Positive Law • Positivism Law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings’ vs created via nature). Legal positivism and its conception of law as nothing more than the rules and principles (or social facts) that actually regulate a society • Insists on the separation of law and morality focuses on describing laws without reference to justness or legitimacy. Concerned with what is legally valid, not morally valid. Morality can be relative.

(a) Legal Positivism What the law is Re Noble and Wolf Restrictive covenant held valid. Facts: Individual cottage lots contained similar Judge said that he would rather stick to law, written statues, covenants relating to coloured and jews. unwritten or common law decisions, or text etc.; not Tried to rely on the above case to invalidate. speculations Leave the public policy to the politicians. Judge job is to interpret the law and not to create the law based on Held- Disagrees with Drummond Case. The individual belief of what the law ought to be. judge said that leave the concept of public policy for the politicians. Re Drummond case was based on shelter, whereas in this case it was for creation purposes rather than shelter.

Natural Law; Natural law theory: • Laws are those that adhere to certain moral truths, most often of a universal and immutable nature; i.e. law’s legal authority depends upon an external moral standard that holds across all societies. • It views law as existing independently of positive law and constituted by immutable moral truths.

(a) Natural law What laws are? (but with reference to normative criteria [touches on what law ought to be]) Re Drummond Wren A covenant for restriction to sell is void, -

Facts: Held-The judge decides the case on morality and justice WEA bought a lot with the intention to build it and by extending his views beyond the statute and gives way then sell it in order to raise funds. There was a to public policy.. Since Canada is a country of minorities covenant that the land cannot be used or sold to therefore, it is his duty to aid unity. Jews or objectionable nationality. WEA (purchaser) applied to have this covenant invalid

Inclusive positivists advocate that it is conceptually plausible, but not mandatory, that the legal validity or truth of a norm should be dependent on its consistency with moral values or principles. Exclusive positivists hold the opposite. They believe that it is not possible for the legal validity of a norm to even be a function of its consistency with moral values or principles.

Critical Legal Theory: • Realists maintained that all legal rules were indeterminate in the sense that any articulation of a rule was subject to multiple interpretations…. the result would reflect the unstated public policy preferences of the judge. There could reasonable apprehension bias. CLS poses a deep challenge to the liberal belief that law should be certain and neutral

R v R.D.S: Cory J implicitly affirms the insights of CLS scholarship to find that a judge who considered social context in making a decision was not violating the requirement for neutrality. Judge made statement saying that Police have been known to mislead the courts. Crown said this raised reasonable apprehension of bias. Crown appealed to Appeal Court, new trial ordered b/c agreed reasonable apprehension bias

Law and Economic Theory:

• Law and economics theories look at law differently, less grounded in moral theory and more in ideas about efficiency (as opposed to feminism, which deals with producing equality); • Efficiency tends to be defined in terms of an ideal where the welfare of each of the relevant parties 3 can no longer be maximized except at the expense of other parties, referred to as a state of “Pareto optimality.” • This form of analysis was first applied on common law rules developed in private law areas such as torts and contracts.

Feminist Theory: • Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender

(i) Early formalist feminism – the “Persons” case

Early feminism – concerned with seeking women’s formal equality to men.

Edwards v. AG Canada [1930] AC 124, 1 DLR 98 (PC) LORD SANKEY LC: Question: whether the words “qualified persons” in that section include a woman, and consequently whether or women are eligible to be summoned to and become members of the Senate of Canada.

ii) Contemporary Feminism Case of abortion one of most continuous areas of public debate and good start to examine feminist theory in practice.

Three doctors, charged with the offence of procuring a miscarriage contrary to s. 251(1) [criminalizing the procurement of an abortion unless properly authorized by a physician].  The majority of the court found the provision to offend the Charter.  Justice Bertha Wilson, who agreed with the majority in the end result, rendered a separate opinion. Her decision is an example of a modern feminist approach to a public law concern—note how her opinion takes a woman’s point of view, in finding that a woman should not be required to carry a baby to term if she does not wish to.

Required Readings:

Article 1:

Green, Leslie. “Legal Positivism.” In The Stanford Encyclopedia of Philosophy. • “The existence and content of law depends on social facts and not on its merits” • This article is a general but succinct overview of the history and development of positivism since its inception., an issue which has moved to the and forefront of debate among positivists and legal theorists more generally

History, Development and Influence: • Leslie discusses John Austin, author of “Legal Positivism”. Jeremy Bentham is the originator of the positivism theory. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907- 92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. For Hart, the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have.

Sources of LAW • What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists except Kelsen. For others, legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of the highest courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not merely a consequence of it. • Hans Kelsen retains the imperativalists' monism, where to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Therefore as imperatival , the legal system is founded upon rules, which if not followed, there is apenalty. The rules are created by the commanding sovereign, who is not questioned as to their morality to rule • For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed. Of these three “secondary rules,” as Hart calls them, the source-determining rule of recognition is most important

Moral Principles and the Boundaries of Law • The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. • Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity. (It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good. The idea that law might of its very nature be morally problematic does not seem to have occurred to them.) • As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts .

Dwarkin talks about - Who gives them power to make the law - Which law sovereign abide to - Allow the law to have this course, the law is not good if it is forced

4. Law and Its Merits It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified

4.1 The Fallibility Thesis Law should be just, but it may not be; it should promote the common good, but sometimes it doesn't; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Law may have an essentially moral character and yet be morally deficient.

4.2 The Separability Thesis Many other philosophers, encouraged also by the title of Hart's famous essay, “Positivism and the Separation of Law and Morals,” (1958) treat the theory as the denial that there is a necessary connection between law and morality -- they must be in some sense “separable” even if not in fact separate (Coleman, 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law

The same cannot be said of the following necessary connections between law and morality, each of which goes right to the heart of our concept of law: (1) Necessarily, law deals with moral matters. (2) Necessarily, law makes moral claims on its subjects. (3) Necessarily, law is justice-apt. These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on its merits. Each of them contributes to an understanding of the nature of law. The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.

4.3 The Neutrality Thesis Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law's lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law's achieving any of these ideals is that it is not neutral in either its aims or its effects.

Article 2: Reem Bahdi, “Arabs, Muslims, Human Rights, Access to Justice and Institutional Trustworthiness” (2018), 96:1 Canadian Bar Review, 72-119:13 claimants spent between two and 15 years pursuing a human rights claim, most did not secure the remedies they requested and many found their experiences minimized or misunderstood by adjudicators. Canada’s human rights regime may be failing Arab and Muslim communities just when they need it the most. To secure the remedies they requested and many found their experiences minimized or misunderstood by adjudicators. Reem Bhadi asserts (at p. 83), that [s]ocial context helps explain the relationship between identity, perspective and experience—“[s]ometimes, the full contours of a legal question can best (or only) be seen from the perspective of those who are most affected.” Social context, moreover, can help justify systemic remedies.” • Access to Justice Metrics Informed By Voices of Marginalized Community Members, a Canadian Bar Association’s discussion paper based on 13 community consultations with marginalized peoples

7 across Canada, found that members of marginalized groups do not trust the legal system. Another study found that past experiences with the legal system determine attitudes towards the system even when those experiences have nothing to do with the present experience and even when the past legal issues are unconnected with the present one. • Educational institutions can perpetuate Islamophobia.59 In 2015, a Richmond Hill teacher was fired for racist tweets that included comments such as “There is an absolute s***-ton of Muslims at Ikea tonight. Any special occasion?” and “I’m sorry but sharia law is incompatible with my democratic secular nation. You can have it, but keep it over there in backward land.”60A study of “textbook Orientalism” in Ontario revealed that “Muslims were consistently placed in inferior and dependent positions in relation to ‘white folks’ by focusing on their origins in violent and backward societies, their cultural deficits, social ineptitudes, conflicted identities, and low-status jobs.”61 • Nova Scotia Human Rights Commission’s 2013 report documents that Muslims in Nova Scotia are ignored, refused service, provided with slow service, subject to racial slurs or subject to over- surveillance in retail and service settings • Arabs and Muslims are also targeted by their neighbours and random strangers. A 2017 Statistics Canada study of police reported hate crimes found an overall 5% increase in such crimes, and “[m]uch of this increase was a result of more hate crimes targeting Arab or West Asian populations (+33%). • A Quebec study found that job applicants with Arab sounding names are less likely to be called for an interview notwithstanding their skills or qualifications.65 Muslim women face a “triple threat” in the workplace because they experience bias on the basis of religion, gender and sometimes race. • Sixty-seven percent of Canadian Muslims worry about media portrayals of their communities. Professor Yasmin Jiwani found that the Globe and Mail disproportionately reported on the killing of Muslim women by family members as opposed to the “murder of women and domestic violence” by non-Muslim • Arabs and Muslims report racial profiling by border security and airport officials77 and discriminatory treatment, detention, interrogation and fingerprinting by immigration and consular officials. 78 Arabs are also singled out disproportionately for “carding” by police • Disproportionate scrutiny of Arab and Muslim community members reflects and reinforces the belief that Arabs and Muslims are “‘accidental’ citizens who are not ‘real’ Canadians and, hence, can be legitimately treated as different. • Laurence Friedman famously declared, “law is a mirror held up against life, “one would expect the human rights system to receive complaints that reinforce the social science literature and

8 demonstrate that Arabs and Muslims face significant forms of discrimination across a variety of contexts. The 13 legal narratives that form the basis of this study do precisely that; they reinforce the picture of hardship and exclusion painted by the social science literature and provide a glimpse into Arab and Muslim financial disempowerment and social exclusion • Examination of 13 legal narratives from four Canadian jurisdictions between 2002 and 2017 reveals that the Canadian human rights system, precisely when it was needed the most, has fallen short of providing access to justice. Most of the Arab or Muslim human rights claimants did not secure the remedy that they had sought from the legal system despite spending several years pursuing their claims. The reasons advanced to deny the complainants the remedies requested proved faulty in at least half the cases. • Collectively, these cases challenge access to justice theories and strategies that emphasize that cost, complexity or delay constitute the main barriers to accessing justice and reinforce the findings of access to justice scholars who argue that institutional trustworthiness may be the main barrier facing racialized communities in Canada. • The cases also highlight the need for more research about the incentives and disincentives, including institutional trustworthiness, that might shape individual decisions to use the human rights system, and more research about the system’s ability to respond to individual and community harms. 229Ibid at para 171 [emphasis added].

Article 3: Robin Maynard, “Arrested (In)justice: From the streets to the prison” in Policing Black Lives: State Violence in Canada from Slavery to the Present (Fernwood Publishing, 2017) • The author talks about ‘managing’ of black populations in Canada where they are subject to invasive police surveillance that makes it difficult to exist in public space.. The demonization of Black communities that has been continually reinforced by the criminal justice system by age-old associations between Blackness and criminality. In the name of public safety, Canada has abandoned ever-increasing rates of Black populations from state protections.

THE RACIALIZATION OF CRIME • The imposition of forcing Indigenous persons onto reserves, residential schools, confining Indigenous populations onto tiny portions of land and attempting to destroy political sovereignty and traditional relationships to land, to clear the way for settler societies and resource extraction. Indigenous

9 persons now make up a substantial proportion of those held captive in Canada’s jails and prisons: while representing around 5 percent of Canadian society, they make up almost one-quarter of the current total inmate population Canada-wide (Sapers 2015). • In1990s Ontario, popular associations between Black migrants and crime were commonly made by politicians and the police (Henry 1994). Former mayorof Toronto June Rowlands stated in numerous campaign speeches that Blackyouth are responsible for the crime rates and commit more crimes than whites. • A senior police officer Chief McCormack, who stated, “there is a real problem in the Black community” (Henry 1994: 220). • Policing is presented as a race-neutral practice. However, racial profiling has played an important role in creating criminals. The enormous discretion granted to law enforcement in where to seek out crime and to determine who seems suspicious plays a significant role in who becomes a criminal offender • “Profiling is a self-fulfilling prophecy. The more that a group is targeted, the greater the likelihood that criminality will be discovered particularly for those offences that are prevalent in society” (Tanovich 2004: 916). Black youth experienced far more surveillance by police and security guards than white youth, and this over-surveillance may have accounted for almost 60 percent of their over-representation in the criminal justice system. Over-surveillance, not Black proclivity for crime, is the leading factor in the disproportionate arrest of Black youth. Black people are not “more criminal”; they are placed behind bars for crimes that, had they been white, would have been far more likely to have gone unseen and unpunished.

NO FREEDOM TO CIRCULATE: POLICE PROFILING AND THE RESTRICTION OF BLACK MOVEMENT

• Profiling is itself a form of violence, because it infringes on Black people’s ability to move freely and without fear in public space. While the ability to walk freely in public space is something that is taken for granted by most white Canadians, the same cannot be said for people of African descent. A report commissioned by the police chief in Kingston, Ontario, found that people of African descent were three times more likely than whites to be stopped, and that both Black men and Black women faced far higher individual stop rates than white men and women. • Over-surveillance creates for Black subjects a reality in which merely existing is treated as suspect. The intensive targeting of Black folks in public space demonstrates a fundamental disregard for

10 the dignity of Black life.

CANADA’S “WAR ON DRUGS”: DRUG PROHIBITION, BLACK INCARCERATION

War on Drugs” that has been instrumental in placing so many Black communities in captivity within jails and prisons today. Though drug use remained relatively static across race and class at comparable rates to the years preceding Mulroney’s term, the only success of the War on Drugs was to demonize Black life, massively expand Black incarceration and cause irreparable harm to Black communities.

FROM THE STREET TO THE COURTHOUSE Beyond targeted police profiling and violence, this discrimination continues all the way up the courts. For nearly any crime, not only are people of African descent more likely to be arrested, but they are also much more likely to be detained pre-trial, to have restrictive bail conditions and to receive longer sentencing for the same charge. A study that found that pre-trial detention was far higher for Black persons, even with all other factors accounted for. Black persons released on bail are assigned stricter conditions, such as curfews and mandatory supervision. These disparities continue after incarceration. Black prisoners have lower parole grant rates, so are released later in their sentences than other inmates. They also receive fewer temporary absences, and despite being a lower risk of reoffending, are more likely to be held in maximum-security institutions.

THE VIOLENCE OF CAPTIVITY: BLACK LIFE BEHIND BARS • Besides murder by police -the destruction of the body and the ending of life -it is the ultimate deprivation of liberty that can be inflicted by the state. • Jails and prisons are increasingly populated with those who have been deemed disposable: Black and Indigenous communities. While Black people make up 3 percent of the population, they are over 9 percent of prisoners in federal corrections facilities. Black people made up 3.9 percent of Ontario’s population, yet they made up 17.7 percent of Ontario’s correctional facilities. Prisons create isolation $ parents are separated from their children. Prisons are permeated with the same anti-Black racism that operates in the so-called “free” world outside. • Black prisoners have reported experiencing racial discrimination in accessing health services and prison employment” (Sapers 2013). • Black prisoners also continue to experience high rates of violence at the hands of prison staff.

Black (and Indigenous) prisoners face particularly high rates of solitary confinement (Sapers 2013). • Subjecting Black and Indigenous people, as well as people with mental health issues to solitary confinement makes it clear that prison is a site of violence, not one of healing.

AGAINST PRISONS Caging “undesirables” does not actually create a safer or more peaceful society. Prison abolition advocates aim toward societal transformations that would radically address the roots of social ills, including racial, gender and economic inequalities. In a world defined by rampant, growing economic and racial inequality and increasing incarceration rates, we may begin to imagine a society in which Black communities do not rot away inside juvenile detention centres, jails and prison cells.

CONCLUSION The longstanding conflation of Blackness with criminality has not only helped the state devalues Black lives, it has even justified the often-violent deaths of Black community members. Racial profiling and Black incarceration help keep in place a racial hierarchy that has dominated the Canadian landscape for centuries. Despite inspirational and important successes, the climate of anti-Blackness across society and state institutions has remained nearly absolute.

CHAPTER TWO ABORIGINAL RIGHTS AND TITLE

ISSUE:

⮚ Did the defendant have an aboriginal right to?

⮚ Whether the province had the power to extinguish the aboriginal right?

⮚ Whether aboriginal’s right is established under S 35.

⮚ Whether or not restriction is inconsistent with S35(1).

1) Talk little about History of Aboriginals: - 91(24) of the Constitution Act, 1867, “Parliament with exclusive legislative authority over “Indians, and lands reserved for the Indians.” - 35(1) of the Constitution Act, 1982 came into force, recognizing and affirming the existing aboriginal and treaty rights of Aboriginal peoples in Canada.

2) Fiduciary duty – 1763, 1867, Guerin, Sparrow, Rio Tinto– In Fiduciary duty, the beneficiary reposes trust and confidence in honesty, integrity to the fiduciary, protects those who place interest in others from having that trust abused. R v Guerin [1984] established that Aboriginal title was a sui generis right and the Crown had a fiduciary duty to protect it for Aboriginal peoples. As R v Sparrow and Guerin case confirmed, the fiduciary duty arises is 1) an undertaking by alleged fiduciary to act in best interest of beneficiary 2) Defined groups (beneficiaries) are in control of fiduciary control 3) legal or substantial interest of beneficiary stands to be adversely affected.

3) Honour of crown- Canada's Aboriginal peoples were here when Europeans came, and were never conquered. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. It governs treaty making, negotiate reasonably and avoid sharp dealing. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests. The Haida Nation v. British Columbia decision further emphasize the importance of the Crown’s obligation to act honourably when dealing with Indigenous rights and/or title. In Manitoba Metis 13

Federation(MMF), the court went to explain that honour of the crown is not totally distinct from a breach of fiduciary duty. It is a broad obligation that in some circumstances leads to fiduciary duty, and sometimes to other obligations. MMF added an obligation from the honour of the crown to diligently fulfil a treaty.

• Difference between Fiduciary and Honour of Crown (only talk about it they ask about difference between the two) – In MMF case, in order for a fiduciary duty to apply in case of aboriginal people, the specific interest over which the crown takes discretionary control must be uniquely aboriginal. In the Manitoba Act and MMF case, the court held because Metis held land individually, not collectively, the Metis could not have proven Aboriginal title to lands, therefore the Metis could not show a specific interest that was uniquely Aboriginal in nature for fiduciary duty. Hence the Supreme court didn’t find the basis of fiduciary duty but did find a breach of Honor of the Crow dude for lack of diligence and attention in fulfilling the promise of lands through Manitoba Act, and declared the result in favor of Metis. • Duty to consult even when Right is a claim. No need for it to be established. (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal) When there is just a claim (even though without it becoming a right/title), there is still duty to consult. The duty to consult arises when: 1. the Crown has knowledge, actual or constructive, of a potential aboriginal claim or right; 2. the Crown must be contemplating conduct which engages a potential aboriginal right; and 3. there must be the potential that the contemplated conduct may adversely affect an aboriginal claim. 4) Establish a right? Whether it exists or Not?

35 of the Constitution Act 1982: Van Der Peet. 1. Characterization of the right: In this case, the relevant practice for the purposes of the Van Der Peet test is harvesting/fishing/hunting. The record shows that wood was used to full aboriginal community needs for shelter/food/tools/fuel/clothes. Here the right being claimed can therefore be characterized as the right to hunt/fish/harvest 2. Integral Test: in order to be an aboriginal right, an activity must be an element of a practice, custom or tradition, integral (ie sufficiently central) to the distinctive culture of the aboriginal group asserting the right a. Here: Application 3. Continuity: The practice must have developed before “contact”, ie before the arrival of

Europeans in North America. The practices, customs and traditions have continuity with those that existing prior to contact. A practice existing prior to contact can be resumed after an interruption. a. Here: Application b. For Metis people (Only talk about this if there is a discussion about Metis people): R v Powley case. Even though Metis community doesn’t meet the precontact test as they are a community that arose after post-date European contact. We modify certain elements of pre-contact test to reflect the Metis and how its different from Indian claims. Court sets out the rules to determine if an individual meets requirements of Metis people. Also, as per Daniel vs Canada, Metis were granted equal rights as Indian. ● Self-identification ● Ancestral Connection ● Community Acceptance 4. Modernisation (Only talk about this if there is modernisation) The practice could evolve over the years as the result of contact, but a practice that has evolved into modern forms must trace its origins back to the pre- contact period (i.e., bow and arrow by the gun). Now through the Van Der Peet Test, we have established that community has existing aboriginal right to … in the relevant ara.

5) Rights not ABSOLUTE: Now that the right has been established, crown has a fiduciary relationship with respect aboriginals (R v Guerin and Sparrow). Aboriginals acknowledged the sovereignty of British Parliament via acceptance to treaties, and the UK acknowledged the existence of Aboriginals and their cultures, laws, societies. Even though, Aboriginal rights exist, these rights are not absolute, and can be regulated and interfered. Provided, legislative objectives are justified. S35 is outside of the Charter. Thus, Protections under s 35 are not subject to justification under s 1 of the Charter 6) Was the right in question “existing” at the time of the enactment of s.35(1) of the Constitution Act, 1982?

A right can only be extinguished or no longer existing based on Mitchell o Incompatible with crown sovereignty o Surrendered Involuntary o Extinguished prior Sec 35

7) Whether the legislation in question has the effect of interfering meaningful diminution with an existing aboriginal right. a “meaningful diminution” of an Aboriginal right has occurred as the result of any legislation: (1) whether the limitation imposed by the law is unreasonable. (2) (2) whether the law imposes undue hardship on the Aboriginal group; and (3) whether the law denies the Aboriginal group of their preferred means of exercising the Aboriginal right.

HERE: Application If Prima Facie interference is found, the analysis moves to the issue of JUSTIFICATION. 8. Whether Legislation affecting exercise of aboriginal rights is JUSTIFIED? (SPARROW: Test for JUSTIFICATION) Whether Legislation affecting/infringing exercises of aboriginal right/title is justified? The test involves two steps: • STEP 1: Is there a valid legislation objective? (If found, analysis moves to 2nd step) • STEP 2: Whether the crown has fulfilled its fiduciary duty (Special trust relationship and responsibility of the govt.) in dealing with aboriginal people. According to Mary Hurley (Crows Fiduciary), the special relationship and responsibility of the government must be the first consideration in determining whether the government is able to infringe an Aboriginal right via action or legislation • Other Questions that can be asked here: i. Whether there has been little infringement as possible in order to affect the desired result? ii. Whether in a situation of expropriation, fair compensation is available? iii. Whether the aboriginal group in Question has been consulted a. In this case, if they can justify abridging a right, they are under a duty to consult based on the fiduciary relationship: Haida Nation held that the duty to consult and accommodate arises when the “crown has real or constructive knowledge of the existence of an aboriginal or treaty right or a potential aboriginal or treaty right and they contemplate conduct that could adversely impact that right” ● Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. (Rio Tinto Alcan) ● Even if a project already got duty to consult, if there is modification/expansion/change on that project, it results in another duty to consult (Chippewas of the Thames First Nation v Enbridge Pipelines) ● There is no duty to agree; rather, the commitment is to a meaningful process of consultation

● where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. ● When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation

Extinguishment of Aboriginal Rights o Aboriginal rights (including aboriginal title) can be extinguished in 2 ways: o (1) by surrender and (2) by constitutional amendment

CONCLUSION as such, an aboriginal right to can/ cannot be established

A. Required Readings Article 1 Summary of Final Report Reconciliation Commission of Canada, Honoring the Truth, Reconciling for the Future: ● Acknowledge Past and then you can move towards Reconciliation. ● Govts committing cultural genocide seek to destroy political and social institutions, seize land, forcibly transfer populations and restrict their movement, languages are banned, spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value or seized and destroyed, and most important, families are disrupted from passing on their cultural values from one generation to the next. ● Reconciliation has different meanings • With respect to the residential schools, it means coming to terms with the events of the past in a manner that overcomes conflict and establishes a respectful and healthy relationship among people, going forward • To the commission it means establishing and maintaining a mutually respectful relationship b/t Aboriginal and non-Aboriginal peoples in this country • To do that we need to be aware of the past, acknowledge the harm, atone for the causes, and change behaviour

Article 2

John Borrows Commentary: Use this article whenever there is an implementation of law about Aboriginals • Canada is a legally pluralistic state: civil, common and indigenous law each define ways of resolving disputes and organizing society.” • Treaties should be interpreted in ways which recognize indigenous traditions alongside European ones. • Burrows says that Canada should learn from their culture, and think about them and their laws while making any laws • Pre and Post distinction must be removed which laid down as a main requirement to establish the rights of Abr. people

Article 3 Hayden King, UNDRIP’s fundamental flaw 2019 • Eleven and a half years and the only real thing we can say about Canada’s progress is a remarkable ability to find excuses for its lack of implementation. Consider the conflict at the Unis’tot’en Healing Centre and Gitimt’en Camp, where the RCMP served an injunction supporting the construction of a pipeline on Aboriginal title lands amid the resistance of the Wet’suwet’en hereditary leaders. Where is the concept of free, prior and informed consent — so central to UNDRIP — in this case? It is lost in prime ministerial invocations of “the rule of law.” • Answers lie in the evolution of the declaration itself, including the self-serving nature of the community of sovereign states to manipulate UNDRIP in their favour. • In other words, the very process of creating UNDRIP was undertaken unfairly between “sovereign” states and Indigenous groups. • In 1982, the UN extended an invitation to a Working Group on Indigenous Populations (UNWGIP) in the hope of creating a more appropriate legal tool. • The UN declared success in 2007 with the adoption of UNDRIP, which earned the immediate support of 143 countries (Canada was initially not among them). • the preamble of the declaration states “that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.” • It then goes on for 46 articles, espousing rights to define membership and identity, rights to have

18 previous poor treatment redressed and the right to revitalize traditions and cultures. • The declaration affirms Indigenous peoples’ rights to traditional lands; to participate in colonial governments that make decisions that affect them; to revitalize their own governance systems; to free, prior and informed consent; and of course, the right to self-determination. • But the most damaging were changes made to the last article, Article 46. The original text stated, “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations,” while the revised Article 46(1) added “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” • The key addition here puts the state’s interests first and foremost. But the article goes even further, giving states a backdoor out of the declaration by excusing any of the content they disagree with as a threat to “territorial integrity or political unity,” however they choose to define it. While 46(2) encourages limitations on this power, in practice, it has meant states have tremendous interpretive leeway. For instance, upon endorsement of UNDRIP, Australia’s then-Prime Minister Kevin Rudd noted that the government’s concerns with the “free, prior and informed consent” elements of the declaration, primarily Article 20, would be “interpreted in accordance with Article 46 • Nonetheless, this type of politics has also empowered states, and Canada in particular, to champion interpretive rights in the case of UNDRIP. • Canada continues to delay a robust interpretation of any mechanism that promotes free, prior and informed consent, self-determination generally, or Indigenous jurisdiction over Indigenous lands and resources specifically. • The delay in implementation of UNDRIP is the latest test case for reconciliation in Canada • I think we can explain Canada’s resistance to a fulsome implementation of UNDRIP as the result of the nature of international politics privileging the state, and the state defending its own interests against the “threat” of Indigenous self-determination. • Indigenous people, communities and nations continue to advocate, through state legal channels or not, for alternatives. They range from blockades and land reclamations to shared jurisdictions schemes, negotiation, courts, even academic and legal writing to influence movement on these stubborn politics. All reference UNDRIP as a powerful, discursive tool.

Article 5 Naiomi Walqwan Metallic, “A Human Right to Self-Government over First Nations Child and Family

Services and Beyond: Implications of the Caring Society Case.” (2018) 28 Journal of Law and Social Policy 41: https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1337&context=jlsp

• On 26 January 2016, the Canadian Human Rights Tribunal released a watershed decision in First Nations Child and Family Caring Society of Canada et al (FNCFS) v Attorney General (Caring Society), finding that the Department of Indigenous and Northern Affairs’ (INAC) design, management, and control of child welfare services on reserve, along with its funding formulas, cause a number of harms to First Nations children and families that amount to discrimination. • The complaint alleged that Canada, through its INAC or discriminates against • First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management, and control of child welfare services on reserve, along with its funding formulas, cause a number of harms to First Nations children and families that amount to discrimination. • First Nations are entitled to child and family services that meet their cultural, historical, and geographical needs and circumstances, and • such services cannot be assimilative in design or effect—firmly ground an argument that First Nations have a human right to self-government over child and family services. • In determining what the non-discriminatory treatment of First Nations children and families entails, the Tribunal held that the standard of substantive equality requires that First Nations people receive child and family services that meet “their cultural, historical and geographical needs and circumstances.

• Despite the fact that the word “self-government” is never used in the decision, taken to its logical conclusion, the case implies that First Nations have such a right in regards to children and family services. • While there are varying definitions and models of First Nations self-government, its core feature is real decision-making power resting in the hands of Indigenous peoples over matters affecting their day-to-day lives.

• First Nations must exercise meaningful control over the content and delivery of child welfare services in their communities as a matter of human rights law. This is because, in order for child welfare services to meet their cultural, historical, and geographical needs and circumstances as required by the decision, First Nations people must necessarily be the ones to design and control such services.

• This is clear recognition that government programs that attempt to assimilate First Nations people violate Canadian human rights norms. One of the aims of this article is to detail the history of the FNCFS Program and catalogue its problems and the various harms it causes to First Nations people so that the reader has a full appreciation of the extent to which the FNCFS is assimilative and discriminatory.

• This article is in three parts. Part I gives an overview of how the FNCFS Program came to be and how it operates. Part II describes the various problems and harms arising from the FNCFS Program. Finally, Part III considers key findings of the Caring Society decision, how they relate to those harms, and the implications of the Tribunal’s findings.

I. OVERVIEW OF FIRST NATIONS CHILD WELFARE SYSTEM the three key structural features that characterize this system: (A.) jurisdictional neglect; (B.) provincial comparability; and (C.) program devolution.

Jurisdictional Neglect: • Section 91(24) of the Constitution Act, 1867, gives the federal government legislative jurisdiction over “Indians, and Lands reserved for the Indians.” This power enables the federal government to pass laws that would otherwise fall under provincial jurisdiction if they were to apply to non-Indigenous people. Constitution Act, 1867, the provinces have jurisdiction over property and civil rights in the province and over all matters of a local or private nature pursuant to sections 92(13) and (16). A longstanding jurisdictional dispute between the federal government and provinces. neither wanting to assume primary jurisdiction and each claiming the other is responsible. • The result of this has been “jurisdictional neglect”—that is, both the federal and provincial governments play a role in this system, but neither accepts accountability for ensuring First Nations are receiving adequate services, resulting in a diluted responsibility on the part of both governments.

• Section 88 appears to delegate any matters not covered by the Indian Act or its regulations to provincial jurisdiction. If section 88 was intended to be a delegation to the provinces in the area of social services over Indians, it was ineffective because it was done unilaterally.

• Parliament could not force the provinces to extend services to Indians—and spend provincial

21 revenues on them. Most provinces took the position that the federal government had full responsibility to deliver services to First Nations on reserve and were reluctant to extend their child welfare services for that reason. • “The end result is an incredible disparity in the quantity and quality of child welfare programs available to status Indians from one province to another. In some instances, there is disparity within a single province

Provincial Comparability • Funding for services on reserve should reflect what the provinces fund for similar services. • In providing this funding, Canada has consistently maintained it has no constitutional obligation to legislate or provide essential services to First Nations, and its involvement in this area is strictly as a matter of the federal spending power as a matter of good public policy. • substantive standards of service on reserve must reflect those set out in provincial legislation and policy. • In the case of essential services like child welfare and policing, where the provinces have accepted some involvement, provincial legislation applies on reserve directly. • However, in the case of services where provinces have refused involvement, such as in social assistance and education, Canada applies provincial legislation indirectly through incorporation of provincial standards into its policies. • In both cases, provincial standards have been imposed on First Nations without their consent even though, by the early 1960s, the government acknowledged that First Nations’ consent should be obtained

Program Devolution • Program devolution is essentially a downloading process where a program’s operations are shifted to the local level, producing what Rae calls “self-administration or self-management.” a First Nation government or another body authorized by it, gains the ability to deliver the program to the community, using First Nations staff or other employees of its choosing. • INAC introduced a new national funding formula, Directive 20-1, which formalized the mechanisms for program devolution of child welfare services to First Nations child and family service agencies (FNCFS Agencies). 56 FNCFS Agencies typically represent a collective of First Nations. • For other Canadians, the provinces readily assume jurisdiction, pass laws and policies regarding particular services, and fund and employ public servants to deliver these services. By contrast, on reserve,

22 neither Canada nor the provinces want responsibility, but the federal government funds the service, provincial laws define the service, and First Nations and FNCFS Agencies provide the service through program devolution.

II. THE CARING SOCIETY CASE AND THE HARMS OF THE FNCFS PROGRAM

• The Tribunal concluded that the FNCFS Program is discriminatory and called on Canada to “REFORM” 77 its child welfare program. it is important to understand how problems with the FNCFS Program relate to the three structural features highlighted in Part I

A. HARMS ARISING FROM JURISDICTIONAL NEGLECT • This is due to an absence of the normal checks and balances that come with properly regulated government services established through legislation. • Canada has steadfastly refused to legislate in this area. • While Canada could legislate in respect of First Nations child welfare, until very recently it has displayed zero interest in doing so. • The rule of law in Canada requires that governments must publish laws so that individuals know the rules that bind both citizens and government. • The absence of a federal legislative framework for First Nations child welfare has resulted in significant ambiguity around several important standards. • In Caring Society, the Tribunal found that INAC does not know what “culturally appropriate” means and is currently not providing such services. The absence of legislation gave INAC a significant discretion. • Legislation can also provide clear mechanisms for dispute resolution and, consequently, its absence can make access to justice more difficult. Currently, it is difficult for First Nations and FNCFS Agencies to challenge Canada’s decisions on child welfare. • Reporting requirements to dispute resolution. Second, courts are uneasy about intervening when there is no legislative framework underlying a dispute

B. HARMS ARISING FROM PROVINCIAL COMPARABILITY

1. COMPARABILITY TO PROVINCIAL LEGISLATION

• Even where a provincial law may contain some accommodations for First Nations, the fact is many general provincial laws and policies apply to First Nations and these run the risk of being culturally inappropriate. • The purpose of this section is to highlight the problems of the federal government’s choice of provincial comparability as it relates to law-making over services on reserve, including over child welfare, and the harms it causes First Nations.

2. COMPARABILITY TO PROVINCIAL FUNDING ● Based on the Auditor General findings and other significant reports, the Tribunal in Caring Society found that INAC had indeed failed to study and ensure that First Nations receive levels of service comparable to the provinces. ● Based on the Auditor General findings and other significant reports, the Tribunal in Caring Society found that INAC had indeed failed to study and ensure that First Nations receive levels of service comparable to the provinces. ● This would have resulted in annual funding to First Nations being capped at arbitrary numbers, not reflecting population growth, demand for services, or even inflation

C. HARMS ARISING FROM PROGRAM DEVOLUTION • This structural feature creates an immense power imbalance between Canada and First Nations. • Public misconception about program devolution has in fact helped entrench such paternalism by perpetuating stereotypes that First Nations leaders and organizations are either corrupt or incompetent and ultimately responsible for the poverty and social problems in their communities. • Research findings show that such stereotypes have directly impacted public perceptions of FNCFS Agencies. • Although many have lauded the objectives of program devolution as encouraging greater First Nations control, others have argued it was intended as a subtle way to achieve goals similar to those outlined in the White Paper. • She argues that because of underfunding and weak progress towards genuine self-government, program devolution is not functioning as a transitional tool to self-government, but only making matters worse

D. HARMS ARISING FROM THE FNCFS PROGRAM AS A WHOLE • The creation of FNCFS Agencies to make First Nations child welfare services more culturally appropriate. Unfortunately, the hard work of the staff of such Agencies is outmatched by chronic underfunding and significant legal and policy restraints imposed by outside governments.

III. THE CARING SOCIETY DECISION AND ITS IMPLICATIONS A. CONFIRMS CANADA’S RESPONSIBILITY TO FIRST NATIONS • The Tribunal’s ruling is remarkable in being the first decision to hold the federal government fully accountable for the significant role it plays in First Nations child welfare. • Canada argued child welfare was under provincial jurisdiction and the federal government only became involved in child and family services “as a matter of social policy under its spending power”169 and not pursuant to any obligations owing under section 91(24). • These arguments were soundly rejected by the Tribunal, who, in addition to finding that funding in itself can constitute a service under the Act, 170 also found that Canada plays a primary role in child welfare services on reserve. • In support of this finding, the Tribunal referred to the fact that the manner and extent of Canada’s funding significantly shapes the child and family services provided. • The Tribunal noted that Canada provides policy direction and oversight, and also negotiates and administers agreements with First Nations and/or provinces and territories regarding child welfare services. the Tribunal thoroughly dismissed Canada’s attempts to minimize its responsibility and pass it off to the provinces.

B. FINDS SYSTEMS THAT PERPETUATE HISTORIC DISADVANTAGE ENDURED BY ABORIGINAL PEOPLE ARE DISCRIMINATORY • The Tribunal’s decision makes it clear that Canada, in providing services on reserve, cannot perpetuate the historical disadvantage endured by Aboriginal peoples. • In this regard, the Tribunal found strong links between the residential school system and the on- reserve child welfare system. • The Tribunal observed that when residential schools started to close in the 1960s, the extension of child welfare services on reserves came to be seen as its replacement in the eyes of government authorities. • The Tribunal found that the FNCFS Program continues to perpetuate the legacy of residential

25 schools today because Canada’s systemic underfunding of the program creates incentives to remove children from their homes as a first resort rather than as a last resort. • The Tribunal also suggested that the removal of children by child welfare authorities and placement in non-Indigenous homes resembles the residential school system because it also stands to adversely impact First Nations children’s ability to learn their languages and culture, which the Tribunal found are Aboriginal rights that all First Nations children possess. • Finally, the Tribunal also suggested that the child welfare system perpetuates the residential school era because First Nations have little to no control over this system.

C. FINDS COMPARABILITY STANDARD DISCRIMINATORY • While the Tribunal found that the funding of child welfare services was far below and not comparable to similar services in the provinces and territories, it concluded that equality for First Nations requires more than just providing the same level of funding. In this regard, the Tribunal found that INAC’s comparability standard is itself discriminatory. • According to the Tribunal, in order to meet the governing standard of equality, both funding and services on reserve must meet the needs of First Nations children and families and be culturally appropriate. The Tribunal found that INAC’s funding, as it was inadequate. • This finding directly impugns the provincial comparability as discriminatory. It also renders program devolution, to the extent that funding agreements impose comparability on First Nations, discriminatory

IV. CONCLUSION • The provision of child welfare services, like all essential services on reserve, is characterized by three structural features: federal neglect of its responsibility over such services; provincial comparability; and program devolution. • Together, these features wreak serious harms on First Nations people. The imposition of culturally inappropriate provincial child welfare standards on reserve over which First Nations have little to no say. It also involves First Nations and their Agencies being bound to “take it or leave it”. • The Caring Society decision is a powerful indictment of this system. First, it finds that Canada— not the provinces—is primarily responsible for child welfare and must be held accountable for knowingly underfunding services to some of the most vulnerable people in this country, First Nations children. • Second, it finds that child welfare services on reserve have been perpetuating a system

26 reminiscent of the residential school system because First Nations children are being separated from their families, losing language and culture, and “the fate and future of many First Nations children is still being determined by the government.” • Third, it finds the “comparability standard” to be discriminatory because it insists on mirroring provincial standards and funding, instead of promoting programming reflective of First Nations needs and circumstances.

• First Nations have argued that self-government is an inherent Aboriginal right, recognized and affirmed by section 35 of the Constitution Act, 1982 and international law. 216 Now the Caring Society decision also suggests it is a matter of human rights. • While the decision does not speak directly about self-government, this would appear to be the inevitable result of a human rights-compliant approach since the only way for programs to be truly culturally appropriate and meet community needs and circumstances is for them to be designed and controlled by First Nations.

Article 6 Brenda L. Gunn, “Implementing the UN Declaration through Domestic Legislation: A Canadian Example” in UNDRIP Implementation, Comparative Approaches, Indigenous Voices from CANZUS (2020) at p.67:

• Canada was one of the first common law jurisdictions to propose a legislative approach toward implementing the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration/UNDRIP). • Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples,2 was a private member’s bill introduced. The author describes the bill and its history, the importance of the bill and reactions to the bill, and then makes some suggestions for what other jurisdictions may be able to learn from the Canadian experience in this attempt to implement the UN Declaration in Canadian domestic law.

Overview and Significance of Bill C-262 • It was introduced on April 21, 2016. The bill would have had a significant impact in Canada. The bill clarified that the UN Declaration applies in Canadian law because, while the Supreme Court of

Canada jurisprudence is clear that declarations such as the UN Declaration can (and should) be used to interpret domestic laws, including the Constitution, there has been hesitation among lawyers and judges to rely on the UN Declaration in interpreting domestic law — mostly due to the lack of understanding of the role of international law domestically. • While courts may play a role in interpreting the UN Declaration, including consistency of domestic law, interpretation can also occur through general legislative and policy reviews where the necessary amendments are made. Bill C-262 was also an important opportunity for Canada to uphold its international human rights obligations. • Finally, the bill would have played an important role in promoting transparency and accountability. Varied Responses to the Bill • There were many different responses to Bill C-262. Initially, the Trudeau government opposed the bill. • While it is difficult and practically impossible to pinpoint what changed the Liberal government’s position on the bill, it is fair to say that public pressure and support for the bill at least contributed to the shift. • There was significant grassroots support for Bill C-262. There was little public opposition to Bill C-262. In fact, only a couple of the 71 witnesses who were called to testify on Bill C-262 spoke against the bill. • The most vocal opposition came from two legal practitioners, Thomas Isaac and Arends Hoekstra. Isaac and Hoekstra identified several areas of concern, including uncertain language in the preamble as to how the UN Declaration would apply in Canada, the lack of a definition of “Indigenous” compared to the specific definition of “Aboriginal” in the Constitution, that sections 3 and 4 do not provide enough discretion to the government to abrogate and derogate the rights protected in the UN Declaration, and their concern that the bill did not actually set out intended outcomes from the adoption of the UN Declaration. • Isaac and Hoekstra then suggested that “while UNDRIP reflects critical elements of Indigenous rights through a lens of human rights, it was designed as a global benchmark and guide, rather than a specific legal instrument to be directly implemented as law.” • They stated their opinion that “UNDRIP’s focus on free, prior and informed consent appears to be generally unworkable in the Canadian context.” Despite the criticisms described above, there was overwhelming support for Bill C-262, including from Indigenous peoples and organizations, the public,

28 members of the House of Commons and many senators. • Despite this support, several members of the Senate were successful in delaying the passage of the bill. When Parliament adjourned in June 2019, Bill C-262 died. • Despite the ultimate success of these tactics in killing the bill, there are many lessons that can be learned from this experience that may benefit other countries contemplating legislative action to implement the UN Declaration

What We’ve Learned: Considerations for Other Jurisdictions • While Bill C-262 was limited in the steps it would take to implement the UN Declaration, it was a significant step forward. • First, by only stating that the UN Declaration applies in Canada rather than explicitly stating the legislation would fully implement the UN Declaration, the bill was able to garner broad public and political support. • Second, the focus on developing a national action plan, along with periodic reporting on its success, were important aspects to promote transparency and accountability. • Third, the bill provided space for Indigenous peoples and various stakeholders to play an active role in the process of implementing the UN Declaration.

Is S (35) of the CA1867 (Aboriginals) applicable to the Charter? What is the difference in justification standards? • Although there is no express justification requirement or test laid out in s. 35 of the Constitution Act, 1982, the Supreme Court has ruled that aboriginal and treaty rights may be infringed if the infringement is “justified” according to the test laid out in R v Sparrow. • In some senses, this is similar to the justification test in s. 1 of the Charter. For example, in both the Sparrow test and Oakes test the question arises as to whether the legislative objective is sufficiently important. • This is why it might be said to be a distinction without a difference. • However, the justification test in Sparrow and the Oakes test for s. 1 ask different questions. Section 1 asks the question listed in OAKES whereas Sparrow’s justification test asks whether the legislation respects the Honour of the Crown. • Do provincial laws apply directly to “Indians, and lands reserved for Indians” of their own force (i.e., ex proprio vigore)? If so, explain when provincial laws apply directly to “Indians, and lands reserved

29 for Indians” ex proprio vigore. • Provincial laws do apply to “Indians and lands reserved for Indians” ex proprio vigore providing they are validly enacted and do not infringe interjurisdictional immunity of Indians and reserves (i.e. the core of “Indianness”). • They also apply otherwise than ex proprio vigore. Section 88 of the Indian Act incorporates provincial laws of general application and applies them to Indians and reserves in the province. Provincial laws will be incorporated by reference providing they do not infringe a treaty right.

What is FPIC (Free and Informed Prior Consent)? • simply allows indigenous people to have the right of self-determination and self governance in national and local government decision making process over projects concern their lives and resources. • F in FPIC stands for free from manipulation of indigenous by those affected by the project. P stands for Prior which means consent should be taken sufficient ‘PRIOR’ of any activity being commenced. • I stand for Informed that indigenous people receive satisfactory ‘INFORMATION’ on the key points of the project. C stands for CONSENT means a process in which participation and consultation are the central pillars. • FPIC and principles of UNDRIP: Principle of FPIC within international development is most clearly stated in UNDRIP. As per Sarah Morales, FPIC can help braid together the duty to consult and Indigenous legal traditions to achieve the goal of reconciliation. FPIC is required when state action pertains to lands that Indigenous people occupy or use, whether they hold title to that land This is a consequence of their right to self-determination This means the consultation procedure s/b a product of consent To have fully informed consent, Indigenous people should have full and objective disclosure of any projects that might affect them . Proper understanding of FPIC includes the right to say no, at least in some circumstances. UNDRIP, while not yet implemented, stipulates the higher standard of Free, Prior and Informed Consent. It’s conceivable that the Federal Court ruling may not live up to the standards set by the Supreme Court or UNDRIP.

Issues with FPIC (Thomas) - • FPIC is inconsistent with our concept of reconciliation FPIC req’s govts to obtain free and informed consent before beginning any projects not just on lands and territories of Indigenous peoples, but all lands in Canada

• FPIC seems unworkable in the Canadian context particularly when a large project spans through vast territories of land and any single group may object to it and kill the project • Obtaining consent first risks making Canada’s democratic process unworkable and appears to be inconsistent with Federalism • However, if Indigenous govts are able to veto laws and projects regulated by either the Federal or the Provincial, it would create overlapping powers that is inconsistent with the rules of Federalism developed over the last 150 years

B. Required Reading- Re: Aboriginal Rights: Case: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal

• The moment they come to know/understand that there is a potential of an infringement of claim/ right/title, there is duty to consult. When there is just a claim (even though without it becoming a right/title), there is still a duty to consult? • However, after claim is established as a title/right, there is a fiduciary duty to right to consult. When a claim is in the pipeline, there is still a duty to consult.

Chippewas of the Thames First Nation v Enbridge Pipelines • The National Energy Board (NEB), a federal administrative tribunal and regulatory agency, was the final decision maker on an application by Enbridge Pipelines Inc. • for a modification to a pipeline that would reverse the flow of part of the pipeline, increase its capacity, and enable it to carry heavy crude. • The NEB issued notice to Indigenous groups, including the Chippewas of the Thames First Nation (Chippewas), informing them of the project, the NEB’s role, and the NEB’s upcoming hearing process. • The Chippewas were granted funding to participate in the process, and they filed evidence and delivered oral arguments delineating their concerns that the project would increase the risk of pipeline ruptures and spills, which could adversely impact their use of the land. • The NEB approved the project and was satisfied that potentially affected Indigenous groups had received adequate information and had the opportunity to share their views. • The NEB also found that potential project impacts on the rights and interests of Aboriginal groups would likely be minimal and would be appropriately mitigated. A majority of the Federal Court of Appeal

31 dismissed the Chippewas’ appeal.

• The Crown may rely on steps taken by an administrative body to fulfill its duty to consult so long as the agency possesses the statutory powers to do what the duty to consult requires in the particular circumstances, and so long as it is made clear to the affected Indigenous group that the Crown is so relying. • However, if the agency’s statutory powers are insufficient in the circumstances or if the agency does not provide adequate consultation and accommodation, the Crown must provide further avenues for meaningful consultation and accommodation prior to project approval. • Otherwise, a regulatory decision made on the basis of inadequate consultation will not satisfy constitutional standards and should be quashed. • Even taking the strength of the Chippewas’ claim and the seriousness of the potential impact on the claimed rights at their highest, the consultation undertaken in this case was manifestly adequate. • Potentially affected Indigenous groups were given early notice of the NEB’s hearing and were invited to participate in the process. The Chippewas accepted the invitation and appeared before the NEB. • They were aware that the NEB was the final decision maker. Moreover, they understood that no other Crown entity was involved in the process for the purposes of carrying out consultation. The circumstances of this case made it sufficiently clear to the Chippewas that the NEB process was intended to constitute Crown consultation and accommodation. • Notwithstanding the Crown’s failure to provide timely notice that it intended to rely on the NEB’s process to fulfill its duty to consult, its consultation obligation was met.

Mikisew Cree First Nation. v. Canada (Governor General in Council) • In a legislation process, there is no more duty to consult and accommodate. • This is the only limitation of duty of consultation inside the legislation process. This case shows Parliament Supremacy. • This is the main issue with Bill 262. Aboriginals have no right or duty to consult in the legislative process. • Importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege

The Queen v Richard lee Desautel, 2019 BCCA 151

• In October of 2010, Mr. Desautel —a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) in Washington State and a United States (US) citizen hunted a cow elk near Castlegar, British Columbia, • Mr. Desautel challenged the charges on the grounds that he had been exercising his constitutionally protected right to hunt in the traditional territory of his Indigenous community • The Crown, on the other hand, argued that Mr. Desautel’s hunting did not meet one of the central considerations under the “distinctive cultural” test required to be met to assert an Aboriginal right • the trial judge found that there was a “clear and ancient link between the Sinixt and the Arrow Lakes region • applying theVan der Peettest, the trial judge found the evidence pointing to a continuous practice of these traditions both pre- and post-contact meant that the “chain of continuity had not been broken • The Court of Appeal sided with Mr. Desautel and answered yes, upholding the lower courts’ acquittal and becoming the third BC court to reject the Crown’s narrow interpretation of section 35(1).

Article 7 Scott Carrière, “Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada” (January 20, 2020): https://ablawg.ca/wp-content/uploads/2020/01/Blog_SC_Desautel.pdf

• In Desautel, the Court of Appeal upheld the acquittal of Richard Desautel for hunting without a licence contrary to the Wildlife Act, RSBC 1996, c 488. It did so by affirming his section 35 Aboriginal right to hunt in an area in southeastern British Columbia, having satisfied the test for such rights set down by the Supreme Court of Canada in R v Van der Peet • Desautel, however, is an American; he has never lived in British Columbia, nor is he a Canadian citizen. • He is a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) living on the Colville Indian Reserve in Washington.The basis for the rights claim was CCT’s status as successor to the Sinixt, a people whose traditional territory straddled the Canada-US border and who crossed the border frequently even into the 20th century. • The case therefore turned on whether section 35 could apply to non-Canadians and how to reconcile the assertion of sovereignty in the context of modern borders • This article will examine the British Columbia Court of Appeal’s analysis of the interplay of

Canadian sovereignty and Aboriginal rights that arose in Desautel. • It will not attempt to predict how the Supreme Court of Canada may approach the Crown’s appeal, but will reflect on ambiguities not addressed by British Columbia’s top court and how they might play out in Alberta and elsewhere in Canada. • With Sinixt still living outside Canada, however, could their rights over such traditional territory and its use be similarly “extinct”? • The Provincial Court of British Columbia acquitted Desautel at trial, accepting that he had established an Aboriginal right under the test from Van der Peet that was unjustifiably infringed by the application of the Wildlife Act (Desautel at paras 9 – 11 & 17). In so doing, the Provincial Court rejected the notion that a Sinixt right to hunt in the area was extinguished by any of: the 1846 Oregon Treaty • The Supreme Court of British Columbia, however, found the proper interpretation of Aboriginal peoples of Canada was Aboriginal peoples who had occupied what became Canada prior to contact. • The court specifically noted that “it is the pre-contact occupation of the land that gives rise to the rights protected by s. 35

Canadian Sovereignty and the Application of Section 35 • The Court of Appeal found this approach overly formalistic, failing to account for reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown and the Aboriginal perspective. Van der Peet test actually addresses the issue of identifying the necessary connection between the modern and historic collective through the concept of continuity. • In other words, satisfying the Van der Peet test qualifies the relevant indigenous community as an “Aboriginal people of Canada” • Supreme Court stated that section 35 rights “are rights held only by aboriginal members of Canadian society” and that “[section 35] grant[s] special constitutional protection to one part of Canadian society • Once again, the court saw section 35’s Aboriginal people as a part of the broader Canadian public, this time invoking the institution of citizenship. • Section 35, however, is not generally concerned with Aboriginal people of Canada as people per se, but with Aboriginal people as the possessors of rights in Canada (Desautel (SC) • Section 35 merely recognizes (Aboriginal) rights domiciled in what is now Canada; it is essentially agnostic to the identity of the rightsholder.

Incidental Mobility Rights and the Doctrine of Sovereign Incompatibility • The Crown also submitted that in order to determine whether a non-resident has an Aboriginal right within Canada, courts must consider an incidental mobility right or right of access. In particular, the Crown argued that Desautel’s claimed right necessarily implied a right to cross the international border, which is incompatible with Canadian sovereignty • The Court of Appeal, however, declined to take up this argument in a substantive way. The court emphasized that Desautel’s entry into Canada was lawful, and that incidental rights had only been taken up by courts when they were implicated by regulation. • Justice Beverly McLachlin's view was that excluding aspects of an Aboriginal right on this basis placed on its artificial limitations, contrary to the right’s exercise. • The doctrine of continuity confirms that European settlement did not terminate Aboriginal interests arising from historical occupation and use of the land. Aboriginal interests and customary laws are therefore presumed to survive the assertion of sovereignty, absorbed into the common law as rights unless incompatible with the Crown’s assertion of sovereignty, surrendered voluntarily by treaty, or extinguished.

Desautel and Outstanding Issues in Cross-Border Aboriginal Rights • Article III of the Jay Treaty provides: • It is agreed that at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of said Boundary Line freely to pass and re-pass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America • Canada’s position, however, is that the Jay Treaty was abrogated with the outbreak of the War of 1812.

• Article 36: 1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to

35 facilitate the exercise and ensure the implementation of this right. Another factor in in cross-border calculations is the potential impact of adoption of the United Nations Declaration on the Rights of Indigenous Peoples by Canada into law.

Potential Application: The Buffalo Treaty • “Buffalo Treaty” is an agreement meant to “honor, recognize, and revitalize the time immemorial relationship” that signatory groups have with the buffalo, or American Bison, that once roamed vast tracts of North America. • The cultural significance of the buffalo to indigenous groups in the region in both countries. the test from Van der Peet may be a way of giving meaningful expression to agreements like the Buffalo Treaty, which would potentially implicate the international border. • Such an interpretation would promote indigenous autonomy and arguably advance the objectives of UNDRIP Article 36.

Conclusions • The Supreme Court of Canada may be called upon to answer more fundamental questions about the application of the Constitution in Desautel than simply an Aboriginal rights claim. • British Columbia Court of Appeal’s decision applied the present doctrinal framework to answer the underlying question of Desautel’s right to hunt but may have sidestepped the opportunity to clarify elements of Canadian sovereignty that Desautel implicates. • Clarity on sovereignty with respect to Canada’s borders is fundamental to all Canadians, but also represents an opportunity to enhance reconciliation of sovereignty with the integrity of the interests of all Aboriginal peoples of Canada. • British Columbia Court of Appeal’s decision applied the present doctrinal framework to answer the underlying question of Desautel’s right to hunt but may have sidestepped the opportunity to clarify elements of Canadian sovereignty that Desautel implicates. • Clarity on sovereignty with respect to Canada’s borders is fundamental to all Canadians, but also represents an opportunity to enhance reconciliation of sovereignty with the integrity of the interests of all Aboriginal peoples of Canada.

C. Required Readings Re: Aboriginal Title:

Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani- Utenam) • The Innu are First Nations. They have lived in what is now Quebec and Newfoundland and Labrador since long before Europeans arrived. Around 1950, a large mining project started. It spanned both provinces. • The Innu said it was on their traditional territory. They said the mining companies didn’t ask permission to mine there. In 2013, the Innu sued the companies. They said the project prevented them from enjoying and moving around their territory. • The Innu asked for three things. • They asked for the companies to stop work on the project. • They asked the companies to pay them for damages. • And they asked the court to declare they had aboriginal title and other aboriginal rights over their traditional territory. • The Innu sued in Quebec. But they were asking Quebec courts to make a declaration about aboriginal title and rights over their whole traditional territory. Part of it is in Newfoundland and Labrador. • The Government of Newfoundland and Labrador said Quebec courts weren’t allowed to make a declaration affecting Newfoundland and Labrador. • The lower courts said Quebec courts could decide all the issues. • The majority of judges at the Supreme Court agreed with the lower courts. • Courts in a province generally can decide cases within their borders. But they have rules to deal with issues that cross provincial borders. Quebec courts have the power to decide cases where the person being sued (the defendant) lives in Quebec. This is true even if the lawsuit is related to something that happened outside Quebec. • The rules are different if the lawsuit is about property outside Quebec, though. In this case, both mining companies were based in Montreal. This meant the Innu could ask Quebec courts to make them pay damages and to stop mining work • Section 35 of the Constitution specifically recognizes aboriginal and treaty rights. It acknowledges that Indigenous peoples lived in what we now call Canada before Europeans arrived.

• Since aboriginal rights existed before Crown sovereignty, the majority said provincial borders shouldn’t affect those rights. That means groups like the Innu shouldn’t have to fight the same legal battle in courts in different provinces applying the same law. This would lead to more cost and confusion.

Decisions of Québec’s Superior Court and Court of Appeal • According to these courts, the Québec courts have jurisdiction to hear the matter. Specifically, they declined to characterize the action as a “real action” and recognized the sui generis nature of the rights guaranteed under section 35 of the Constitution Act, 1982 to ground the jurisdiction of the Québec courts in accordance with the rules governing private international law in Québec.

Decision of the Supreme Court of Canada • the Supreme Court of Canada found that the Superior Court of Québec had jurisdiction to hear the Innu claims, even those related to land in Newfoundland and Labrador, and, therefore, dismissed the appeal. • The majority then pointed out two fundamental underlying principle Access to justice • s. 35 rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their rights

Honour of the Crown • Moreover, the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35 matters and courts should approach proceedings involving the Crown practically and pragmatically in order to effectively resolve these disputes. • The Crown has an obligation to act honourably within this relationship. This is called “the honour of the Crown.” The majority said the honour of the Crown must always be interpreted in a way that brings us closer to reconciliation

Title 1) Talk little about History: - 91(24) of the Constitution Act, 1867, “Parliament with exclusive legislative authority over “Indians, and lands reserved for the Indians.” - 35(1) of the Constitution Act, 1982 came into force, recognizing and affirming the aboriginal

38 and treaty rights and title of Aboriginal peoples in Canada. 2)History of Titles • The SCC in Calder and Guerin recognized that at common law, aboriginal title survived European settlement and assumption of sovereignty by British Crown, unless surrendered or lawfully extinguished Calder v. British Columbia (Attorney General) [1973] was a landmark case. • Although the court was evenly split on whether or not Aboriginal title continued to exist, it was unanimously agreed that Nisga’a title had existed. This significant agreement would pave the way for addressing Aboriginal title in Canada. • Aboriginal title was recognized by the Royal Proclamation of 1763, which governed British imperial policy for the settlement of British North America • Since 1982, Aboriginal title is protected by s 35, Constitution Act 1982 • Aboriginal title encompasses the right to exclusive use & occupation of land held pursuant to title for a variety of purposes, which must not be irreconcilable w/ the nature of the group’s attachment to the land. 3) Talk about Honour of Crown and Fiduciary Duty. 4) Limits with Titles- ( don’t have to talk about this in exam but a cheat sheet to confirm if it’s a title or not) Delgamuukw, and R vMarshal decision sets limits on aboriginal title. ▪ Unique dimensions of aboriginal title: Aboriginal title is a sui generis interest in land. ▪ 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. ▪ One dimension is INALIENABILITY (lands can’t be transferred sold or surrendered to anyone other than Crown). ▪ Another dimension of aboriginal title is its SOURCE (possession before the assertion of British sovereignty) ▪ A further dimension of aboriginal title is the fact that it is held COMMUNALLY (aboriginal title cannot be held by individual aboriginal persons)

5) Duty to Consult even when Title is in a claim. As the Supreme Court warned in Tsilhqot’in, “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably

infringing.” Duty to consult even when Right is a claim. No need for it to be established. (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal) When is there is just a claim (even though without it being becoming a right/title), there is still duty to consult. The duty to consult arises when: 1. the Crown has knowledge, actual or constructive, of a potential aboriginal claim or right; 2. the Crown must be contemplating conduct which engages a potential aboriginal right; and 3. there must be the potential that the contemplated conduct may adversely affect an aboriginal claim

6) Establish a Title (Delgamuukw v BC and Tsilhqot’in Nation v. British Columbia and Tsilhqot’in Nation v. British Columbia,)

Tsilhqot’in Nation v. British Columbia, • The case clarified the test for proving aboriginal title to land • It clarified the rights associated with title • And it discussed how fed and provincial law apply in situations of proven and claimed aboriginal title

Proof of Aboriginal Title a. Physical Occupancy 6.a.i. Land must have been occupied prior to British assertion of sovereignty in 1763. b. Continuity 6.b.i. If present occupation relied on as proof of pre-sovereignty occupation, it must be sufficiently continuous. c. Exclusive Occupancy 6.c.i. At sovereignty, occupation must have been exclusive (intention and capacity to assert control – i.e., did other groups ask permission to use the land?)

Now through Delgamuukw v BC, we have established that ….. community has existing aboriginal right to … in the relevant area.

7) Titles not ABSOLUTE: Now that the title has been established, crown has a fiduciary relationship with respect aboriginals (R v Guerin and Sparrow). Aboriginals acknowledged the sovereignty of British Parliament via acceptance to treaties, and the UK acknowledged the existence of

Aboriginals and their cultures, laws, societies. Even though, Aboriginal rights and titles exist, these rights and titles are not absolute, and can be regulated and interfered. Provided, legislative objectives are justified. S35 is outside of the Charter. Thus, Protections under s 35 are not subject to justification under s 1 of the Charter

8) Whether the legislation in question has the effect of interfering meaningful diminution with an existing aboriginal right. a “meaningful diminution” of an Aboriginal right has occurred as the result of any legislation:

(1) whether the limitation imposed by the law is unreasonable.

(2) whether the law imposes undue hardship on the Aboriginal group; and

(3) whether the law denies the Aboriginal group of their preferred means of exercising the Aboriginal right.

HERE: Application If Prima Facie interference is found, the analysis moves to the issue of JUSTIFICATION. 9) Infringement of aboriginal title: the test of justification (SPARROW Test and Tsilhqot’in Nation) Crown can override Aboriginal title in the public interest: 1. Crown must have carried out consultation and accommodation. 2. Crown's actions must have been supported by a compelling and substantial objective; and 3. Crown's action must have been consistent with its fiduciary obligation to the Aboriginal body in question; ● Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. (Rio Tinto Alcan) ● Even if a project already got duty to consult, if there is modification/expansion/change on that project, it results in another duty to consult (Chippewas of the Thames First Nation v Enbridge Pipelines) ● There is no duty to agree; rather, the commitment is to a meaningful process of consultation ● where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice.

● When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation

MODERN TREATY MAKING PROCESS - Modern land claims agreements. - It talks about self-governing rights to have their own self-governance. - Example is Nisga Final Agreement and Labrador and Inuit land claim agreement. - Happens on a nation-to-nation basis - Right to self-govern and right to create law and collect taxes - Calder was a landmark case for proving titles before 1982 - Honour of Crown and Fiduciary duty exists.

C: Required Readings Re: Aboriginal Title:

Article 8 Kent McNeil, “The Source, Nature, and Content of the Crown’s Underlying Title to Aboriginal Title Lands”, (2018) 96:2 Canadian Bar Review, 273-293: • The Supreme Court returned to the issue of the Crown’s underlying title in Delgamuukw v British Columbia,32 where Chief Justice Lamer said • Aboriginal title is a burden on the Crown’s underlying title. However, the Crown did not gain this title until it asserted sovereignty over the land in question. Because it does not make sense to speak of a burden on the underlying title before that title existed, aboriginal title crystallized at the time sovereignty was asserted • The Privy Council decided that the Crown had the underlying title to lands within Ontario that were burdened by Aboriginal title prior to the surrender of that title to the Crown by treaty. The province received the beneficial interest in those lands after the surrender as a result of section 109 of the British North America Act, 1867. • It does not give the province any jurisdiction over Aboriginal title lands. the provinces’ underlying title does not carry with its authority to infringe Aboriginal title in the same way as the Crown’s underlying title to fee simple lands does not carry with it any authority to infringe the rights of fee simple owners. • If the provinces have authority to infringe Aboriginal title, it must be legislative authority derived

42 from the division of powers in the Constitution Act, 1867, not from the division of property in that Act. • The Crown’s power to infringe, which the Court in Tsilhqot’in Nation decided pertains to both the federal and provincial Crowns, can come only from the legislative authority conferred on Parliament and the provincial legislatures by sections 91 and 92 of the Constitution Act, 1867. • This means that, before any infringement can justifiably take place, legislation must be enacted that infringes Aboriginal title directly or gives the executive branch the authority to do so. • Of course, infringement in these ways will still not be constitutionally valid unless the Crown is able to justify the infringement in accordance with the Sparrow test, as narrowed by Chief Justice McLachlin’s judgment in Tsilhqot’in Nation, by proving a valid legislative objective, adequate consultation, minimal impairment of Aboriginal title, and compensation in appropriate circumstances. • Parliament alone had the power to extinguish or authorize the extinguishment of Aboriginal title up until section 35 of the Constitution Act, 1982 was enacted. • Since then, even Parliament does not have this power, but Parliament can still infringe or authorize the infringement of Aboriginal title if the Sparrow test for justifiable infringement, as modified by Tsilhqot’in Nation, is met. Prior to Tsilhqot’in Nation, it was unclear whether provincial legislatures could infringe Aboriginal title, but in that decision the Supreme Court concluded that provinces can, provided they are able to justify the infringement. • The power of the federal and provincial governments to infringe Aboriginal title is purely legislative, embedded in sections 91 and 92 of the Constitution Act, 1867.

Tsilhqot’in Nation v. British Columbia, • Tsilqot nation people were nomadic people and used certain lands seasonally, and went away the rest of the year, and gave permission to other tribes to use their land in off season. Tsilqot wanted a claim, however BC didn’t want to give them. • They can claim title as long as they can grant permission to other tribes and that shows they have control. • They can’t sell their lands to anyone other than the crown. • The case clarified the test for proving aboriginal title to land • It clarified the rights associated with the title. • And it discussed how fed and prov law apply in situations of proven and claimed aboriginal title

Daniel vs Canada

Are you aboriginal? Are you in occupation of that land? Do you have the right/title? This case talks about if you are not aboriginal, then you can’t have rights/title. In this case, Metis were granted equal rights as Indian.

Brown v. Canada – • Use this case for aboriginal and school children genocide 1965-1984, thousands (estimated 16,000 in Ontario) of aboriginal children living on reserves were apprehended and removed from their families by prov welfare authorities and placed in non-aboriginal foster homes or were adopted by non-aboriginal families. • the scooped children lost contact with their families, their language, culture and identity Yes, it is development towards aboriginal children by providing them education, but it also has an obligation on the crown to preserve their culture, their ties so they don’t lose their history and heritage. Canada is obliged under s2(2) of the 1965 Agreement to consult each Indian Band before any prov welfare program was extended to a reserve in.

PASTON' Case • A recent judicial review of election results under the Dene Tha’ First Nation custom election code finds that courts should give deference to Indigenous laws and decision-makers when reviewing Indigenous laws enacted as part of the power of self-governance. • InPastion v. Dene Tha’ First Nation, 2018 FC 648, Justice Grammond of the Federal Court, citing Woodward’s own Alan Hanna, found that the Canadian courts have an overall tendency to deny and suppress Indigenous law, especially in the area of community governance • The Pastion decision provides important guidance to courts and other decision-makers about the high level of deference that should be given to Indigenous laws when reviewing the valid exercise of Indigenous legal traditions. • Pastion was an appeal of a recent Dene Tha’ First Nation custom election for Chief. After the votes had been tallied, the incumbent Chief Joe Pastion disputed the results on the basis that the third- place candidate was ineligible and his inclusion on the ballot had detrimentally affected the result. The first-place candidate had unseated Mr. Pastion by 29 votes. The third-place candidate, Mr. Didzena, who was not ordinarily resident on a Dene Tha’ reserve, received 44 votes

• At the Federal Court, Grammond J upheld the Board’s decision and endorsed deference to Indigenous decisionmakers applying Indigenous laws. Because Indigenous decision makers are sensitive to Indigenous experience generally and to the conditions of the particular nation or community involved in a decision. • Justice Grammond upheld the Board’s decision on a standard of reasonableness and reinforced the need to defer to Indigenous decisionmakers, especially Elders, as they are “obviously in a better position than non-Indigenous courts to understand Indigenous legal traditions.” • Canada is obliged under s2(2) of the 1965 Agreement to consult w/ each Indian Band before any prov welfare program was extended to a reserve in.

Required Readings- Re: Aboriginal Treaties • Treaties are an agreement between aboriginal and crown.

R v Marshall; R v Bernard  Aboriginal treaty right: the test - Modern peoples do traditional things in modern ways. - Activity should not be abusive so that the future generation won’t benefit from the same activity. Marshall and Bernard's decision sets limits on aboriginal titles. - The Court adopted strict proof of aboriginal title. - 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. RvMarshal;Rv Bernard • Whether the Mi’kmak people in NS and NB have the right to log on Crown lands for commercial purposes pursuant to treaty. The central issues were whether the Mi’kmaq had satisfied the Delgamuukw tests of exclusive occupation. • The trial courts in each case concluded that exclusive occupation required proof of intensive, regular use of the specific cutting sites and that this had not been established in evidence. • On appeal, the Nova Scotia and the New Brunswick courts of appeal both ruled that these standards were too strict and that there was no need for the appellants to prove regular use of the cutting sites to establish Aboriginal title. • The appeal courts applied what has been described as a “territorial approach” to proof of Aboriginal title. The Appellate Court in Bernard similarly regarded the Aboriginal title claim of the

Mi’kmaq as a claim. • To territory rather than as a claim to specific sites. It was only necessary to show that the Mi’kmaq had occupied an area near the cutting site. • Chief Justice McLachlin, on behalf of the majority, interpreted a stricter standard of occupancy confined to a level equal to that at common law.The Supreme Court said there was no evidence to support a finding of Aboriginal title. If the claim related to Aboriginal title — conferring a right to exclusive use and occupation of land — then it was essential that the pre-sovereignty practice demonstrate some correlation with that right. The Supreme court judge said there was no need to produce evidence of overt acts of exclusion, but that there was a need to show “effective control of the land by the group, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so.

She expressly endorsed the following tests as accurately reflecting the jurisprudence in respect of the burden of proof that must be satisfied to establish Aboriginal title: ➣ in Marshall, the provincial court found that “the line separating sufficient and insufficient occupancy for title is between irregular use of undefined lands on the one hand and the regular use of defined lands on the other”; and ➣ in Bernard, the provincial court judge found that “occasional visits to an area did not establish title; [rather,] there must be evidence of capacity to retain exclusive control”

• Based on these propositions, Chief Justice McLachlin concluded that both trial decisions had correctly ruled that “[i]n each case, they required proof of sufficiently regular and exclusive use of the cutting sites by Mi’kmaq people at the time of assertion of sovereignty.” • As a result, Chief Justice McLachlin adopted the postage stamp approach of the trial court judge. Exclusive occupation required proof of intensive, regular use of the cutting sites and this had not been established in evidence. • In Tsilhqot’in, Chief Justice McLachlin stressed that she had always applied a dual perspective to the question of occupation and exclusivity. As she noted: “In fact, this Court in Marshall; Bernard did not reject a territorial approach but held only...that there must be ‘proof of sufficiently regular and exclusive use’ of the land in question, a requirement established in Delgamuukw.

Extinguishment of Aboriginal Rights (Mitchell vs MNR) 46 o Aboriginal rights (including aboriginal title) can be extinguished in 2 ways: o (1) by surrender and (2) by constitutional amendment

Police and Aboriginals ( if there is question in exam about police trying to remove Aboriginals from protest) Kent Roach’s background paper prepared for the Ipperwash Inquiry emphasizes that the “case for transparent and accountable democratic control and responsibility over policing may be particularly strong [in the case of] police relations with Aboriginal people, because they involve the broader question of whether the government respects Aboriginal rights.” Roach appears to be suggesting that political intervention in policing may be warranted in circumstances where “responsible government” requires it. It should be acknowledged, as noted in Forcese (p. 352), that drawing the line between protecting against undue political interference with police and ensuring political accountability for police activities, is challenging..

CHAPTER THREE

BIJURALISM

1) DEFINITION • As a legacy left by the colonisation of North America by France and Great Britain, Canadian bijuralism is an expression of the coexistence of the civil law and common law legal traditions in Canada. • Canada has maintained its legal duality because, historically, the common law and the civil law have complemented one another. • This broad residuary power over property and civil rights in the province is exercised in Quebec in a civil law environment whereas, elsewhere in Canada, this power is set in a common law environment. Canadian provinces have legislative jurisdiction in all matters relating to property and civil rights. • For federal law to apply within a province or a territory, it must often call on provincial or territorial law, notably in matters relating to property and civil rights. • Unless otherwise provided by law or unless the context excludes recourse to provincial or territorial private law, both the common law and the civil law coexist as authoritative sources of Canadian federal law. • The CL applies to all public law in Canada and to private law everywhere in Canada except Quebec, private law in Quebec is governed by civil law.

2) Harmonization: • Harmonization of federal legislation with the civil law of Quebec has long been an issue. Federal legislation and regulations used to be drafted essentially on the basis of common law. • In 1978, the federal government began drafting its bills and regulations using a team of two drafters, generally a Francophone jurist (usually a civil law drafter) and an Anglophone jurist (usually a common law drafter). • In this way, co-drafting produces a final product that better reflects Canada’s two legal systems. However, the coming into force of the new Civil Code of Quebec on January 1, 1994 resulted in significant changes to the substance and terminology of the civil law, and thus a significant increase in 48 the harmonization work already under way. • The purposes of the harmonization program are: to ensure that the federal legislative corpus adequately reflects the concepts and institutions specific to Quebec civil law; and to ensure that federal legislative amendments take French common law terminology into account. • The harmonization process includes exploration of fields that include statutory interpretation, constitutional law, private law in both the civil law and common law traditions, and comparative law.

2.1 Impact on Legislative - Language: • The bijural nature of the Canadian legal system, along with the obligations that derive from bilingualism, has an unquestionable impact on the drafting of federal legislation. • In that respect, federal legislation needs to speak to Canadian citizens in a language that acknowledges, in both English and French, the common law and civil law legal traditions. • Questions on CONFLICT BETWEEN ENGLISH AND FRENCH LANGUAGES federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. • Federal legislation must not only be bilingual, but also bijural

 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 • 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.

2.2 Complimentary Principle (Grimmard vs Canada) • Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

• As a result, when a federal enactment is applied in Quebec, it is clear that civil law, not common law, is to complement the federal enactment in property and civil law matters. • Similarly, of course, common law is the suppletive law to federal legislation in the other provinces and territories. • Where a federal law is silent, the civil law enjoys complimentary and federal courts endeavour to achieve harmonization. Private and Public law are complimentary.

• St Hillaire vs Canada was also another case where in Quebec both laws were supplementing each other and are in harmony with each other. The case reaffirmed the principles of complimentary or provincial private law in the interpretation of federal law.

INTERNATIONAL LAW IN DOMESTIC? (two cases to be used) Two main sources: 1) Treaties, i.e., agreements between states; Persuasive in nature The treaty must undergo a process of “transformation”, whereby the treaty is implemented, generally by means of legislation in the relevant Canadian legislature, for it to form part of Canada’s domestic law. 2) international custom, also known as customary international law, which requires the existence of a general practice of states that is accompanied by a belief by states that they are bound by that practice as a legal obligation (known as opinio juris). customary international law is simply “adopted” as part of Canadian law and does not require legislative implementation. Question: Advantages about Canada’s approach re: international law: Answer :Democratic participation in the international law-making process Keeps in check separation of powers (i.e. Prevents executive from “law making”) Question: How does domestic law interact with international law? The answer depends on the source of international law: treaty or customary law? Answer Treaties are not binding- Dualist Customary Law- Are binding – Monist – Can only be overruled by a statute

International Treaties • Dualism: Canada has a dualist tradition – an international treaty has no direct effect in domestic law until domestic legislation passed to transform or implement the law into Canadian law by an act of

Parliament (if a federal matter) or prov Legislatures (if a prov matter) • On one level this is a sensible philosophy b/c it provides a check against the executive who may want to short-circuit parliament by signing a treaty which would have direct effect if Canada were a monist system • Therefore, Canada insists that its treaties be transformed into domestic federal law by an Act of Parliament • One of the dilemmas with the dualist tradition occurs when parliament and prov legislature decide not to implement the treaties. this will result in Canada not complying with its international obligations • Conversely, they can pass legislation, but they have very little say in those acts. Basically, they will just be adding a stamp of approval onto a treaty that had been concluded by the federal executive branch

International Customary Law • Once a rule becomes recognized as customary law, it is automatically part of Canadian CL In this regard, Canada is a monist rather than a dualist jurisdiction But, like the rest of CL, it can always be displaced by statute • There are issues with incorporating customary international law 1 When legislature passes future laws that displace customary internal law, then Canada will be in violation of its international obligations 2 o Since customary law becomes part of the CL, its existence is determined by the courts exclusively – no input by Canadian political branches 3 o The final issue raised is that since customary laws are sometimes uncertain, courts asked to apply them

• Unclear what SCC’s position is re: customary international law: There is no unequivocal statement on whether custom is part of Canadian law or not. The SCC decisions in Spraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in Canada. • The two decisions permit the inference that custom merely helps inform a contextual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more.

Stare Decisis • Doctrine of stare decisis means that lower courts are bound to apply the law laid out by higher courts. The doctrine operates both horizontally and vertically. • The doctrine requires courts to follow their own previous decisions is known as “horizontal” precedent, or horizon stare decisis. • The doctrine that requires courts to follow the decisions of the appellate courts over them is known as “vertical” precedent. • Vertical Precedence: A court engages in vertical stare decisis when it applies precedent from a higher court. Any decision made by a higher level of court in the same jurisdiction of the Supreme court is binding in nature. • Horizontal stare decisis refers to a court adhering to its own precedent. Decisions of the same level or lower level of courts are persuasive in nature.

ADVANTAGES AND DISADVANTAGES OF PRECEDENT (Two articles below) Advantages/benefits: (i) Aids in the stability and coherence of the law, making it more predictable • (ii) Provides fairness in decision making; (iii) • Promotes efficiency and eliminates sources of error (such as judicial bias); (iv) Fulfills a symbolic role by recognizing the relationship between courts and the legislature. • (v) Provides some certainty (liberty to decide each case as you think right without any regard to principles laid down in previous cases would result in uncertainty of law); • (vi) Possibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (talk about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive)

Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) + Perpetuation of errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay people can’t access it); (iii) Slowness in growth (the system depends on litigation for rules to emerge); (iv) Easy to distinguish (give case example); (v) Also some intellectual uncertainty (as the law is in constant evolution)

Carter vs Canada: Facts:

• Is a case about a couple charged after accompanying the wife’s mother who suffered from ALS to Switzerland to have a physician-assisted death The author talks how recent case law has affected stare decisis and the vertical convention of precedent. Doctrine of stare decisis means that lower courts are bound to apply the law laid out by higher courts • Based on Carter vs Canada, Trial courts can reconsider settled rulings when: 1. New legal issue is raised; and 2. Where there is a change in circumstances that fundamentally shifts the parameters of the debate • The court Held that both conditions were met in the trial court of Carter • Conclusion - On one hand, we have the Supreme Court of Canada taking a stricter view that some would like to the vertical convention of precedent, particularly the precedential value of ‘authoritative obiter’ from that court

EQUITY • It is an older type of court which uses a combination of Natural Law and Critical Legal Theories. Equity courts over the years are replaced by the Common Law Courts. Equity allows you to bend the law (not break the law) to point that it is reasonable. It moulds the strict laws according to the situation. Cases – • Royal Brunei Airlines v Tan

Hongkon v Reid 1 Stability, consistency, and protection of reliance interests are all important institutional values promoted by the doctrine of stare decisis.

Article 1 • Marie-Claude Gervais and Marie-France Seguin, “Some thoughts on Bijuralism in Canada and the World” (2001) Department of Justice Canada http://payequityreview.gc.ca/eng/rp-pr/csj- sjc/harmonization/hfl-hlf/b2-f2/bf2.pdf - • The author talks Coexistence of the Two Legal Traditions in Canada • Mixed law is where the law derives from different legal systems and result from the cumulative application, or from the interaction, of techniques belong to both systems “bijuralism” and “mixed law” do not describe the same thing • bijuralism” does not necessary mean that the two legal systems interact

• Canada is Bijural b/c civil law is the CL of Quebec and CL in the rest of the country • However federal law in Canada is mixed law since its development, interpretation and application are based on the CL of each province, including Quebec • In Canada the two legal systems coexist in two ways: at times they influence each other, at other times, they interact. • Talks about two parts. • Interactions b/t the Two Legal Traditions: • • The division of powers b/t fed and prov govts has provided for a complementarity b/t the law of the provinces and federal law • Provinces have the exclusive authority over property and civil rights on the provinces. • Forms of Coexistence of the Two Legal Traditions in Canada. bijuralism” does not necessary mean that the two legal systems interact. Canada is Bijural b/c civil law is the CL of Quebec and CL in the rest of the country. However federal law in Canada is mixed law since its development, interpretation and application are based on the CL of each province, including Quebec. • Rules, concepts or institutions may influence the drafting, notions and institutions of the other • In Canada the two legal systems coexist in two ways: at times they influence each other, at other times, they interact. • It concludes that because of the interaction of rules originating from different sources, the department of Justice Canada adopted the Policy on Legislative Bijuralism and implemented a program to help harmonize federal law with the Civil law of Quebec. • The author believes in bijuralism and its advantages as demonstrated by the recent work it has undertaken

GRIMMARD vs Canada • The taxpayer was a doctor who worked as a medical assessor with the workers' compensation administrative tribunal eventually known as the Commission des lésions professionnelles (Que.). The Minister of National Revenue reassessed the taxpayer on the basis that his relationship with the Commission constituted a contract of employment rather than a contract for services. • As a result, deductions for expenses such as rent, office expenses, travel, and telephone, computer and stationery costs were disallowed. The taxpayer appealed. • The Tax Court of Canada dismissed the appeal. The taxpayer appealed. • The Federal Court of Appeal dismissed the appeal

• The Tax Court of Canada, applying Quebec Civil Law as a supplement to federal law, as required under s. 8.1 of the Interpretation Act (Can.), affirmed that the relationship was a contract of employment.

Key points to be learnt from the case are; • principle of complementarity of Quebec civil law to federal law • This allowed for different treatment of Canadian litigants under federal legislation • In this case TCC was correct in relying on the Civil Code • While the two systems take a different approach to characterizing the nature of the contract of employment and the contract for services, there is no antinomy b/t the principles of Quebec civil law and the CL criteria on this question.

Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 • Lawyer working for the Church, and representatives of the Church of Scientology held a press conference on the courthouse steps in Toronto read from and commented upon allegations in a notice of motion by Scientology, intending to commence criminal contempt proceedings against a Crown Attorney, Casey Hill. • The motion alleged Hill had misled a judge and had breached orders sealing certain documents belonging to Scientology. • The allegations against Hill were found to be completely untrue and without foundation. • Hill launched a lawsuit for damages against the appellants. Both appellants were found jointly liable for general damages of 300,000 and Scientology alone was liable for aggravated damages of C$500,000 and punitive damages of C$800,000. • Was the common law of defamation valid in light of the Canadian Charter of Rights and Freedoms and whether the jury's award of damages could stand? • There is an important distinction between Charter rights and Charter values; we cannot extend the Charter past its application set forth in the s. 32 interpretation. • The respondent's action for damages does not constitute government action within the meaning of section 32 of Charter. As per section 32 of the Charter, an action for damages for a breach of Charter rights is a public law action directed against the state for which the state is primarily liable. Sec 32 doesn’t apply here as this is a private dispute. • The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment

55 status. • The interests of freedom of expression vs. reputation must be balanced. • Reputation is an integral and fundamentally important aspect of every individual; it exists for everyone quite apart from employment. • The appellants impugned the character, competence and integrity of the respondent himself, and not that of the government. -a private litigant cannot allege that the common law violates Charter right because such 'rights' do not exist in the absence of government action; the most they can do is argue that the common law is inconsistent with Charter values. • The party alleging a challenge must prove (1) that there is an inconsistency between common law and Charter values; and (2) when balanced, the common law should be modified. • The Court found that the common law of defamation obeys the underlying values of the Charter and as such, there is no need to change it. The Charter will only be applicable to the extent that the common law is found to be inconsistent with the Charter • The Charter does not apply to the common law where it is invoked in reference to a purely private dispute.

Debra Parks Precedent Unbound? Contemporary Approaches to Precedent in Canada • Author talks about • General principle of Stare decisis • However, lower courts can move away from stare decisis based on • Based on Bedford test • Sec 7 of Prostitution Reference. Judge was permitted to revisit the s. 7 issue given the significant changes in the law and the very different basis of the section 7 argument in the Prostitution Reference. • Case of Carter vs Canada and compare that to Rodriquez vs RC (Assisted suicide in Carter was allowed but not in the times of Rodriguez) Carter vs Canada: Facts: • Carter v Canada (AG) (Carter SCC) is a case about a couple charged after accompanying the wife’s mother who suffered from ALS to Switzerland to have a physician-assisted death The author talks how recent case law has affected stare decisis and the vertical convention of precedent. Doctrine of stare decisis means that lower courts are bound to apply the law laid out by higher courts

• Based on Carter vs Canada, Trial courts can reconsider settled rulings when: • 1. New legal issue is raised; and • 2. Where there is a change in circumstances that fundamentally shifts the parameters of the debate Held that both conditions were met in the trial court of Carter 56

Conclusion - On one hand, we have the Supreme Court of Canada taking a stricter view that some would like to the vertical convention of precedent, particularly the precedential value of ‘authoritative obiter’ from that court

Stability, consistency, and protection of reliance interests are all important institutional values promoted by the doctrine of stare decisis

TAN VS Canada • How does immigration status affect a person’s ability to file a complaint with the Canadian Human Rights Commission? • Mr. Tan was serving a life sentence in Canada for second degree murder when he filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the basis of his religion. The citizen of Malaysia and former temporary resident of Canada had been brought back to Canada from Belgium pursuant to the Extradition Act. • He was also the subject of a deportation order that would be enforced upon completion of his sentence. • The appellant challenged the finding by the Canadian Human Rights Commission that as a person with “no immigration status, he was not lawfully present in Canada”.] As a result, the Commission had concluded that it lacked jurisdiction under the Canadian Human Rights Act (CHRA) to consider Mr. Tan’s complaint. • The Honourable Mr. Justice Rennie, writing for the majority in Tan, began his decision by considering Forrest v. Canada (Attorney General),[3] a 2006 Federal Court of Appeal case which held that the Commission lacked jurisdiction to hear complaints from individuals without immigration status. • Forrest found that it was the role of the Minister of Citizenship and Immigration to determine a person’s status. In Tan, the majority also interpreted “lawfully present in Canada” and “status of an individual”, terms which appear in the CHRA. • Notably, the majority found that “Forrest FCA was wrongly decided and ought no longer to be followed”. • The correct approach, in the majority’s view, is for the Commission to first attempt to answer the question of whether or not the complainant is lawfully present on their own. • Justice Rennie cautions that the advice of the Minister – be it the Minister of Justice, Minister of Citizenship and Immigration or Minister of Public Safety and Emergency Preparedness, or anyone else

– is only one factor to consider amongst myriad “other relevant factors” • Mr. Tan’s entry into Canada was “lawful as it was authorized under the Extradition Act”, concluded the majority.[8] Furthermore, Mr. Tan was “lawfully present in Canada” when the alleged discrimination occurred and so the Commission ought to consider the complaint. • The majority expressly distinguishes Mr. Tan’s case from that of an individual on immigration detention, or a person whose refugee claim or pre-removal risk assessment was rejected.

Article 2 Catherine Valcke, “Quebec Civil Law and Canadian Federalism” (1996) 21 Yale J. of International Law, 67-121: https://pdfs.semanticscholar.org/628f/ac137bb28dd8f340623479421a81d71b550 • The sphere of provincial competence over matters of private law, purportedly institutionalized as autonomous and exclusive, turned out to be secondary and restricted. • Given the many areas of private law designated as exclusively federal, the frequent exercise of concurrent federal powers, and the additional limitations later imposed by the Charter, it is fair to conclude that the provinces have been left with little effective power over private law within their territories. • The autonomy of all ten Canadian provinces has been curtailed. Nonetheless, Quebec has lost more than the others. While most of these developments have applied to all provinces indiscriminately, a few have uniquely affected Quebec. Moreover, even ostensibly pan-Canadian developments were bound to affect Quebec more severely and detrimentally. Beyond provincial autonomy, the preservation of Quebec's distinct juridical identity is at stake. • Among the various problems arising from Quebec's uncomfortable position in the larger context of Canadian federalism, none has proven more irksome than the administration and implementation of Quebec civil law by non civil judicial institutions. • Federal and provincial jurisdictions have concurred with respect to the creation, administration, and powers of Canadian judicial institutions, the English structure of provincial courts (including those of Quebec), and the institution of the Supreme Court of Canada as the final judicial instance to hear appeals from all provinces. Without question, this consensus has stood in the way of Quebec's preserving its civil law heritage.

Article 3

Lionel Smith, “Equity is Not a Single Thing” (2018): • Equity is not a set of rules but a state of mind. That is another way, perhaps, of saying that Equity is not a single thing. The author defines and characterizes Equity with no single purpose, approach, philosophy or norm. • What is characteristic about Equity is a unique manner comprehending the juridical nature of some obligations, which grew out of Equity’s regulation of uses and trusts. • In short, what Equity does is to create new, primary obligations in order to give effect to a relationship in which one party is bound to act for and on behalf of another. • The result is a much more robust protection for the beneficiary of such a relationship than would be given by attempting to define the primary obligations in advance, leaving the beneficiary to claim compensation for loss caused by breach. • The author talks fundamentally differently about Equity, as compared to the common law. Author said there were two crucial differences. One was that in the context of fiduciary relationships, Equity systematically inquires into a person’s reasons for acting, whereas in the common law this is almost always immaterial. Equity’s willingness to investigate reasons for action is a crucial and distinctive feature of Equity. • The other crucial difference is that in the context of obligations relating to the benefit of property, Equity has always been willing to impose those obligations on perfect strangers who never agreed to be bound by them. A crucial and distinctive feature of Equity is its willingness to impose certain obligations on people who never agreed to be burdened by them.

BAKER vs Canada • Mavis Baker is a citizen of Jamaica who entered Canada as a visitor in August of 1981 and has remained in Canada since then. • She never received permanent resident status but supported herself illegally as a live-in domestic worker for 11 years. • She has had four children (who are all Canadian citizens) while living in Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in 1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms. Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. • She applied for welfare at that time. Ms. Baker applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate

59 considerations, pursuant to s. 114(2) of the Immigration Act. • The response to this request was contained in a letter dated April 18, 1994 and signed by Immigration Officer M. Caden, stating that a decision had been made that there were insufficient humanitarian and compassionate grounds to warrant processing Ms. • Baker’s application for permanent residence within Canada. This letter contained no reasons for the decision. • Simpson J. delivered oral reasons dismissing the appellant’s judicial review application. She held that since there were no reasons given by Officer Caden for his decision, no affidavit was provided, and no reasons were required, she would assume, in the absence of evidence to the contrary, that he acted in good faith and made a decision based on correct principles. She rejected the appellant’s argument that the statement in Officer Lorenz’s notes that Ms.Baker would be a strain on the welfare system and was not supported by the evidence, holding that it was reasonable to conclude from the reports provided that Ms. Baker would not be able to return to work. She rejected the appellant’s argument that the Convention on the Rights of the Child mandated that the appellant’s interests be given priority in s. 114(2) decisions, holding that the Convention did not apply to this situation, and was not part of domestic law. • She also held that the evidence showed the children were a significant factor in the decision- making process. • International treaties and conventions are not part of Canadian law unless they have been implemented by statute. As per the judge, they 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. • 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. • L’Heureux-Dube: International treaties and conventions are not part of Canadian law unless they have been implemented by statute. The Convention has not been implemented by Parliament, and therefore its provisions have no direct effect on Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. • Iacobucci 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. • In Baker, the Court held that the values reflected in international human rights law may help

60 inform the contextual approach to statutory interpretation and judicial review

• After the Baker decision, there appears to be a trend towards treating all international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and persuasive, but not determinative (this comes implicitly from the decision, not explicitly)

De Guzman v Canada • Ms G which Canada is a signatory, and which protect the right of families to live together and the best interests of children. However, non-binding international norms should not be given the same interpretive weight, but should be regarded as no more than persuasive and contextual. that Parliament intended them to be used as persuasive and contextual factors in the interpretation and application of the IRPA, and not as determinative. Moreover, of these non-binding instruments, not all will necessarily be equally persuasive.

Article 4 Gib Van Ert, "Canada" in Sloss and Jinks (eds.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge University Press, 2009) • If asked whether Canadian courts enforce treaties binding on the state at international law, most judges and lawyers would say no. However, a proper and accurate account of treaty enforcement in Canadian courts must account for rec’d doctrines while also considering the contemporary practices of Canada’s judicial, legislative and executive branches of govt • If looked at in this manner, Canadian courts do indeed play an increasingly important role in enforcing the state’s treaty obligations, though largely through such indirect means as interpretive presumptions and implementing legislation

Conclusion: • As Canadian law currently stands, treaties can only be subject to judicial interpretation and enforcement in certain circumstances. These circumstances can be difficult to describe, and one hesitates to generalize at the risk of suggesting artificial or unnecessary exclusion.It is clear, however, that Canadian courts are not international courts and will not determine legal disputes b/t states occurring purely on the international plane

Reference re Supreme Court Act • Every person, even prime minister of the country, is subject to the constitution. Because all his power derives from the constitution. Everyone is equal before the law, even the prime minister of the country. • Justice Nadon was a current judge of the Federal Court and was not a current member of the Quebec bar but he had previously been a member of that bar for over 10 years. • Section 5 describes the eligibility of supreme court judge. • Section 6 describes the eligibility of supreme court judges representing Quebec (3 of 9 must come from Quebec). In this case, the judge didn’t meet the requirements of section 6 as he was not a current member of the Quebec bar. • Parliament passed amendments through section 5.1 and s6.1 to make the Judge Nadon meet the requirements of the supreme court judge. • Constitutional Amendments to the composition of the court must be made through the s41 unanimity amending procedure. • For this reason, the court held that s5.1 was valid b/c there was no amendment, it was simply a restatement of the current law, however s6.1 was invalid b/c it amendment the composition of the supreme court.

Article 5 Claire L'Heureux-Dube, “The Dissenting Opinion: Voice of the Future?” Osgoode Hall Law Journal 38.3 (2000): 495-517. • A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. • When not necessarily referring to a legal decision, this can also be referred to as a minority report. • Madame Justice L'Heureux-Dub explores the history and the role of dissenting opinions in Canadian law. She argues that dissents contribute to the development of the law through their prophetic potential. • As per the author’s view, the Canadian and American experiences show that dissenting opinions in decisions having major significance for civil society, or raising novel questions of law, allow the law to adapt to society's new values and realities.

• This adaptation occurs gradually, through judges' explorations and explanations of various possible approaches to a single problem, in tandem with the efforts of present and future legal minds. Dissents tend to strengthen the legitimacy of judicial institutions by reinforcing judicial impartiality and collegiality and by enhancing the coherence of judicial decisions. • In constitutional law, dissenting opinions may play a particularly useful role with respect to human rights issues, for example, as dissents tend to facilitate the development of a rich jurisprudence capable of evolution over time. • Dissenting opinions will not always contribute to the law in a significant way. • They often become obsolete the instant they are published, since lower courts generally cite only the majority opinion, given that dissenting opinions are generally of little precedential value. Sometimes, however, dissenting opinions retain their full force and are ultimately transformed into fundamental legal principles that might never have seen the light of day if dissenting opinions had been prohibited. Indeed, within this very uncertainty lies one of the most persuasive justifications of all for allowing dissents: by permitting dissenting opinions, we ensure that the seeds of innovation are not crushed under the weight of majority opinion, even before they are able to take root in the spirit of the law.

CHAPTER FOUR, FIVE AND SIX

BENEFITS / DISADVANTAGES OF UNWRITTEN CONSTITUTIONAL PRINCIPLES List the unwritten principles. Reference re Secession of Quebec case confirmed that the Constitution contains unwritten principles • 1) federalism; 2) democracy; 3) constitutionalism and the rule of law; 4) protection of minority rights Positives include: (1) These are fundamental concepts about which everyone can agree, so it makes sense that they will affect judicial decision making (even the highest court of India has recognized almost identical unwritten principles, with the addition of one more); (2) Problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive definition for our system of government. (3) They are only resorted to when the express wording of the Constitution is insufficient to solve a problem (which is a valuable limit on the doctrine, and prevents it from being used inappropriately); (4) We are used to unwritten legal principles (that’s what our common law system is built on)

Negatives include: (1) By swaying away from written text, we get into a realm of uncertainty, ambiguity, can’t find rules as a lawyer. (2) they are so broad that they can be found to apply to any issue. (3) To recognize these principles can be seen as an unauthorized judicial expansion of their power in the constitutional sphere. (1) A written constitution promotes certainty and predictability.

Six Principles Underpinning Public Law

A – The Principle of the Rule of Law ((Roncarelli v Duplessis), Imperial Tobacco, Re Manitoba Language Rights

1 The rule of law must mean two things: 2 1) the law is supreme over officials of the govt as well as private individuals, and thereby preclusive of the influence of arbitrary power… 3 2) the rule of law req’s the creation and maintenance of an actual order of positive laws which preserve and embodies the more general principle of normative order

• The rule of law, on the other hand requires that all govt action must comply with the law, including the constitution • All state officials are subject to legal order and to the same legal obligations as citizens (Roncarelli v Duplessis) • The rule of law and constitutionalism are similar concepts • Quebec Secession Reference – “the constitutionalism principle req’s that all govt action comply w/ the Constitution. The rule of law principle req’s that all govt action m/ comply w/ the law, including the Constitution” • Therefore, the rule of law is broader than constitutionalism and is a necessary prerequisite. British Columbia v Imperial Tobacco is a case example of Rule of Law.

B) The Principle of Constitutional Supremacy (R v Therens and Hunter v Southam Inc) R v Therens • Respondent lost control of his motor vehicle and it collided with a tree. A police officer demanded the respondent provide samples of his breath for analysis pursuant to s. 235(1) of the Criminal Code. • Respondent accompanied the officer to the police station, complied with the demand, and was subsequently charged with driving a motor vehicle while having an excessive blood alcohol level contrary to s. 236(1) of the Code. • At trial, respondent's counsel objected to the admission of the certificate of analysis and applied, pursuant to s. 24 of the Charter, (page 614) for its exclusion on the ground that he had been denied the right, guaranteed by s. 10(b) of the Charter, to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay.

CONSTITUTION IS SUPREME Hunter v Southam Inc • Hunter v Southam Case Acting under the authority of s10 of the Combines Investigation Act, the director of the Investigation of the Combines Branch authorized several civil servants to enter the offices of Southam Inc in Edmonton. • The company claimed that subsections 1 and 3 of s10 of that Act were incompatible with s8 of the Canadian Charter of Rights and Freedoms, which states "Everyone has the right to be secure against unreasonable search or seizure. the Supreme Court came to the conclusion that subsections 10(1) and 10(3) of the Combines Investigation Act are "inconsistent with the Charter and of no force and effect, as much for their failure to specify an appropriate standard for the issuance of warrants as for their designation of an improper arbiter to issue them"

Any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

• The Constitution is the “supreme law of Canada”. As such, this insinuates there is a hierarchy of law. • With s 52(1) of the Constitution Act, 1982, the Canadian system of govt now operates under a principle of constitutional supremacy The Act brought about a transformation of power from Parliamentary supremacy to constitutional supremacy • Difference between Rule of Law and Constitution Supremac • The essence of constitutionalism in Canada is that all govt action must comply with the Constitution • The rule of law principle requires that all govt action must comply w/ the law, including the Constitution

C) Parliamentary Sovereignty -The parliament is supreme and independent of the government and cannot be controlled by other branches. • They are sovereign enough to create any law AUTHERSON Case- The law was not struct down even though the law seem to be a bad law because of parliamentary sovereignty

See also, RvVaid • Subject to the Constitution, the legislative branch of the state is the holder of all legitimate public power.

PARLIAMENTARY PRIVILEGE • The rule that the legislative assembly should have the exclusive right to control the conditions in which that debate takes place is thus of great importance, not only for the autonomy of the legislative body, but to ensure its effective functioning • Parliament itself can conduct hearings on any issue inside the parliament. Parliament has sovereignty in a way that anything that happens inside a parliamentary session is free from judicial interference. • As is the example of Singh vs Canada. In that case, Mr. Singh, a Sikh representative, wanted to bring his kirpan (a weapon that has nexant to Sikh religion) to parliament however he was stopped from taking that kirpan inside the parliament on the basis of security concern inside the parliament. Even though Mr Singh had freedom to religion (section 2a), his charter right infringement was not considered inside the Parliament because of ‘PARLIAMENTARY SOVEREIGNTY’ • Also talk about Rule of Law, that even though everyone is equal before law, in this case, parliament has exception and they have a privilege

D) Federalism. • Both provincial and federal governments work together. There is division and separation of Power between Federal and Provincial through section 91 and 92. • Quebec Reference Case

E) Separation of Power • The separation of powers doctrine refers to the division of governmental functions b/t the legislative, executive and judicial branches of the state • Each branch is defined by its relationship to law: the making of law (legislature); the implementing of law (executive) and the interpreting and applying the law (judiciary) • In Canada, there is no strict separation. • The PM and members of his/her Cabinet, who comprise the executive council “advising” the head

67 of state, are elected members of the legislature. • The Constitution empowers the Governor General to appoint Supreme Court judges. In practice, appointments are made on the advice of the Prime Minister. To support the Prime Minister in this duty, the Minister of Justice compiles a shortlist of candidates with input from the provincial law societies. • Nevertheless, the distinction b/t the legislature, executive and judiciary is important to Canadian law. • It serves two principal purposes: (1) a functional purpose of identifying the institutional homes of the three major forms of public power and (2) a normative purpose of providing general boundaries for the operation of each institution

Constitutional Amendment 5 Amending Procedures: 1) S38 – general amending formula for all amendments not falling w/in the other amending procedures – req’s consent of Parliament and the legislatures of at least 2/3rds of the provinces which contain at least 50% of the Canadian population 2) S41 – unanimity procedure – req’s Parliament and all prov legislatures approval 3) S43 – some-but-not-all- req’s the approval of Parliament and just the prov legislatures affected by the amendment 4) S44 – federal parliament alone – req’s only the federal parliament’s approval with respect to the Senate, HC and the Executive branch subject to s41 and s42 5) S45 – prov legislature

CONSTITUTIONAL CONVENTIONS - WHAT ARE THEY? GIVE SOME EXAMPLES?

a. See book for definition (1) Selecting a governor general: The Queen follows the Canadian PM’s recommendations (based on an “instrument of advice”); in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to exercise their powers with the advice of the Cabinet of their respective government (2) Selecting members for the Senate: the governor general follows advice of the PM (3) The governor general calls Parliament into session on the advice of the PM (i.e., summoning

Parliament) (4) Parliament can be prorogued through a speech by the governor general in the Senate Chamber on the advice of PM. A prorogation is the prerogative of the governor general, acting on the advice of the PM. there has been debate over whether the GG can refuse the PM request to prorogue parliament (5) PM to resign his or her government or seek parliamentary dissolution after a “no confidence” vote by the House (6) Responsible government (and all of its understood “rules”) (7) The individual commanding the confidence of the House of Commons (that is, the majority) is appointed PM (8) Only privy councillors who are in the Cabinet are entitled to exercise the powers of the Privy Council (9) The PM, leader of the Cabinet/government, possess authority to exercise so-called personal prerogatives, e.g., he/she may select people to fill some important appoints that are technically made by the governor general (10) Formal executive bodies are limited to the governor general and lieutenant governors, federal and provincial Cabinets, and the system of governmental (11) Departments and ministries that are overseen by individual ministers, including the civil service

Constitutional Appointment (For Senators) Amendment and the Senate of Canada: The Senate Reform Reference; • In 2012 the Harper govt sought to reform the senate and introduce term limits on appointed senators (appointments of a maximum of 9 years rather than appointment until the age of 75) • And to introduce senate elections • The govt sought to make those changes via section 44, the fed parliament alone • After Quebec raised objections and then several other provinces agreed, a reference was raised to the SCC • Setting term limits for Senators could not be done unilaterally under s44 and abolition of the senate had to be done unanimously under s41

Singh v. Canada (Attorney General), 2000 CanLII 17100 (F.C.A • In the 1985 Singh case, the Supreme Court of Canada declared that the legal guarantees of the Charter of Rights and Freedoms apply to "everyone" physically present in Canada, including foreign

69 asylum seekers. • The court also said refugees have the right to a full oral hearing of their claims, before being either accepted into the country or deported. The decision drastically changed the way refugees are dealt with in Canada. • The seven individuals were allowed to explain their cases in written submissions to those boards. • They were also questioned under oath by an immigration officer. Under the immigration system of the time, however, the Refugee Status Advisory Committee and the Immigration Appeal Board considered and made their decisions in private. • None of the applicants was allowed to make an oral appeal to these adjudication panels, or to hear and reply to the arguments against them. • The Singh case was reviewed by six Supreme Court justices, all of whom allowed the appeal and ordered the Immigration Appeal Board to grant the seven applicants a full oral hearing before reaching a decision on their refugee claims.

Article Alyn James Johnson, “The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada's Unfinished Unwritten Constitutional Principles Project”, 2019 56-4 Alberta Law Review 1077: • Constitutional law is the law that establishes, allocates and limits public power. • In modern times, most major constitutions are written. Canada's constitution is partly written and partly unwritten. • The writings are in several rather than one document. The main documents are theConstitution Act, 1867 and its amendments, and the Constitution Act, 1982. 1. Other parts of Canada's Constitution are unwritten. A critical part of the unwritten constitutional rules are "constitutional principles". 2. Unwritten constitutional principles identified by the Supreme Court include federalism, democracy, constitutionalism and the rule of law, respect for minorities (Quebec Secession Reference,supra), the separation of powers and the independence of the judiciary (Provincial Court Judges Reference,supra) and the sovereignty of Parliament (Babcock v. Canada (Attorney General), • An analysis of several decisions leading up to the Judges Reference and the Secession Reference establish a pattern of reasoning from the abstract to the concrete, from unwritten principle to unwritten rule.

• The author seeks to clarify this uncertainty by suggesting a methodological framework entitled “reasoning from constitutional essentials.

Introduction • The author argues that the significance of the Judges Reference and the Secession Reference is best understood in the context of four prior decisions spanning a period of ten years: (1) Reference re Manitoba Language Rights; 3 (2) OPSEU v. Ontario (Attorney General); 4 (3) New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly); 5 and (4) MacMillan Bloedel Ltd. v. Simpson. In each of these earlier decisions, the Supreme Court employs unwritten constitutional principles to reach dramatic conclusions, including halting the operation of constitutional texts and overruling legislation.

IDENTIFYING A CONSTITUTIONAL METHODOLOGY OPSEU V. ONTARIO (ATTORNEY GENERAL) • The Superior Court judge found that the Ontario government violated the freedom of association rights of five education-sector unions under s.2(d) of the Charter when it failed to bargain with the unions and instead imposed collective agreement terms and conditions through passage of the so-called Putting Students First Act. • The Court found that this infringement of collective bargaining rights could not be saved as a reasonable limit under s.1 of the Charter. • Justice Beetz said, neither a provincial legislature nor Parliament itself can “abrogate this right of discussion and debate”. • Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure. • Legal constraint on legislative power also emanates from unwritten sources, that is, from the “basic structure of our Constitution. the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them

REFERENCE RE MANITOBA LANGUAGE RIGHTS

• The issue in the Manitoba Language Reference was profound: the illegality of virtually all of the

71 enacted laws of the province of Manitoba. • Section 23 of the Manitoba Act, 1870 provides that “[t]he Acts of the Legislature shall be printed and published in both [the English and French] languages.” • The Manitoba legislature, however, had consistently ignored this manner and form requirement and enacted statutes only in English. • Pursuant to the supremacy clause of the Constitution Act, 1982, the offending legislation had to be struck down. It placed the province in an effective “state of emergency,” for there were very few validly enacted laws, and even the central organs of government in many cases had no legal authority to act • The unanimous Supreme Court dealt with this crisis by looking beyond the text. The judges said, • The founders of this nation must have intended that Canada be a society of legal order and normative structure: one governed by rule of law. • While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution. • The unwritten constitutional principle thus gives rise to an unwritten rule, and this rule is then used to counter (or at least temporarily suspend) the express commands of the written texts

NEW BRUNSWICK BROADCASTING CO. V. NOVA SCOTIA (SPEAKER OF THE HOUSE OF ASSEMBLY) • New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) is a leading Supreme Court of Canada decision wherein the court has ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada. • Therefore, the Canadian Charter of Rights and Freedoms do not apply to members of Nova Scotia House of Assembly when they exercise their inherent privileges of refusing strangers from entering the House. • Parliamentary privilege emerges as a “pragmatic” necessity out of the very institutional relationships that define the Canadian Constitution • One could say that the Charter, if applied, would threaten the very functioning of the institutions of democratic government. • Manitoba Language Reference and New Brunswick Broadcasting provide that unwritten rules can trump constitutional texts in appropriate circumstances.

• OPSEU provides that unwritten rules can, again in appropriate circumstances, trump legislative enactments.

MACMILLAN BLOEDEL LTD. V. SIMPSON • A young offender was charged with contempt of court for disobeying an injunction issued by a Superior Court. On appeal, the defence argued that the youth should have been charged in a youth court because the B.C. Young Offenders' Act granted exclusive jurisdiction over contempt of court proceedings involving youth’s you youth court • Does the federal government have the power to grant exclusive jurisdiction to Youth Courts of an offence (contempt of court) that was traditionally within the jurisdiction of superior courts? • There are certain core powers of the Superior Courts that cannot be transferred without constitutional amendment. Contempt of court is one such power that cannot be removed entirely from the Superior Court without violation of the Constitution • MacMillan Bloedel addresses the scope of Parliament’s power to create an inferior tribunal (in this case, a “youth court”), and to invest in such a tribunal with powers traditionally exercised by the superior courts. • In supreme court, the majority found that this could not occur as it would violate the “core jurisdiction” of the courts which emanates from, and is essential to, the unwritten principle of the rule of law. Legislation cannot interfere with the “core jurisdiction” of the courts. • The Supreme Court follows, in each case, a methodology of reasoning from constitutional essentials. The author has chosen to refer to the methodology employed by the Supreme Court as “reasoning from constitutional essentials” rather than “structural argumentation.

THE JUDGES REFERENCE, THE SECESSION REFERENCE, AND THE SUPREME COURT’S THEORY OF THE CONSTITUTION • The Judges Reference and the Secession Reference are the Supreme Court’s most high-profile unwritten principles decisions. With the Judges Reference and the Secession Reference, it becomes possible to speak of a constitutional project involving the recognition and use of unwritten principles.

REFERENCE RE REMUNERATION OF JUDGES OF THE PROVINCIAL COURT OF PRINCE EDWARD ISLAND • 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 majority opinion found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this • It was unconstitutional since it was made by the legislature without recourse to an independent, objective and effective process for determining judicial remuneration. • Since the province has made no submissions on the absence of an independent, effective and objective process to determine judicial salaries, the violation of s. 11(d) is not justified under s. 1 of the Charter. • After the Reference, all provinces had salary commissions. determination of judicial remuneration should respect judicial independence. Courts must be free from political interference through economic manipulation and an independent body such as a judicial compensation commission is required. • Judges Reference are resolved through unwritten principles and in particular through the methodology of reasoning from constitutional essentials. The analysis proceeds through the following propositions. First, the very basic and abstract requirements of a society under law demand that a “constitutional role” be performed by the courts. Second, this rule of law requirement mandates institutional separation. Third, this separation requires “depoliticization.”

REFERENCE RE SECESSION OF QUEBEC • The Supreme Court begins by isolating four unwritten principles inherent to the architecture of the Canadian Constitution that are implicated by the issue of secession • 1) federalism; 2) democracy; 3) constitutionalism and the rule of law; 4) protection of minority rights • From these principles, or more accurately from the dynamic interaction of these principles, 117 the Supreme Court identifies four concrete rules:

1. An expression of the popular will of the citizens of a province to secede is both politically and legally significant and cannot be ignored by the rest of the country. 2. A right to unilateral secession does not follow from such an expression of popular will — there is no “absolute legal entitlement” to secede. 3. An obligation to negotiate, binding on all Canadian governments, does arise from an expression of the will to secede. 4. Such negotiations must be conducted pursuant to the four underlying principles

THE SUPREME COURT’S THEORY OF THE CONSTITUTION • The Supreme Court appears to be uncomfortable with an open acknowledgment of the process of recognizing unwritten rules based on the pragmatic essentials of a democratic constitution and instead places considerable emphasis on the alleged effect of the Preamble. • Three basic propositions can be drawn from these excerpts: 1. Unwritten principles are the source of the entire Canadian Constitution. 2. Authoritative written texts are derived from these principles through a process of formal enactment. 3. Unwritten rules are also derived from these principles through the mechanism of the Preamble.

CONCLUSION: THE SUPREME COURT’S UNFINISHED UNWRITTEN PRINCIPLES PROJECT • In the Judges Reference and the Secession Reference, the Supreme Court goes beyond employing unwritten principles in constitutional analysis and reflects upon the shape of the Constitution in light of the existence of extra-textual sources of authority. • With the theoretical inroads made in the Judges Reference and the Secession Reference, it becomes possible to speak of a conscious unwritten principles project that informs the evolution of the Canadian Constitution. • However, one significant deficiency in the Supreme Court’s theory is the lack of a convincing account of how unwritten rules are actually generated from unwritten principles. While the Preamble is advanced as a mechanism, this proposition raises too many difficulties to be satisfactory. • While the Supreme Court’s unwritten principles project remains incomplete without a clear statement of how unwritten rules are generated from unwritten sources of authority, there is no need to make radical alterations in existing doctrine to close the gap (other than some marginalizing of the Preamble).

• The great achievement of the Supreme Court in all of the decisions considered above is employing legal reasoning from constitutional essentials to respond to threats to our system of government.

CHAPTER FIVE

Parliament and its component

The Monarch and the Governor General • The Queen- The Queen's place a dual role in the Canadian constitutional framework. She is part of the parliament and also holds the power of the executive government. She is also known as Canada’s head of state. The Queen on the advice of the Prime Minister appoints the Governor General to represent her in Canada. • Senate: The senate is the Upper House of Canada's Parliament. Its 105 members are appointed and hold their seats until they are 75 years old. Senators are appointed by the Governor General on the advice of the Prime Minister. • House of Commons: Unlike the senators, members of the House of Commons are elected. The House of commons comprises the parliament, the sovereign (who is represented by the Governor General) and the senate. House of common members are known as Members of parliament (MPs) Article Barnes et al., “Reforming the Senate of Canada: Frequently Asked Questions”, Background Paper, Library of Parliament (2011): • The article talks about how Senators fits in our constitution and what are the constitutional dimensions of Senate reforms. The authors talk about the fact the role of Parliament and provinces in the Senators reform process. • Section 44 allows Parliament to amend the constitution without provincial concurrence in limited situations however Parliament can amend the constitution in relation to Senate on its own with the exception of four matters listed in sector 42. The four matters are 1, The powers of the Senate 2, The method of selecting Senators. 3, The number of members by which a province is entitled to be represented in the Senate 76

4, The residence qualifications of Senators.

CHAPTER SIX

Functions of Parliament Prorogation • A prorogation is the prerogative of the governor general, acting on the advice of the PM. Prorogation abolishes all pending legislation and quashes further committee activity. There has been debate over whether the GG can refuse the PM request to prorogue parliament • This debate started after the “prorogation crises” of 2008 where the PM asked to prorogue Parliament clearly to avoid a vote on non-confidence • The NDP along with the liberals signalled to the GG that they had lost confidence by requesting she deny the request to prorogue • They said they were prepared to form a coalition govt along with the Bloc Quebecois if Conservative govt fell • The GG accepted the PM’s request, and this spurred an academic debate on whether she had acted properly or not.

Duffy v. Senate of Canada • Ontario Court Justice Sally Gomery ruled the Senate's decision to suspend Sen. Mike Duffy is protected by parliamentary privilege — a centuries-old right designed to protect legislators from having to answer to judges for doing their jobs — meaning Duffy can't take the Senate to court over its actions. • His claim against the Senate alleges "an unprecedented abuse of power" when a majority of senators voted to suspend him without pay in November 2013, before any criminal charges had been filed. • The Senate said parliamentary privilege gives it the right to "control its own proceedings," including "disciplinary authority over its members, free from outside interference."

Chagnon v. Syndicat de la fonction publique et parapublique du Québec, • Three security guards employed by the National Assembly of Québec were dismissed by the President of the National Assembly for using their employer’s cameras to observe activities inside nearby 77 hotel rooms. • Their union grieved their dismissals before a labour arbitrator. • The President objected to the grievances on the basis that the decision to dismiss the guards was immune from review because it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the legislative assembly. • The arbitrator concluded that the dismissals were not protected by either parliamentary privilege, or therefore that the grievances could proceed. • The reviewing judge agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers but found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees. • A majority of the Court of Appeal held that the arbitrator had correctly concluded that the dismissals were not protected by parliamentary privilege. • Although the President is entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, parliamentary privilege does not insulate the President’s decision from review under the labour regime to which the guards are subject.

Singh v. Attorney General of Quebec, 2018 • Mr. Singh and Mr. Kaur are practicing Sikhs who wear kirpans, or ceremonial daggers central to their faith, at all times. Because they wouldn’t surrender their kirpans to security guards, they were denied access to the National Assembly on the basis of a provincial law that prohibits dangerous objects, including knives, from the premises. • This law was authorized through parliamentary privilege, which provides an exemption from ordinary law so the legislature can properly discharge its functions. • WhileVaid notes the scope of parliamentary privilege may change over time, depending on necessity, it doesn’t provide a basis for the courts to question that scope. The Court therefore upheld the trial judge’s decision, and the law prohibiting kirpans in the National Assembly remains intact.

CHAPTER SEVEN

The Executive and its Functions Sources of Executive Power Prerogative powers: ● Prerogative powers are those exercisable by the Crown that do not arise from a statutory grant of power to the Crown ● The Crown is restricted to exercising these powers over executive acts ● Therefore, the Crown cannot exercise legislative nor judicial power ● These powers can be overridden by statute ● There has been legal debate over who in the executive can exercise these powers, and whether these powers may be subject to judicial oversight

Statutory powers: • The majority of executive powers originate from authority by the legislature through statute • Parliament cannot delegate to prov legislatures, and vice versa (i.e. inter delegation) • Although there can be indirect inter-delegation, namely where the inter-delegation was to an administrative body, as opposed to the legislature itself (PEI Potato Marketing Board v Willis) Executive Institutions Executive

1. Crown - federal and provincial government

2. PM and cabinet.

3. Public service : Public service - civil servants are politically neutral and continue their employment

3 principles- Ministry responsibility- presiding minister responsible for decisions by civil Political neutrality-section 33 of public service employment- public servants can’t express publicly their personal opinions on policy issues-

Osborne v Canada - there may be some restrictions on their political activities 79

Osborne was public servant employed by Actuarial branch of department. They were elected to be delegates at federal liberal party. They seeked section 33 of ACT v violating the section 2b. Supreme Court ruled in facing of allowing political rights

Fraser- servant’s must be loyal to their government. Fraser repeatedly criticized government policies regarding metrification. Court found him inconsistent with his duties

4.Independent administrative agencies - bodies that age independent from government- bank of Canada. Immigration and refugee board.

Ocean port hotel- OPH got infractions by board of liquor control and licensing branch. Board members are elected on pleasure. Are board members sufficiently independent. Court of appeal agreed that they are not independent. However, Supreme Court reversed the decision of COA. Because procedural fairness, natural justice, measure of independence for admin bodies based on judicial independence can clearly be negated by a statute The statute doesn’t require board members to be impartial. Board members can be appointed ‘at pleasure’. The court affirmed that admin bodies aren’t subject to judicial independence. Also one can interpret it as those affected by the decision of these admin bodies don’t have constitutional right to get independent decision maker.

It rejects extension of Constitution guarantee of independence Enjoyed by courts to the BC liquor Appeal board. Tribunals lack Constitutional distinction from executive. Question? whether the approach to determining the degree of independence required of tribunals that is currently taken on judicial review applications serves to fulfil the goals of providing administrative justice and instilling public confidence in the administrative justice system. There are two ways that empirical information about tribunal workings could be incorporated into our legal thinking on tribunal independence and impartiality. One is through the development of statutes that reflect the daily, real world aspects of tribunal functioning that affect, foster and encourage tribunal independence and impartiality. This would guide the courts to consider these factors in determining whether a tribunal exhibits a sufficient amount of independence and impartiality. Another is for advocates to bring these aspects of tribunal workings before the court so that they can be considered as factors in evaluating independence and impartiality

Crown corporation- where there is strong financial aspect to government service. Free from political influences that mat internet with commercial objection.

6.Enforcement bodies (Police, RCMP) - they exercise their power without direction from political

Rv Campbell-

While the Crown has prerogative powers, and the ministers in particular has discretionary authority in relation to a range of matters defined by statute, the police- including the RCMP -are not subject to political direction. As affirmed in R. v. Campbell, police officers are independent of the executive in relation to their law enforcement functions and not subject to political orders. As affirmed in R. v. Campbell, police officers are

80 independent of the executive in relation to their law enforcement functions and not subject to political orders. Also unless legislation provides immunity for illegal action, illegal action by police may result in abuse of power. Police officer selling narcotics to accused ave charging them, did they breach law.

Municipalities- Shell Canada - municipalities Authority can Only be exercised in relation to activities that falls within municipal purposes, this was extraterritorial and Spraytech- town Hudson restricted use of pesticides within its boundaries. The decision reassurance municipalities to protect health and environment within in bounds of local power

Spraytech Case – Municipalities Power The Town passed a by-law restricting pesticides.Company argues it is beyond their authority since they do not have a clear power given to them to regulate pesticides and the by-law is discriminatory since it only affects their business. Issue ● Does the town have the authority to pass the by-law and if they do have the authority, does it conflict with federal or provincial legislation? ● Decision ● Yes, and does not conflict. ● Reasons ● A municipality may only act on powers given to it. There are “general powers” though – it is impossible to foresee all the powers that are necessary to the statutory equipment of its creatures. ● The legislation provides that the municipality may protect the “general welfare” of its citizens and their heath. ● This is within the Town limits and is intended to protect residents from health risks.

Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) • On July 11, the Progressive Conservative government in Ontario announced the end to the province's Electric and Hydrogen Vehicle Incentive Program, which provided for rebates up to $14,000 on purchases of electric cars. • The government gave a two-month extension for orders that had already been placed under two conditions: 81

• Eligible vehicles that have been delivered to consumers, registered, and plated on or before July 11 will receive the incentive. • Inventory that dealers have on lots or orders made by dealerships with manufacturers on or before July 11, will also be honoured for the incentive provided that the vehicle is delivered to consumers, registered, and plated by September 10. • The statutory discretion under which this transition program (“Transition Program”) had been created was contained largely in s. 118(2) of the Public Transportation and Highway Improvement Act.2 That section reads: ● 118 (2) On and after January 1, 1997, the Minister may, out of money appropriated therefor by the Legislature and upon such conditions as he or she considers advisable, provide grants, loans and other financial assistance to any person…for specific projects that the Minister considers to be of provincial significance. ● The government’s announcement said that letters would be sent to car dealers to provide further details about the transition program. Tesla, however, received a different letter. That letter explained that the Transition Program would only apply to orders for cars made by a “franchised automobile dealership” and not where vehicles “have been ordered directly from an original manufacturer by a consumer”. Because Tesla Motors Canada is not a franchised business, it was excluded by the terms of this letter. Tesla was the only dealer to receive the letter.3 Approximately 600 customers were affected. ● Believing it had been singled out for “vilification”, Tesla applied for judicial review. ● Tesla argued that the government “unlawfully targeted it without any rational basis ● Myers said the government singled out Tesla without providing the company “any opportunity to be heard or any fair process whatsoever.” ● Justice Myers noted that executive government actions exist along a spectrum ranging from “high policy” (e.g. declaring war) which is not justiciable, to more mundane executive decisions which affect “the rights or legitimate expectations of an individual” (e.g. issuing a passport) which are justiciable. In the latter cases, the Court will review the action where it has been taken “for improper reasons or without affording the applicant procedural fairness”.7 ● In this case, no party argued that the subsidies could not be cancelled. This was “high policy”.8 Rather, Tesla’s concern was it that it had been directly targeted in the implementation of that cancellation for improper purposes. ● Justice Myers then focused in on the issue of “improper purpose” and harkened back to a cornerstone case in Canadian administrative law: Roncarelli v Duplessis, [1959] SCR 121. In that case,

82 the Premier of Quebec, Maurice Duplessis, had intervened in a liquor license proceeding in order to deny an applicant a license simply because he was a Jehovah’s Witness. Justice Myers quoted Justice Rand’s decision: ● ● courts will ensure that discretion by public authorities is exercised in accordance with the statutory purposes for which the discretion was created. Extraneous, irrelevant, and collateral considerations should not be permitted to influence a decision maker in the exercise of that discretion ● Ms. Vrinda Vaidyanathan, the Acting Manager of Policy and Programs at the Ministry of Transportation testified on behalf of the government. She stated that the government had extended the subsidy program to protect small to mid-sized dealerships from potential losses. The government was concerned, she claimed, that if dealers had cars on their lots or already on order on July 11, the cancellation of the subsidy would leave the dealers exposed to loss at the hands of the vehicle manufacturers. ● He found that the government’s requirement that dealers be franchised was “not at all related to either protecting small to mid-sized dealers or to protecting dealers who may suffer losses to manufacturers.” In reality, “all it seems to do is to include in the transition all dealerships in Ontario…except Tesla.” This exercise of the discretion was unrelated to the achievement of the supposed policy goal. ● He found that the exercise of the discretion was “not related to any of the conservationist purposes of the electric car subsidy program.” Nor was it “related to any purpose under the Public Transportation and Highway Improvement Act.”14 ● Finally, Tesla was denied basic procedural fairness. Despite being singled out, Tesla was not asked to provide any facts that might have been relevant to the government’s decision making. Indeed, as noted above, Tesla’s attempts to contact the Ministry had come to naught.15 Consequently, the Minister’s exclusion of Tesla was set aside.

• Discretionary decisions that impact the rights and reasonable expectations of people and businesses must be connected to the statutory purpose under which the decision is being made. If a Minister makes a decision which affects you personally, that decision cannot be based on irrelevant considerations.

Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761

• The Royal Assent of Bill 5, Better Local Government Act, 2018, SO 2018, c. 11 (“Bill 5”) on August 14, 2018 changed the structure of the upcoming October 22, 2018 municipal elections by replacing the existing 47-ward structure with a 25-ward structure in Toronto. • The Superior Court of Justice held that Bill 5 infringed the freedom of expression rights of both candidates and voters under s 2(b) of the Canadian Charter of Rights and Freedoms(the “Charter”). • With respect to candidates, the application judge found that Bill 5 substantially interfered with their ability to effectively communicate political messages to voters, and that it undermined the fair and equitable election process. With respect to voters, the application judge found that Bill 5 infringed s 2(b) by interfering with their right to vote. • the Court of Appeal expressed doubt that the Superior Court’s interpretation and application of the Charter was correct, noting that “unfairness alone does not establish a Charter breach.” As a result of the stay, the provisions of Bill 5 continued in force and the Toronto election was conducted on the basis of 25 wards.

Article

Lorne Sossin, “The Puzzle of Independence and Parliamentary Democracy in the Common Law World” in Susan Rose-Ackerman et al, Comparative Administrative Law, 2nd ed., (Edward Elgar Publishing, 2017) • This chapter explores the relationship between partisanship and independence in administrative law in Canada and the common law world. • Partisanship is endemic to Parliamentary democracy. A key tension in the development of administrative law in Canada, and elsewhere in the common law world, is how to ensure executive decision-making is sufficiently independent –that is, not unduly influenced or undermined by partisan considerations. • Independence can be eroded by partisanship from the executive branch in at least two distinct (and interrelated) ways – - first, through the exercise of executive discretion over appointments - and second, through the attempts directly or indirectly to influence the actions of executive agencies. - There are few legal constraints which preclude the executive from acting on partisan motivations

84 but strong cultural aversions to this in the common law world. Here the author explores what happens when those cultural aversions cease to be effective. - While judicial independence is said to require “depoliticization,” courts have recognized that there is little they can do to compel governments to abide by this direction .The Supreme Court of Canada has applied the framework of judicial independence to the common law requirement of independence before administrative decision-makers – this framework consists of (i) security of tenure. (ii) financial independence and (iii) administrative autonomy.

Partisanship & Appointments to the Supreme Court of Canada The Supreme Court Act provides some minimum threshold requirements intended to guide appointments to that Court

5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province. 6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

• While Justice Marc Nadon grew up in Quebec and practiced for more than 10 years there, at the time of his appointment he was based outside Quebec as a Federal Court Judge (not one of the Courts listed in s.6), thus giving rise to a measure of ambiguity as to his eligibility. • In a remarkable rebuke, the Supreme Court held Justice Nadon was ineligible for an appointment to the Supreme Court (Justice Michael Moldaver dissenting)

B. The Case of the Canadian Nuclear Safety Commission • Unlike public servants, the members of these independent bodies owe no duty of loyalty to the government, but at the same time they are funded by taxpayers, and bound by a variety of governmental standards and policies. Ocean Port • The Court in Ocean Port was clear that administrative tribunals and executive agencies do not enjoy the constitutionally protected status of judicial independence. Unlike judges, who have security of

85 tenure (until the age of 75), appointees to administrative bodies typically serve fixed terms as set out in their governing statutes. • Ocean Port further stands for the proposition that such statutes may even provide for the appointment of adjudicators “at pleasure.”

Canadian Nuclear Safety Commission • Natural Resources Minister Gary Lunn removed Linda Keen as the head of the Canadian Nuclear Safety Commission (CNSC), Lunn justified Keen’s removal on the basis that she had lost the government’s confidence over the way she handled the shutdown of the medical isotope-producing nuclear reactor in Chalk River, Ontario • The closure of the 50-year-old reactor, which generates two thirds of the radioisotopes used around the world in medical procedures and tests, resulted in a worldwide shortage of the crucial medical material. • The Government resolved the medical crisis by using the legitimate instrument always available to government to interfere with independent administrative agencies: Parliament. An emergency measure passed through the House of Commons that ordered the reactor to be restarted for a 120- day run as of December 16. • Linda challenged the Government’s action in court. In April of 2009, the Federal Court dismissed her claim, based largely on the Ocean Port argument, that the position of President of the CNSC is an “at pleasure” appointment. • The decision to remove Linda Keen in the middle of her second five-year term as President threatened the independence of the CNSC and the integrity of independent administrative agencies and quasi-judicial tribunals generally. • The government’s decision to reverse the CNSC’s shutdown order in relation to Chalk River can be justified on public health grounds – however, the decision to remove Linda Keen was not necessary to ensure a steady supply of medical isotopes Following Keen’s removal, an assistant deputy minister within the Ministry of Industry was named interim president. The fact that the Government chose a civil servant who emerged from a culture of loyalty to the government of the day was telling.

• Parliament’s reopening of the facility was not political interference but rather an exercise in Parliamentary sovereignty. The Minister’s subsequent attack on Ms. Keen, however, 20 like Prime Minister Harper’s attack on the credibility of Chief Justice McLachlin, appeared rooted more in

86 partisanship than public policy. In a final, ironic twist, the Chalk River facility was once again shut down indefinitely in May of 2009 due to safety concerns This time, the decision was not the CNSC’s but the operational managers of the facility. Following this development, the Government indicated that perhaps it was time for Canada to move out of the field of medical isotopes altogether.

The Legal and Political Context of Independence in the Common Law World

• While judicial independence enjoys robust and constitutionally grounded protection, it applies only to judges post-appointment and does not constrain the executive in exercising its discretion to appoint judges. • In Ocean Port, the Court affirmed that administrative bodies are not subject to the protections of judicial independence as a matter of constitutional law. • Or, more accurately, those who are affected by the decisions of these administrative bodies do not have a constitutional right to an independent decision-maker, as do litigants who have their disputes adjudicated in courts.

Bell Canada v. Canadian Telephone Employees Assn.

• The Canadian Telephone Employees Association (CTEA), the Communications, Energy and Paper workers Union of Canada (CEP), and Femmes Action filed complaints with the Canadian Human Rights Commission against Bell Canada. • These organizations alleged that Bell, in contravention of the Canadian Human Rights Act, was paying female employees less than male employees who were performing work of equal value. • The Canadian Human Rights Commission referred the complaints to the Canadian Human Rights Tribunal for adjudication. Bell alleged that the Tribunal’s independence and impartiality were compromised The Federal Court of Appeal ruled in 2001 that the Tribunal could proceed with investigating the original complaints, despite Bell’s continued protestations. - The standard of independence applicable to it is therefore lower than that of a court.

- The Tribunal’s function in implementing government policy must be kept in mind when assessing whether it is impartial.

- The requirement of independence pertains to the structure of tribunals and the relationship between their members and members of other branches of government. It does not have to do with independence of thought. - The power to extend members’ appointments does not undermine the independence of Tribunal members.

CUPE v. Ontario

• (Minister of Labour Since 1965, Ontario’s hospitals, nursing homes and their employees have been required to resolve disputes over collective agreements by compulsory arbitration under the Hospital Labour Disputes Arbitration Act (“HLDAA”). • In early 1998, the Minister appointed four retired judges to chair several arbitration boards. • They were not appointed by mutual agreement nor were they on the “agreed”. The unions were not consulted. • The President of the Ontario Federation of Labour complained to the Minister that the understanding about a return to the status quo had been breached without consultation. • The unions objected that retired judges lack expertise, experience, tenure and independence from government. • The Supreme Court of Canada quashed a provincial Labour Minister’s politically charged appointment of retired judges to serve as chairs of hospital labour arbitration boards, but for significantly different reasons than the Ontario Court of Appeal. • Whereas the Ontario Court of Appeal had viewed the case principally as one about independence (and concluded the retired judges, lacked the necessary protections of independence). • The Supreme Court viewed the case principally as one about the scope of executive discretion. The majority of the Supreme Court held that the appointment of the retired judges was “patently unreasonable.”

Conclusion • The recent confrontations show that there is little to compel Canadian governments to constrain their discretion to make appointments based on partisan motivations or to respect the independence of administrative agencies.

• While the rule of law and principles of fairness and impartiality may require independence, only political leadership can sustain it. Political leadership created independent agencies in order to ensure that important areas of the public interest (such as regulating nuclear power) are served by people and institutions that are not caught up in partisan politics. • As the experience of other common law jurisdictions makes clear, it takes political leadership and a systemic approach to administrative justice to safeguard the boundaries of partisanship and ensure that administrative bodies are free to operate without fear of political repercussions for decisions that do not accord with the policies of particular governments

CHAPTER EIGHT

Hierarchy/Levels of courts Provincially 1) Provincial/Territorial courts 2) Provincial superior courts 3) Provincial court of appeal 4) Supreme Court

Hierarchy/Levels of courts Federal 1) Federal courts 2) Federal court of appeal 3) Supreme Court

The Principle of Judicial Independence ● Judicial independence is a constitutional doctrine, closely tied to the separation of powers. ● Judicial independence ensures that “judges, as arbiters of disputes, are at a complete liberty to decide individual cases on their merits without interference”: Ell v Alberta [2003] 1 SCR 857 at [21] ● Judicial independence also preserves the separation of powers b/w the three branches of our democracy by depoliticizing the relationship between the judiciary and the other two branches. ● “the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely … members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice”: see Re Remuneration of Judges (the “Provincial Judges Reference”) [1997] 3 SCR 3, at [140].

• There are 3 core characteristics and 2 dimensions (i.e. individual and institutional) Valente v The Queen

Security of Tenure: Individual security of tenure means that judges may not be dismissed until the age of retirement except breaches of “good behaviour”, which have been interpreted to include misconduct or disability 90

s99 disuses tenure – a judge can sit until the age of 75 unless he is removed for breach of “good behaviour”. Thus a judge can only be removed from office for a reason relating to his or her capacity to perform his or her judicial duties. The Judges Act establishes the Canadian Judicial Council as the body responsible for investigating complaints about the conduct of federally appointed judges

If the Council concludes that removal of a judge is warranted, it makes a report to the minister of justice, who may introduce a motion before Parliament

The actual authority to recommend removal of a judge is found in s69(3) of the Judges Act

Institutional security of tenure means that, before a judge may be removed for cause, there m/b a judicial inquiry to establish that such cause exists, at which the judge affected m/b afforded the opportunity to be heard

Financial Security Not permissible for judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature; Reductions to judicial remuneration cannot take those salaries below a basic minimum level of remuneration that is required for the office of a judge (see Reference re Remuneration of Judges of the Provincial Court of PEI).

According to Provincial Judges Reference per Lamer CJ: There must be a minimum threshold for lowering remuneration: public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate. This objective would be achieved by setting that body the specific task of issuing a report on the salaries and benefits of judges to the executive and the legislature. Three Requirements Test: a. First and foremost, these commissions must be independent, effective, objective and governed by special process… b. Not permissible for judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature c. There must be a minimum threshold for lowering remuneration: public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate. (Reference re Remuneration of Judges of the Provincial Court of PEI).

3.i.i.1. Administrative Independence • The admin/exce should have no influence and judiciary should be from interference from the admin body (Canada vs Tobiass) • Canada (Minister of Citizenship and Immigration) v. Tobiass 1 arose out of a nationally- publicized incide nt in which a senior official of the Department of Justice Canada met with the Chief Justice of the Federal Court of Canada on 1 March 1996, and expressed concern about the slow movement of three citizenship-revocation proceedings against alleged war criminals. • Over 18 months later, the Supreme Court of Canada concluded that the meeting compromised the appearance of judicial independence. • In the process, the Court established as a matter of constitutional law the lon g-held convention that no government official should discuss a pending c ase with a judge without notice to counsel for the other parties. • The decision constitutes a modest but important precedent in the growing body of case law on judicial independence in Canada. The unanimous reasoning of the Court is clear and direct, an d integrates its h olding into the larger context of judicial independence jurisprudence. • At the same time, the case presents a wonderful opportun ity for analysis by students of judicial politics. • It is possible to observe internecine conflicts within the Federal Court of Canada, and see how judges outside that court view its work. • More important to the welfare of the Canadian courts, however, is that Tobiass shows how much the judiciary as a whole suffers when judges with administrative respon si-bilities do not discharge those responsibilities effectively. Tobiass represents primarily a failure in administration. • When a failure in administration contributes to "a serious affront" to the appearance of judicial independence, it is time to consider h ow to prev ent similar problems from arising in the future

Judges in Canada are appointed, not elected. • In Canada, judicial appointments are made by the federal government or provincial government. • Superior and federal court judges are appointed by federal government, while inferior court judges are appointed by the provincial government.

Federal appointments (not in the Supreme Court of Canada)

• At the federal level, a lawyer who has aspiration to sit as a judge of a Superior Court in a province or territory or of the Federal Court of Appeal, the Federal Court or Tax Court of Canada sends an application to the Commissioner for Federal Judicial Affairs Canada. • The application is considered by a judicial advisory committee in the applicant’s province. • There are 8 members in a committee. Committees considering potential federal appointments send the list to the Minister of Justice, who makes recommendations to Cabinet. Foundations of Canadian Law Notes • Before making those recommendations, the minister may consult with members of the judiciary and the bar. • Final appointments are officially made by the Governor General

Criticisms of the Non-Supreme Court Federal Appointment Process • The appointment process has been criticized • The fact appointments occur without any input from opposing parties or Parliament produces some controversy • This means that the Prime Minister can essentially fill the courts with politically and ideologically like-minded individuals who will advocate the government’s current position. • One must question the true impartiality that these types of judges have •

Changes to Supreme Court Judges appointment system • In 2016 (October), the Liberal government overhauled the judicial appointments system in an effort to recruit a more diverse array of candidates and make the selection process more Supreme Court Appointments • The Supreme Court Act sets out eligibility for the Supreme Court of Canada • Judges of the court are made up of 8 puisne (ordinary judge or a judge of a lesser rank of a particular court) and the Chief Justice • Candidates must have either been a judge of a superior court or a lawyer for at least 10 years in their province’s bar • Appointments are made by the Governor General of Canada on the advice of the Prime Minister • Appointments to the Supreme Court of Canada are subject to the legal requirement that three judges must be appointed from Quebec.

• By convention, the other 6 are appointed from Ontario (3), Western Canada (2), and Atlantic Canada (1). • These appointments are not subject to the procedures described above for the appointment of superior court judges and are made on the basis of a recommendation to cabinet by the Prime Minister. • Recently, this has been augmented through the establishment of an ad hoc advisory committee for each vacancy on the Court; this committee reviews a list of 7 nominees submitted by the federal Minister of Justice, and shortlists three candidates from which the Prime Minister chooses a name for appointment. • In addition, in February 2006 a parliamentary committee was allowed to interview the Prime Minister's selected candidate prior to his appointment.

Provincial appointments • Candidates for provincial courts are screened by a judicial advisory committee established for each province or territory. • Several provinces have created arm’s length committees that make a short list of recommendations. • Committees are often comprised of representatives of the federal and provincial governments, the legal profession, the judiciary and general public. • In Ontario: Judicial Appointments Advisory Committee (JAAC) is made up of 13 members: 7 lay members, 2 judges, 1 member appointed by the Ontario Judicial Council, and 3 from the legal community.

DO YOU THINK THERE NEEDS TO BE A REFORMING OF THE JUDICIAL APPOINTMENT PROCESS? WHY/WHY NOT?: A. Strengths? A number of filters exist before judges are selected; flexibility in appointing allows for ability to tailor bench to needs of society at the time B. Concerns? Political patronage; abundance of discretion; lack of transparency/accountability; the appointment process is simply policy, and cannot be legally enforced, which gives rise to concerns that it may be manipulated in individual rather than societal favour;

C. What should be done? D. Note: discuss both times of federal appointments – non Supreme Court and Supreme Court (and note the unique concerns w/ Supreme Court appointments) E. The Court consists of one Chief Justice, and eight associate judges. The Constitution empowers the Governor General to appoint Supreme Court judges. In practice, appointments are made on the advice of the Prime Minister. To support the Prime Minister in this duty, the Minister of Justice compiles a shortlist of candidates with input from the provincial law societies. F. By tradition and convention, only the Cabinet, a standing committee in the larger council, advises the governor general and this advice is usually expressed exclusively through a consultation with the prime minister. Thus, the provinces and parliament have no formal role in such appointments, sometimes a point of contention.

• In 2006, an interview phase by an ad hoc committee of members of parliament was added. Justice Marshall Rothstein became the first justice to undergo the new process. • The prime minister still has the final say on who becomes the candidate that is recommended to the governor general for appointment to the court

Reflections: On Judicial Diversity and Judicial Independence • Author explores the relationship between diversity and judicial independence and suggest that judicial independence may require a bench which “reasonably reflects the diversity of the society which it serves” • In the Canadian context, judicial independence - the “cornerstone of democracy” - is described as dependent on a wide variety of conditions, including judicial remuneration, court budgets, the discipline of judges, politics and the appointments process, but these do not usually include a diverse judiciary. • There is also a significant, but almost completely separate, Canadian literature about diversity on the bench. • Thus, even the government is prepared to accept that the bench ought to be diverse, and many will recognize the problem of a bench that lacks diversity – but we cannot recognize it as a judicial independence problem

Can a Homogenous Bench be an Independent Bench? • Where the identity characteristics of the judges are those of the powerful in other sectors of social, political and economic life, as opposed to a mirror of the population being judged, has judicial independence really been established? • potentially harmed if judges are not appointed and elevated in ways which reflect the society being judge Beyond Diversity: The Reflective Judiciary • Diversity itself could have many meanings in the context of the judiciary: diversity of political opinion; diversity of routes to the bench; diversity of practice specialties prior to elevation. In this paper, the basic question (can a homogenous bench be an independent bench?) relies only on an absence of diversity. • But what is the opposite? I propose that diversity is too vague, and suggest instead the notion of a judiciary which represents or reflects the community it serves. • Why have we been so successful, comparatively, in increasing the representation of women on the bench, but less so with respect to visible minorities? • Empirical evidence supports the view that diversity on judicial panels changes the dynamic in ways which give rise to changed decisions. • To the extent that this suggests that appointing and elevating judges in ways which create homogenous courts is a method of manipulating decisions, it also suggests that democratic legitimacy is

Article The Courts and the Judiciary Article Eszter Bodnár, “What Can the World Learn from Canada, What Can Canada Learn from the World?” (2017) Elte Law Journal:

• The judges of the Supreme Court of Canada, the highest court of the country dealing also with constitutional matters, are appointed by the executive power. However, in October 2016, a new process was applied for the first time. It was not incorporated into the Supreme Court Act but remained rather a policy. ● It contained new elements including an independent and non-partisan advisory board preparing for the Prime Minister a shortlist of candidates, and two public hearings

● one of the Minister of Justice and the Chair of the Advisory Board to explain the selection process for the MPs, ● and one of the candidates to answer questions of parliamentarians. ● The Government’s communicated intent was to ensure a more transparent, inclusive, and accountable process. However, the new process was criticized by several authors because of its redundancies. This paper aims to examine the Canadian selection process from multiple points of view. ● First, it gives a theoretical background of the constitutional principles that are relevant to the selection of supreme court judges and identifies the relevant international (soft law) requirements. ● Second, it analyses the current Canadian process and its realization taking also the historical aspects into account. Third, it gives a comparative constitutional law analysis: it compares the Canadian system with regulation and practice of the United States of America and several European countries. ● Finally, the paper seeks an answer to the question of what elements can optimise the process of selecting supreme court judges in a constitutional democracy.

Theoretical Background and International Requirements

• The UN Basic Principles on the Independence of the Judiciary rule only briefly on the selection of judges. According to the document, persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. • Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person. • The Venice Commission identifies three main fields of concern; balance, independence, and effectiveness. According to the Commission, the changing of the composition of a constitutional court and the procedure for appointing judges to the constitutional court are among the most important and sensitive questions of constitutional adjudication. • In the opinions, the Commission is very positive about the mixed system, in which the three main branches of power elect and appoint the members together, because it has more democratic legitimacy than a direct appointment system.

Role of Supreme Court Justices in Canada • Canada follows the decentralised model of constitutional review, which means that it has no separate constitutional court and Canadian courts are generally capable of addressing judicial review and

97 constitutional issues. • The Canadian Supreme Court serves as the final court over constitutional matters. The significance of the Court grew when the Canadian Charter of Rights was adopted in 1982 and the Supreme Court became responsible for its enforcement. • This development represented a shift from the traditional values of parliamentary supremacy to the new values of constitutional supremacy

Selection of Supreme Court Justices in Canada

According to the Supreme Court Act, the Court consists of a chief justice and eight judges. • The judges are appointed by the Governor in Council (representative of the monarch) by letters patent under the Great Seal. the ‘Governor in Council’ does not actually mean the Governor-General, but rather the federal cabinet giving the Governor- General advice that to all intents and purposes cannot be refused. • In practice, it is generally the prime minister who makes the proposal. The Supreme Court Act contains just a few provisions on eligibility: • Any person who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province may be appointed as a judge. • At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province. According to the Supreme Court, this requirement has a dual purpose. • First, it aims to ensure that the Court has civil law expertise because while the other provinces of Canada have a common-law system, Quebec follows the civil law model. • Second, according to the Court, this provision makes it possible for Quebec’s legal traditions and social values to be represented on the Court and for Quebec’s confidence in the Court to be maintained. • The Supreme Court is exempt from the requirements of the Official Languages Act because of the above-mentioned Quebec-quota requirement. However, the judges of the Supreme Court are called on to interpret both civil and common law, as well as to make rulings on cases that were argued in the lower courts in French and English. • In the last decade, seven bills were submitted to make bilingualism of the judges obligatory but none of them was successful however the requirement of bilingualism is followed by harsh criticism • Beside the Quebec judges, the remaining six seats are also held on a regional basis: three seats to

Ontario, two to the west (one to the prairie provinces and one to British Columbia), and one to the maritime provinces. • In August 2016, the Government of Canada announced that the vacant mandate in the Supreme Court will be filled according to a new process that is ‘transparent, inclusive, and accountable to Canadians. • To apply, one had to fill in a 22-page questionnaire that asked about the professional career, personal qualities (including also the state of health) and the candidate’s opinion on the constitutional role of the judicial branch and the judges. • The candidate also had to submit five decisions, legal documents or publications of her,and to give consent to a background check The formal criteria then forwarded them to the independent Advisory Body. • The Advisory Board had to submit to the Prime Minister the names of at least three but up to five candidates. The Minister of Justice consulted on the shortlist of candidates with the Chief Justice of Canada, relevant provincial and territorial attorneys general, relevant cabinet ministers. Following the consultations, the Minister of Justice presented recommendations to the Prime Minister who chose the nominee. • The Advisory Board had to submit a report within a month of the judge being appointed, which outlined how it fulfilled its mandate, including costs related to its activities and statistics related to the applications received.

Criticism Even if the Canadian selection process has various strengths, it was criticised on several points. ● The first is that the process can be unilaterally amended or the development can be reversed at any time because it forms only a policy and not a legal requirement. The reason for that is that although the Supreme Court is not formally included in the constitution, according to the decision of the Supreme Court, Sections 5 and 6 of the Supreme Court Act, dealing with the composition of the Court, are constitutionalised So the Govern ment did not attempt to change the formal rules of the Act but adopted rather a policy that complements the statutory requirements. ● The representation of the First Nations was not an aim of the appointing authority, because this is just a criterion to consider but not an obligatory requirement ● The bilingual criteria set by the Government also posed a barrier to indigenous judges ● Some points of the process were not so clear. For example, the role of the Chief Justice is quite

99 unclear: she is consulted twice during the process, and for the second time about a shortlist that may not contain the person who she recommended. ● The parliament also has the opportunity to participate in the process on two occasions; however, the second time it gets only an explanation but not information about the decision. One does not know anything about any possible difference of opinion between the Minister of Justice and the Prime Minister

Changes Recommended In its report on the new process for judicial appointments to the Supreme Court of Canada, the Standing Committee on Justice and Human Rights proposed that the advisory board should be permanent and more diversified. Hearing was not an official parliamentary hearing, so parliamentary privilege did not apply to protect both the members posing questions and the nominee answering them. Finally, the Advisory Board, in the report on the 2017 nomination, expressed its concerns about making a part of the application form public.

Comparative Overview • The selection of constitutional court justices and supreme court justices may be grouped into three main models. • The first is the direct appointment system, which does not involve any voting procedure. The appointment can be uni-channel, meaning that all of the appointments come from the same branch of government (e.g., in Canada) or multi-channel, where the appointments come from different state organs or different branches (Constitutional Council of France) • The second form is the elective system, which tends towards greater democratic legitimacy. Here the electing authority can be the sole chamber of the parliament (e.g., Hungary, Portugal), the lower house of parliament (e.g., Croatia, Poland), both houses of parliament (e.g. Germany), or a joint sitting of the two (Switzerland). • The second form is the elective system, which tends towards greater democratic legitimacy. Here the electing authority can be the sole chamber of the parliament (e.g., Hungary, Portugal), the lower house of parliament (e.g., Croatia, Poland), both houses of parliament (e.g. Germany), or a joint sitting of the two (Switzerland). • The hybrid or mixed system contains elements of the appointment and elective systems and has many variations. Usually, the elective element dominates but, in some countries, the elective and appointing elements have the same weight.

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• What Can the World Learn from Canada; What Can Canada Learn from the World? • The first point is the choice of the model. There is a presumption that the elective model is ideal as it provides high democratic legitimacy. • it is able to guarantee the diversity of the composition. In the parliamentary debate, the personal and professional characteristics of the candidates are under scrutiny, which can eliminate extreme or incompetent candidates. • A disadvantage is that, if such consensus is lacking, the mandates will remain vacant, and that may hinder the operation of the court. Such a delay can be considered a violation of the right to a lawful judge. It is even more problematic if one party has a two-thirds majority and can elect the justices alone. • The international soft law requirements prefer the mixed model instead. This can decrease the possibility of direct political party influence, as the appointments are coming from different appointment bodies and there is a lower risk that they all have the same political • Civil society organisations can play a crucial role in the process. • Finally, it should be essential to provide an opportunity for the court itself to be able to annul the selection if the eligibility requirements are not met or the rules of the election procedure have been violated. • In conclusion, the proposed system mixes the professional and political elements and involves the public as a guarantee. The selection criteria are transparent and can be easily discovered; the application process is open, comprehensive and capable of really establishing the candidate’s fitness for the role. The candidates are ranked according to their qualities and the nomination is negotiated with several political and civil society stakeholders. However, the final decisions come from a political actor who can take political responsibility for the decision.

Smith v. Canada (Attorney General), 2020 FC 629

• In the spring of 2018, Justice Smith was asked by the head of Thunder Bay’s Lakehead University if he would help its Bora Laskin Faculty of Law through a difficult time. Its previous dean, Angelique Eagle Woman, had resigned, and accused the school of racism. Justice Smith, who has been a judge since 2001, said in a legal document he feared the law school had been in danger of collapse. • This led to H. Patrick Smith of the Ontario Superior Court of Justice takes the position of Interim Dean. • The Chief Justice approved this special leave of absence, pursuant to subsection 54(1)(a) of the

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Judges Act, but provided several conditions • The council’s executive director, Norman Sabourin, filed a complaint against Justice Smith, citing an online story from earlier in May that said Indigenous leaders had asked Lakehead to appoint an Indigenous successor to Ms. Eagle Woman. • Executive Director of the Canadian Judicial Council referred the matter to the Canadian Judicial Council, on the basis of a potential breach of s. 55 of the Judges Act, • 55. No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties. • Federally appointed judges are guided by two documents: The Judges Act, which bars them from taking on a “occupation or business” outside their judicial duties; and voluntary ethical principles in a CJC document urging them to steer clear of controversy, in their activities away from their bench. • A review panel of the judicial council found that “occupation” includes unpaid duties. • Later in 2018, a review panel of the judicial council found Justice Smith guilty of breaching his ethical duties for taking a post it said could have exposed him to public controversy, thus harming the justice system’s reputation. • Regardless, Justice Smith sought judicial review before the Federal Court in Smith v. Canada

(Attorney General), where the court concluded he did not breach his judicial ethics or section 55 of the

Judges Act. However, the court went even further, indicating he was denied procedural fairness and that it was an abuse of process.

• Justice Zinn applied a standard of reasonableness in reviewing the decision. In a post-Vavilov world, judges will not extend deference to the judges who judge the conduct of judges, on the basis that they have expertise in the subject matter.

• Justice Smith had received permission to take the post from the chief justice of his court, Heather Smith, and then federal minister of justice, Jody Wilson-Raybould, Justice Zinn found. ”If his decision was ill-advised, what does that say of the decisions of his chief justice and the minister of justice? • This decision is particularly important in clarifying that judges are not prohibited from all non- judicial activities, especially where they do not impair the ability to perform judicial duties. • Ensuring there is a mechanism and an ability to be involved in appropriate ways helps alleviate ethical and societal concerns, and has the potential to enrich the experiences of the bench further. 102

CHAPTER NINE

Statutory Interpretation Historical Approaches ● Literal/plainRule o Take the literal meaning, word by word ● Golden Rule Permits courts to depart from ordinary meaning of text to avoid absurd results. Re Sigaworth ( Estate of mother would be acquired by next to kin but in this case, son murdered the mother, so it would be absurd. R v Allan- Bigamy, where a man is not allowed to marry when his spouse is alive or not divorced. But the act meant that you can’t go in marriage ceremony as the marriage was illegal ● Mischief Rule o To cover the mistakes and gaps left by common law, mischief rule is use to cover that gap. What was the law before the statute and cover that gap. Corkery v Carpenter where a drunk was driving cycle and he was charged. Act said you can’t use carriage while drunk but he was driving bicycle. Mischief rule said the gap was not to be drunk while doing any form of transportation. ● Presumed Intent o Read the preamble of the statute. the intention that courts will, in the absence of an indication to the contrary, impute to Parliament ● Mossop - bereavement leave 4 days for immediate family- archive 19.02. Art 2.01 says common law spouse of opposite sex ● Canadian human rights tribunal J L heureaux relies heavily on charter values to provide large purposive and liberal interpretation of human rights. Used broad and purposive approach. Family should be read purposively and both partners fell into family status

Modern Approach is given by Driedger. This approach is preferred by the Canadian courts. As per Dridger, the definition of Modern Approach is “today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” Legislative Intent under the Modern Aproach Legislation that interferes with individual freedoms is considered penal and attracts stricter construction.

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Legislation that cures mischief is considered ‘remedial’ and attracts ‘liberal’ construction. Courts are less likely to invoke strict construction but the distinction between ‘penal’ and ‘remedial’ continues in the modern approach. In the modern approach, the courts look at the rules about meaning; purpose and scheme analysis; and presumptions of legislative intent – in particular, pointing to the likelihood that the Court would adopt a liberal construction (rather than “strict”) in view of the fact that the character of the Act is neither criminal or penal In the modern approach, words of legislative text must be read in their ordinary sense harmoniously with the scheme and the objects of the Act and the intention of the legislature. Textual meaning, legislative intent and norms all support a single harmoniously interpretation. Judges must engage in which interpretation would match the ‘legislative intent’ Rezzo Shoes ● Re Rezzo and Rezzo shoe company file for bankruptcy. Company paid wages and severance to every employer who was terminated Before bankruptcy but didn’t pay employees who got terminated due to bankruptcy didn’t get paid. ● The supreme court said the interpretation can’t be founded on the wording on legislation alone. The supreme court said that every act ‘shall be deemed to remedial’ and directed to use ‘liberal construction’ ensure that the act meets its true intent. to read the act in a broad manner and read the purpose of the statute. Which was to protect employees against the effects of economic conditions.

Contextual Approach within the Modern Approach Mossop Case: Justice Dube is known to apply contextual and purposive approach to determine the legislative intent under the modern approach of interpretation. In Mossop, she employed these principles in the Mossop Case. The complainant, a federal government employee, took a day off work to attend the funeral of the father of the man he described as his lover. The collective agreement between Treasury Board and the complainant's union governing terms of employment provided for up to four days' leave upon the death of a member of an employee's "immediate family", a term defined as including a common-law spouse. The definition of "common-law spouse" was restricted to a person of the opposite sex. bereavement leave 4 days for immediate family- archive 19.02. Art 2.01 says common law spouse of opposite sex

Canadian human rights tribunal J L heureaux relies heavily on charter values to provide large purposive and liberal interpretation of human rights. Used broad and purposive approach. Family should be read purposively and both partners fell into family status

Shared meaning rule. If there is a discrepancy between the versions of a bilingual statute, the meaning

104 that is shared by both versions is presumed to be the intended meaning.

Article Ruth Sullivan: Some Problems with the Shared Formulated in R v Daoust and Interpretation R vs DOUST • As part of an investigation of second-hand store owners suspected of selling stolen merchandise, the Quebec City police set up an operation using an undercover officer. • The officer went to D’s establishment on four different occasions to sell goods which he hinted were stolen. • Each transaction ended with the merchandise being accepted for a sum of money. • On the final occasion, D told the officer that this would be the last time they would do business together, to which B, the establishment’s manager, added “We can’t always be helping you to steal.” • B and D were charged under s. 462.31 of the Criminal Code At trial, they were found guilty of laundering proceeds of crime. The Court of Appeal set aside the convictions on the ground that the actus reus of the offence had not been made out. • The English and French versions of the relevant provision of the Criminal Code present variations of the offence of laundering proceeds of crime. While the French version simply lists the acts constituting the actus reus of the offence, that is, “utilise, enlève, envoie, livre à une personne ou à un endroit, transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la possession —”, the English version lists these same acts and adds a prohibition against any other dealings with respect to the property or its proceeds. • The addition in the English version of the expression “or otherwise deals with” leaves the door open to other acts of laundering, thus avoiding the need to provide an exhaustive list. • Even though the legislative history shows that the English version reflects Parliament’s true intent, it cannot be adopted. • The Court cannot use the history of a clearly drafted statute as the sole basis for changing it or completely disregarding its meaning. • Under the rules of contextual interpretation, moreover, words that could effectively broaden the scope of a penal statute cannot be read in. • Finally, under the rules of bilingual statutory interpretation, where, as here, the meanings of the two versions of a provision are clear, yet irreconcilable, the common meaning of the two versions of the enactment should be favoured. Here, the common meaning is the narrower version, which is the French

105 version. • It is therefore the French version that must first be examined to determine whether it accords with Parliament’s intent. • The two versions are divergent because of an error or an omission on the part of Parliament, but that does not give this Court the authority to amend a clearly drafted enactment. • The actus reus of the offence specified in the indictment has not been made out here. The activities criminalized by this provision all concern the same person, that is, the person who originally has the object in his or her possession and seeks to dispose of it. • Buying or receiving property or similar acts involving the person who accepts or acquires the property do not constitute elements of the offence of laundering proceeds of crime. Since the purchase was not a “transfer of possession” within the meaning of s. 462.31 , the accused must be acquitted.

TWO GOALS OF THE AUTHOR • First is to Set out the comprehension of the shared meaning rule adopted in Daoust and to explain and elaborate why it is unsatisfactory. • The Law of Bilingual Interpretation identifies 2 principles of interpretation rooted in respect for the two official languages acknowledged by Canada’s Constitution. • First rule is equal authenticity rule (provides both versions of bilingual legislation are equal official and authoritative expressions of the law enacted by the legislature); the second rule is the presumption in favour of shared meaning, conventionally referred to as the ‘shared meaning rule’ • Under the rules of bilingual statutory interpretation, where, as here, the meanings of the two versions of a provision are clear, yet irreconcilable, the common meaning of the two versions of the enactment should be favoured. Here, the common meaning is the narrower version, which is the French version. • The Interpretation of Legislation in Canada (Pierre-Andre Cote) described the sequence of steps that courts follow in applying the shared meaning rule. ● First, the interpreter must read both versions of the provision to be applied" and determine whether there is a discrepancy between the versions. ● Second, if there is a discrepancy, the interpreter must determine whether there is nonetheless a shared meaning between the two language versions. ● Third, the interpreter must consider the other rules of statutory interpretation, including in particular, other evidence of legislative intent. In cases where there is a shared meaning, that meaning is

106 presumed to express the intention of the legislature, and the point of looking at other rules of interpretation is to determine whether the presumption in favour of the shared meaning has been rebutted. In cases where there is no shared meaning, the presumption plays no role, and the correct outcome must be determined exclusively through reliance on the other rules of statutory interpretation ● The position adopted in Daoust and the Law of Bilingual Interpretation is that when a discrepancy occurs between the two versions of bilingual legislation, there are three possibilities 1) Ambiguity Shared Meaning Rule: There is a shared meaning, as one version lends itself to two or more plausible meanings while the other clearly expresses only one of those meanings. French clarifies the ambiguous English version 2) Breadth shared meaning There is a shared meaning when the meaning expressed by one version is narrower than the meaning expressed by the other and the narrow meaning is contained in the broader meaning. Here, the French version is narrower than the English (3) In the absence of either form of shared meaning, the two versions are said to be in ‘absolute conflict’ and no presumption arises. As per Ruth Sulivan, not every instance of shared meaning should give rise to the presumption that the shared meaning was intended. The presumption should arise only in cases where one version is ambiguous and the other is clear (ambiguity shared meaning). In all other cases, the presumption should not arise and the interpreter should go directly to the other rules of statutory interpretation to resolve the discrepancy.

As per Ruth Sulivan, when both versions of statute are unambiguous, there is no shared meaning rule even if one version is narrower than the other. Author has objection to the shared meaning rule as described below.

• Author’s objection to the account of the rule in Daoust is that it effectively introduces a new strict construction rule to statutory interpretation without offering satisfactory justification for this innovation. • Part III then addresses two important questions in bilingual interpretation. When there is a discrepancy between the two language versions of a legislative text and it is possible to identify a shared meaning, should the presumption in favour of shared meaning be triggered in every case? • Justifying the Shared Meaning Rule • Norm Based Justification

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• The justification for the shared meaning rule is unsatisfactory; it neglects the main point, which is that both versions of the Act are equally authentic expressions of legislative intentTextualist Justification • Equal authenticity mandates the text of each version to be a reliable expression of the single rule that the legislature intended to enact If the two texts express clear but different rules, neither is reliable and some basis other thantextual meaning must be found to assess which version is to be favoured. • Author’s justification for the shared meaning rule is very different from the justification offered in The Law of Bilingual Interpretation, which is grounded in textualist assumptions. A textualist assumes that the textual meaning of a properly drafted legislative text, one that is clear, is its "actual" meaning and is appropriately equated with the rule that the legislature intended to enact. • By giving effect to clear textual meaning, a court automatically gives effect to the intentions of the legislature. And since that meaning is also apparent to, and relied upon by the public, giving effect to it also respects the rule of law. For these reasons, textualists conclude that further interpretation is neither necessary nor appropriate when the meaning of a legislative text is clear.

• Therefore, linguistic equality is achieved by insisting on equal authenticity of both language versions and by solving discrepancies in a manner that doesn’t automatically prefer one language over the other.

Article John Mark Keyes: Constitutional Inconsistency in Legislation—Interpretation and the Ambiguous Role of Ambiguity

• Ambiguity threshold has gained substantial notoriety in recent years as a feature of the interpretation of legislative texts in association with the Constitution. It constrains the application of the presumption of compliance to texts that are capable of bearing an interpretation that is consistent with the Constitution. • Sullivan has criticized ambiguity threshold – unwarranted obstacle to integrating fundamental constitutional values in the interpretive procedure

• The Supreme Court of Canada has recognized and repeatedly affirmed a rule of legislative interpretation that limits the consideration of the Canadian Charter of Rights and Freedoms and other

108 constitutional norms. • The rule requires that before a court interpreting legislation can consider them, it must consider other contextual features and conclude that they do not resolve an ambiguity in the legislation. It thus privileges other contextual features of legislation and creates a secondary role for the Charter and constitutional norms that cannot come into play without ambiguity. • However, the concept of ambiguity is itself ambiguous, and this rule is at odds with the fundamental principle of constitutional supremacy. • It also conflicts with a recent development in administrative law recognizing that administrative tribunals exercising discretionary powers involving the interpretation of legislation are entitled to consider the Charter and other constitutional norms without a finding of ambiguity. • This article exposes these problems and argues that the Charter and other constitutional norms should not be excluded at the outset. Rather, they should be considered along with other relevant contextual factors and be given the interpretive weight they deserve. • Using the ambiguity threshold to categorically exclude their consideration blunts the role of legislative interpretation in assuring the supremacy of the Constitution. • In Osborne v Canada, Justice Sopinka noted this distinction saying: The court is given an express mandate to declare invalid a law which, by virtue of s. 52 of the Constitution Act, 1982, is of no force or effect to the extent of its inconsistency with the Charter. There is no reason for the court to disguise the exercise of this power in the traditional garb of interpretation. • Osborne vs Canada (Until 1988, the Public Service Employment Act (PSEA) did not allow federal public sector workers to take part in political activities beyond simply casting their vote. four PSAC members challenged this on the grounds that it violated their freedom of expression and freedom of association under the Canadian Charter of Rights and Freedoms. • With PSAC's help, they won. Section 33 of the Act is not immune from Charter scrutiny merely because it may be said to uphold a constitutional convention. • A majority of the Supreme Court judges held that forbidding political activity was not a reasonable limit on freedom of expression, even for employees of the federal government. Our members were finally able to do more than just vote. They could take an active role in the democratic process. • The leading case on the nature of the ambiguity threshold is Bell ExpressVu. It was argued that Charter values relating to freedom of expression should be considered in the interpretation of paragraph 9(1)(c) of the Radiocommunication Act:

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CONCLUSION The exclusion of Charter and other constitutional considerations from judicial processes for interpreting legislation is a serious matter. The Supreme Court has consistently advanced the ambiguity threshold as a screen for these considerations and justified it in the name of protecting the Charter, and respecting the role of legislative bodies. But ambiguity is an elusive concept and its role in protecting the Charter or the balance of power between the judiciary and the legislature is far from clear.

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CHAPTER TEN

Limitation Of Judicial Review In Democratic Society

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. It is one of the checks and balances in the separation of powers

JUSTICIABILITY All actions by political branches of government are “justiciable”; in other words, they are subject to supervision by the courts Operation Dismantle v R [1985] is a decision by the Supreme Court of Canada where the court rejected a section 7 Charter challenge against the government for allowing the US government to test cruise missiles over Canadian territory. J Wilson distinguished this from Canadian constitutional law where separation is not a core principle, but rather is only secondary. Instead, there is a foundation in overlap between the branches as demonstrated in the system of responsible government. CONCLUSION: Although decisions of the federal cabinet are reviewable by the courts under the Charter, and the government bears a general duty to act in accordance with the Charter’s dictates, no duty is imposed on the Canadian government by s7 of the Charter to refrain from permitting the test of the cruise missile. Courts are reluctant to find government action. It also tested the limits of the role that the courts play in weighing governmental measures designed to protect national security against the standards imposed by the Constitution

(Triable by court) Purely political matter, court has no jurisdiction to try the case . E.g –case of gay marriage .Priest has right under section 15 .court cannot breach each others right.

 ISSUE OF ENFORCEMENT CASE-DOUCET BOUDREAU V NS The appellants are Francophone parents living in five school districts in Nova Scotia. They applied for an order directing the Province to provide, out of public funds, homogeneous French-language facilities and programs at the secondary school level. The trial judge noted that the government did not deny the existence or content of the parents’ rights under s. 23 of the Canadian Charter of Rights and Freedoms , found a s. 23 violation and ordered the Province and the Conseil to use their “best efforts” to provide school facilities and programs by particular dates. He retained jurisdiction to hear reports on the status of the efforts. The Province appealed the part of the order in which the trial judge retained his jurisdiction to hear reports. Courts must be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or bodies are better suited. The order in this case was in no way inconsistent with the judicial function. Hearing evidence and supervising cross-examinations on progress reports about the construction of schools are not beyond the normal capacities of courts

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CANADA V KHADR Canada (PM) v Khadr 2010: held that Canadian officials had violated Khadr’srights when they questioned and interrogated him at Guantanamo Bay. Though, the courts held his rights were breached, they left it to the government to make the decision in regard to how to address the consequences of the encroachment

The practical reality is that courts usually have to rely on the executive and legislative branches of government for the implementation and enforcement of their decisions

 ISSUE OF LEGITIMACY The issue we face is that when judges give distinct and material definition or shape to vague and ambiguous notions set out in the Charter for example, and then nullify or invalidate laws that do not adhere to their interpretation of these requirements, the rule of law may subtly be converted into the rule of unelected judges

CASE –Vriend v Alberta Vriend v Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation

The majority concluded that the appropriate remedy was to “read in” sexual orientation as a prohibited ground of discrimination for the purposes of the Act

Judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance w/ the democratic principles mandated by the Charter

V appealed the termination and applied for reinstatement, but was refused. He attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer had discriminated against him because of his sexual orientation, but the Commission advised V that he could not make a complaint under the Individual’s Rights Protection Act (IRPA), because it did not include sexual orientation as a protected ground. V and the other appellants filed a motion in the Court of Queen’s Bench for declaratory relief. The trial judge found that the omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of s. 15 of the Canadian Charter of Rights and Freedoms . She ordered that the words “sexual orientation” be read into ss. 2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a prohibited ground of discrimination. The majority of the Court of Appeal allowed the Alberta government’s appeal. The courts by giving effect to those words are executing the will of democratically elected individuals. There is therefore genuine agreement with the Supreme Court’s statement in Vriend on the legitimacy of judicial review

As for the effect of reading in with the thrust of the legislation, it was reasonable to assume that the legislature would have preferred to include sexual orientation in the Act than to have no human rights legislation at all

Reading in did not interfere with the legislative objective nor with democratic principles Democracy involves more than majority rule and interference is warranted where the interest of minorities has not been considered 112

Vriend: somewhat of a “dialogue” between courts and legislatures • All branches of government have an equal obligation to carry out the commands of the Charter • If accomplished, then there is a sort of “dialogue” between the different branches • The legislature analyzes the laws they desire to pass • Subsequently, courts must question if the legislature has satisfied its responsibility to obey Charter • If not, the matter must return to the legislature The courts do not have the final say; they are simply one step in the procedure

Cory and Iacobucci JJ agreed that using the tools given by s.52 of the Charter and reading in sexual orientation as a prohibited grounds for discrimination into the Act was the best remedy for the Charter violation

·Case law had established that before choosing this remedy, the court must take into consideration the principles of respect for the role of the legislatures and the respect for the Charter

SCC finally ruled that provincial governments could not exclude lesbian and gay individuals from human rights legislation and that the exclusion of protection against discrimination on the basis of sexual orientation was an unjust violation of s. 15 of the Canadian Charter of Rights and Freedoms.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION Administrative decision-makers are creatures of statute, often empowered to regulate specific industries or issues. The CRTC, for example, is an administrative tribunal empowered by various federal statutes to regulate broadcasting and telecommunications in Canada. Similarly, the Immigration and Refugee Board is Canada’s largest independent administrative tribunal and regulates our country’s immigration and refugee processes. The decisions that these and other tribunals, government officials, agencies, and boards make on a daily basis can have major impacts on our lives. Naturally, those who feel aggrieved by administrative decisions often seek to challenge them in court.

Courts have struggled with their constitutional role in reviewing the work of administrative decision- makers. On one hand, the legislature’s decision to delegate regulatory and adjudicative functions to specialized administrative bodies must be respected. On the other, courts have a constitutional duty to uphold the rule of law and to ensure that administrative bodies do not overreach their lawful powers. Since every administrative decision-maker is a creature of statute, their powers are necessarily limited by their enabling legislation. Courts are often called upon to determine the scope of these powers, while being mindful of the legislature’s choice to assign certain determinations to an administrative body.

Courts balance these twin imperatives — legislative supremacy and the rule of law — by affording more or less deference to an administrative decision-maker depending on the context. The degree of deference is commonly referred to as the “standard of review” 113

With the power of judicial review, judiciary branch keeps a check on executive as well as legislative branch of the Govt. by declaring any law null &void or invalidation of any law. It talks about two types of judicial review

. JUDICIAL REVIEW ON PROCEDURAL GROUNDS Under this head, there are various grounds E.g- o Limits on the exercise of delegated authority/Improper delegation o Duty to be fair-refers to procedures adopted by the decision maker

Case-Baker v Canada (ORAL HEARING & The court found that it would be unfair for the Minister not to provide written reasons for refusing an application) Nicholson- The author traces the development of the duty of fairness in Canada beginning with Nicholson v Haldimand-Norfolk (Regional) Police Commissioners in 1979, in which the Supreme Court of Canada abandoned the dichotomy between judicial and administrative decisions, holding that a general duty of fairness applies whenever a decision is made that affects the rights, interests, or privileges of an individual. I. Duty to give reasons Notice II.Discovery / Disclosure III. Delay IV.Oral hearing V. Open hearing VI.Right to council VII. Right to cross examine VIII. Duty to give reasons o Provision of reasons o It talks about reasons behind the judgment. o Reasonable apprehension of bias Decision maker must be impartial. SUBSTANTIVE REVIEW

In Dunsmuir v. New Brunswick, the “standard of review analysis” has required the reviewing court to determine whether the administrative decision needs to be “correct”, in the sense that the court would have reached the same decision, or whether it suffices for the administrative decision merely to be “reasonable”. In the years Vavilov, there was widespread and growing frustration and confusion among judges, scholars, and lawyers about the evolution of the Dunsmuir framework for selecting the standard of review. As per Dunsmeir case. It includes standard of review. It talks about I. Correctness II.Reasonableness CORRECTNESS- 114

a. Error of law b. Error of jurisdiction c. Error of constitution

Reasonableness i. Privative clause-Decision of the decision maker is final and binding. (strong privative clause=reasonableness) ii.Discretionary power-No abuse of discretionary power. iii. Purpose of the statue-e.g protection of public or public safety iv. Expertise –decision maker is the expert of his or her field v. Statutory scheme –choice of remedies available to the decision maker and his discretion to choose.

Vavilov

Facts: V was born in Toronto in 1994. At the time of his birth, his parents were posing as Canadians under assumed names. In reality, they were foreign nationals working on assignment for the Russian foreign intelligence service. V did not know that his parents were not who they claimed to be. He believed that he was a Canadian citizen by birth, he lived and identified as a Canadian, and he held a Canadian passport. In 2010, V’s parents were arrested in the United States and charged with espionage. They pled guilty and were returned to Russia. Following their arrest, V’s attempts to renew his Canadian passport proved unsuccessful. However, in 2013, he was issued a certificate of Canadian citizenship.

Then, in 2014, the Canadian Registrar of Citizenship cancelled V’s certificate on the basis of her interpretation of s. 3(2)(a) of the Citizenship Act. This provision exempts children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” from the general rule that individuals born in Canada acquire Canadian citizenship by birth. The Registrar concluded that because V’s parents were employees or representatives of Russia at the time of V’s birth, the exception to the rule of citizenship by birth in s. 3(2)(a), as she interpreted it, applied to V, who therefore was not, and had never been, entitled to citizenship.

Vavilov sought judicial review of the Registrar’s decision. At first instance, the Federal Court reviewed the decision on a standard of correctness, holding that the decision was correct. On appeal to the Federal Court of Appeal, a majority of the Court reviewed the Registrar’s decision on the more deferential standard of reasonableness, yet overturned the decision.

The first aspect is the analysis for determining the standard of review. It has become clear that Dunsmuir’s promise of simplicity and predictability in this respect has not been fully realized. In Dunsmuir, a majority of the Court merged the standards of “patent unreasonableness” and “reasonableness simpliciter” into a single “reasonableness” standard, thus reducing the number of standards of review from three to two: paras.

Vavilov attempts to shed light on the true meaning of "reasonableness", sets out what is required 115 from the decision-maker, and how the reviewing Courts should be applying the standard of review.

GOALS OF VAVILOV The majority in Vavilov makes a number of holdings that will govern administrative law moving forward.. The goals of the majority in Vavilov are clear: to clarify the standard of review analysis and avoid costly academic debate in the courts, and to provide courts with practical guidance on how to apply the reasonableness standard.

I. Determining the Applicable Standard of Review The majority held that all administrative decisions should presumptively be reviewed on the reasonableness standard, unless either legislative intent or the rule of law requires otherwise. Specifically, according to the majority, the court should accord deference to the administrative decision unless: (a) the legislature has indicated that it intends a different standard of review to apply, either: (i) by explicitly prescribing the applicable standard of review; or (ii) by providing that the administrative decision may be appealed to a court; or (b) the rule of law requires that the correctness standard be applied, because the administrative decision raises (i) a constitutional question; (ii) a general question of law of central importance to the legal system as a whole; or (iii) a question related to the jurisdictional boundaries between two or more administrative bodies.

The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. Notably, the majority in Vavilov eliminated two circumstances in which courts could previously rebut the presumption of deference: “true question of jurisdiction”, and where a “contextual inquiry” indicated that the legislature intended the correctness standard to be applied.

It is important to note thatwhere a legislature has created an administrative decision maker for the precise purpose of dispensing a statutory scheme, Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference”

2. Guidance on execution of the reasonableness standard

Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.

Reasonableness concentrates on the decision actually made and the justification for it. The Correctness 116

involves considering what decision would have been made had the court been in the shoes of the decision maker.

When is the decision be considered “unreasonable” in the eyes of a court.

When it fails to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point. If a decision maker has failed to consider evidence before him or her, then the reasonableness of their decision will be jeopardized.

HELD In Vavilov, the Court concluded that the Registrar’s decision should be reviewed on the reasonableness standard, and that it was unreasonable. Neither legislative intent nor the rule of law rebutted the presumption of deference. On the basis of several factors listed above, the majority concluded that the Registrar’s interpretation of the Citizenship Act was unreasonable. Alexander Vavilov is a Canadian.

Summary

1) Vavilov starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decision. 2) The presumption of reasonableness review can be rebutted in two types of situations. I.The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. II. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied.

If neither I. and II. Don’t apply, conclude that the standard to be applied is reasonableness.

Paul Daly, “The Vavilov Framework and The Future of Canadian Administrative Law” The author explains the facts of the case Vavilov and discusses the contentious nature of the realm of administrative law in the last decade. The author discusses how lower courts have been against Supreme court about uncertainity. Supreme court asks lower courts to defer it to the admin decision makers but fail to heed on their own advice. The author talks 4 major topics:

1. Selecting the Standard of Review

Under the Vavilov framework, reasonableness review is the starting point in all situations. But statutory appeals will now attract correctness review (at least on extricable questions of law). And in three other non-exhaustive scenarios correctness review is required by the rule of law: the resolution of 117 constitutional questions, questions of central importance to the legal system as a whole and issues of overlapping jurisdiction

 The expertise of the decision-maker is no longer relevant, as it was in Dunsmuir.  Privative clauses (from Dunsmuir) also have no relevance anymore. A presumption of reasonableness will apply whether or not there is a privative clause in an administrative decision- maker’s home statute.

He states that these are the Dunsmuir categories. Now that expertise is no longer relevant, it does not perform “a limiting function in the definition of questions of central importance to the legal system

2. Reasonable Review

Supreme court didn’t provide much information on how the meaning of reasonableness. As a result there was confusion in the courts. However, Vavilov set out a guidance on how to apply reasonable standard.

 Reasonableness review is…a robust form of review

 The burden is on the party challenging the decision to show that it is unreasonable”;

 The court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker  a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem...A principled approach to reasonableness review is one which puts [the decision-maker’s] reasons first”;  what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review”; and  In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision

Vavilov has made hands on approach to reasonable standard as shown in Delta Air lines. Despite all the dialogue in the case of Vavilov, there are still tensions and issues that are in need of resolution. Daly considers the various matters that future cases will need to address, such as the relevance of the “governing statutory scheme” and the function and role of the nominate grounds for abuse of discretion which Daly believes still remains unclear and cloudy.

3. Precedence

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 It is intended to break with past decisions. A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case”.  They now carry less force. Decisions on jurisdictional questions or statutory appeal mechanisms, for instance, will be henceforth of little relevance. The majority acknowledges that retrofitting precedents to the Vavilov framework “may” require reviewing courts to “resolve subsidiary questions” about the compatibility of prior decisions with the new framework

The author discusses about several Supreme Court precedents whose status will soon have to be clarified. Some of these cases are Canada (Citizenship and Immigration) v. Khosa, Rogers Communications Inc. v. Society of Composers, Tervita Corp. v. Canada

1. Remedial Discretion

 Despite occasional suggestions to the contrary, remedial discretion is a key feature of contemporary administrative law.

 The majority set out a variety of factors which are influential in the exercise of remedial discretion

o Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources  The particular aspect discussed in Vavilov is the discretion of reviewing court which has quashed an administrative decision to “remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons  Remitting the matter will “most often” be the appropriate course of action, as “the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide”.  However, remitting the matter may not always be the most efficient course of action. For instance, the court stated that it may not be appropriate in circumstances where “it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose”.  Vavilov opened the door for courts to reject remitting the matter and instead follow a course of action that is similar to the standard of correctness, that is, making the decision itself rather than sending the decision back to the original administrative body. Think about how this will impact the realm of administrative law.  The author explains that Vavilov has two shortfalls. First, he explains that the framework for executing remedial discretion does not instill any guiding principles. The second is that the case fails to appreciate that judicial discretion when exercised can have systemic ramifications.

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Summary

Vavilov convinced the Supreme Court that the Registrar of Citizenship’s decision was unreasonable. Vavilov can be said to be win of pragmatism over principles as princeples were missing in Vavilov.

The author identified some tensions and technical details which will have to be resolved or clarified in future cases, either by the Supreme Court or by lower courts. Here are some -Will the correctness categories, especially the ‘general questions of central importance to the legal system’ category, be narrowly construed? -Will correctness review be embraced where an appeal has been provided for, or will judges continue to defer to expert agencies, either by giving significant weight to administrative interpretations of law or by classifying them as questions of mixed law and fact calling for deferential review? -Will courts welcome the possibility, especially on appeals, of segmenting administrative decisions into questions calling for correctness review and other questions calling for deferential review?

-Will the bar for judicial intervention on the reasonableness standard be the absence of “justification, transparency and intelligibility” or the presence of “serious shortcomings” in the administrative decision?

-Will reviewing courts refuse to supplement sparse administrative decisions?

-Will the “elements” of reasonableness review be treated as a box-ticking exercise or a guide to a holistic assessment of the reasonableness of a decision?

- Will the majority’s contextual considerations be treated as a laundry list of factors permitting immediate judicial intervention or (again) a guide to a holistic assessment of reasonableness?

-Will questions of statutory interpretation and questions which are arguably jurisdictional attract something akin to correctness review?

- Will courts tend towards substitution of judgement and/or refusal to remit in cases where reasons for an administrative decision are sparse or non-existent?

- Will the retrofitting of precedents to the Vavilov framework lead to more or less intrusive review?

As per the author, The Vavilov framework represents a consensus (for the most part) on the Supreme Court and, probably, a consensus in Canada’s legal community. The important question is whether the consensus will survive.

Bell Canada and National Football League

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For more than 40 years, the Super Bowl had been broadcast in Canada with “simultaneous ad substitution”, known as “SimSub”. Under the SimSub regime, the Super Bowl broadcaster in Canada would substitute its Canadian ads into the American broadcasting channel, to ensure that the Canadian ads were shown on both channels. In 2016, however, the CRTC banned SimSub for only the Super Bowl. Bell and the NFL sought judicial review of the CRTC’s decision. he Federal Court of Appeal upheld it. First, applying the reasonableness standard, the Court held that it was reasonable for the CRTC to conclude that it had jurisdiction to make orders targeting one specific program. Second, applying the correctness standard, the Court held that the CRTC’s decision did not conflict with the Copyright Act or international law.

Majority of the Court in Bell Canada and National Football League held that the presence of a statutory appeal mechanism in the Broadcasting Act was a crucial signal of legislative intent that rebutted the presumption of deference. The statutory appeal mechanism rebutted the presumption of reasonableness review, and the appellate standard of correctness then applied to the question of law or jurisdiction appealed under section 31(2).

The majority in Bell Canada and National Football League concluded that the CRTC’s decision was incorrect.

Cristie Ford, “Vavilov, Rule of Law Pluralism, and What Really Matters” (Apr. 27, 2020):

Vavilov is an important decision, and one that we can be optimistic about. The discussion around it has also been a glorious coming-together of administrative law nerddom in Canada. Once upon a time, in the days before the modern administrative state, there was one standard of review for errors of law: correctness. After 1997 (or perhaps it was 1994) we had three standards of review, with reasonableness simpliciter sandwiched in the middle. With deference to administrative expertise came a degree of humility for courts – and not just in the hard cases. Administrative tribunals were more diverse and more representative of the population at large than the judiciary was. In a sense, recognition of tribunals’ expertise was intellectually connected not just to the growth of the administrative state but also to linked to modern developments And then things unravelled. Tests for determining the standard of review were, it seemed, sometimes just a shell game. Economic tribunals continued to enjoy deference, and labour boards too sometimes, but others actually didn’t. Or, courts would find that one standard of review applied and then blithely apply another. We ditched the patent unreasonableness standard in 2008, with Dunsmuir, In its most generous light, perhaps the caselaw after Dunsmuir reflected a certain reticence on the part of courts to assert ultimate authority, to apply what seemed like blunt judicial review tools to a fluid and nuanced world, and to enforce certainty if it came at the expense of context-sensitivity. Those days are over. Vavilov signals a retrenchment by a more assertive, and conservative, Court. Bell, in a context that pre-Vavilov would surely have called for reasonableness review. Vavilov holds that the presumptive standard of review is now reasonableness. Expertise is no longer relevant.

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The courts’ role is to police the executive’s exercise of authority, deferring where legislative intent requires them to, but they no longer need to pay attention to how things operate in practice, or to genuinely alternative perspectives on frontline justice. Author loved the more capacious understanding of expertise, and the possibility of a more flexible, context-sensitive, conceptually pluralist state.

Shuttleworth v. Ontario

Mary Shuttleworth was injured in a collision. She and her insurer, Peel Mutual, could not agree on whether she met the threshold for catastrophic impairment under the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”), so an application was submitted to the Licence Appeal Tribunal (“LAT”), which was part of a cluster of tribunals known as the Safety, Licensing Appeals and Standards Tribunals Ontario (“SLASTO”) at the time.. This was the first catastrophic impairment decision that the LAT was to release. The LAT determined that Ms. Shuttleworth did not meet the catastrophic impairment threshold.

Ms. Shuttleworth’s counsel received an anonymous letter claiming that before the decision was released, it was reviewed and changed by the executive chair of SLASTO.

Ms. Shuttleworth’s injuries qualified as catastrophic impairment, but upon review, the executive chair altered the decision of the initial the adjudicator and determined that Ms. Shuttleworth did not meet the threshold. It also indicated that the adjudicator was reluctant to sign the decision.

She brought an application for judicial review. The Divisional Court granted the application and set aside the LAT’s decision. Peel, the LAT and SLATSO appealed the order, asserting that the Divisional Court erred in law

The Court of Appeal addressed each of the appellant’s arguments and found that there was no basis for appellate interference with the Divisional Court’s analysis While unfortunate that the Divisional Court used the term “cautious observer” in its reasons, on a review of the court’s reasons as a whole, it is plain that it correctly articulated the test for a reasonable apprehension of a lack of independence.

The Divisional Court did not err in its conclusion that there was reasonable apprehension of bias in this case. First, it correctly found that the executive chair’s imposition of the review on the adjudicator breached the rules set out in the trilogy. Second, the breach was significant because of the significant power over re-appointment of individual adjudicators of the SLATSO executive chair. Third, the Divisional Court correctly concluded that the review process lacked the appropriate procedural safeguards. Additionally, the executive chair became involved without the adjudicator’s consent.

Members of administrative tribunals are expected to render decisions in an impartial and independent 122 manner. This case highlights the importance of adjudicative independence, as well as the appearance of independence

Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

The Highwood Congregation of Jehovah’s Witnesses is a voluntary, religious association. A member must live according to accepted standards of conduct and morality. A member who deviates and does not repent may be asked to appear before a Judicial Committee of elders and may be disfellowshipped. In 2014, W was disfellowshipped after he engaged in sinful behaviour and was considered to be insufficiently repentant. Mr. Wall sought to have the elders' decision quashed for procedural unfairness and violation of natural justice. He argued that the committee of elders had made an unfair decision. Among other things, this harmed his business as a real estate agent as members of the congregation would no longer deal with him. The lower court and the majority of the Alberta Court of Appeal held that the church was a body of a public nature and was therefore subject to judicial review by the courts. In a unanimous decision, the Supreme Court of Canada allowed the church's appeal and ruled that religious matters such as church membership are not subject to judicial review by the courts.

Review of the decisions of voluntary associations, including religious groups, on the basis of procedural fairness is limited for three reasons. First, judicial review is limited to public decision makers. Judicial review is a public law concept that allows courts to ensure that lower tribunals respect the rule of law. Private parties cannot seek judicial review to solve disputes between them and public law remedies. The present case raises no issues about the rule of law. The Congregation in no way is exercising state authority.

Second, there is no free-standing right to procedural fairness absent an underlying legal right. Courts may only interfere to address procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake and the claim is founded on a valid cause of action, for example, contract, tort or restitution. No contractual right exists. The Congregation does not have a written constitution, by-laws or rules to be enforced.

Third, even where review is available, the courts will consider only those issues that are justiciable. The courts have neither legitimacy nor institutional capacity to deal with contentious matters of religious doctrine.

What were the issues with selecting the standard of review in the past, and what were the issues in

123 the past with regards to apply reasonableness standard. ?

Issues to be canvassed in relation to selecting the standard of review include the elimination of the contextual “standard of review analysis”, the endorsement of reasonableness as the presumptive standard with limited exceptions (expansion of “central questions” category and elimination of jurisdictional questions), rejection of expertise as a relevant factor in selecting the standard of review.

Issues in relation to applying the reasonableness standard include rejection of the line of cases following Newfoundland Nurses that encouraged reviewing judges to search the entire record in an effort to find a rationale for a poorly reasoned decision; and the move to more “robust” reasonableness review that urges judges to focus on the reasons provided and not to substitute their own reasons to buttress the decision. This case involved the judicial review on a reasonableness standard of an arbitrator’s award in a dispute involving the calculation of vacation benefits under a collective agreement. In a 12-page decision, the arbitrator outlined the relevant facts, arguments, provisions of the collective agreement and applicable interpretive principles, and concluded that, under the collective agreement, a permanent employee could not include time previously spent as a casual employee for purposes of calculating his or her vacation entitlement. The reviewing chambers judge found that the arbitrator’s analysis and conclusion made up only three paragraphs of the decision, were largely repetitive, and did not adequately address the difference between the entitlements of casual employees versus permanent employees. the judge set aside the arbitrator’s decision. the Supreme Court of Canada upheld the arbitrator’s decision, finding that his reasons provided a reasonable basis for his conclusion. The Court clarified that a proper reasonableness review under the Dunsmuir criteria does not involve a separate analysis of the “adequacy” of reasons which could serve as a stand-alone basis for quashing a decision. The Court held that a decision-maker’s reasons do not need to include all arguments or explicit findings on each element leading to its final conclusion.

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