- Television Commission, [1978] 2 S.C.R. 141. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system. In my view, one should proceed with caution in deciding matters of this nature, lest we adversely affect the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to bind citizens without the necessity of involving the legislative branch. I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, supra, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the 81 - 53 - domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament. The primacy accorded to the rights of children in the Convention, assuming for the sake of argument that the factual circumstances of this appeal are included within the scope of the relevant provisions, is irrelevant unless and until such provisions are the subject of legislation enacted by Parliament. In answering the certified question in the negative, I am mindful that the result may well have been different had my colleague concluded that the appellant’s claim fell within the ambit of rights protected by the Canadian Charter of Rights and Freedoms. Had this been the case, the Court would have had an opportunity to consider the application of the interpretive presumption, established by the Court’s decision in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and confirmed in subsequent jurisprudence, that administrative discretion involving Charter rights be exercised in accordance with similar international human rights norms.

Appeal allowed with costs. - Brunnee, Jutta & Stephen Toope. A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts in David Dyzenhaus (ed.), The Unity of Public Law, Hart Publishing 2004 extract available on Google Books: -Believe that in the Baker case, the judges held that international principles would be persuasive authority and that they are to be applied in Canadian law as so far as is possible. Their concern in this article is that if international law is only persuasive it is therefore optional and can be ignored by the discretion of the judge. In order for an international law to become apart of Canadian law it must be implemented by statute, which they argue is a restrictive approach. International conventions are not binding on Canada unless they have been incorporated. The Baker case did not clarify if the international conventions had non-binding effect? The law needs to be clarified here.

-­‐ De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436. -­‐ This was an application for judicial review of a decision rejecting the applicant's application to sponsor her husband on the ground that

during the processing of that application, she was in receipt of social assistance for a reason other than disability contrary to paragraph 133(1)(k) of the Immigration and Refugee Protection Regulations.

-­‐ The issue was whether paragraph 133(1)(k) of the Regulations violates subsection 15(1) of the Canadian Charter of Rights and Freedoms in that it discriminates on the basis of receipt of social assistance.

-­‐ Held, the application should be dismissed. -­‐ The receipt of social assistance in the particular circumstances of the applicant did not constitute a personal characteristic under the first

prong of the Law v. Canada (Minister of Employment and Immigration) test for analysing section 15 Charter claims. It was not an essential quality that constituted a recognizable part of her person, nor did it appear to be permanent or immutable. The matter could therefore be distinguished from the situation in Falkiner v. Ontario (Ministry of Community and Social Services) (Ont. C.A.). In that case, the individuals concerned had a long history of receipt of social assistance combined with other factors, and the Court found that the impugned provision discriminated not only on the ground of receipt of social assistance (as in this case), but also on the grounds of sex and marital status.

-­‐ Receipt of social assistance is not an enumerated ground of discrimination under subsection 15(1) of the Charter. Nor is it an analogous ground as there was no indication that the applicant would be dependent on social assistance.

-­‐ As to the third prong of the Law test, this differential treatment did not discriminate in a substantive sense. By enacting paragraph 133(1)(k) of the Regulations, the legislator tried to balance the great importance of the unification of sponsors with their immediate family with the goal of pursuing the economic benefits that derive from immigration. The presumption that those on social assistance cannot provide for any person they may sponsor without resorting to the State for assistance is an informed general assumption made by the legislator that is not based on arbitrary and demeaning stereotypes and as such does not run afoul of section 15. Furthermore, the legislator has provided mechanisms (i.e. humanitarian and compassionate application under section 25 of the Immigration and Refugee Protection Act) whereby sponsors on social assistance can apply for relief from the provisions of paragraph 133(1)(k) if the bar from sponsorship would operate unfairly in their particular circumstances.

-­‐ Paragraph 133(1)(k) of the Regulations thus does not violate section 15 of the Charter. The question of whether paragraph 133(1)(k) discriminates on the basis of the analogous ground of receipt of social assistance was certified.

3. Fundamental Principles of the Canadian Legal System: • Rule of Law • Parliamentary Sovereignty and Constitutional Supremacy • Separation of Powers • Judicial Independence Required Readings: - - - - Craik, Chapter 3, pages 79-124 ; Reference re Secession of Quebec,[1998] 2 S.C.R. 217, paras. 35-48 & 49-82; Singh v. Canada (Attorney General), 2000 CanLII 17100 (F.C.A.), paras. 13-44; Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (S.C.C.): http://scc.lexum.umontreal.ca/en/1997/1997rcs3-3/1997rcs3-3.html

Chapter three: pages 89-129 Notes: Public law concerns the relationship between the state and civil society. Private persons may only create legal rights and duties between each other, and only on the basis of consent. The state holds all authoritative power. The state may impose its dictates on private persons without their individual consent. In a society governed by the rule of law, the state may not act arbitrarily. To be legitimate, the State must impose its will lawfully, in accordance with law. The starting point in assessing the legitimacy of state action- and its adherence to the rule of law- is the constitution. A constitution establishes foundational law, which this rule of law can occur. It establishes as a matter of law who can make the ordinary law of the land and also spells out any limits on the ordinary law. This is called a “rule of recognition” – that is a constitution allows us to recognize ordinary law and determine whether it is proper. Second, a constitution establishes the respective relationships between the institutions or branches of the state that perform the functions necessary to “operationalize” (or make effective) law in society. Reference re Succession of Quebec, the Supreme Court of Canada provided a mini- treatuse on the nature of Canadian Constitutionalism, in the context of the most fundamental question any political community can face: whether and how it can be broken up. The Succession Reference has confirmed the status of “unwritten principles of the Constitution” as part of Canadian law. The court discussed four unwritten principles- federalism, democracy, constitutionalism and the rule of law, and protection of minority rights. Rule of law- All exercises of legitimate public power must have a source in law, and every state official or agency is subject to constraint of the law. Constitutional Supremacy- the Constitution is the supreme law of the society, and any ordinary law that is inconsistent with the constitution is of no force or effect. Parliamentary Supremacy- subject to the constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute and delegate any of its power as it deems fit. Federalism- Legislative sovereignty in Canada is divided between a national legislature, or Parliament, and provincial legislatures, according to a division of law-making powers or jurisdictions set out in the Constitution. Statutory authority- the executive branch of the state derives all of its authority to act from statutory grants of power from the legislative branch, save and except for certain powers derived from “royal prerogative” and constitutional convention. Judicial Independence- the judicial branch of the state must have sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional law functions. Constitutionalism in Canada: the rule of law is where a society should strive to operate on the rule of law rather the rule of men or women. A supreme constitution overtop of ordinary law and state functions. The constitution serves, as some have called it, as “a law to make law”: the ground rules for law making and governance. In this way, the rule of law principle is logically prior to a principle of constitutionalism. In Succession Reference the supreme court of Canada viewed the principle of constitutional supremacy and the rule of law as closely connected, while distinguishing them. [para 72] “the constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of Constitutionalism is embodied in s52(1) of the CA 1982 which provides that “the constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, or no force or effect”. Simply put, the constitutionalism principle requires that all government action comply with the constitution. The rule of law principle requires that all government action must comply with the law, including the constitution”. It was affirmed by the Supreme Court by a majority in Roncarelli v Duplessis that all state officials are subject to the legal order, and to the same legal obligations as are individual citizens. WHAT COMPRISES THE CONSTITUTION OF CANADA? We commonly think of Canada as having a written constitution, embodied in two documents produced at distinct historical moments: the Constitution Act 1867 and the Constitution Act 1982. The principal

achievement of the 1867 act is federalism: the division of legislative powers is largely effected through the listing of federal and provincial areas of jurisdiction in ss91 and 92, respectively, of the Constitution Act 1867, the 1982 Act is primarily known for the Canadian Charter of Rights and Freedoms which guarantees a set of individual and minority rights. It also deals with aboriginal rights, equalization, and constitutional amendment. S52 defines the constitution as the supreme law of the land, and s52(2) states that constitution includes a) The Canada Act 1982, including this Act b) Acts referred to this schedule c) and any amendment to any Act referred in this paragraph. In Secession Reference, the Supreme Court confirmed that the constitution also contains unwritten “principles”. These are important to understanding the legal constraints under which public power is exercised by the Canadian state. The court describes the unwritten principles as being part of the “architecture” of the constitution and then describes these unwritten principles as having the force of law and imposing substantive limits on the powers of government. [49] “The following discussion addresses the four fundamental constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law and respect for minority rights. No single principle can be defined in isolation”. [50] “The individual elements of the Constitution are linked to others, and must be interpreted by reference to the structure of the Constitution as a whole”. [51] “Although these principles are unwritten it would be impossible to conceive of our constitution structure without them”. [52] “ The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions”. [53] “We confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the existence of constitutional judicial review”. [54] “ Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations which constitute substantive limitations upon government action’. The unwritten principles have been seen to fill the gaps of the law and cannot override the written text though. With respect to “the rule of law” principle, this includes the idea that ordinary law must meet certain qualitative standards- including not being retrospective, and not being directed at a small class of persons- in order to be constitutional, quite apart from any limits expressly stated in the constitution. This was examined in British Columbia v Imperial Tobacco Canada [2005]- here tobacco manufacturers changed legislation passed in regards to health care costs for tobacco related illnesses. They argued that the legislation breached the unwritten constitutional principles of judicial independence and the rule of law. They argued that the act had retrospective effect and created a cause of action between a single plaintiff- violated substantive norms of the rule of law principle. It was held, that Major J in this judgment that [77] “the act does not implicate the rule of law in the sense that the Constitution comprehends that term. It follows that the Act is not unconstitutional by reason of interference with it”. CONSTITUTIONAL CONVENTIONS: Are another species of unwritten constitutional norms. Because the constitution act 1867 sought to effect “a constitution similar in Principle to that of the UK”, Canada inherited these conventions, and the very concept of conventions, from the British constitutional structure. Conventions represent accepted understandings of how organs of government operate. In the Patriation Reference case, the Supreme Court called to render a decision on a constitutional crisis regarding a breach of a convention of the constitution. It was held that “conventions are not law and as such cannot be enforced by the courts. They acquire and retain their binding force by agreement, and ultimately in the realm of politics. However, the courts may recognize a convention”. The main reason why the courts cannot enforce conventional rules is that they are generally in conflict with the legal rules, which they postulate and the courts are bound to enforce the legal rules. It was held in the case above that the convention did exist. CONSTITUTIONAL SUPREMACY: In Succession Reference, the Supreme Court confirmed that s52(1) of the CA 1982 the Canadian system of government now operates under a principle of constitutional supremacy. At [72] they held that “constitutionalism (constitutional supremacy) bears considerable similarity to the rule of law, although they are not identical. The essence of the constitutionalism in Canada is embodied in s52, which provides that ‘the constitution of Canada is the supreme law of Canada, and any law that is inconsistent with it is of no force or effect’. The constitutionalism principle requires that all government action comply with the constitution. The rule of law principle requires that all government action must comply with the law, including the constitution”. The doctrine of constitutional supremacy carries with it other aspects of public law: hierarchy of law; adjudication; counter-majoritarianism and amendment by super-majority. Hierarchy of law: to state that the constitution of Canada is supreme law implies a hierarchy of law. Adjudication: to effect constitutional supremacy requires a mechanism for adjudicating alleged inconsistencies between the constitution and ordinary law, including the power to declare and enforce the invalidity of inconsistent ordinary law. Counter-majoritarianism: Constitutional supremacy represents a check on majoritarian democracy. It places limits on, or obstacles in the way of, majority preferences. The limits may favour individuals, minority groups, or regional populations. The point is that there is no need for a supreme constitution other than to place checks on legislative majorities. The adjudicative body that interprets and enforces the constitution must therefore be recognized as having the legitimate function of ruling against majority preferences. Amendment by Super-Majority: constitutional supremacy implies that a constitution cannot be amended in the same way that ordinary legislation is enacted. The process for amending a constitution must involve a super-majority, which brings in more or other elements of society than comprise a legislative majority. It requires majorities of federal and provincial legislatures to agree on proposed changes. THE SEPARATION OF POWERS DOCTRINE: This refers to the division of governmental functions between the legislative, executive, and judicial branches of the state. Each branch is defined by its relationship to law: the making of law, (legislative) the implementing of law (executive), and the interpreting and applying of law (judiciary). The absence of a strict separation of powers doctrine has led some to question the utility of the concept for Canadian constitutional law. For ex: Dickson CJ in Re Residential Tenancies Act [1981] “there is no general separation of powers in the BNA 1867. Our constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government

exercise only its own function”. Although the principle is important to public law and serves two purposes: 1) a functional purpose of identifying the institutional homes each of the 3 major forms of public power, and 2) a normative purpose of providing general boundaries for the operation of each institution. The recognition of these powers represents a unique form of authoritative decision-making. LEGISLATIVE POWER: In Canada, the legislative branch is divided between the federal legislature or parliament, comprising the elected HC and an appointed Senate, and the elected legislatures in each province. Both levels of legislature derive their powers to make laws from the constitution of Canada. The division of the two legislative levels is a feature of federalism. Other law-making bodies get their power from delegation from the legislatures and do not otherwise have sovereign status under the constitution. The principle of Parliamentary Supremacy: in Succession Reference, they held at [73]: “ with the adoption of the charter parliamentary supremacy was transformed into constitutional supremacy. Which was adopted from the UK. The limits placed on the substantive law making by the charter, together with the existing limits on who can pass which laws set out in s91 and 92 of the 1867 Act, virtually required a recognition of the written constitution as being the supreme source of the law-making authority in Canada. However, s33 of the Charter contains a “notwithstanding clause” was used to override either the parliament or a provincial legislature to enact legislation that is in contravention of the Charter rights if the legislation contains a declaration pursuant to s33. This was to retain parliamentary sovereignty. In Babcock v Canada the gov’t sought to rely on a statutory right of non-disclosure of Cabinet documents, despite the documents having already been disclosed in the course of litigation. The applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear statutory statement to the contrary. The court found that parliamentary sovereignty decided the issue. FEDERALISM: The court recognized federalism as an unwritten principle of the Canadian constitution, describing it as the means of recognizing regional cultural diversity at the founding of Canada, particularly with respect to the distinct nature of Quebec with French-speaking society. In Succession Reference: [55] “it is undisputed that Canada is a Federal state. Our political and constitutional practice has adhered to an underlying principle of federalism and has interpreted the written provisions of the constitution in this light”. [57-59] “Federalism is important to the interpretation of the written provisions of the constitution. It is a political and legal response, and recognizes the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”. In Haig v Canada, it was held that “the differences between provinces are a rational part of the political reality in the federal process”. The power for the provincial and federal are under s91 and 92 of the CA 1867. EXECUTIVE POWER: This branch replicates the duality created by federalism, with executives at the federal and provincial levels. The executive includes all ministries of government and their employees- the civil service. It also includes the armed forces and crown corporations. In law, the executive branch is subordinate to the legislature. The relationship between them has two important features. First, subject to the relatively minor sources of power found in the “royal prerogative” and the constitution, the exec branch derives any power it has solely from the laws or statutes passed by the legislature. The exec must locate any authority it has to act in Canadian society from a statutory source. The second feature is by constitutional convention; the exec is responsible to the legislature. This is the essential meaning of “responsible government” in the parliamentary tradition. Convention requires that the prime minister and his or her ministry command the support or confidence of the majority of elected legislators. JUDICIAL POWER: The constitution Act 1867 contains the provisions on “judicature” in s96 to 101. Section 96 provides that the federal executive shall appoint the justices of the country’s superior, county, and district courts. Although this power is assigned to the federal level, it is the provinces, exercising their authority over the administration of justice in s92(14) of the Constitution Act 1867, that establish these courts in their respective jurisdiction. Each province also has a system of non-section 96 courts, to which the province has the authority to appoint judges. The core jurisdiction of the superior courts, encompasses two public law powers: (1) the jurisdiction to rule on the constitutional validity of all ordinary laws in Canada; (2) the jurisdiction to supervise the activities of executive government and other statutorily delegated actors to ensure that they act within their statutory authority. The former role represents the superior courts “constitutional law” jurisdiction; the latter role represents its “administrative law” jurisdiction. 1.The Judiciary’s Constitutional Law Jurisdiction: The principle of constitutional supremacy presupposes a role for an adjudicative institution to rule on whether ordinary legislation has violated the limits on legislative power set out in the Constitution. The principal remedy adopted by the judiciary in constitutional cases has been declaring laws invalid and of no force and effect. Since the adoption of the Charter of Rights and Freedoms, the question of remedies has become somewhat more complex. Section 24 of the Charter authorizes “courts of competent jurisdiction” to grant remedies in individual circumstances for Charter breaches, including the exclusion from the criminal process of evidence obtained as a result of a breach where not to do so would “bring the administration of justice into disrepute”. The question of s24 scope has received little elaboration by the courts to date. 2.The Judiciary’s Administrative Law Jurisdiction: in Canada, superior courts exercise a supervisory jurisdiction with respect to exercise of executive government authority. This is the subject matter of administrative law. In practice, the role is performed by allowing all persons adversely affected by government action to petition the superior courts seeking “judicial review” of whether the executive official has acted within the bounds of his or her statutory power. This administrative law or judicial review jurisdiction is understood to be a matter of common law development, and therefore not itself dependent on being granted by legislatures. The significance of this common law supervisory jurisdiction has been underlined by the Supreme Court of Canada’s identification of judicial review of executive action as having constitutional status.

3.The Principle of Judicial Independence: this is an elemental constitutional doctrine, closely tied to the separation of powers. The Supreme Court has described this as the “lifeblood of constitutionalism in democratic societies” in Beauregard v Canada [1986]. It ensures that judges as the arbitrators of disputes are at complete liberty to decide individual cases on their merits without interference- Ell v Alberta [2003]. It insulates judges from retaliation from other branches of government from their decisions and guarantees that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. It also preserves the separation of powers between the judiciary and the other two branches: “the legislative and the executive cannot exert political pressure on the judiciary”.

Singh v. Canada (Attorney General), 2000 CanLII 17100 (F.C.A.), paras. 13-44; This was an appeal from a Trial Division judgment dismissing an action for a declaration that Canada Evidence Act, section 39 is unconstitutional. The appellants filed complaints with the RCMP Public Complaints Commission alleging misconduct by the RCMP in the treatment of demonstrators during the 1997 Asian Pacific Economic Cooperation (APEC) Conference in Vancouver. The Commission was appointed to inquire into all matters touching upon the complaints. The Chairman held that this included whether the Prime Minister or members of his Office or of the Privy Council Office or of the Government of Canada gave improper orders or directions to any RCMP members respecting security at the APEC Conference, and that the Commission could make findings and recommendations to this effect. A defence of superior orders was not raised. It was not disputed that there had been discussions between officials of the Prime Minister's Office and the RCMP concerning security arrangements. The Commission requested that the Government of Canada disclose all government records relevant to the hearing. Two successive Clerks of the Privy Council filed certificates under Canada Evidence Act, subsection 39(1) certifying that information contained in certain documents constituted confidences of the Queen's Privy Council for Canada. Section 39 provides that such documents shall not be disclosed and the Court is unable to examine them to determine whether the Clerk's determination is correct or if the public interest warrants a refusal to disclose. The appellants commenced an action seeking a declaration that section 39 is unconstitutional and inconsistent with the "fundamental and organizing principles of the Constitution". The Trial Division Judge concluded that section 39 is intra vires and that the so-called "fundamental and organizing principles of the Constitution", to the extent that they may assist the courts in filling in gaps in the written Constitution, had no application. He rejected an alternative argument that, even if section 39 is valid, it cannot be validly applied so as to allow the Executive to conceal its own violation of the Constitution. The issues were: (1) whether section 39 is ultra vires Parliament because of the fundamental, unwritten principles of the Canadian Constitution, namely the independence of the judiciary, the rule of law and the separation of powers; and (2) whether section 39 should be read down or otherwise rendered inapplicable in the circumstances. Held, the appeal should be dismissed. The consequences of accepting the appellants' arguments would be that section 39 would not apply where there was the merest allegation that Cabinet documents might reveal policy or operating decisions arguably inconsistent with the rights of certain individuals. This would severely attenuate the absolute protection of Cabinet communications from disclosure which section 39 now affords. There is no basis upon which section 39 should be held to be inapplicable to the circumstances. Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (S.C.C.): These four appeals raise a range of issues relating to the independence of provincial courts, but are united by a single issue: whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges. In these appeals, it is the content of the collective or institutional dimension of financial security for judges of Provincial Courts which is at issue. In P.E.I., the province, as part of its budget deficit reduction plan, enacted the Public Sector Pay Reduction Act and reduced the salaries of Provincial Court judges and others paid from the public purse in the province. Following the pay reduction, numerous accused challenged the constitutionality of their proceedings in the Provincial Court, alleging that as a result of the salary reductions, the court had lost its status as an independent and impartial tribunal under s. 11(d) of the Charter. The Lieutenant Governor in Council referred to the Appeal Division of the Supreme Court two constitutional questions to determine whether the Provincial Court judges still enjoyed a sufficient degree of financial security for the purposes of s. 11(d). The Appeal Division found the Provincial Court judges to be independent, concluding that the legislature has the power to reduce their salary as part of an “overall public economic measure” designed to meet a legitimate government objective. Despite this decision, accused persons continued to raise challenges based on s. 11(d) to the constitutionality of the Provincial Court. The Lieutenant Governor in Council referred a series of questions to the Appeal Division concerning all three elements of the judicial independence of the Provincial Court: financial security, security of tenure, and administrative independence. The Appeal Division answered most of the questions to the effect that the Provincial Court was independent and impartial but held that Provincial Court judges lacked a sufficient degree of security of tenure to meet the standard set by s. 11(d) of the Charter because s. 10 of the Provincial Court Act (as it read at the time) made it possible for the executive to remove a judge without probable cause and without a prior inquiry.

In Alberta, three accused in separate and unrelated criminal proceedings in Provincial Court challenged the constitutionality of their trials. They each brought a motion before the Court of Queen’s Bench, arguing that, as a result of the salary reduction of the Provincial Court judges pursuant to the Payment to Provincial Judges Amendment Regulation and s. 17(1) of the Provincial Court Judges Act, the Provincial Court was not an independent and impartial tribunal for the purposes of s. 11(d). The accused also challenged the constitutionality of the Attorney General’s power to designate the court’s sitting days and judges’ place of residence. The accused requested various remedies, including prohibition and declaratory orders. The superior court judge found that the salary reduction of the Provincial Court judges was unconstitutional because it was not part of an overall economic measure -- an exception he narrowly defined. He did not find s. 17 of the Provincial Court Judges Act, however, to be unconstitutional. On

his own initiative, the superior court judge considered the constitutionality of the process for disciplining Provincial Court judges and the grounds for their removal and concluded that ss. 11(1)(b), 11(1)(c) and 11(2) of the Provincial Court Judges Act violated s. 11(d) because they failed to adequately protect security of tenure. The superior court judge also found that ss. 13(1)(a) and 13(1)(b) of that Act, which permit the Attorney General to designate the judges’ place of residence and the court’s sitting days, violated s. 11(d). In the end, the superior court judge declared the provincial legislation and regulations which were the source of the s. 11(d) violations to be of no force or effect, thus rendering the Provincial Court independent. As a result, although the Crown lost on the constitutional issue, it was successful in its efforts to commence or continue the trials of the accused. The Court of Appeal dismissed the Crown’s appeals, holding that it did not have jurisdiction under s. 784(1) of the Criminal Code to hear them because the Crown was “successful” at trial and therefore could not rely on s. 784(1), and because declaratory relief is non-prohibitory and is therefore beyond the ambit of s. 784(1). In Manitoba, the enactment of The Public Sector Reduced Work Week and Compensation Management Act (“Bill 22”), as part of a plan to reduce the province’s deficit, led to the reduction of the salary of Provincial Court judges and of a large number of public sector employees. The Provincial Court judges through their Association launched a constitutional challenge to the salary cut, alleging that it infringed their judicial independence as protected by s. 11(d) of the Charter. They also argued that the salary reduction was unconstitutional because it effectively suspended the operation of the Judicial Compensation Committee (“JCC”), a body created by The Provincial Court Act whose task it is to issue reports on judges’ salaries to the legislature. Furthermore, they alleged that the government had interfered with judicial independence by ordering the withdrawal of court staff and personnel on unpaid days of leave, which in effect shut down the Provincial Court on those days. Finally, they claimed that the government had exerted improper pressure on the Association in the course of salary discussions to desist from launching this constitutional challenge, which also allegedly infringed their judicial independence. The trial judge held that the salary reduction was unconstitutional because it was not part of an overall economic measure, which affects all citizens. The reduction was part of a plan to reduce the provincial deficit solely through a reduction in government expenditures. He found, however, that a temporary reduction in judicial salaries is permitted under s. 11(d) in case of economic emergency and since this was such a case, he read down Bill 22 so that it only provided for a temporary suspension in compensation, with retroactive payment due after the Bill expired. The Court of Appeal rejected all the constitutional challenges.

4. Basic architecture, and workings, of the Canadian legal system Introduction to the nature and function of judicial review, basic approaches to statutory interpretation, and the Canadian governmental and constitutional system. • The nature and function of judicial review. • The basic approaches to statutory interpretation. • Relationship between branches of government: judicial review; constraints on power of each branch. o Executive Branch: Structure; powers (i.e. delegated legislation); introduction to nature and role of administrative tribunals o Legislative Branch: Structure and operation of Parliament; legislative process; formation of statute versus regulations; ethics and accountability o Judicial Branch: Canadian court system; appointment of judges; judicial independence Required Readings: Craik, chapters 4, 5, 6, 7 and 8.

CHAPTER FOUR: PARLIAMENT AND THE LEGISLATIVE PROCESS: Structure and operation of Parliament: section 17 of the constitution act 1867 creates a “Parliament of Canada” consisting of the queen, the senate, and the HC. THE MONARCH AND GOVERNOR GENERAL: The monarch plays a double role in Canadian Constitutional framework. The monarch part of the Parliament, the Constitution Act 1867, also vests the “Executive Government” in the Queen. The queen is Canada’s official head of state, by her powers are practiced by the GG. S10 of the CA 1867 provides: “GG extend and apply to for the time being of Canada carrying on the Gov’t of Canada on behalf of the Queen”. The monarch is selected by birth, and is not elected. The monarch is determined by the UK according to the rules of heredity and laws of succession, the Act of Settlement 1701. This statute bars Catholics from assuming the Crown, and even precludes the monarch from marrying a Roman Catholic. This was challenged in O’Donohue v The Queen [2003]- It was argued that the act was discriminatory against Roman Catholics and offensive. Held: [37]: these rules of succession, and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny. To do this would make the constitutional principle of union under the British Crown together with other commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our constitution, and would have the overstep their role in our democratic structure. This present application is not justifiable and there is no serious issue to be tried’. Selecting the GG: In practice, the monarch appoints the GG. By Convention, the queen follows the Prime Ministers recommendations in appointing the GG. She takes her advice from the “instrument of advice”- a personal letter from the Prime Minister. The prime minister’s selection is a political decision. Senate: Unusually for a modern democracy, Canada has an unelected upper chamber of the federal legislature. Section 24 of the CA 1867 expressly anticipates the appointment of senators by the GG. In exercising this power, the GG follows the advice of the PM, as required by Convention. In Brown v Alberta (1999)- it was argued that providing for the appointment of senators by the GG to be contrary to democratic principles and that to conform must be consistent with Alberta statute, the Senatorial Selection Act…[26] “the question is

whether this can be viewed as raising a legal issue. The Quebec Secession Reference does not change the law on the scope of the court’s jurisdiction to grant declaration to grant declaratory relief, nor does it overrule existing authorities that set out what constitutes a “legal issue”. This is not a legal issue based on the nature and extent of the relief, therefore the court does not have jurisdiction to grant declaratory relief’. *In a second case, brought in the Federal court, the reform party of Canada sought an interlocutory injunction to restrain the GG from appointing a senator from Alberta, unless that person has been elected pursuant to the provisions of the Senatorial Selection Act. Samson v Attorney General of Canada (1998)- [9] “in my opinion, the applicants claim in this manner is political, and not legal, in nature. As a result, the relief may only be achieved through a political arena by means of a constitutional amendment. They have failed to establish that the case raises a serious issue to be tried. The application for an interlocutory injunction is dismissed. House of Commons: members of the HC are elected by s37 of the Constitution Act 1867. In Elections Canada, Canada’s Electoral System (Ottawa: Chief Electoral Officer of Canada, 2001)- Representation in the HC is based on geographical divisions known as the electoral districts or ridings. Each riding elects one member to the HC, and the number of ridings is established through a formula set out in the constitution. Independent commissions, taking into account population and social and economic links establish riding boundaries. The current number of districts and therefore MPs is 308. First Past the Post: Canada’s electoral system is known as “first past the post” system. In every electoral district the candidate with the most votes wins a seat in the HC and represents that riding as its Member of Parliament, or MP. A political party is a group of people who together establish a constitution and bylaws, elect a leader and other officers, and endorse candidates for election to the HC. To obtain the right to put the party name on the ballot, under the names of the candidates it endorses, the party with the most elected representatives usually becomes the governing party. The leader of the party becomes the Prime Minister. The party with the second largest number of MP’s is called the official opposition. All of the elected candidates have a seat in the HC, where they vote on draft legislation (bills) and thus have an influence on government policy. Elections to the HC: s3 of the Charter says, “Every citizen of Canada has the right to vote in an election of members of the HC or of a legislative assembly and to be qualified for membership therein”. A political party is a defined entity in s2 of the Canada Elections Act: A political is “an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election”. Until recently, the Canada Elections Act required a registered party to run candidates in at least 50 electoral districts. The Supreme Court struck down this rule in 2003 in Figueroa v Canada [2003]. The issue is whether federal legislation that restricts access to certain benefits to political parties that have nominated candidates in at least 50 electoral districts violates s3. Appeal not allowed. [90]- I conclude both that the 50 Candidate threshold is inconsistent with the right of each citizen to play a meaningful role in the electoral process, and that the Gov’t has failed to justify this violation. THE PROCESS OF SUMMONING, PROROGUING, AND DISSOLVING A PARLIAMENT: Summoning: s38 of the Constitution Act 1867 empowers the GG from time to time, in the Queens name, to summon and call together the HC. It is now constrained by convention and the Charter. By convention, the GG calls parliament to session on the advice of the PM. This convention is codified in the Writ of Election, enacted as Schedule 1 in the Canada Election Act. This empowers the monarch to set the date for a new parliament by and with the advice of the PM. HC, Precis of Procedure (Ottawa: HC, 2003)- Prorogation ends a session, but does not dissolve Parliament; the speaker is still in office for all purposes during a period of prorogation. Its like dissolution, since it abolishes all pending legislation and quashes further committee activity. Thus, no committee can sit after a prorogation and any bill of a previous session, in order to be proceeded with, must in principle, be introduced again as a new bill. While pending legislation is abolished by prorogation, any outstanding orders or Addresses of the House for returns or papers are not; rather, they are brought down during the following session without renewal of the order. Between a prorogation and the next session of the same Parliament, the House is said to be “in recess”, although the word is often loosely used to refer to a long adjournment. This does not quash all pending proceeding though. Dissolution: s5 of the CA 1867 and s4 of the Charter limit the duration of a Commons to 5 years and Parliament must be dissolved and elections must happen at least every 5 years. There are, however, instances where a PM might be forced by constitutional convention to seek dissolution from the GG at a time not of his or her choosing. Convention requires a PM to resign his or her government to seek parliamentary dissolution after a no confidence vote by the House. Without a no confidence vote from the House, it seems unlikely that the GG has the power to dissolve Parliament when opposed by the PM. Special Committee on the Reform of HC, Report (Ottawa: Canadian Gov’t Publishing Centre, Supply and Services Canada, June 1985) If confidence of the House is lost, it spells the end for the ministry unless the government granted a dissolution and is sustained by the electorate. A Gov’t defeated on a vote of confidence is expected to resign or seek dissolution. Three types of votes can be termed confidence votes. First, there are explicitly worded votes of confidence. These state expressly that the House has or has not confidence in the government. Next are motions made votes of confidence by a declaration of the Gov’t. The Gov’t may declare that if defeated on a particular motion before the House, even one that is not a worded vote of confidence. They have offered several observations. 1) A government should be careful before it declares or designates a vote as one of confidence. It should confine such declarations to measures central to its administration. 2) While a defeat on supply is a serious matter, elimination or reduction of an estimate can be accepted. If a government wishes, it can designate a succeeding vote as a test of confidence or move a direct vote of confidence. 3) Defeats on matters not essential to the government’s program do not require it to arrange a vote of confidence, whether directly or on some procedural or collateral motion. 4) Temporary loss of control of the business of the House does not call for any response from the government whether by resignation or by asking for a vote of confidence.

A. Political Parties: Are recognized entities in Canadian election law. They act to marshall collective resources in the hope of achieving electoral success. They are also the partial product of two legal aspects of parliamentary democracy. 1) decision making in Parliament depends on swaying a majority of votes in each chamber. For instance, the commons make decisions through the device of motions, basically a question put to the House by the Speaker in response to a proposition made by a member. These rules encourage parliamentarians to organize as political parties: entities that command the loyalty of their members and, if those members are elected in sufficient numbers, allow control of a majority of the Commons. A second constitutional motivation for parties stems from the confidence convention: by constitutional convention, the individual commanding the confidence of the Commons (the majority) is appointed Prime Minister. Thus, the party control of a majority of the House brings with it executive power. In Common proceedings themselves, once the 12-MP threshold is reached, party members are then entitled to sit together, have their party affiliation noted with their name in the official records and on television broadcasts of proceedings, and are allowed a larger number of questions during question period. B. The Speaker:

In the commons, the speaker is a MP elected to the speaker’s position by other MP’s. the manner of his or her selection, and many of his or her powers, are set out in the standing orders of the HC. These standing orders are internal procedural rules established by the commons pursuant to its parliamentary privileges. House of Commons, Precis of Procedure (2003)- first the speaker acts as the spokesperson of the House in its relations with the Crown, the Senate and authorities outside Parliament. Second, the speaker presides over the sittings of the House and enforces the observance of all rules for the preservation of order and the conduct of business. Third, the speaker has extensive responsibilities relating to the administration of the HC. The speaker is the presenter when Royal Assent legislation is being used. And communicates resolutions of thanks, sympathy, censure or reprimand in the name of the House to any outside body or agent. Whenever a vacancy occurs in the House, it is the Speakers responsibility to issue a warrant to the Chief Electoral Officer for a writ of election. The speaker leads the GG, Commons, to the Senate to claim privileges and to receive the speech from the Throne. Maintaining order: the standing orders for the HC set down only in the general terms the authority of the Speaker to maintain order and decorum in the House. One rule states simply, that “the speaker shall preserve order and decorum, and shall decide questions of order”. The speakership is assured by tradition and convention, but also the constitution. S44 of CA 1867 says that the HC once assembled after a general election shall proceed with all predictable speed to elect one of its Members to the Speaker, s46 states that the speaker shall preside over all meetings of the House. S45 and 47 treat the matter of vacancy or prolonged absence of the speaker, and s49 sanctions the casting vote of the Chair in cases where there is a tie vote among members on a question before the House. In 1985, the House adopted changes to the standing orders, providing for the election of the Speaker by secret ballot. The election of the Speaker at the opening of a parliament is presided over by the Member who has the longest period of unbroken service and who is not a member of the Cabinet, nor holds any office within the House.

C. Parliamentary Committees- the HC delegates most of the detailed study of the proposed legislation and scrutiny of government policy and programs to its committees. There are various types such as; Committee of the Whole (House)- comprised of the entire membership of the HC. By the standing orders will examine the bills, or may refer other bills to this committee. Standing Committees- Appointed for the life of the parliament to deal with subjects of continuing concern to the House. There are 18. There powers are: set out in the standing orders, -to examine matters referred to it by the House; -to report to the House from time to time; -to send for persons, papers and records; -to sit while the house is sitting to standing committees -to delegate to a subcommittee any of its powers except the power to report to the House. Legislative Committees- created on an ad hoc basis to examine bills in detail, and may report the bill to the House. Their powers under the standing orders 113(5) and 120 are as follows -to examine and inquire into the bill referred to it by the house; -to report the bill with or without amendments; and except when the House otherwise orders: -to send for persons whom the committee deems to be competent to appear as witnesses on technical matters. -to send for papers and records -to sit when the house is sitting or strands adjourned; -to print necessary papers and evidence; and -to retain the services of expert and technical staff. Special Committees- aka “task forces”, are appointed on ad hoc basis by the House to study specific matters. A motion specifying its purpose and power establishes each special committee. These powers are set out in the Order of Reference and do not include those listed in the Standing Orders unless specified.

Joint Committees- Composed of the HC and Senate. May be elected by the standing orders (standing Joint) or by special resolutions of the two houses (Special Joint). Subcommittees- free to delegate some part of their mandate or a particular task to a smaller group. They do this by creating sub-committees. Special committees may be given the power to create subcommittees if the House so decides, but legislative committees may only create sub-committees on their agenda, commonly called a steering committee.

Parliamentary Procedure: p.185 Parliamentary law is the rules determining parliamentary procedure—flows from an array of sources: the Constitution; assorted statutes such as the Parliament of Canada Act: the standing orders; and assorted usages, customs, and precedents, as assessed by the Speaker. Parliamentary law in the constitution and has British Parliamentary traditions via the preamble to the CA 1867. It also speaks of “parliamentary privileges” are those rights “necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts: Provincial Judges Reference [1997]. Privilege often means the “legal exemption from some duty, burden, attendance or liability to which others are subject- New Brunswick Broadcasting Co v Nova Scotia [1993]. Canada (HC) v Vaid [2005]- Parliamentary privilege is the sum of the privileges, immunities and powers enjoyed by the Senate, HC, and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions. They include necessary immunity that the law provides for MP, and for Members of the legislatures of each of the 10 provinces. The historical foundation of every privilege of parliament is necessity. The court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today. Necessity is broad. The time-hooured test, derived fro the law of custom of Parliament at Westminster, is what “the dignity and efficiency of the House” require. Proof of necessity may rest in part in “shewing that it has been long exercised and acquiesced in” (Stockdale v Hansard, p.1189). the party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence and scope of a category of privilege. Categories include freedom of speech…;control by the House of Parliament over debates or proceedings in Parliament” [29]. B. Parliamentary Law Making- Parliament and its provincial counterparts are the only truly sovereign body in Canadian constitutional law. Parliament is free to pass careless, unwise, or ill-motivated statutes, so long as these flaws do not also constitute constitutional violations. This was highlighted in Bacon V Saskatechwan Crop Insurance Corp (1999)- [39] in the result, I find that there is no basis to challenge the validity of the legislation, which was used to impose GRIO 92 contract and to extinguish the right to challenge its application through reliance upon the usual common law remedies. The reasoning of the Bacon case has been followed by other courts. In PSAC v Canada (2000), at issue was the justificiability of a union’s complaint about a statute ordering striking workers back to the job. The union argued that the legislation was contrary to the rule of law because it was arbitrary and was passed in bad faith. The court held that this argument disclosed no legal information for the lawsuit. Even when it is alleged that an ill-intentional ministry tricked Parliament into enacting legislation, the courts will not probe that statute’s promulgation. In Turner v Canada [1992]- [7] We are all of a view that an action against her magistry based on allegations that Parliament has been induced to enact legislation by the tortuous acts and omissions of Ministers of the Crown is not justiciable. The appeal will be allowed and the statement of claim entirely struck out and action dismissed with costs. Still, even if Parliament is competent to pass bad (but still constitutionally valid) laws, it is not to be presumed that it means to do so. Parliament may strip away contractual rights, for instance, but to do so it must be emphatic. Wells v Newfoundland [1999]- Are civil servants entitled to compensation in the event that their positions are eliminated by legislation? There is no dispute that Parliament and the provincial legislatures have the authority and structure the public service as they see fit, and to eliminate or alter positions in the process. But can it escape the financial consequences for doing so without explicitly extinguishing the rights they have abrogated? I conclude they cannot.

Authorson v Canada (AG) [2003]- A disabled veteran of WW2 was the representative of a large class of disabled veterans of Canada’s military forces. [62] the respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The crown does not dispute these findings. But parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. *Ethics in Law Making- the discussion to this point suggests that no prudential constraints exist on Parliament, other than those found in the Constitution. But a word of caution should be voiced about the latitude Parliament has to pass laws as it wills. Parliament may be sovereign, but individual parliamentarians are not. A parliamentarian induced by the prospect of financial gain to vote one way or another in performing his or her law-making functions is subject to sanction in a number of different ways. Ethics rules exist both in statutory law and in internal procedural rules governing each house of Parliament. P204- 221. Ethics in Law Making: Parliament may be sovereign but individual Parliamentarian’s are not. They are subject to sanction in a number of ways if they do not act ethically. Ethics rules exist both in statutory law and in the internal procedural rules governing each house of Parliament. Margaret Young, Conflict of Interest Rules for Federal Legislators (2003)- conflict of interest if one aspect of public-sector ethics, and Canadian legislatures and governments have developed legislation and codes of conduct that show a wide variety of approaches to the issue. A real conflict of interest is “situations in which a minister of the Crown has knowledge of a private economic interest that is sufficient to influence the exercise of his or her public duties and responsibilities”. A potential conflict of interest exists where a minister “finds himself in a situation in which the existence of some private economic interest could influence the exercise of his or her public duties”. An apparent conflict of interest is “exists when there is a

reasonable apprehension, which reasonably well-informed persons could properly have, that a conflict of interest exists”. Further info on this refer to p. 205-215. PARLIAMENT’S LAW-MAKING PROCEDURE: If Parliament is free to determine its own procedure and pass laws as it pleases within its constitutional zone of jurisdiction, what rules does it, in fact, follow? The law-making process is governed mostly by the rules of procedure of each chamber of Parliament-for ex: standing orders. House of Commons, Precis of Procedure (2003)- there are two main types of bills: public and private. A public bill is concerned with matters of public policy while a private bill relates to matters of particular interest or benefit to a person or persons, including corporations. PUBLIC BILLS: There are two types of public bills: government public bills and sponsored minister and private members public bills sponsored by a private member. Government bills are considered during government orders, private members bills are considered during private members hour, 1 hour a day 5 days a week. Before a bill becomes law, it goes through the stages 1. Once the notice has been given, a member is given leave of the House to introduce the bill 2. The bill is read a first time and printed 3. The bill is read a second time 4. The bill is referred to committee 5. The bill is considered in committee and reported back to the House 6. The house concurs the bill at report stage 7. The bill is read a third time and passed by the House 8. The bill goes through stages in the senate approximately the same as those in the House 9. The bill receives royal assent. More info. P. 216-220. PRIVATE BILLS: A bill designed to exempt an individual or group of individuals from the application of the law is a private bill. Private bills are subject to special rules in both houses and most originate from the Senate where the fees and charged imposed on the promoter are less. The progress of private legislation as prescribed by the standing orders is somewhat different than for public bills. Parliamentary agents are authorized to promote private bills and find sponsors. The sponsor must deposit a printed copy of the bill with the Clerk of the House. After approval of the petition, private bills are tabled, read a first time, printed, and ordered for second reading. Debate occurs at the second reading. P.221. CHAPTER 5: THE EXERCISE OF EXECUTIVE AUTHORITY: The executive branch refers to those institutions in government that are responsible for implementing and enforcing laws, whether those laws are formulated by the legislature or, in the case of the common law, by the judiciary. They perform governmental functions.

1. The Rise of the Administrative State in Canada: the executive branch of government is not in itself a recent development. CA 1867 recognizes the formal institutions of the federal executive in ss9 through 16 and the provincial executive in ss58 through 68.

LAW REFORM COMMISSION OF CANADA, “INDEPENDENT ADMINISTRATIVE AGENCIES” (1980)- The growth of this structure is best described as an aspect of the evolution of government rather than as a planned constitutional development. Government in a general sense includes two functions- law making and administration. Since this 1980 report, the trend of growing size and pervasiveness of government activity has continued. In 2004, total public sector employment was in excess of 2.9 million, out of a total employment of just over 16 million, and total government expenditures reached almost of $500 billion compared with a gross domestic product of approx 1.3 trillion. In the 1990’s there was some movement toward the privatization of government services. This trend saw the government divest ownership in Crown corporations such as Air Canada and Petro Canada. THE EXECUTIVE BRANCH DEFINED:

A. THE CROWN: S9 of the CA 1867 says, “the executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen”. The crown as a symbol of the Monarchy, is a reference to the executive itself. The crown is the bearer of both legal rights and legal obligations. The crown can own property, enter into contracts and to sue governments of the provinces and the federal government are each themselves distinct legal entities, notwithstanding the identification of each with the same Monarch. Cabinet is the collective decision-making committee comprising the PM and his ministers. But the CA 1867 does not mention the cabinet.

B. THE PM & CABINET: Together they comprise the ministry, a category called the government. Ministry and cabinet are used interchangeably. Who sits at the Cabinet table is a political matter for the PM to decide. The PM presides over the cabinet but is among equals in the ministry. They have power to remove ministers. By constitutional convention the Prime Minister also possesses authority to exercise so-called personal prerogatives. Cabinet is, in the words of Peter Hogg, “in most matters the supreme executive authority”. It is the cabinet that determines the legislative agenda of the government in Parliament and it is the Cabinet and its ministers that are responsible for the administration of the individual departments of the Government. The separation of the executive branch from the legislative branch is not, however, absolute. The constitutional convention of “responsible government, cabinet members are drawn from the legislative branch, almost always the HC for the Federal cabinet. Ministers may hold office pending election to the Commons or while a senator, but all ministers are expected to also be members of the legislature. Second, under the system of responsible government, the ministry is accountable to the legislative branch both collectively and individually. Collective responsibility requires that the ministry maintain the confidence of the Parliament. Individual ministerial responsibility requires that each minister be answerable in parliament for the activities of his or her department.

C. THE PUBLIC SERVICE: The employees of the various ministries of the Government, often referred to as civil servants, are also part of the executive branch. The civil servants are politically neutral and as such continue their employment with the government regardless of the political fortunes of the government of the day. Kenneth Kernaghan; a political scientist, identifies three principles that structure the relationship between the civil service and political officials within the government: ministerial responsibility, political neutrality, and public service anonymity. Ministerial responsibility requires that the presiding minister be held politically accountable for all matters arising within the department. Political neutrality requires that civil servants carry out their responsibilities loyally to the government in

power without regard for the civil servant’s own political views. Public servants are restricted in their ability to engage in partisan political activities and cannot express publicly their personal views on policy issues. It follows that the bureaucrats should be held accountable to their political overseers, but are not answerable to Parliament. Fraser v Canada [1985]- the loyalty owed by civil servants is not boundless, but requires that civil servants refrain from public criticism of government policies. In this case, the appellant, who was an employee of Revenue Canada, was discharged after repeatedly criticizing the government’s policies regarding metrification. Dickson CJ- the federal public service in Canada is part of the executive branch of government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third. Federal public servants should be loyal to their employer, the Government of Canada. There is a similar tradition surrounding the public service in Canada. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, that employment of involves the acceptance of certain restraints such as making criticisms about the Government. In two Supreme Court of Canada decisions, OPESEU v Ontario (AG) [1987] and Osborne v Canada [1991] both cases acknowledged the existence of a constitutional convention of public service neutrality and affirmed its importance as a principle of executive governance.

D. Independent Administrative Agencies: it is seen as necessary to establish bodies that are independent from the government to carry out governmental functions. There is no single answer to this question. However, the reasons for establishing administrative bodies will determine the structure and form of the body created. This is often the case where decisions affect the legal rights of many individuals and there is merit in having those rights determined in a consistent manner. In this regard, the government may create a specialized tribunal to adjudicate individual cases free from direct government oversight. Here the role of an administrative body approaches that of the judiciary; although, in the case of administrative tribunals, the scope of cases heard is limited to a defined subject area. Independence may facilitate specialization because of the restricted mandate of an administrative agency, as opposed to a government department. The provisions establishing the Canadian Human Rights Commission are typical of the statutory provisions used to create an independent administrative body. The Canadian Human Rights Commission is a creation of the federal government, with the commissioners themselves being appointed by the governor in council. The independence of the commissioners is established through the provision of security of tenure to the commissioners who may only be removed upon the address of both Houses. Independence is also assigned under s 27 and s61 of the Canadian Human Rights Act, requires that the commission submit an annual report to Parliament. Section 27, confers powers to include the ability to undertake reviews of regulatory instruments for the purpose of ensuring their adherence to the anti-discriminatory purposes of the Act and to enact binding guidelines regarding the application of the Act. The Supreme Court has recognized that where a body exercises power of a sort triggering these provisions, some measure of independence may be required of the organization. In Bell Canada v Communications [2003]- the court held that by virtue of the Canadian Bill of Rights, the Canadian Human Rights Tribunal must be have at least some independence guarantees. But in Ocean Port Hotel v British Columbia, the Supreme Court drew a sharp distinction between administrative tribunals and decision makers, as emanations of the executive that must take their policy direction from the legislature, and the courts, which are protected by the constitutional principle of judicial independence. [30]- With respect, I find no support for this proposition in the Provincial court judges’ reference. The language and reasoning of the decision are confined to the superior and provincial courts. Lamer CJ addressed the issue of judicial independence; that is, the independence of the courts of law comprising the judicial branch of government. Nowhere in his reasons does he extend his comments to tribunals other than courts of law.

E. CROWN CORPORATIONS: The Canadian Human Rights Commission is not created as a separate legal entity, although it does have statutory authority to enact internal bylaws and to enter into contracts. However, it is not uncommon for administrative bodies to be created that have a legal personality separate from the government. The principle justification for the creation of Crown corporations is that where there is a strong commercial aspect to the government service, it may require that decisions be made free from political affluences that may unduly interfere with commercial objectives. If crown corporations were solely concerned with commercial objectives, there would be little incentive to resort to the creation of a Crown Corporation, as opposed to a wholly private sector approach. It follows that crown corporations will have public objectives. The private and public objectives of Crown corporations require the government to balance the operational benefits of independence and the need for accountability. F. MUNICIPALITIES: In many cases it is desirable that service delivery account for local circumstances and local values. This is an important justification for the system of local government that exists in Canada. Municipalities, where are created under provincial legislation, deliver a wide range of public services, such as the provision of road, sewer, and water services. Municipalities also have a significant policy-making function in matter that affect local residents; enacted through bylaws. They are considered a distinct level of government in Canada. But this may be misleading, on one hand, municipalities operate independently from provincial governments that created them. Moreover, because municipal councils are elected, their democratic legitimacy is independent from that of the provincial legislature. Because elected officials govern municipalities, and because they exercise broad plenary powers, they are unlike most other forms of independent administrative bodies, where officials are appointed by senior levels of government. The legal significance of an administrative body with direct lines of democratic accountability was considered by the Supreme Court of Canada in a case concerning the legal authority of a municipality to refuse to do business with companies that had business ties to South Africa during the Apartheid era. Shell Canada v Vancouver [1994]- McLaughlin J- the legal proceedings arose out of an application by shell Canada to quash resolutions by Vancouver City council that directed staff not to conduct business with Shell Canada as long as shell continued to do business with South Africa and the resolutions were beyond the power of the municipality to make. The municipality argued that a provision stating the council may provide for the good rule and government of the city” authorized the resolution. The majority, relying on

the long standing rule that the municipal authority can only be exercised in relation to activities that fell within municipal purposes, held extra-territorial purpose of the resolution was improper. McLaughin dissenting.

G. ENFORCEMENT BODIES: POLICE AND PROSECUTORS: p.252

The executive branch of the government is required to enforce policies that have been implemented. They fall primarily on the police, to maintain order and to investigate illegal conduct, and to prosecutors. That’s a provincial and federal jurisdiction; municipalities hire police too. In common law, police and prosecutors have been distinguished from other civil servants in that their enforcement duties they are not subject to political oversight in the sense that they must exercise their powers without discretion from political officials or in furtherance of partisan political activities. But they cannot operate without accountability for their actions. The two cases below consider accountability and independence in the context of enforcement. R v Campbell [1999]- Regarding drug case and a police’s illegal conduct was questionable. The Supreme Court commented on the relationship between the police and the political executive. Binnie J- [33] While for certain purposes the Commissioner of the RCMP reports to the solicitor General, the commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law, and no doubt, to his conscience. Kreiger v Law Society (Alberta) [2002]- K was a crown prosecutor who was the subject of a complaint to the Law Society. K sought to prevent the LS from reviewing the matter on the basis that to do so would interfere with the exercise of prosecutorial discretion. [32] the courts acknowledge that the AG’s independence from judicial review in the sphere of prosecutorial discretion is due to the rule of law under the constitution. Subject to the abuse of process doctrine, supervising ones litigant’s decision-making process –rather than the conduct of litigants before the court—is beyond the legitimate reach of the court. • Thanks to the provisions of the Security Offences Act 1985, s7, giving RCMP a role in that “apprehension of the commission” of

offences constituting threats to the security of Canada. The relationship between police action and political officials has also been the subject of other recent controversies. Such as the treatment of protestors by the RCMP during the Asia-Pacific Economic Cooperation Conference in Vancouver in 1997 and the shooting of aboriginal protestor Dudley George in Ontario in 1995 during a police confrontation.

SOURCES OF EXECUTIVE POWER: Executive power flows from royal prerogative and statutory delegation. A. Prerogative powers: they are powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown. In

exercising prerogative powers, the crown is restricted to executive acts. Consequently, the Crown cannot exercise legislative powers pursuant to its prerogative, nor can it exercise judicial powers. Where the legislature enacts a statute in relation to a matter previously exercised through prerogative powers, the statute has the effect of superseding the prerogative power. At the present time the powers exercised by way of prerogative include many of the Crown’s powers of appointment, and powers relating to foreign affairs, such as declarations of war, the appointment of ambassadors, and the issuing of passports. There has been some legal debate over who in the executive can exercise prerogative powers and whether these powers can be subjected to judicial oversight. These questions are considered in the following excerpt from Black v Chrétien, a case involving a decision by the Prime Minister to recommend against the conferral of a foreign honour on a Canadian citizen

Black v Chrétien (2001)- [64]- for these reasons, I agree with the motions judge that PM C’s exercise of the honours prerogative by giving advice to the Queen about granting Black’s peerage is not justiciable and therefore not judicially reviewable. [65]- once the PM exercise of the honours prerogative is found to be beyond review by the courts, how the PM exercised the prerogative is also beyond review. Even if the advice was wrong or careless or negligent, even if his motives were questionable, they cannot be challenged by judicial review. B. Statutory Powers: the legislature cannot in law delegate powers that exceed the legislatures own powers. This is in s32 of the Charter.

Another reoccurring argument that is made in relation to delegation is that a delegation must not amount to a complete abdication of legislative authority. This argument was considered by the Supreme court of Canada in Re Gray (1918), a case that considered the sweeping delegation of authority to the GG in council under the War Measures Act 1914.

A related principle that constrains the ability of legislatures to delegate authority requires that neither the federal Parliament nor the Provincial legislatures may delegate legislative powers to the other. The basis of this rule is that an inter-delegation would upset the constitutional division of powers contained in ss91 and 92 of the CA 1867. In Nova Scotia Inter-delegation [1951]- the Supreme Court of Canada was required to consider the constitutionality of a scheme by which provincial powers regarding employment matters would be delegated to the federal parliament and certain taxation powers would be delegated from Parliament to the Nova Scotia legislature in order to facilitate an unemployment insurance scheme. [67]- The practical consequences of the proposal measure, a matter which the courts may take into account, entail the danger, through continued exercise of delegated power of prescriptive claims based on conditions and relations established in reliance on the delegation. Possession here as elsewhere would be nine points of law and disruptive controversy might easily result.

THE NATURE & FUNCTION OF DELEGATED POWERS: The characterization of the exercise of delegated authority in terms of function has historic legal significance in that many of the rules respecting the exercise of delegated authority varied depending on the nature of the powers exercised. For ex. Common law courts developed a set of procedural requirements, aka the rules of natural justice that applied to decisions that were characterized as judicial or quasi-judicial, but not those decisions that were classified as legislative or administrative in nature. Rule Making-The rise in the use of the executive bodies to create rules of general application parallels the more general rise of administrative bodies. The most common rule making is regulation rule making delegated to the cabinet and to municipal bylaws are a form of delegated legislation, as are agency-developed policies and guidelines. The benefits of resorting to delegated forms of legislation relate chiefly to the relative flexibility of regulations. In practice, regulation making is usually a fairly open activity, by virtue of government policy and some statutory law.

Government of Canada, Guide to Making Federal Acts and Regulations (2001)- regulations are a form of law, aka delegated legislation. Thy have binding legal effect and usually state rules that apply generally. They are not made by parliament, they are made by persons the government has delegated the authority to make them. For more information refer to p.274-282. (General understanding). DISPUTE RESOLUTION: It is common for tribunals to adjudicate claims between competing parties strictly on the basis of existing law, they cannot initiate proceedings themselves, and they are given similar powers to courts, such as the power to summon witnesses and to award costs. It is flexible and a good alternative to litigation in court. BENEFIT OR OBLIGATION DETERMINATION: Benefit determinations will often have distributive consequences that require decision makers to confer a certain benefit, such as a broadcast license. It requires them to attach complex sets of conditions to an approval, as is the case with many land-use approvals. Obligation determinations are different they are usually initiated by the imposing agency, leaving the affected person to take affirmative steps to protect his or her interests, if he or she feels aggrieved. The desire for fairness in individual cases is often in conflict with the need for administrative efficiency. ENFORCEMENT DECISIONS: A final area of delegated authority is those decisions and actions that are required to promote compliance with legal obligations. The executive branch uses police and prosecutors to investigate and prosecute violations of law. Where this body finds reasonable grounds for violation of legal requirements, the statute may empower the investigator to lay information in order to initiate proceedings before a court. LIMITS ON THE EXERCISE OF DELEGATED AUTHORITY: Once authority is delegated to an administrative actor the law imposes a rigourous set of limitations on the exercise of power by the recipient of delegated authority. The overarching principle that governs the exercise of delegated authority is that it must be exercised within the confines of the delegation itself. The delegate’s have no jurisdiction to act. Doing so would mean they are acting unlawful which is ultra vires. A. CONTROLLING JURISDICTION: ULTRA VIRES:

The rule that a delegated authority can exercise only those powers that are granted to it is conceptually straightforward and tends to turn on questions of the interpretation of the authorizing legislation. For ex: Shell v Vancouver, there was no disagreement on the general rule that administrative bodies, in that case municipalities, “must stay within the powers conferred on them by provincial status” (Sopinka J) but McLaughlin J and the majority disagreed in respect of the proper interpretation of the statutory provision relied upon in support of the municipality’s decision.

B. CONTROLLING PROCEDURES: THE DUTY TO BE FAIR: Administrative decision makers are generally required by the common law to act fairly toward those persons affected by their decisions. Aka procedural fairness. The essence of the content of the rules of natural justice was captured by the two maxims, audi alteram partem-the right of a person to know and answer the case against him or her—and nemo judex in sua causa—requiring that a person not be the judge in his or her own cause (so he is not biased). For instance in Knight v Indian Head School Division [1990]- K was employed by the appellant on a contractual basis but was dismissed when the A would not agree to a longer term for the renewal of the contract. He argued he was owed a duty of fairness prior to being dismissed. The existence of a general duty to act fairly will depend on the consideration of three factors 1. The nature of the decision to be made by the admin body 2. The relationship existing between that body and the individual 3. The effect of that decision on the individual’s rights. In the Nicholson case, it was held, “I would agree that notice of reasons for dismissal, and the respondent’s employment and affording him an opportunity to be heard would be sufficient to meet the requirement of fairness”. Baker v Canada [1999]- A lady from Jamaica was in Canada illegally for 11 years but had kids and was ordered to be deported and the immigration board failed to provide reasons for her deportation. The children’s welfare was a concern as well. [48]- I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer. It would appear to a reasonable observer that his own frustration with the system interfered with his duty to consider impartially and I conclude that there is a reasonable apprehension of bias.

C. CONTROLLING DISCRETION: BAD FAITH, IMPROPER PURPOSES, AND IRRELEVANT CONSIDERATIONS: Where

administrative actions are attacked on the basis of bad faith, it is not necessary for the aggrieved person to show that the decision maker acted with mal fides. On the other hand, bad faith should be distinguished from unreasonableness. This distinction is important because in many administrative contexts, the discretion of the decision maker includes the right to make decisions that may be unreasonable. Bad faith goes beyond unreasonableness and amounts to a jurisdictional error since it is implied that the legislature would not have intended for a delegated authority to act for some improper and ulterior purpose. Equity Waste Management of Canada Corp v Halton Hills (1997)- Here a municipal land-use bylaw was attacked by the affected landowners on the basis that the bylaw was passed for reasons of political expediency and not for land-use planning reasons, a purpose that was alleged to have amounted to bad faith. Laskin J held, “I acknowledge that appeasing a group of residents out of self-interest may support a finding of bad faith. But such cases must be rare. A court should not be quick to find bad faith because members express strong views against a project. This evidence falls short of showing bad faith by the Council. The respondents bear the onus of proving bad faith, and I am satisfied that they have done so”.

Relevant considerations, in contrast, are those that may be properly considered by the decision maker, but a failure to do so is not fatal to the decision. But where they take into account irrelevant considerations—that is, those that are extraneous to the exercise of discretion, the decision maker makes an error; jurisdictional errors. In Baker v Canada, although there was procedural unfairness, there was also irrelevant considerations. The officer focused on her using up Canadian social welfare instead of what was relevant, “the welfare of the children”. “Where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Member’s guidelines, the decision will be unreasonable”. CHAPTER SIX: THE COURTS AND THE JUDICIARY: P.309-374 STRUCTURE OF THE CANADIAN COURT SYSTEM: The starting point is the CA 1867. In relation to the judiciary, it crafts a court system that straddles the federal-provincial division of powers. To this end, s 92(14) gives exclusive power to the provincial legislatures with respect to: “the administration of justice in the Province, including the constitution. Maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and civil matters”. And yet s93 provides the GG shall appoint the judges of the courts, and the federal government is responsible for judges salaries, and pensions (s100). Cases such as McEvoy v AG for Newbrunswick [1983]- establish that the superior courts are a fundamental institution protected by our Constitution through the interpretation of s96. The provinces cannot enact legislation to encroach on their core jurisdiction, nor may the federal parliament. Overview of the Current Court System: Department of Justice of Canada, Canadian Court System (2005)- there are basically four levels of court in Canada. First there are provincial courts, which handle the great majority of cases that come into the system. Second are the provincial superior courts. These courts deal with more serious crimes, and also take appeals from provincial court judgments. On the same level, but responsible for different issues is the Federal court. At the next level are the provincial courts of appeal and the Federal courts of appeal, while the Supreme Court of Canada occupies the highest level. Provincial courts: provincial courts deal with most criminal offences, family law matters (except divorce), young persons in conflict with the law (from 12 to 17 years old), traffic violations, provincial regulatory offences, and claims involving money up to a certain amount of money. Private disputes may also be dealt with at this level in a small claims court. The preliminary inquiries—hearings to determine whether there is enough evidence to justify a full trial in serious criminal cases—take place before provincial courts. P. 313 for a diagram. Provincial Superior Courts/ s96 courts: each province has superior courts. They have inherent jurisdiction, which means they can hear cases in any area except those that are specifically limited to another level of court. The superior courts try the most serious criminal and civil cases, including divorce and cases involving large amounts of money. They act as a court of first appeal. Courts of Appeal: usually sits a panel of three. They hear constitutional questions that may be raised in appeals involving individuals, governments, or governmental agencies. Federal Courts: the federal court and federal court of appeal are essentially the superior courts with civil jurisdiction. The federal court is a trial-level court; the federal court of appeal hears appeals from it. They hear interprovincial and federal provincial disputes, intellectual property proceedings, citizenship appeals; competition act cases, and cases involving crown corporations or departments of the government of Canada. Only these courts have power to review decisions, orders and other administrative actions of federal boards, commissions or tribunals. Maritime law may be brought before the Federal court or Federal court of Appeal before a provincial superior court. In this respect, they both share jurisdiction with the superior courts. The Supreme Court of Canada: is the final court of appeal from all other Canadian courts. They look at all areas of law. The court consists of a chief justice and eight other judges, all appointed by the federal government. The Supreme Court act requires that at least 3 judges be from Quebec. Traditionally, the other 3 judges come from Ontario, two from western Canada, and one from the Atlantic Provinces. They

sit in Ottawa for three sessions a year, winter, spring, and fall. Before it gets here it must use all other available courts. They also play the role as advisory to the federal government. JUDICIAL APPOINTMENTS: The manner in which judges are chosen has been an issue of some controversy, especially at the federal level. A. A range of Models: there are three models of selection internationally. 1. Confirmation hearings 2. Nominating committees 3. Direct

elections. B. Provincial Judicial Appointment: the executive branch, usually following a short-listing process involving an advisory committee,

selects them. The committee is mixed with laypersons and members of the legal community. The committee accepts applications and interviews candidates before submitting a list of recommendations to the provincial AG. The criteria for evaluating candidates are in relation to professional qualities and experience and in addition to: community awareness; demographics (looks to hire women, visible cultural minorities).

C. Federal Judicial Appointment: s96 court, federal court and tax court judges are appointed by the GG as are the Supreme Court justices. The Federal Judicial Appointment process has been in place since 1988- refer to page 322-328 for an in depth look into their requirements. *Ultimately, the governor in council must make the appointments as required by s96 or the statutes governing s101 courts. The minister of justice makes the recommendation for appointment as a judge to the Cabinet. But there have been criticisms. CRITICISMS: 1. Too much discretion in the hands of the government—the minister has the power to appoint from the “recommended” list as well as the “highly recommended” list. 2. No transparency or accountability—candidates face no formal scrutiny and no information is made public to support the choice of appointee. 3. Patronage appointments—allegations have been made that appointments have been made that appointments are tainted by political considerations and that candidates who contributed to political parties are appointed. Cristin Schmittz, with files from Lisa Tuominen, Peter O’Neil and Graeme Hamilton, “Federal Judges Often Liberal Donors, Survey Finds,” (May 6, 2005 at A5): “calls for changes to the process have been made by various bar associations, independent public policy organizations, and legal scholars. The Canadian bar association states: “some modifications would strengthen the process to ensure that it is open and transparent, and results in judicial appointments based solely on merit and which are ultimately representative of the diversity of Canadian society”. Standing Committee on Justice, Human Rights, Public Safety, and Emergency Preparedness, Report 18—study on the process for Appointment to the Federal Judiciary (Ottawa: HC, No 2005): there is an issue that needs to be addressed; the process by which judges are appointed by the Federal government is largely unknown and, therefore, subject to the perception that it may be open to misuse. The sub-committee was asked to address the issue of the role political orientation or partisanship may play in the judicial appointments process. It was asked to develop proposals to render the appointments process more transparent so as to ensure that political partisanship does not play an inappropriate role and the judiciary in Canada is of the highest possible quality. Also advertising of judicial vacancies is a better idea since it will generate the broadest pool of candidates willing to fulfill a specific post.

Minister of Justices response; October 25, 2005: Initiative to enhance transparency, accountability and public understanding of the judicial appointments process.

1. A code of ethics for the members who review the applications, it covers conflicts of interests, communications with persons outside the committee, and confidentiality.

2. Releasing the guidelines that govern the advisory committee member’s participation in the process. 3. Tabling the mandate letter provided to committee members. 4. To publish annually a list of current members on the committee; and information on applications for judicial office, including the total

number of applications and the number of those that are recommended and highly recommended. Will this work? These changes do not require disclosure of the number of appointments made from each of the categories into which advisory committees place candidates, and do not require an explanation why an appointment was made from the recommended list rather than the highly recommended list!!!! SUPREME COURT APPOINTMENTS: The processes above do not apply to the Supreme Court appointments. Some argue that since this court is “legislating” they should be more accountable to the public through the appointment process. Some have argued requiring public scrutiny of potential appointees should democratize it. Minister of Justice, Proposal to Reform the Supreme Court of Canada Appointments Process (2006): the proposals are: 1. A minister would conduct consultations under the current process. From these consultations, an initial list of candidates would be developed. Ordinarily, the list would be between five and eight names, depending on the size of the region. 2. An advisory committee would be established as each vacancy arises to reflect the regional nature of the appointments. They would assess, on a confidential basis, the merit of candidates provided to it by the minister. The committee would provide an unranked short life of three candidates with an assessment on their merit and a full record of the consultations conducted. 3. The minister would complete such further consultations as considered necessary and provide his advice to the PM. The PM would make his recommendation to the Cabinet and the most exceptional cases the appointment would be made from the short list. 4. The minister would appear before the Justice Committee after the Appointment to explain the process and professional and personal qualities of the appointee.

JUDICIAL INDEPENDENCE: “Consists essentially in the freedom to render decisions based solely on the requirements of the law and justice”-British Columbia v Imperial Tobacco Canada [2005]. It requires that the judiciary be left free to act without improper interference from any other entity- Mackin v New Brunswick [2002]. Ss 99 of the CA 1867 is also elaborated to further protect judicial independence. Federally appointed superior judges are removable only for breach of “good behaviour” until the mandatory retirement age of 75. In Reference re Renumeration of Judges of the Provincial Court of PEI [1997]- the court majority recognized an unwritten principle of judicial independence in the Constitution. [109] in conclusion, the express provisions of the CA 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed in the Preamble of the CA 1867. The Supreme Court returned to this issue in the case of Eli v Alberta [2003]- there is an issue related to the application of the principle of judicial independence. Justice mayor wrote: [3] “the principle of judicial independence must be interpreted in the light of the public interests it is meant to protect: a strong and independent judiciary capable of upholding the rule of law and our constitutional order, and public confidence in the administration of justice”. In the result, the court held that the justices of the peace were “constitutionally required to be independent in the exercise of their duties”. P.344. ASSESSING INDEPENDENCE: It should be asked how the independence is measured. For the Supreme Court, the general test for the presence or absence of independence consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status”- Macklin [2002]. So it requires actual independence and conditions sufficient to give rise to a reasonable perception of independence on part of a reasonable and well-informed person. DIMENSIONS AND CORE CHARACTERISTICS: What does judicial independence require? It requires security of tenure, financial security, and administrative independence. 1. Security of Tenure: constitutionally protected security of tenure has both an individual and an institutional dimension. It means the

executive may not dismiss them before the age of retirement except for misconduct or disability. Arbitrary removal is prohibited. Institutionally, before a judge may be removed for a cause, there must be a judicial inquiry to establish that such causes exists, at which the judge affected must be afforded an opportunity to be heard P. 347-349. EX: Report of the Canadian Judicial Council to the Minister of Justice Under sections 63(1) of the Judges Act Concerning the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Quebec in R v Theberge (1996): The Judges remarks about women and his deep-seated ideas behind those remarks legitimately cast doubt on his impartiality in the execution of his judicial office. Yet impartiality is the essence of the office of judge. This has led us to do a further analysis of whether he had become incapacitated or disabled from the due execution of the office of judge. We are therefore in the opinion that the judge has breached the duty of good behaviour under section 99 of the CA 1867, and has become incapacitated or disabled from the due execution of the office of judge. *Upon learning of the recommendation of the council majority, the judge B resigned as a judge.

2. Financial Security: relates to the pay judges receive for performing their job. It protects against an “unscrupulous government” that “could utilize its authority to set judge’s salaries as a vehicle to influence the course and outcome of adjudication”. Their salaries are high compared to the working citizen but low compared to federally appointed judges and to the more successful practicing lawyers. Some provinces sought to reduce these judicial salaries. The Supreme Court addressed the problem in this way: Reference re Remuneration of Judges of the Provincial Court of PEI [1997]- I recommend but do not require that the objectivity of the commission to be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission’s deliberations. These factors are not exhaustive and may include any increases of cost of living, the need to ensure that judge’s salaries remain adequate, as well as the need to attract excellent candidates to the judiciary. [185]- by laying down a set of guidelines to assist provincial legislatures in designing judicial compensation commissions, I do not intend to lay down a particular institutional framework in constitutional stone. What s11(d) requires is an institutional sieve between the judiciary and the other branches of government. Commissions are merely a means to an end. In the future, governments may create new institutional arrangements which can serve the same end, but in a different way. As long as those institutions meet the three cardinal requirements of independence, effectiveness, and objectivity, s11(d) will be complied with. This report is not binding though.

• In Provincial Judges Association of New Brunswick v New Brunswick [2005], the court revisited and somewhat amended the test it established in 1997 case. In that case, justices of the peace in Alberta, and municipal court judges in Quebec sought judicial review of their provincial government’s decisions to reject certain compensation commission recommendations relating to their salaries and benefits”. The court concluded that the rejection of commission recommendations met the “rationality” test in New Brunswick, Ontario, Alberta, but not in Quebec.

3. Administrative Independence: this is the last component of judicial independence. This requires that courts themselves have control over the administrative decisions “that bear directly and immediately on the exercise of the judicial function,” such as “assignment of judges, sittings of the court, and court lists—and related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions. In the Tobiass case [1997]- administrative independence was at issue where the Supreme Court was asked to consider whether the judicial independence had been impaired by a private meeting between a senior department of justice official and the Chief justice of the Federal Court. This meeting concerned a delay in the hearing of certain cases in which

the Justice Department was a litigant. The court concluded that at least the appearance of independence was transgressed, for the following reasons. [85]- in short, the evidence supports the conclusion that the appearance of judicial independence suffered a serious affront as a result of meeting between the parties. This compromised the appearance of judicial independence. A senior officer of the Department of Justice may have improperly and unduly influenced them. But there is no evidence of bad faith or that there was the independence was actually compromised. However, the Supreme Court did not stay with the same decision and ordered another judge who was not tainted by the improper communications between the court and the Department of Justice.

CHAPTER 7: STATUTORY INTERPRETATION: P.377-452 This looks at how the executive, legislative and judicial branches interact with one another. The courts do two things. 1. They decide the scope and nature of the constitutional limits by interpreting the written constitution and abiding by unwritten constitutional principles. They perform a constitutionalized interpretation role. 2. They decide whether a statute has exceeded the constitutional limits determined through interpretation. If so, they provide a remedy. Overview of Statutory Interpretation: There are 3 main sources of interpretation law: interpretation acts, interpretation rules in individual statutes and regulations, and common law. 1. INTERPRETATION ACTS: Under the separation of powers, the role of the legislative is to make law, the role of the judiciary is to

interpret it, test its validity and apply it to particular facts. However, it is open to sovereign legislature to issue instructions on how particular legislation, or legislation in general, is to be interpreted. Every Canadian jurisdiction has an interpretation act that contains the various rules applicable to statutes in general.

2. INTERPRETATION RULES IN ACTS & REGULATIONS: Individual acts often contain definitions, etc. the definitions tell interpreters how particular words used in the legislation are to be understood.

3. COMMON LAW RULES: Apart from the legislative directives, statutory interpretation is rooted in the common law, in a body of principles, presumptions, and conventions known as the “rules of statutory interpretation”. They are not binding but are guidelines. For more info on the history of the development of interpretation refer to p. 382.

Range of Interpretation Issues: there is more to statutory interpretation than disputes about the meaning of the text. Sometimes the meaning is clear, but there is a gap and the question is whether the court can do anything about it. Sometimes there is overlap between a clear provision and the common law and the issue is whether both apply. a. The disputed meaning argument: the interpreter claims that, properly interpreted, the provision in question has a particular preferred

meaning. They must establish this is the ordinary intended meaning or at least plausible meaning. Ex. P386 b. In a static versus dynamic interpretation argument, the interpreter claims that the text should be interpreted as it would have been

when the text was first enacted (static) or in the light of current understanding of language and social conditions (dynamic). Ex. P387. c. The incorrigible gap argument: the interpreter claims that the legislation cannot apply to the facts even though, given its purpose, it

should apply, whether this omission is deliberate or not the court has no jurisdiction to fill a gap in a legislative scheme or enlarge the scope of legislation. Ex. P388.

d. In an exhaustive code argument: the interpreter concede that the overlap between legislative provisions or between legislation and the common law does not create a conflict, but claims that a particular Act or provision was meant to apply exhaustively, to the exclusion of other law. Ex. P389.

e. In a paramountcy argument: the interpreter claims that there is a conflict between two provisions or between a provision and the common law and that one takes precedence over the other on the basis of some principled reason. Ex p389.

The types of arguments above are not mutually exclusive. The issues that arise in applying legislation to a given set of facts can often be framed in more than one way. AN OVERVIEW OF THE RULES OF STATUTORY INTERPRETATION: RULES ABOUT MEANING: The first thing an interpreter must do is read the text and form an impression of its meaning. These rules address this task: 1.ordinary meaning rule: meaning comes to the mind of a competent reader upon reading a legislative text. 2.technical meaning rule: when legislation deals with a specialized subject and uses language that people governed would understand in a specialized way, the specialized way is preferred over the ordinary usage. 3.shared meaning rule: if one version of a bilingual text lends itself to 2 interpretations while the other version can plausibly bear only one of those interpretations, the interpretation that is shared should be adopted. 4.original meaning rule: the meaning of the words used in a text is fixed at the time of enactment, but its application is not fixed. 5.plausible meaning rule: if the ordinary meaning of a text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing. ex of technical meaning rule is Re Witts (1982): “where a meaning differing from the common meaning of a word was intended, the LG in council passed the required regulation to achieve that objective. “sex” is not defined in the interpretation section and, since no special meaning is attributed to the word by the regulations, counsel submits the general rule, that statutes are presumed to use words in their popular sense, should be applied. One must turn to the dictionaries for the common and ordinary meaning of the term”.

Presumptions relied on to analyze the meaning of the text: courts make a number of (idealized) assumptions about the way legislation is drafted, which influence the way the finished product is interpreted. Refer to p.394 for the list. PURPOSE & SCHEME ANALYSIS: All legislation is enacted for a purpose- to achieve a particular outcome by imposing new obligations. This feature of legislation is reflected in the following rules: 1. Legislative Purpose: interpreters must always try to determine the purpose of the legislation and adopt an interpretation that is consistent with those purposes. 2. Interpretation Acts: The Interpretation that promotes the purpose of legislation is to be preferred over strict construction. 3. Legislative Scheme: the provisions of an act are presumed to work together as part of a scheme designed to implement the legislature’s goals. In R v Chartrand [1994]- the judge determines the purpose of the section. First she analyzes the similarities and looks at the social context in which the legislation was amended. MISTAKES & GAPS IN THE LEGISLATIVE SCHEME: p404 Corrigible Mistake: Incorrigible Mistake: Supplementing Legislation by reliance on Common law or civil code: PRESUMPTIONS OF LEGISLATIVE INTENT: In distinguishing between strict and liberal construction, the courts control legislative initiatives by imputing to the legislature an intention to abide by norms that the courts consider important. These are called the presumptions of legislative intent. Refer to list on bottom page of p404. EXTRINSIC AIDS: Resolving interpretation issues can often be assisted by these aids: legislative source, legislative history, legislative evolution, and expert opinion. P406 for example of mistakes and Gaps, refer to case, R v McIntosh [1995]- relevant bit is p.418 middle analysis starting at Lamer CJ. The following is the leading case on statutory interpretation. It sets out preferred approach of the Supreme Court of Canada. Re Rizzo and Rizzo Shoes [1998]- relevant bit is the analysis on p426 bottom of the page to p427. CHAPTER 8: CONSTRAINTS ON LEGISLATIVE & ADMINISTRATIVE ACTION: P453- 541 The Role of Constitutional Judicial Review in a Democratic Society: the passage from Chief Justice Marhall’s famous judgment in Marbury v Madison (usa case) offers a principled account of constitutional supremacy and the role the judiciary plays in ensuring that the written constitution prevails over ordinary legislation, “the original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments”….p.454. The historical origins of constitutional supremacy are different in Canada than they are in the USA. And it came from the UK. Then with the CA 1982, the principle of constitutional supremacy was enshrined in s52(1) of the CA 1982, which reads, “the constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions is of no force or effect”. LIMITS OF JUDICIAL REVIEW: 1. The issue of justiciability: are all actions of the government justifiable? The Supreme Court explored this principle of constitutional

supremacy in the Operation Dismantle case. It also tested the limits of the role that courts play in weighing governmental measures designed to protect national security against the standards imposed by the Constitution. Dickson I- “in my opinion, this passage makes clear that in Lord Radcliffe’s view, these kinds of issues are to be treated as non-justificiable not simply because of evidentiary difficulty but because they involve moral and political considerations which it is not within the province of the courts to assess”.

2. The issue of enforcement: while Canadian judges accept the proposition that the Constitution is supreme and the corollary that it is

their duty to interpret the Constitution and invalidate any legislation that is inconsistent with the Constitution, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions. Canadian courts are usually able to rely on the other branches of government for this support, but it is not inevitable that this will always be the case. In Doucet-Boudreau case split the Supreme Court of Canada over the scope of the judicial power to grant a form of “structural injunction” as a remedy under s24 (1) of the Charter for a breach of executive branch of a positive charter right. The trial judge had ordered the government to use its best efforts to build a French-language school or schools to comply with the duties under the minority languages rights under s23 of the charter. The judge had added to his order a requirement that the government provide him with periodic reports on its progress in this regard. A five-justice majority of the court concluded that this remedy came within the superior court’s authority under s24. The minority argued that such an injunction usurped the role of the executive by placing the judiciary in the position of directing the implementation of law and government policy. [133] we would reiterate, at this point, the importance of clarity and certainty in the provisions of a court order. If the trial judge had precisely defined the terms of the remedy, in advance, then the ensuring confusion surrounding his role may not have occurred. Moreover, by complying with the essential element of fair procedure, he may have been able to avoid the constitutional breach of the separation of powers that followed.

Enforcement of the constitution by the courts can present both practical problems and questions of principle. The following illustrates the difficulty the Canadian courts have faced in finding a principled (and constitutionally sensible) way to address the consequences of a

sweeping legislative disregard of constitutional rules. In Reference re Language Rights Under Section 23 of Manitoba Act [1985]-p477. 3. The Issue of Legitimacy: the type of governmental intransigence described in the Manitoba Reference case is very much the exception

in Canada’s constitutional history. The more immediate concern for judges in exercising their mandate to uphold the constitution is to identify principles that appropriately shape the exercise of this authority. This task has proved more challenging since the advent of the Charter. The Charter requires the courts to give constitutional effect to what has been described as vague but meaningful generalities—ideas of freedom of thought, belief, opinion, and expression. Most criticisms of constitutional judicial review can be reduced to two core complaints. The first is that under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial legislatures. The argument is that the courts have expanded their proper role of interpreting the constitution—and particularly the Charter and have therefore shrunk the zone of parliamentary supremacy. The second line of criticism is sparked by the substantive approach taken by the courts to particular rights, rights that may protect unpopular elements of society, such as people convicted of criminal offences, or prompt decisions, such as the protection for gays etc. in Vriend v Alberta, Mr. Justice Iacobucci uses the analogy of a dialogue to describe the relationship between the courts and legislatures under the charter. The Supreme Court in this case concluded that Vriend that the legislature’s failure to include sexual orientation as a prohibited ground of discrimination in “Act” violated the appellant’s right to equality as protected by s15 of the Charter and that this action was not justified under s1. The majority also concluded that the appropriate remedy for this violation was to read in sexual orientation as a prohibited ground of discrimination for the purposes of this Act. His Judgment: a. the Built-in Defense: suggests that the constitution does preserve sovereignty since s33 of the Charter, is an overriding provision, which in my view is the ultimate “parliamentary safeguard”. It preserves parliamentary supremacy, though the political price exacted for explicitly overriding constitutionally protected rights has been sufficiently high that, to date at least, Canadian political leaders rarely have been willing to pay it. The Dialogue Model in this decision invokes a sort of dialogue between courts and legislatures. This dialogue was described by retired Supreme Court justice Bertha Wilson in an article entitled “We didn’t volunteer” Bertha Wilson (April 1999): “the central feature of the Charter is that all branches of government—the legislatures, the executive and the judiciary—have an equal responsibility to carry out the Charter’s mandate, and we should concentrate on their reciprocal roles. Then we will see a sort of “dialogue” is going on”. In furtherance, in F.L Morton, “Dialogue or Monologue?” (April 1999) argues that putative dialogue is usually a monologue, with judges doing most of the talking and legislatures most of the listening. They suggest that the failure of a government to respond effectively to judicial activism is a matter of personal courage on part of the leaders. P489 Remarks of the Right Honourable Beverley McLaughlin PC Respecting Democratic Roles (2004) “in our constitutional democracy, each branch of government—legislative, executive, and judicial—has an important role to play in the Canadian democracy. The role of each branch is different and complementary. The essence of each remains the same through the centuries. The legislative’s branch’s role is to make laws. The executive branch’s role is to enforce the law. And the judicial branch’s role is to interpret the law and resolve disputes arising from law. Each branch is a vital part of our democracy. Each branch must discharge its role with integrity and respect for the proper constitutional roles of the other branches. To do less is to diminish our democracy and imperil our future. In PEI Reference, recall that in that case, the court was considering whether judicial independence—the constitutional origin of which flowed in part from unwritten principles—flowed, from legally binding but unwritten constitutional principles. P. 493-497. DIFFERENT SORTS OF JUDICIAL REVIEW OF LEGISLATIVE ACTION: A. UNWRITTEN CONSTITUTIONAL PRINCIPLES: In Canada the courts may play an important role in identifying

constitutional conventions. In Reference re Remuneration, it is cleat that it is established that there is considerable overlap between the common law and constitutional principles of independence and impartiality, and the courts ruling ultimately based on the conclusion that the scheme established by the Act is not unfair to the appellant. Finally note the courts reluctance to extend the constitutional principle of judicial independence into a broader principle of adjudicative independence that would embrace administrative tribunals as well as courts. Consider why courts might be more willing to adopt an expansive interpretation of a particular constitutional text than they are to accept an argument that expands the scope of an unwritten constitutional principle. In Bell Canada [2003]- raises the issue of whether the Canadian Human Rights Tribunal lacks independence and impartiality because of the power of the Commission to issue guidelines binding the Tribunal. [3] in our view, bell’s arguments are without merit. Neither of the two powers challenged by Bell compromises the procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or constitutional principle. We would dismiss the appeal and have the complaints finally proceed to before the Tribunal. P.499.

B. THE CONSTITUTION ACT 1867: Establishes the basic institutional structure of the federal and provincial levels of

government and assigns the respective roles of the federal and provincial governments in the establishment of a system of federal and provincial courts and the appointment of judges to those courts. Cases Qu’Appelle Indian Residential School [1988] and Taylor case are important here. Note the importance that characterization of the relevant activity plays in Mr. Justice Pinard’s reasoning. The resolution of federalism disputes typically turns on the way a court decides to characterize a particular law or

activity. Characterization is important in Charter litigation as well; but as the Taylor case illustrates, the balancing of different interests often plays a more significant role in Charter cases than it does in federalism cases. P505- 509.

C. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS: The final type of constitutional litigation we will be

considering is litigation involving the Charter. In the Taylor case the Supreme court considered an argument that the provision of s13(1) of the HRA that made it a discriminatory practice for a person to distribute hate messages by telephone justifiably infringed the freedom of expression protected by the charter. Two aspects of this decision deserve particular attention for present purposes. The first is the process of defining the substantive right protected by the relevant provision of the Charter. A number of parties took the position that hate speech did not deserve the protection of the freedom of expression guarantees of the Charter. Even though the majority decision written by Chief Justice Dickson upheld the legislation, the court rejected the suggestion that the freedom of expression guaranteed it be restricted in this way. The second important feature of the decision is the relationship between substantive rights and the justification of limits on those rights under s1 of the Charter. Here the balancing of interests plays an important role, as does the argument that the legislation in question advances the societal interest in promoting equality recognized by s15 of the Charter. P 510-523.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION: P523- 541. Constitutional review of legislative action constrains democratically elected legislatures in a way that judicial review of administrative action using ordinary legal principles does not. As Canadian courts have become more sophisticated in their approach to judicial review, however, they have become willing to take into account a number of factors in determining the nature of their institutional relationship with administrative decision makers. These factors have become part of a “pragmatic and functional” standard of review analysis that has become the first step a court must taken when reviewing an administrative decision. The question is: how differential should the courts be to Executive branch interpretations of the mandate accorded them by statutes? A. STANDARDS OF REVIEW: The Supreme Court decision in Dr Q v College of Physicians builds upon a series of cases that have

established the modern approach to common law judicial review of administrative decisions. JR has been criticized for being overly complicated, and too difficult to predict. There appears to be little evidence that the majority of the justices of the Supreme Court is prepared to engage in a fundamental reconsideration of this line of jurisprudence. P.524-534.

B. THE STANDARD OF REVIEW IN OPERATION: The next two decisions apply the standard of review analysis to determine the appropriate standard of review of two decisions, one made by the HR Commission in MacLean v Canada and one made by the HR Tribunal Quigley v Ocean Construction Supplies. In both instances the agency rejected the human rights complaint that was before it. In both of these cases the court dismissed the application for judicial review. Two particular points are worth noting in these decisions. The first is that in the MacLean case, the court addresses arguments that the commission behaved in a procedurally unfair manner without doing a separate “standard of review” analysis in respect of these arguments. No standard of review analysis is necessary in these procedural fairness analysis situations is that the common law rules governing fair procedure already build in a degree of flexibility that takes into account the institutional setting in which the decision was taken. The second point to note is the why in which the difference between dismissal of complaints at the commission stages and at the tribunal stage affects the standard of review analysis. The commission is responsible for investigating and attempting to resolve complaints but it does not adjudicate complaints or have the authority to make a final determination that the complaint is valid. If a complaint is forwarded to the tribunal by the commission, the tribunal normally does hold a formal hearing to adjudicate the complaint. Consider the arguments for and against using the same approach in reviewing decisions by the commission to dismiss complaints that is used when reviewing decisions of the tribunal. MacLean v Canada [2003] O’Keefe J-A complaint against the Marine Atlantic Inc and Canadian Auto Workers was dismissed. The commission dismissed the complaints as unfounded because, based on its investigation, the agreement between MAC and CAW was not discriminatory. It is fact-driven but requires a mixed fact and law.

[47] the commissions reasons in this case are brief, but do tell the applicant why the Commission decided to dismiss his complaint. The Commission clearly stated it was not discriminatory to provide different categories of benefits for those who are more likely to be affected than others by the closure of the Marine Atlantic ferry service on the Bordon-Cape Tormentine run. I am of the opinion that the reasons provided by the Commission were sufficient.

Quigley v Ocean Construction Supplies [2004] Gibson J- It was held in Quigley that in order to determine the appropriate standard of review of administrative decision-makers, the pragmatic and functional approach must be applied. Four contextual factors must be balanced to determine the standard of review (1) the presence or absence of a private clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation and the provision in particular; and (4) the nature of the question—law, fact or mixed law and fact.

[44] On the basis of the foregoing brief pragmatic and functional analysis, I am satisfied that the conclusions that I reached on the issue of appropriate standard of review remain applicable in this matter. In arriving at this conclusion, I have taken into account the much more elaborate and nuanced analysis of standard of review of decisions of Tribunals under the Canadian Human Rights Act reflected in the reasons of Justice Evans, then the Federal Court Trial Division, in Canada (AG) v PSAC at [73] for his reasons.

REMEDIES: What remedies are available when JR is successful? To some extent, Parliament and provincial legislatures are entitled to choose what opportunities are available to persons affected by administrative decisions to seek relief from the courts. For example, it is open to Parliament to create a right of appeal to the courts from decisions of administrative agencies. When rights of appeal to the courts are not made available, it is usually open to those affected by administrative decisions to seek relief using a series of judicial review remedies, developed historically as prerogative writs such as “certiorari”, “prohibition” , “mandamus”, and “habeas corpus”. It is important to admin law theory that the courts generally not assume the power to make decisions that have been granted by legislators to executive government. It is not the role of the courts to supplant the executive. Instead, the courts determine whether the executive has made a legal error in the exercise of its powers. Thus, where a superior court decides to intervene in response to an application for JR, its supervisory jurisdiction is generally exercised in a manner that has the effect of nullifying acts taken pursuant to defective decision making, and requiring the delegates in question to start over.

5. Relationship of Aboriginal Peoples to the Canadian state: Selected topics • Aboriginal Rights and Title • Aboriginal Self-Government Aspirations • The Modern Treaty Making Process Required Readings:

-­‐ Section 91(24) of The Constitution Act, 1867 (U.K.), -­‐ DISTRIBUTION OF LEGISLATIVE POWERS: -­‐ S91 (24)- It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the

Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, Indians, and Lands reserved for the Indians.

-­‐ -­‐ 30 & 31 Victoria, c. 3;

-­‐ - Section 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),

PART II ���RIGHTS OF THE ABORIGINAL

PEOPLES OF CANADA SECTION 35:

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

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

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

Aboriginal and treaty rights are guaranteed equally to both sexes

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

-­‐ - Mary C. Hurley, "The Crown's Fiduciary Relationship with Aboriginal Peoples", Library of Parliament, Revised 2002: These notes are intended to provide a brief introduction to the complex and evolving “fiduciary” relationship between the Crown and Canada’s Aboriginal peoples. Background Canada’s Aboriginal peoples have always held a unique legal and constitutional position. In the Royal Proclamation of 1763, often referred to as the “Magna Carta of Indian Rights,” the colonial British Crown found it just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. (emphasis added) Emphasizing the Crown’s concern with the “great Frauds and Abuses” committed by purchasers of Aboriginal lands, the Royal Proclamation reserved to the Crown the exclusive right to negotiate cessions (giving up) of Aboriginal title. A century later, subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over “Indians, and Lands Reserved for the Indians.” Surrenders and designations of reserve land under the Indian Act, the principal vehicle for the exercise of federal jurisdiction over “status Indians” since 1876, reflect the “protective” provisions of the Royal Proclamation. In practice, pre- and post-Confederation federal governments negotiated surrenders of vast Aboriginal territories in major treaties concluded throughout the 19th and early 20th centuries, largely in Ontario and the western provinces excluding

British Columbia. Finally, section 35 of the Constitution Act, 1982 recognizes and affirms “existing aboriginal and treaty rights” of Canada’s Aboriginal peoples, defined as including the “Indian, Inuit and Métis peoples.” In R. v. Van der Peet (1996),(1) the Supreme Court of Canada commented that the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact … above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status. (emphasis in original) Judicial Interpretation In broad legal terms, a “fiduciary” is “one who holds anything in trust,” or “who holds a position of trust or confidence with respect to someone else.” Hence, a “fiduciary relationship” is one in which someone in a position of trust has “rights and powers which he is bound to exercise for the benefit” of another. Such relationships include those between trustees and their beneficiaries, solicitors and their clients, and so forth.(2) The Supreme Court of Canada has adapted these largely private law concepts to the context of Crown-Aboriginal relations. In the 1950s, the Court observed that the Indian Act “embodie[d] the accepted view that these aborigines are … wards of the state, whose care and welfare are a political trust of the highest obligation.”(3) The Court’s landmark 1984 decision Guerin v. R. (1984)(4) portrayed this relationship more fully, and established that it could or did entail legal consequences. Guerin found that:

• the fiduciary relationship is rooted in the concept of Aboriginal title,(5) coupled with the requirement, outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown;

• this requirement, which places the Crown between the Aboriginal group and third parties to prevent exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group;

• in the unique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is sui generis, or one of a kind. The scope of the fiduciary concept was extended significantly in R. v. Sparrow (1990),(6) the Court’s first section 35 decision. Sparrow determined that:

• the “general guiding principle” for section 35 is that “the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship”;

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

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

Other section 35 Court rulings containing relevant, generally applicable principles include R. v. Adams (1996)(9) in which the Court found that, “[i]n light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights … in the absence of some explicit guidance.” In Delgamuukw v. B.C.,(10) the Court ruled that the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue. In the context of Aboriginal title, the Court expanded in particular upon the Crown’s obligation to consult affected Aboriginal group(s), finding that the consultation “must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.” Delgamuukw also stated that under section 35, “the Crown is under a moral, if not a legal, duty to enter into and conduct … negotiations [with Aboriginal peoples] in good faith.”(11) In Wewaykum Indian Band v. Canada (2002),(12) a non-section 35 decision, the Court sought to further clarify certain aspects of the Crown-Aboriginal fiduciary relationship and the scope of obligations arising under it, noting the post-Guerin “flood of ‘fiduciary duty’ claims … across a whole spectrum of possible complaints.” The Wewaykum ruling confirmed that:

• fiduciary obligations are not restricted to section 35 rights or to existing reserves: they come into play “to facilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples”;

• the fiduciary duty “does not exist at large.” Because not all obligations between the parties to a fiduciary relationship are necessarily of a fiduciary nature, the focus should be on “the particular obligation or interest [in] dispute and whether or not the Crown had assumed discretionary control … sufficient to ground a fiduciary obligation”;

• rather than providing a “general indemnity,” the content of the Crown’s fiduciary duty “varies with the nature and importance of the interest sought to be protected”;(13)

• the Crown is not an ordinary fiduciary and is obliged, depending on the context, to have regard to the interests of many parties, not just the Aboriginal interest.

As Wewaykum suggests, general principles set out in these and other decisions do not finally determine the precise scope of fiduciary obligations that may be owed by the Crown to a given Aboriginal group in a given set of circumstances. Cases in which these matters are pivotal to Aboriginal claims will continue to come before Canadian courts with regularity, where they are to be decided on a case-specific basis within the general guidelines articulated by the Court. Extra-Judicial Considerations The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP)(14) saw the fiduciary relationship as originating in treaties and other historical links, describing it in conceptual terms that differ from those expressed by the courts: Because of this relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as guarantor of their Aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of the constitution of Canada.(15)

The Report emphasized that, although the provinces and territories are also bound by fiduciary obligation(s), a position that appears consistent with the emerging jurisprudence in the area,(16) Parliament has primary jurisdiction in relation to Aboriginal peoples under subsection 91(24) of the Constitution Act, 1867: The federal government cannot, consistent with its fiduciary obligation, sit on its hands in its own jurisdiction while treaties are broken, Aboriginal autonomy is undermined, and Aboriginal lands are destroyed.(17) The RCAP was critical of past and current governments’ performance of their fiduciary role; many recommendations reflect its view that government needs to fulfil this role more positively through a variety of measures, including broader recognition of the Aboriginal peoples to whom the duty is owed. The federal government has not issued a comprehensive official policy in this area. Its approach(18) identifies two principal categories of fiduciary obligations for government managers to take into account, based on the Guerin and Sparrow decisions. Guerin-type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land). Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights. Federal guidelines also underscore the honour of the Crown as an additional key element to be maintained in relations with Aboriginal peoples. The government document differentiates between the fiduciary relationship and fiduciary obligations, such that some Crown activities affecting Aboriginal peoples that fall within the fiduciary relationship would not necessarily give rise to legally enforceable fiduciary obligations. The Wewaykum decision appears to endorse a similar position. Commentary The foregoing overview suggests that the Crown’s fiduciary relationship with and ensuing obligations toward Aboriginal peoples have implications for the development and conduct of government policy in matters that engage Aboriginal interests. It further indicates that the scope of the obligations, and thus the nature of associated policy implications, will vary with the individual circumstances at issue. Important questions related to implementation of the Crown-Aboriginal fiduciary relationship remain. The application of Supreme Court of Canada decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for example, land claim and self-government negotiations. Similarly, the standard(s) for government conduct that will uphold “the honour of the Crown” in various situations require clarification. Aboriginal groups and government are frequently at odds in litigation, negotiation, and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship. Aboriginal parties generally support a broader view of Crown obligations than the government appears prepared to endorse. Assembly of First Nations’ resolutions attest to unresolved issues regarding many aspects of the current relationship. In April 2000, then National Chief of the Assembly of First Nations Phil Fontaine observed that “DIAND, like the Government of Canada itself, suffers from a schizophrenic personality. It holds and administers fiduciary obligations to our peoples at the same time as it must observe its political obligations to the rest of Canada. … It advocates one moment on our behalf and in the next moment, through the Justice Department, against us.” As the Supreme Court of Canada’s Wewaykum ruling commented, the Crown is not an ordinary fiduciary and may be required to consider multiple interests in some contexts. Supreme Court of Canada decisions confirm that the fiduciary relationship does have legal and constitutional scope. The concept itself and obligations arising from it are still being developed. Highlights from the Report of the Royal Commission on Aboriginal Peoples: People to People, Nation to Nation" (1996): A Word From Commissioners Canada is a test case for a grand notion - the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences. The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony. But there cannot be peace or harmony unless there is justice. It was to help restore justice to the relationship between Aboriginal and non-Aboriginal people in Canada, and to propose practical solutions to stubborn problems, that the Royal Commission on Aboriginal Peoples was established. In 1991, four Aboriginal and three non-Aboriginal commissioners were appointed to investigate the issues and advise the government on their findings. We began our work at a difficult time.

• It was a time of anger and upheaval. The country's leaders were arguing about the place of Aboriginal people in the constitution. First Nations were blockading roads and rail lines in Ontario and British Columbia. Innu families were encamped in protest of military installations in Labrador. A year earlier, armed conflict between Aboriginal and non-Aboriginal forces at Kanesatake (Oka) had tarnished Canada's reputation abroad - and in the minds of many citizens.

• It was a time of concern and distress. Media reports had given Canadians new reasons to be disturbed about the facts of life in many Aboriginal communities: high rates of poverty, ill health, family break-down and suicide. Children and youth were most at risk.

• It was also a time of hope. Aboriginal people were rebuilding their ancient ties to one another and searching their cultural heritage for the roots of their identity and the inspiration to solve community problems.

We directed our consultations to one over-riding question: What are the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people of Canada? There can be no peace or harmony unless there is justice. We held 178 days of public hearings, visited 96 communities, consulted dozens of experts, commissioned scores of research studies, reviewed numerous past inquiries and reports. Our central conclusion can be summarized simply: The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong. Successive governments have tried - sometimes intentionally, sometimes in ignorance - to absorb Aboriginal people into Canadian society, thus eliminating them as distinct peoples. Policies pursued over the decades have undermined - and almost erased - Aboriginal cultures and identities.

This is assimilation. It is a denial of the principles of peace, harmony and justice for which this country stands - and it has failed. Aboriginal peoples remain proudly different. Assimilation policies failed because Aboriginal people have the secret of cultural survival. They have an enduring sense of themselves as peoples with a unique heritage and the right to cultural continuity. This is what drives them when they blockade roads, protest at military bases and occupy sacred grounds. This is why they resist pressure to merge into Euro-Canadian society - a form of cultural suicide urged upon them in the name of 'equality' and 'modernization'. Assimilation policies have done great damage, leaving a legacy of brokenness affecting Aboriginal individuals, families and communities. The damage has been equally serious to the spirit of Canada - the spirit of generosity and mutual accommodation in which Canadians take pride. Yet the damage is not beyond repair. The key is to reverse the assumptions of assimilation that still shape and constrain Aboriginal life chances - despite some worthy reforms in the administration of Aboriginal affairs. To bring about this fundamental change, Canadians need to understand that Aboriginal peoples are nations. That is, they are political and cultural groups with values and lifeways distinct from those of other Canadians. They lived as nations - highly centralized, loosely federated, or small and clan-based - for thousands of years before the arrival of Europeans. As nations, they forged trade and military alliances among themselves and with the new arrivals. To this day, Aboriginal people's sense of confidence and well-being as individuals remains tied to the strength of their nations. Only as members of restored nations can they reach their potential in the twenty-first century. Let us be clear, however. To say that Aboriginal peoples are nations is not to say that they are nation-states seeking independence from Canada. They are collectivities with a long shared history, a right to govern themselves and, in general, a strong desire to do so in partnership with Canada. The Commission's report is an account... ...of the relationship between Aboriginal and non-Aboriginal people that is a central facet of Canada's heritage. ...of the distortion of that relationship over time. ...of the terrible consequences of distortion for Aboriginal people - loss of lands, power and self-respect. We hope that our report will also be a guide to the many ways Aboriginal and non-Aboriginal people can begin - right now - to repair the damage to the relationship and enter the next millennium on a new footing of mutual recognition and respect, sharing and responsibility. Federation of Law Societies of Canada Required Readings Re: Aboriginal Rights: - R. v. Sparrow, [1990] 1 S.C.R. 1075: Was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35(1) of the Constitution Act, 1982. The Court held that aboriginal rights, such as fishing, that were in existence in 1982 are protected under the Constitution of Canada and cannot be infringed without justification on account of the government's fiduciary duty to the Aboriginal peoples of Canada. Background Ronald Edward Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathoms (82 m) in length, 20 fathoms (37 m) longer than permitted by the band's fishing licence under the Fisheries Act. Sparrow admitted to all the facts in the charge but justified it on the ground that he was exercising his aboriginal right to fish under section 35(1) of the Constitution Act, 1982. At trial, the judge found that section 35 only protected existing treaty rights and that there was no inherent right to fish. An appeal to the County Court was dismissed and a further appeal to the Court of Appeal was dismissed on the grounds that there was insufficient evidence to maintain the defence. The issue to the Supreme Court was whether the net length restriction violated s. 35(1). Reasons of the court The judgment of unanimous Court was given by Chief Justice Brian Dickson and Justice Gérard La Forest. They held that Sparrow was exercising an "inherent" Aboriginal right, that existed before the provincial legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982. To arrive at this they interpreted each of the words of section 35(1). "Existing" The word "existing" in section 35(1), the Court said, must be "interpreted flexibly so as to permit their evolution over time". As such, "existing" was interpreted as referring to rights that were not "extinguished" prior to the introduction of the 1982 Constitution. They rejected the alternate "frozen" interpretation referring to rights that were being exercised in 1982. Based on historical records of the Musqueam fishing practices over the centuries and into colonial time, the Court found that the band had a clear right to fish for food. Extinguishment of rights can only occur through an act that showed "clear and plain intention" on the government to deny those rights. Here, the Court found that the Crown was not able to prove that the right to fish for food were extinguished prior to 1982. The licencing scheme was merely a means of regulating the fisheries not remove the underlying right, nor did any historical government policy towards fishing rights amount to a clear intention to extinguish. "Recognized and Affirmed" The words "recognized and affirmed", the Court held, incorporate the government's fiduciary duty to the Aboriginal people which requires them to exercise restraint when applying their powers in interference with aboriginal rights. This further suggests that aboriginal rights are not absolute and can be encroached upon given sufficient reason. Aftermath After the Sparrow case, federal or provincial legislation can only limit aboriginal rights if it has given them appropriate priority, because aboriginal rights have a different nature than other non-aboriginal rights. The "Sparrow test" has been used since this important decision by many experts as a way of measuring how much Canadian legislation can limit aboriginal rights. Typical cases of inappropriate priority include distributing hunting licences by lottery.

- R. v. Van der Peet, [1996] 2 S.C.R. 507; is a leading case on aboriginal rights under section 35 of the Constitution Act, 1982. The Supreme Court held that aboriginal fishing rights did not extend to commercial selling of fish. From this case came the Van der Peet test for determining if an aboriginal right exists. This is the first of three cases known as the Van der Peet trilogy which included R. v. N.T.C. Smokehouse Ltd. and R. v. Gladstone. Dorothy Van der Peet, a member of the Stó:lō Nation, was charged for selling salmon that Steven and Charles Jimmy (Charles being her common-law husband) had lawfully caught under the native food fish licence but was forbidden from selling. At trial, the judge held that the aboriginal right to fish for food and ceremonial purposes did not extend to the right to sell fish commercially. A summary appeal judge overturned the verdict, but it was subsequently overturned at the Court of Appeal. The issue before the Court was whether the law preventing sale of the fish infringed Van der Peet's aboriginal rights under section 35. Opinion of the Court In a seven to two decision, the Court upheld the Court of Appeal's decision. In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right."[1] The exchange of fish for money or other goods did not constitute a practice, custom or tradition that was integral to Sto:lo culture. The Court developed an "Integral to a Distinctive Culture Test" to determine how to define an Aboriginal right as protected by s.35(1) of the Constitution Act, 1982. The Test has ten main parts:

1. Courts must take into account the perspective of aboriginal peoples themselves 2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the

existence of an aboriginal right 3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question 4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and

traditions that existed prior to contact 5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims 6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis 7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which

it exists 8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice,

custom or tradition be distinct 9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only

integral because of that influence. 10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal

peoples Criticism Canadian Aboriginal Law scholar John Borrows writes: "With this test, as promised, Chief Justice Antonio Lamer has now told us what Aboriginal means. Aboriginal is retrospective. It is about what was, 'once upon a time,' central to the survival of a community, not necessarily about what is central, significant, and distinctive to the survival of these communities today. His test has the potential to reinforce troubling stereotypes about Indians."[2] - R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686;  The respondents, S and P who are Maliseet and G who is Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents’ respective First Nations. Those taken by S and P were to be used for the construction of P’s house and the residue for community firewood. Those cut by G were to be used to fashion his furniture. The respondents had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. They were acquitted at trial. S and P’s acquittals were upheld by the Court of Queen’s Bench and the Court of Appeal. G’s acquittal was set aside by the Court of Queen’s Bench but restored on appeal. G did not pursue his treaty right claim before the Court of Appeal or before this Court. Held: The appeals should be dismissed. The respondents made out a defence of aboriginal right. Per McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.: Aboriginal rights are founded upon practices, customs, or traditions which were integral to the distinctive pre-contact culture of an aboriginal people. Here, the way of life of the Maliseet and of the Mi’kmaq during the pre-contact period was that of migratory peoples who lived from fishing and hunting and who used the rivers and lakes of Eastern Canada for transportation. The record also showed that wood was used to fulfill the communities’ domestic needs for such things as shelter, transportation, tools and fuel. The relevant practice in the present cases, therefore, must be characterized as a right to harvest wood for domestic uses as a member of the aboriginal community. This right so characterized has no commercial dimension and the harvested wood cannot be sold, traded or bartered to produce assets or raise money, even if the object of such trade or barter is to finance the building of a dwelling. Further, it is a communal right; it cannot be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve. Lastly, the right is site-specific, such that its exercise is necessarily limited to Crown lands traditionally harvested by members’ respective First

Nations. In these cases, the respondents possessed an aboriginal right to harvest wood for domestic uses on Crown lands traditionally used for that purpose by their respective First Nations - R. v. Powley, 2003 SCC 43; is a Supreme Court of Canada case defining Métis Aboriginal rights under section 35(1) of the Constitution Act, 1982. Facts and Procedural History A Sault Ste. Marie father and son, Steve and Roddy Powley, were charged in 1993 with possession of a moose they had shot out of season and without a licence. The pair pleaded not guilty on the grounds that, as Métis, they had an Aboriginal right to hunt that was unjustly infringed by Ontario game laws. The Ontario Court of Justice agreed and dismissed the charges. The Ontario Attorney General appealed that decision to the Ontario Superior Court of Justice, which upheld the acquittals and denied the appeal. The Ontario Attorney General then appealed that decision to the Ontario Court of Appeal which also upheld the acquittals and denied the appeal. Finally, the decision was appealed to the Supreme Court of Canada, where a unanimous court upheld the decisions of the lower courts and defined a ten-step test for Métis rights based on modified tests from the previous Indian Aboriginal rights decisions in R. v. Sparrow and R. v. Van der Peet. Aftermath In order for this ruling to apply to specific Métis people, they have to show that the practice in question relates to the practice of a rights-bearing Métis community prior to European political and legal control, and that they are members of the corresponding modern Métis community.[1] This means that as long as a Métis group of people established a rights-bearing community that was distinctive from any Indian or Inuit Aboriginal groups they descended from, then the practices that community exercised prior to European control may be Section 35(1) rights. - Haida Nation v. British Columbia (Minister of Frests), 2004 SCC 73, [2004] 3 S.C.R. 511; is the leading Supreme Court of Canada decision on the Crown duty to consult Aboriginal groups prior to exploiting lands to which they may have claims. Background In 1961 the provincial government of British Columbia issued a "Tree Farm Licence" (TFL 39) over an area of land to which the Haida Nation claimed title. This title had not yet been recognized at law. The Haida Nation also claimed an Aboriginal right to harvest red cedar in that area. In 1981, 1995, and 2000 the Minister replaced TFL 39; in 1999 the Minister authorized a transfer to Weyerhauser Co. These actions were performed unilaterally, without consent from or consultation with the Haida Nation. The Haida Nation brought a suit, requesting that the replacement and transfer be set aside. The chambers judge found that the Crown was under a moral – but not legal – duty to negotiate with the Haida Nation. The British Columbia Court of Appeal reversed this decision, deciding that both the Crown and Weyerhauser Co. are under legal obligations to consult with Aboriginal groups whose interests may be affected. Judgment of the Court Chief Justice McLachlin, writing for a unanimous court, found that the Crown has a "duty to consult with Aboriginal peoples and accommodate their interests".[1] This duty is grounded in the honour of the Crown, and applies even where title has not been proven. The scope of this duty will vary with the circumstances; the duty will escalate proportionately to the strength of the claim for a right or title and the seriousness of the potential effect upon the claimed right or title. However, regardless of what the scope of the duty is determined to be, consultation must always be meaningful. Where there is a strong prima facie case for the claim and the adverse effects of the government's proposed actions impact it in a significant (and adverse) way, the government may be required to accommodate. This may require taking steps to avoid irreparable harm or minimize the effects of the infringement. Both sides are required to act in good faith throughout the process. The Crown must intend to substantially address the concerns of the Aboriginal group through meaningful consultation, and the Aboriginal group must not attempt to frustrate that effort or take unreasonable positions to thwart it. On the facts of the case, the Court found that the Haida Nation's claims of title and an Aboriginal right were strong, and that the government's actions could have a serious impact on the claimed right and title. Accordingly, the Crown had a duty to consult the Haida Nation, and likely had a duty to accommodate their interests. The Crown's duty of good-faith consultation does not extend to third parties, and cannot be delegated to them by the Crown. This is not to say that third parties cannot be liable to Aboriginal groups in negligence, or for dealing with them dishonestly. However, it does mean that the legal obligation of consultation and accommodation is shouldered exclusively by the Crown. Accordingly, the Crown's appeal was dismissed and Weyerhauser Co.'s appeal was allowed. - Taku River Tingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74: On November 18, 2004, the Supreme Court of Canada rendered its decision in the case of Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] S.C.J. No. 69, 2004 SCC 74, online: QL (S.C.C.). The following is a brief summary of the Court's decision. FACTS: Since 1994, a mining company Redfern Resources Ltd. ("Redfern") has sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation (TRTFN), which participated in a 3?-year environmental assessment process engaged in by the Province under the Environmental Assessment Act, objected to the company's plan to build a road through a portion of the TRTFN's traditional territory. The proposed access road was only 160 km long, a geographically small intrusion on the 32,000-square km area claimed by the TRTFN. However, experts reported that the proposed road would pass through an area critical to the TRTFN's domestic economy. The TRTFN was also concerned that the road could act as a magnet for future development. The proposed road could therefore have an impact on the TRTFN's continued ability to exercise its Aboriginal rights and alter the landscape to which it laid claim. The Province granted the project approval certificate in 1998. The TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. The chambers judge concluded that the decision makers had not been sufficiently careful

during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFN's concerns. She set aside the decision and directed a reconsideration. The majority of the Court of Appeal upheld the decision, finding that the Province had failed to meet its duty to consult with and accommodate the TRTFN. DECISION OF SUPREME COURT OF CANADA: The Court held that the appeal of the Crown (Province of British Columbia) should be allowed. Government duty to "consult" and "accommodate" The B.C. government's duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown. The duty of honour derives from the Crown's assertion of sovereignty in the face of prior Aboriginal occupation. This duty of honour has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1). As discussed in the Haida case, what the honour of the Crown requires varies with the circumstances. The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. It will vary with the circumstances, but always requires meaningful, good faith consultation and willingness on the part of the Crown to make changes based on information that emerges during the process. The Crown's obligation to consult the TRTFN was engaged in this case. The Province was aware of the TRTFN's title and rights claims and knew that the decision to reopen the mine had the potential to adversely affect the substance of the TRTFN's claims. The TRTFN's claim is relatively strong, supported by a prima facie case, as attested to by its inclusion in the Province's treaty negotiation process. However, an Aboriginal group need not be accepted into the treaty process for the Crown's duty to consult to apply to them. While the proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title, the potential for negative derivative impacts on the TRTFN's claims is high. On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation. It is impossible, however, to provide a prospective checklist of the level of consultation required. Province met its duty to consult meaningfully The Province was required to consult meaningfully with the TRTFN in the decision-making process surrounding Redfern's project approval application. The TRTFN's role in the environmental assessment was, however, sufficient to uphold the Province's honour and meet the requirements of its duty. In Haida, no consultation occurred at all at the disputed, "strategic" stage. That can be distinguished from the situation in this case, in which the TRTFN was consulted throughout the certification process and its concerns accommodated. In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty to consult and accommodate. The TRTFN was part of the Project Committee, participating fully in the environmental review process. Its views were put before the decision makers, and the final project approval contained measures designed to address both its immediate and its long-term concerns. The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN. Province has ongoing duty to consult and, if appropriate, accommodate It is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if appropriate, accommodate the TRTFN. Issuance of project approval certification does not constitute a comprehensive "go-ahead" for all aspects of a project. An extensive "permitting" process precedes each aspect of construction, which may involve more detailed substantive and information requirements being placed on the developer. Part 6 of the Project Committee's Recommendations Report summarized the requirements for licences, permits and approvals that would follow project approval in this case. In addition, the Recommendations Report made prospective recommendations about what ought to happen at the permit stage, as a condition of certification. The Report stated that Redfern would develop more detailed baseline information and analysis at the permit stage, with continued TRTFN participation, and that adjustments might be required to the road route in response. The majority also recommended creation of a resource management zone along the access corridor, to be in place until completion of a future land use plan; the use of regulations to control access to the road; and creation of a Joint Management Committee for the road with the TRTFN. It recommended that Redfern's future Special Use Permit application for the road be referred to the proposed Joint Management Committee. Required Readings Re: Aboriginal Title: - Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada. Court proceedings The proceedings were started in 1984 by the Gitksan and the Wet'suwet'en Nation. They bypassed the slow Federal Land Claims process in which the British Columbia Provincial Government would not participate.

They claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000 square kilometres of northwestern British Columbia, an area larger than the province of Nova Scotia. The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case. Provincial government position The Crown of British Columbia insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada in 1871. Moreover, Chief Justice Allan McEachern ruled that aboriginal rights in general existed at the "pleasure of the crown" and could thus be extinguished "whenever the intention of the Crown to do so is clear and plain." (In the Court of Appeal, the Province changed its position to argue that aboriginal land rights had not been extinguished.) In his explanation for the ruling, McEachern conceded that he was unwilling to seriously consider evidence from oral tradition, arguing that prior to colonization, aboriginal lives had been "nasty, brutish, and short". Justice McEachern found that the "broad concepts embodied in oral tradition, did not conform to juridical definitions of truth,"[1] stating: "I am unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence."[2][3] Although these courtroom proceedings established the precedent of First Nations presenting their claims to land through the use of oral tradition, Justice McEachern ruled that oral tradition could not stand on its own as historical evidence. In order to bear an impact on the proceedings it must be supported by forms of evidence recognized by the court. Supreme Court ruling The Supreme Court made no decision on the land dispute, insisting that another trial was necessary. For the first time, however, the Court directly addressed the issue of Aboriginal title. Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers. The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony. [4] Aftermath The Delgamuukw court case has important implications for the history of Canada and for the idea of history itself. In this case the court gave greater weight to oral history than to written evidence. Of oral histories the court said "they are tangential to the ultimate purpose of the fact-finding process at trial -- the determination of the historical truth." In A Fair Country, John Ralston Saul writes about the broader significance of the court's recognition of oral evidence as carrying as much or greater weight as written evidence, on Canadian society. - Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, pages 149-186; The Tsilhqot'in Nation launched legal proceedings against British Columbia in 1989 to prevent the harvesting of timber in Tachelach'ed and the Trapline Territory, the two geographical areas that comprise the claim area (the Claim Area), pursuant to timber licences that the government issued.The trial, lasting 339 trial days, proved to be one of the longest trials in Canadian history1 and likely cost over 30 million dollars. In his decision in Tsilhqot'in Nation v. British Columbia (Tsilhqot'in),2 Vickers J. provided a non-binding decision that the evidence put before him, examined through the lens that the Supreme Court of Canada (SCC) proposed in Delgamuukw3 and R. v. Marshall and R. v. Bernard4 (Marshall; Bernard) proved Aboriginal title to a significant portion of the Claim Area.5 The SCC "lens" was grounded in the perspective of the Tsilhqot'in people, and focused on "the cultural, economic, and legendary significance of their land use patterns."6 The impact of this opinion on the effect of provincial legislation, Aboriginals, and third parties is unclear because it is non-binding. However, the possibility of a determinative appeal to the SCC gives rise to a potential for evolution in the law regarding the proof required to establish Aboriginal title. Background on the Claim Area and Legal Proceedings7 a. The Region and the People8 i. The Landscape The Chilcotin Region is located in the central interior of British Columbia, extending west from the Fraser River to the Coast Mountain Range. It encompasses the entire high elevation Chilcotin plateau. In addition to spruce pine forests, the area contains meadows, wetlands, and numerous small lakes, and the high elevation plateau rises into some of the most dramatic mountains and lakes in British Columbia. It is both the traditional territory of the Tsilhqot'in Nation and the location of the Williams Lake Timber Supply Area, which sets the stage for the dispute between the Tsilhqot'in People and the Provincial Crown. ii. The Plaintiff The Tsilhqot'in First Nation, with a population of approximately 3,000, is spread across communities from Fort Alexandria to Anahim Lake. The several communities include the Xeni Gwet'in, the TI'esqox (Toosey), the Tsi Del Del (Redstone), the Tletinqot-t'in (Anahim), the ?Esdilagh (Alexandria), and the Yunesit'in (Stone). Chief Roger Williams is a member of the Tsilhqot'in First Nation and Chief of the Xeni Gwet'in community.He brought the action against the Province of British Columbia in his capacity as a representative of the Tsilhqot'in Nation. iii. The Defendant The Tsilhqot'in Nation commenced the action against the Province of British Columbia, as the lands at issue are said to belong to the Province of B.C. pursuant to s.109 of the Constitution Act, 1867.10 The Ministry of Forests and Range regulates forestry in B.C. The Regional Manager of the Cariboo Forest District exercises powers and authority over forestry-related matters pursuant to the Forest Act.11 Provisions of the Forest Act, the Ministry of Forests and Range Act,12 and the Forest Practices Code of British Columbia Act13 provide the authority to make decisions relating to the granting of forest tenures on lands in the Chilcotin Region.14 The Claim Area is located in the Williams Lake Timber Supply Area. Over the years, the Province issued many timber licences to harvest timber in the Claim Area. b. The Issues This study focuses on three main issues raised in Tsilhqot'in: 1. Do the Tsilhqot'in people have existing Aboriginal title to the Claim Area, consistent with the criteria set out in Delgamuukw? 2. Are the Tsilhqot'in people entitled to a declaration of Aboriginal rights to hunt and trap throughout all or part of the Claim Area and to trade

the furs, pelts and other animal products obtained from the Claim Area? 3. What is the applicability of provincial legislation to Aboriginal title lands and does the issuing of forest licences, the granting of authorizations and any forest development activity unjustifiably infringe Aboriginal rights in the Claim Area? The analysis of these issues explores the relationship between natural resource management in the province and the interests of Aboriginal peoples in BC. c. The Decision This case involved a claim of Aboriginal title and rights over two large tracts of the traditional territory (the "Claim Area") of the Tsilhqot'in Nation (the "Tsilhqot'in"). The Tsilhqot'in sought court declarations regarding Tsilhqot'in rights and in relation to the issuance and use of certain forest licences. The Tsilhqot'in also sought injunctions to prevent the issuance of cutting permits in the Claim Area. Logging proposals and fundamental land use disagreements triggered the litigation. The claim for Aboriginal title failed because the Tsilhqot'in did not properly frame their claim. They had asked for a declaration of Aboriginal title over the entire Claim Area, which the court did not find. The Tsilhqot'in did not request, as an alternative claim, a declaration regarding smaller, identified portions of the Claim Area. The court agreed that title exists regarding some of those portions but declined to make the declaration because the Tsilhqot'in had not properly referred to those portions in its claim. The claims for Aboriginal rights, including the right to trade, were successful. Issues of consultation and accommodation of Tsilhqot'in rights arose in a number of parts of the decision. The court offered important conclusions regarding consultation and accommodation obligations with respect to the Aboriginal rights it recognized and the Aboriginal title that it declined to officially recognize. i. Aboriginal Title and Rights For the first time in a Canadian case, a court found that Aboriginal title existed with respect to a significant portion of land previously considered to be under the jurisdiction of the provincial Crown. Vickers, J., accepted proof of Aboriginal title for the Tsilhqot'in to roughly 200,000 hectares (about half of the Claim Area). He relied heavily on precedent set in the Delgamuukw and Marshall and Bernard cases, in which the SCC held that proof of Aboriginal title requires evidence of regular use or occupancy of definite tracts of land and that evidence of occasional use is insufficient.15 Characterization of the Tsilhqot'in as semi-nomadic people also formed part of the basis for the analysis of the evidence. Vickers J. further concluded that the Tsilhqot'in have an Aboriginal right to hunt and trap birds and other animals for purposes of: 1. securing animals for work, transportation, food, clothing, shelter, mats, blankets, and crafts, 2. spiritual, ceremonial, and cultural uses, and 3. trade. Vickers J. found that these rights (unlike the Aboriginal title) apply throughout the Claim Area. (a) Aboriginal Title In response to an invitation from the Tsilhqot'in Nation and the British Columbia government, the court offered its opinion regarding the application of Aboriginal title to smaller tracts of land inside and outside the Claim Area. The judge identified specific areas that did and did not meet the test for Aboriginal title and areas that might meet the test. He also examined the legal implications if title does exist (as an appeals court might decide). 15 Louise Mandell, "Tsilhqot'in Nation v. B.C. – An Analysis" (Aboriginal Law: Tsilhqot'in v. BC, 18 January 2008) Vancouver: Continuing Legal Education Society of British Columbia, 2008 at 4.1.6 [hereinafter Mandell]. The judge generally decided that Aboriginal title land is not "Crown land" as defined in B.C. forestry legislation and that the provincial Forest Act does not apply to Aboriginal title land (see below). However, the decision to not declare the smaller portions as subject to Aboriginal title meant that those principles did not necessarily apply to lands over which Aboriginal title was asserted or claimed, rather than proven/declared.16 In such cases, where the court has not yet found that an area is subject to Aboriginal title, provincial laws may apply to that land and "the Crown's duty to consult, if properly discharged, gives adequate protection to any alleged Aboriginal interests."17 However, "[s]hould there be a later declaration of rights or title there is a serious risk that, without proper consultation and accommodation, these rights may be infringed."18 In this case, the judge found that Crown land use planning "for its own economic benefit and the economic benefit of third parties... [is] a direct infringement on any Aboriginal title."19 He noted: "the provincial forestry guidelines failed to prevent an infringement" and "if the current provincial forestry scheme applies to Aboriginal title land, then its application to Tsilhqot'in Aboriginal title land constitutes prima facie infringement or denial of Tsilhqot'in Aboriginal title triggering the need for justification."20 When examining whether the government could justify such an infringement, the judge examined whether the infringement was consistent with the fiduciary relationship between the Tsilhqot'in people and the Crown. His examination of the relevant past Supreme Court of Canada decisions led him to explain that "the demands of the fiduciary relationship can manifest themselves in many... guises, including the duty of consultation...."21 More specifically, the judge stated clearly that "[w]here Aboriginal title exists or is alleged to exist, there is always a duty of consultation."22 The judge found that "considerable effort [had] been made to engage Tsilhqot'in people in the forestry proposals and the land use planning in the Claim Area."23 However, when he considered these efforts, he emphasized that "[t]he central question is whether all of this effort amounts to genuine consultation."24 He looked at the Forest Act with respect to the Chief Forester's task in setting the Annual Allowable Cut (the "AAC") and noted that it did not mention Aboriginal title or rights. He explained that the Chief Forester thought this meant he could (and actually had no 16 See Tsilhqot'in, supra note 2 at para. 978. At para. 1013, he notes: "When particular lands are the subject of a declaration or a clear finding of Aboriginal rights or title, the situation has crystallized, and the definition of "Crown lands" and "Crown timber" no longer applies;" therefore, the B.C. Forest Act no longer applies because its provisions can only apply to "Crown lands" and "Crown timber." 17 Ibid. at para. 978. 18 Ibid. at para. 978. 19 Ibid. at para. 1077. He added: "The infringement takes place the moment Crown officials engage in the planning process for the removal of timber from land over which the Crown does not have a present proprietary interest." 20 Ibid. at para. 1081. This analysis was in case an appeal court decides that he is wrong and that provincial legislation can apply to Aboriginal Title lands without contravening the division of powers in the Canadian Constitution. 21 Ibid. at para. 1111. 22 Ibid. at para. 1114. 23 Ibid. at para. 1123. 24 Ibid. at para. 1123. 5 UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW choice but to) ignore established or claimed Aboriginal title or rights. As a result, he ignored the potential for Tsilhqot'in Aboriginal title and the 1996 AAC did not include it as a relevant factor.

The judge concluded that the failure of the Chief Forester to consult at this strategic planning level meant that the Crown was "unable to justify their actual infringements of Aboriginal title and rights that might flow from the decision."25 In rejecting the Crown argument that an infringement could not exist until an actual authorization to remove timber occurs, he decided: [A]ll of the events that lead up to the granting of a cutting permit signal the Province's intention to manage and dispose of an Aboriginal asset. These events demand consultation and, where necessary, appropriate accommodations where Aboriginal rights are claimed.26 The judge emphasized that none of the relevant land use and forest management plans took into account any potential Aboriginal title or rights in the Claim Area. They did not acknowledge or address any such title or rights and they ignored Tsilhqot'in efforts to convince government to acknowledge Tsilhqot'in rights and title during consultation. What is perhaps most notably about this decision is that the judge founded his assessment of the existence of Aboriginal title in part on the idea of the "cultural security and continuity" of the Aboriginal community claiming title and referred to not only the economic component of Aboriginal title but also its essential cultural aspects.27 His decision suggests that accommodation of Aboriginal title (claimed or proven) must also have significant economic and cultural components, enabling the Aboriginal community to ensure its ability to derive "cultural security and continuity" from the relevant lands.28 The "cultural security and continuity" approach to determining Aboriginal title stands in contrast with the government's proposed "postage stamp" approach,29 which would limit title areas to small, specific tracts of land. The "cultural security and continuity" approach allows for a finding of Aboriginal title to much larger, related or interconnected areas. If this approach survives appeals of this decision,30 it will also suggest a broader focus for consultation and accommodation obligations; i.e., government will have to concern itself with the potential impacts of its decisions and actions and industry development on larger areas rather than specific identified sites that have very restricted boundaries. This approach also implies a need for consultation and accommodation in government consideration of the cumulative impacts of government decisions/actions and industry development on larger areas and impacts on habitat and wildlife diversity in the title area. The potential need for shared or coordinated land-use planning will likely include the same broader considerations. Because environmental assessments are a primary vehicle through which government attempts to consult and accommodate, the "cultural security and continuity" approach has correspondingly important implications for the environmental assessment regimes of both provincial and federal governments. Drawing on the Delgamuukw31 decision, the judge stated: [T]he Crown has a duty to accommodate the participation of Tsilhqot'in people in developing the resources on their title lands. The conferral of fee simple lands for agriculture, and of leases and licences for forestry and mining must reflect the prior occupation of Aboriginal title lands.32 More broadly, the judge observed: "[p]rovincial policies either deny Tsilhqot'in title and rights or steer the resolution of such title into a treaty process that is unacceptable to the [Tsilhqot'in]."33 In a context where the Crown has made no effort to address Aboriginal rights and title, a Crown statement (as found in the AAC) "to the effect that a decision is made 'without prejudice' to Aboriginal title and rights does not demonstrate that title and rights have been taken into account, acknowledged or accommodated."34 The judge noted that the consultations that did occur with the Ministry of Forests: ultimately failed to reach any compromise... largely [because]... there was no accommodation for the forest management proposals made by the Xeni Gwet'in people on behalf of Tsilhqot'in people... there was simply no room to take into account the claims of Tsilhqot'in title and rights.35 The comments regarding title lands generally suggest that province-wide policies and consultation efforts are not enough to satisfy the consultation duty with respect to specific land areas. Consultation related to specifically claimed areas is required. As indicated above, consultation must involve the acknowledgement of Aboriginal title. Because he did not make a declaration of Aboriginal title, the lands are still potentially subject to provincial laws. The assertion of Aboriginal title and rights engaged the test from Haida Nation v. British Columbia (Minister of Forests).36 The judge decided that the claimed Tsilhqot'in title and rights fell on the high end of the scale described in the Haida decision. He summarized: [T]he failure of the Province to recognize and accommodate the claims being advanced for Aboriginal title and rights leads me to conclude that the Province has failed in its obligation to consult with the Tsilhqot'in people... [and, for these and the other reasons expressed above] the Province has failed to justify its infringement of Tsilhqot'in Aboriginal title. “Why Treaties?” [re: modern day treaties], BC Treaty Commission: Under section 35 of the Constitution Act, 1982, aboriginal rights and treaty rights, both existing and those that may be acquired, are recognized and affirmed. The reality we are faced with is that Canadian law says aboriginal land title, and the rights that go along with it, exist whether or not there is a treaty. But without a treaty there is uncertainty about how and where those rights apply. The reason that this issue is being dealt with so late in the day is due in part to the Indian Act’s ban on land claims activity. Not until the 1970s was a First Nation able to ask the Supreme Court of Canada to do what the courts in the United States and New Zealand had done over a century earlier: to rule on the status of aboriginal title as a legal right. 5 6 The Evolution of Aboriginal Calder decision recognizes aboriginal title xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The first of a series of landmark judgments to deal with aboriginal rights was the Supreme Court of Canada’s Calder decision in 1973. In that case, the Nisga’a of northwestern BC argued that the Crown’s underlying title was subject to Nisga’a title to occupy and manage their lands. The decision was a legal turning point. Six of the seven judges confirmed that aboriginal title is “a legal right derived from the Indians’ historic... possession of their tribal lands” and that it existed whether governments recognized it or not. However, the judges then split on whether Nisga’a aboriginal title still existed or had been extinguished by colonial legislation prior to Confederation. Rights in British Columbia The recognition of aboriginal title in Calder as a legal right was sufficient to cause the federal government to establish a land claims process.

However, British Columbia refused to participate. As British Columbia held virtually all Crown land in the province, the land claims process was doomed without the province’s participation. Still the question remained: had aboriginal title been extinguished before British Columbia joined Confederation, or not? Three court decisions since the Calder case have addressed this question. Sparrow decision recognizes aboriginal right to fish xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In the Supreme Court of Canada’s Sparrow decision in 1990, the Court took the same approach as those judges in Calder who said that the Nisga’a still had title. They said that unless legislation had a “clear and plain intention” to extinguish aboriginal rights, it did not have that effect. Applying this test to fisheries legislation, the Court concluded that a century of detailed regulations had not extinguished the Musqueam people’s aboriginal right to fish for food and ceremonial purposes. This case, however, dealt with fishing rights, not rights in land. Delgamuukw decision confirms aboriginal title exists xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Then came the Delgamuukw judgment by the Supreme Court of Canada in December 1997. The decision confirmed that aboriginal title does exist in British Columbia, that it’s a right to the land itself — not just the right to hunt, fish or gather — and that when dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights may be affected. However, there was no decision as to whether the plaintiffs have aboriginal title to the lands they claimed. The court said the issue could not be decided without a new trial. For more information on the Delgamuukw decision, please refer to our brochure The Layperson’s Guide to Delgamuukw The Marshall and Bernard decision sets limits on aboriginal title xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In July 2005, the Supreme Court of Canada handed down its verdict on the Marshall and Bernard appeals. At issue was whether the Mi’kmaq of Nova Scotia and New Brunswick needed prior authorization from provincial authorities to harvest timber. The Mi’kmaq, argued that they had either — or both — a treaty and an aboriginal right to log timber for commercial purposes without permission. The Mi’kmaq based their argument on the terms of a friendship treaty signed with the British in 1760–61, and on a right to log associated with aboriginal title. The court unanimously dismissed the claim to both treaty and aboriginal rights. It found that although the treaty protected the Mi’kmaq rights to sell certain products, including some wood products, this right did not extend to commercial logging. The court said that while rights are not frozen in time, the protected right must be a logical evolution of the activity carried on at the time of treaty- making. Treaties protect traditional activities expressed in a modern way and in a modern context. New and different activities are not protected. The court adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in question. Traditional practices must translate into a modern legal right, and it is the task of the court to consider any proper limitations on the modern exercise of those rights. As with the treaty right, an aboriginal practice cannot be transformed into a different modern right. The court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title. However, the court did not rule out the possibility that nomadic and semi-nomadic peoples could prove aboriginal title. The court also empha- sized that there must be continuity between the persons asserting the modern right and a pre-sovereignty group. Court denies request for declaration of Tsilhqo’tin title xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In Tsilhqo’tin Nation v. British Columbia in the BC Supreme Court, Justice Vickers denied the request for a declaration of aboriginal title and dismissed the claim for damages. The case concerned the claim by the Xeni Gwet’in to aboriginal title to the remote Nemiah Valley northwest of Williams Lake. Justice Vickers, in his non-binding opinion, did find that the Tsilhqo’tin did establish aboriginal title to almost half of the territory they claimed. But he had to dismiss the claim given the all-or-nothing nature of their pleadings. Central among the issues was whether the nature of the use and occupation of the Nemiah Valley by the ancestors of the Xeni Gwet’in at the time the British Crown asserted sovereignty over it was sufficiently regular and exclusive to meet the legal standard for aboriginal title at common law for all or part of the territory claimed by the Xeni Gwet’in. There is no doubt the judgement will have an impact on treaty negotiations. The extent of that impact remains unclear and the full implications may not be known for some time. 11 12 Court denies commercial right to fish salmon xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In Lax Kw’alaams Indian Band v. Canada and BC, in the BC Supreme Court, Madame Justice Satanove ruled the band had not proved an aboriginal right to fish all species within its traditional territory for commercial purposes. The court heard there were no oral histories or historical records containing evidence of large scale, regular trading in fish, other than eulachon. In her ruling, Justice Satanove cited considerable evidence given at trial that showed the Coast Tsimshian did regularly trade in eulachon and eulachon grease. However, given the abundance of salmon on the northwest coast and the ease of catching them, fish were not a commercial trade item. The case is significant because it increases the evidentiary burden on First Nations in establishing an aboriginal right to a commercial fishery. What do these legal decisions really mean? Since the early 1970s, through these and other cases, aboriginal rights have slowly evolved and been defined through the Canadian courts. The courts have confirmed that aboriginal title still exists in BC but they have not indicated where it exists. To resolve this situation the governments

and First Nations have two options: either negotiate land, resource, governance and jurisdiction issues through the treaty process or go to court and have aboriginal rights and title decided on a case-by- case, right-by-right basis. The following two cases provide broad guidelines for the negotiation and definition of aboriginal title in BC. 13 14 Honour of the Crown Haida Nation vs. British Columbia and Taku River Tlingit First Nation vs. British Columbia xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In November 2004, the Supreme Court of Canada established a general framework for the duty to consult and accommodate First Nations in British Columbia. The court ruled in Haida and Taku that government has a duty to consult and possibly accommodate aboriginal interests even where title has not been proven. This duty arises from the need to deal with aboriginal rights in the interim prior to those rights being addressed through a treaty or court decision. Government cannot run roughshod over aboriginal interests. And First Nations do not have a veto over what can be done with land pending final proof of claim. The consultative process must be fair and honourable, but at the end of the day, government is entitled to make decisions even in the absence of consensus. Furthermore, the court put to rest the notion of extinguishment of aboriginal rights and finality in agreements. Instead, the goal of treaty making is to reconcile aboriginal rights with other rights and interests, and that it is not a process to replace or extinguish rights. The courts stated, “Reconciliation is not a final legal remedy in the usual sense.” It said “just settlements” and “honourable agreements” are the expected outcomes. Mikisew Cree First Nation xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In November 2005, the Supreme Court of Canada extended the Crown’s obligation to consult and accommodate aborig- inal interests — established in Haida and Taku — to include existing treaty rights. In Mikisew Cree First Nation v. Canada, the court unanimously ruled that the federal government had not properly consulted the First Nation before approving the construction of a road through traditional lands in Wood Buffalo National Park. The Mikisew Cree argued the road impaired their traditional trapping and fishing rights granted in Treaty 8 (1899). The court stated that governments must consider modern- day tensions between First Nations and governments. The level of consultation required will depend on the potential impact on the rights in question. However, consultation will not always lead to accommodation, and accommodation may or may not result in agreement. This court decision confirms that the overall goal of recon- ciliation between the Crown and First Nations does not end with the signing of a treaty and there is a continuing duty to consult, and perhaps accommodate, in circumstances where treaty rights might be adversely affected. Court rulings suggest First Nations resolve overlaps xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx For First Nations in the advanced stages of treaty making in the BC treaty process, territorial issues and disputes become more clearly apparent through the negotiations over land and resources. BC Supreme Court decisions give First Nations, no mat- ter what the status of their treaty negotiations, compelling reasons to resolve their territorial issues. The court rulings note that where there are competing claims to territory, a prima facie case for aboriginal title may not be established or may be weakened. On the other hand, the court rulings suggest agreements among First Nations strengthen claims to aboriginal title and rights and, ultimately, the ability to conclude treaties. The BC Supreme Court in July 2007 ruled against a First Nation seeking to stop the Huu-ay-aht First Nation treaty ratification vote on the grounds the Maa-nulth First Nations Final Agreement encroached on their land claim. The court noted the balance of convenience rests with the First Nation ratifying a final agreement and the non-derogation language included in treaties is recognition that a final treaty does not limit the claim of another First Nation to land or resources agreed to in the treaty. The BC Supreme Court in Hupacasath First Nation v. British Columbia (Minister of Forests) and Cook v. The Minister of Aboriginal Relations and Reconciliation, 2007 ruled that a prima facie case for aboriginal title may not be established or way be weakened where there are competing claims to territory Aboriginal rights exist in law; > Aboriginal rights are distinct and different from the rights of other Canadians; > They include aboriginal title, which is a unique communally held property right; > Aboriginal rights take priority over the rights of others, subject only to the needs of conservation; > The scope of aboriginal title and rights depends on specific facts relating to the aboriginal group and its historical relationship to the land in question. > The legal and constitutional status of aboriginal people derives not from their race but from the fact they are the descendants of the peoples and governing societies that were resident in North America long before settlers arrived; > Aboriginal rights and title cannot be extinguished by simple legislation because they are protected by the Constitution Act, 1982. > Government has a duty to consult and possibly accommodate aboriginal interests even where title has not been proven; and

-­‐ > Government has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected.

- R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43, 2005 SCC 43 [2005]   This appeal deals with two cases. In Marshall, 35 Mi’kmaq Indians were charged with cutting timber on Crown lands in Nova Scotia without authorization. In Bernard, a Mi’kmaq Indian was charged with unlawful possession of spruce logs he was hauling from the cutting site to the local saw mill. The logs had been cut on Crown lands in

New Brunswick. In both cases, the accused argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title. The trial courts entered convictions which were upheld by the summary conviction courts. The courts of appeal set aside the convictions. A new trial was ordered in Marshall and an acquittal entered in Bernard. Held: The appeals should be allowed and the convictions restored. The cross-appeal in Marshall should be dismissed.