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PUBLIC LAW
– FOUNDATIONS OF CANADIAN LAW –
1. BASIC THEORIES OF LAW:
v Chapter 2 pg7-47à “Nature, Divisions, and Sources of Law”
P A R T 1: SETTING THE STAGE
I. LEGAL THEORY IN RELATION TO PUBLIC LAW
A. INTRODUCTION
-This section looks at public law through the lens of several prominent approaches to legal scholarship -positivism and natural law
-feminism (feminist perspectives on law)
-critical legal studies
-law and economics
B. POSITIVISM AND NATURAL LAW
-Legal Positivism = reflects the belief that law is nothing more than the rules and principles that actually govern or regulate a society. Positivism insists on the separation of law and morality, and, as a result, focuses on describing laws within reference to justness or legitimacy.
-Natural Law Theory = is aspirational in the sense that laws, properly called, are not simply all those official rules and principles that govern us, but only those that adhere to certain moral truths, most often of a universal and immutable nature.
-Law and morality can part ways:
-Law must deal with specific and detailed problems and objectives, whereas Morality is usually framed in general and open-ended concepts.
-Law is also generally thought to be easily determined and more or less certain, while Morality can be contingent and relative.
NOTE: natural law does NOT deny the necessity of positive law, but where positive law contravenes natural law, the contravening positive law rules are held by natural law theorists not to be “true” law in the sense that a citizen (or a judge) owes no allegiance to them.
-The 2 case that follow arguably represent a natural law and positivist view, respectively, of legal theory:
__________________________Re Drummond Wren [1945] _______________________
Facts: The Worker’s Education Association (WEA) had purchased a lot with intentions of building a house on it and then raffle it off for fund-raising. The land was restricted by a covenant pronouncing that it was “not to be sold to Jews or persons of objectionable nationality.” The WEA applied to have the covenant declared invalid because the covenant was void as against policy, it contravened the provisions of the Racial Discrimination Act 1944, and the contemporary version of s.13 of Ontario Human Rights Code which prohibits the publication or display of representations indicating intent to discriminate on the basis of race or creed.
Held: the covenant is void because it is offensive to the public policy of this jurisdiction.
“I do not deem it necessary for the purpose of this case to deal with
this argument, except to say that it appears to me to have considerable merit.
My opinion as to the public policy applicable to this case in no way depends
on the terms of The Racial Discrimination Act, save to the extent that such
Act constitutes a legislative recognition of the policy which I have applied...
“An order will therefore go declaring that the restrictive covenant
attacked by the applicant is void and of no effect.”
-The argument of the applicant is that the impugned covenant is void because it is injurious to the public good
- If the sale of one piece of land can be so prohibited, the sale of other pieces of land can likewise be prohibited. In my opinion, nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business or residential areas, or, conversely, would exclude particular groups from particular business or residential areas.
__________________________Re Noble and Wolf [1948] _________________________
Facts: Individual cottage lots contained a covenant that the lands shall not be sold or transferred to any person of the “Jewish, Hebrew, Semitic, Negro or coloured race or blood.” Relying on Re Drummond Wren, Wolf, an interested purchaser of a cottage lot, applied to have the covenant rendered invalid on grounds of public policy. This time, however, other property owners defended the covenant”
Held: Motion dismissed.
“In my view it is within the province of the competent legislative bodies to discuss and determine what is best for the public good and to provide for it by the proper enactments....
For the reasons set forth, I hold that the said covenant is valid and enforceable, and that the vendor has not satisfactorily answered the purchaser's objection thereto. The motion will therefore be dismissed. The vendor shall pay the costs of the third parties who intervened after being served with notice of these proceedings, but no costs are awarded to the purchaser, who supported the vendor's motion.”
“It is no doubt desirable that freedom of contract should be reconciled with other public interests which are regarded as of not less importance -- something which cannot always be accomplished without difficulty; nevertheless, if there is any doubt as to the prevailing public policy or its effect, I should deem it to be the duty of the Court to extend the benefit of the doubt to the contract which the supposed public is claimed to supersede. The notion of any danger to public interests involved in the use of restrictive covenants such as the one in question seems to me fanciful and unreal. Whatever view I may entertain, based upon my conception of justice, morality or convenience, I must always have present to my mind the proper conception of the judicial function, namely, to expound and interpret the law and not to create the law or any principles recognized in the courts or by the State as part of our public law which enables me to conclude that the covenant under review should be struck down as offending against the policy of the law.”
-An appeal by Wolf in Re Noble and Wolf to the Ontario CA was dismissed. On further appeal to the SCC, the appeal was allowed and the racially restrictive covenant struck down, but on technical grounds resulting from the application of well-established common law rules
-There was no discussion on the public policy implications of restrictive covenants.
NOTE: after the Ontario CA decision in Re Noble and Wolf, and before its hearing at the SCC, the Ontario legislature passed s.22 of the Conveyancing and Law of Property Act 1990 which acted to correct a deficiency that at least some judges were unprepared to correct.
-Both positivism and natural law are descriptive theories in that they are principally concerned with identifying what law is, as opposed to what law ought to be.
-The remaining approaches in this section are normative theories in that they seek to describe how existing laws fail to achieve an external objective, be it gender or class equality or the efficient distribution of scarce societal resources.
-Feminism, critical legal studies, and law and economics approaches are often critical in theor posture and oriented toward reform.
C. FEMINIST PERSPECTIVES ON LAW:
1.Introduction
-Laws that existed from the 17th century, even those based on liberal ideals such as individualism and liberty, did not typically respond to the needs of women and more often than not aided in their oppression.
2. Early Formalist Feminism
-SCC use to not see women as “qualified persons”
__________________________Edwards v AG Canada [1930] _______________________
Issue: whether the words “qualified persons” in s.24 of the BNA Act include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada?
The case, put forward by a group of women known as the Famous Five, went all the way to the Imperial Privy Council, then the court of last resort for Canada, and was a landmark case in at least two respects. The Persons Case established that Canadian women were eligible to be appointed senators and more generally, that Canadian women had the same rights as Canadian men with respect to positions of political power. Second, it established what came to be known as the "living tree doctrine", which is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.
Held: Appeal allowed. In applying this approach to the current case, Sankey held that "[t]he exclusion of women from all public offices is a relic of days more barbarous than ours," and that "to those who ask why the word ["person"] should include females, the obvious answer is why should it not." Finally, he writes:
[T]heir Lordships have come to the conclusion that the word "persons" in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly.
SCC:
-The five Justices who heard the case held that the meaning of "qualified persons" did not include women.
-Francis Alexander Anglin wrote the majority judgment, with Lamont J. and Smith J. concurring.
-Mignault J. and Duff J. wrote separate concurring opinions.
-A common misinterpretation of the case is that the Supreme Court held that women are not persons. For example, at the Canadian Status of Women, Government of Canada, it says that: "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women." On the contrary, the Supreme Court of Canada noted explicitly that "[t]here can be no doubt that the word 'persons' when standing alone prima facie includes women."
-The Court interpreted the definition of "qualified person" as intended by the drafters of the BNA Act, 1867, despite acknowledging that the role of women in society had changed since that date.
-The Court held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under section 24 of the BNA Act.
-In 1867, women could not sit in Parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated.
3. Contemporary Feminism
-Today, it is seen as simplistic to argue that there is a monolithic group of “feminist scholars” (like any well developed philosophy, feminism is now filled with complexity and richness)
-There are “liberal feminists”
-There are radical feminists
-Some would argue that Western law is partial: law’s rules and structure are presumed on a belief system that prefers men and their view of the world.
-Others view law as fostering social practices that are combative and litigation oriented – where the idea of a dispassionate judge handing down decisions is also case as male-centric.
-Vague notions of “policy”, “common sense”, or “human nature” have also found their way into law, and been used by judges to preserve male privilege.
-Regardless of whether one subscribes to a liberal or radical vision of feminism, implicit in many of feminism’s central themes is that women, given the ability to reconstruct society, could do better (i.e. the subject of abortion).
-In 1988, in Morgentaler, the SC was asked to determine whether s.251 of the Criminal Code – criminalizing the procurement of an abortion unless properly authorized by a physician – was contrary to s.7 of the Charter?
______________________________R v Morgentaler [1988] _________________________
Facts: 3 doctors, Morgentaler, Smoling, and Scott, were charged with the offence of procuring a miscarriage contrary to s.251(1).
Held: The majority of the court found the provision to offend the Charter.
Jusice Bertha Wilson, who agreed with the majority in the end, rendered a separate opinion:
-Wilson J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates two rights: liberty, and security of person.
-She emphasized how section 251 violated a woman's personal autonomy by preventing her from making decisions affecting her and her fetus' life.
-To Wilson, the women's decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well.
-By removing the women's ability to make the decision and giving it to a committee would be a clear violation of their liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman's capacity to reproduce.
-Wilson goes on to agree with the other Justices that section 251 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of section 7 also has the effect of violating section 2(a) of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice."
-The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman's right to conscientiously-held beliefs.
-With the abortion law, the government is supporting one conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their "essential humanity".
She also stated that:
“The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual.”
-In her analysis of section 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test.
-Compared with other justices in the Mortgentaler decision, Wilson looks at the very heard of the matter – whether a pregnant woman can be compelled by law to carry a foetus to term?.
NOTE: Wilson was a SCC judge during the formative years of the Charter and she was the first woman appointed to the SC and participated in many groundbreaking Charter decisions.
-Feminists, for the first time, heralded her judgement as showing, for the first time, a true understanding of the plight of women in Canadian law
D. CRITICAL LEGAL STUDIES
1. Introduction
-Like some forms of feminism, critical legal studies (CLS) is a radical alternative to established legal theories.
-CLS adherents reject that there is any kind of “natural legal order” discoverable by objective means.
“...critical legal theory not only denies the possibility of discovering a universal foundation for law through pure reason, but sees the whole enterprise of jurisprudence....as operating to confer a spurious legitimacy on law and legal systems” (A. Thomson).
-CLS is a direct attack on traditional legal theory, scholarship, and education.
-CLS says that: law institutionalizes and legitimates the authority and power of particular social groups or classes.
The rule of law is NOT a rational, quasi-scientific ordering of society’s norms, but is indeterminate, full of subjective interpretations and a large degree of incoherency.
-The liberal belief that law should be certain and neutral is, for CLS scholars, illusory!
-Law reproduces the oppressive characteristic of contemporary Western societies
-Law is NOT independent or instrumental – it is simply another form of politics
-Lawyers and the legal profession are part of this pretence, and there is nothing special about legal reasoning to distinguish it from other reasoning.
-Thus, there is nothing about lawyers that should give them monopoly on reason or justice!
2. Judging with CLS: A Case Study:
-Today, CLS is still considered radical and outside most mainstream legal thought.
-Because of this, the movement was never likely to garner wholesale acceptance outside academia. However, it would be naive to think that some lawyers and judges who attended law school during the 1970s and 1980s were not influenced by it.
-In the following case, consider the differing opinions of the judges arise from different conceptions of the practice of judging itself. Also, compare the judges’ approach to questions of race and equality with the judges in Re Drummond and Re Noble and Wolf.
-Examine the differences in approach of the two majority decisions with the approach of the dissent:
______________________________R v R.D.S [1997] _____________________________
Facts: During the fall of 1993, in the city Halifax, Nova Scotia, a black youth was arrested, allegedly for assaulting a police officer while he was attempting to arrest another individual. The police officer claimed that the youth ran into him with his bike attempting to free the individual the police officer had in a chokehold. The youth, on the other hand, alleges that he stopped his bike to see what the police officer was doing, as a crowd had amassed at the scene. The youth recognised the individual being arrested and asked him repeatedly if he should call his mother, not once addressing the officer. Hearing the youth, the officer threatened to arrest him. When the youth continued to talk the police officer arrested him.
The Youth Court judge determined that the youth should be acquitted. The judge remarked in response to a rhetorical question by the Crown, that they were known to overreact particularly with non-white groups, and that would indicate a questionable state of mind. The judge also stated that her comments were not tied to the police officer testifying before the court.
The Crown challenged these comments as raising a reasonable apprehension of bias. The Crown appealed to the Nova Scotia SC (Trial Division) and the appeal was allowed and the judgement was upheld by the NS CA and this decision was appealed to the SCC.
Issue: In the appeal, it must be determined whether a reasonable apprehension of bias arises from comments made by the trial judge in providing her for acquitting the accused?
At the trial level, Judge Sparks acquitted the youth, for the reason that the only evidence was the testimony of the officer and the youth, and both had reasonable credibility. In the end of her judgement she added,
"I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of Mr. S. that he was told to shut up or he would be under arrest. That seems to be in keeping with the prevalent attitude of the day."
The last phrase became the focus of all the appeals to follow. Judgements needs to be based solely on the evidence while the phrase suggests some preconceived notions.
It was determined at the trial and appeal level that there was an "apprehension of bias" on the part of Judge Sparks.
SCC Held: We agree with Cory as to the disposition of this case. We would allow the appeal, overturn the findings of the NS SC (Trial division) and the majority of the NS CA, and resort the acquittal of the appellant R.D.S
The Supreme Court of Canada allowed the appeal and restored Judge Sparks' acquittal of RDS. The Court noted that "A high standard must be met before a finding of reasonable apprehension of bias can be made. Troubling as Judge Sparks’ remarks may be, the Crown has not satisfied its onus to provide the cogent evidence needed to impugn the impartiality of Judge Sparks. Although her comments, viewed in isolation, were unfortunate and unnecessary, a reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias."
E. LAW AND ECONOMICS
1. Introduction
-Law and Economics theories look at law from a less moral perspective, and more in ideas about efficiency.
-Scholars have applied economic analysis to explain contract law, crime, torts, family law, property, legislation, abortion, and more.
-A traditional law and economics approach applies economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient.
-Efficiency tends to be defined in terms of an ideal where the welfare of each of the relevant parties can no longer be maximized except at the expense of other parties reddened to as a state of “Pareto optimality”
-Central to all economic analysis is the assumption that human beings are rational actors and individuals have preferences and act in order to achieve those preferences: they act as if they were rational maximizes of their welfare.
2. Public Law and Economic Theory
a. Overview
-Justice and Efficiency are interrelated: Justice involves considerations of utility, Efficiency can be seen as a concept concerned with maximizing justice.
-The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understand public policy. It attempts to explain government intervention as a “corrective” to market failure. The theory seeks to understand why some government programs seem to run counter to the public good (or at least, do NOT maximize the public good)?
-A basic proposition of public choice theory is that diffuse and fragmented groups are less effective than more focused and concentrated groups in achieving success in the political arena and in influencing legislators and regulators.
-This will usually lead to legislation favouring the self-interest of legislators and/or the interests of powerful social groups.
-THEREFORE, there is an echo in the public choice critique of the complaints voiced by the CLS and feminist scholars. Does Canadian public law sufficiently guard against these predicted outcomes?
b. Examples
-One of the themes of public law is to show how common law has been displaced by policy formulation (legislation) as the primary means of social regulation.
-Consider how the Alberta CA relies on economic theory, public choice, legislative policy, common law jurisprudence, and morality:
_______________________Duncan Estate v Baddeley [1997] ________________________
Issue: the main issue in this appeal is whether a claim in tort for loss of future earnings survives the death of the victim, and, if it does, how to calculate such a claim...
Held: The majority of the Court of Appeal held that the claim should survive the wronged person's death, that is, the Court answered the question yes. They awarded damages to the wronged person's estate against the wrongdoer for the loss of the chance. In so doing, they interpreted secs.5 and 6 of the Survival of Actions Actas permitting the award.
However, this interpretation of the Act is not inevitable, and it is possible that the question may fall for decision by the Supreme Court of Canada in this or a future case. It is desirable that the legislation make it clear either that the claim survives the wronged person's death or that it does not.
-Justice Kerans ruled that, regardless of whether the deceased had any dependants,
. . . in Alberta a claim for loss of future earnings does survive the death of the victim. And, with two important qualifications, that claim should be assessed as would any claim for loss of future earnings (Duncan, at 2).
-The two qualifications to which he referred are that deductions are to be made from the deceased’s projected annual income for
(i) income taxes and (ii) the "cost of personal living expenses."
-The purpose of this section is to assess the impact of the Duncan decision on the calculation of damages in fatal accident cases.
-This assessment is conducted in three parts. In the first of these, I review the calculation of the two deductions.
-In the second, I consider the arguments concerning a "tax gross up" in calculations based on Duncan.
-Finally, in the third, I identify whether there are any cases in which dependants, who are eligible to sue under the Fatal Accidents Act, might find it advantageous to base their claim on Duncan (that is, on the Survival of Actions Act).
-The next case also provides an interesting backdrop to the idea of public choice theory.
-Although the main issue in the case was whether the human rights regime covers the entire field of anti-discrimination law, in the excerpts that follow notice how both the CA of Ontario and SCC define the legislative choices differently:
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1979]
Facts: P claims that she was discriminated against by D on the ground of her ethnic origin when she applied for a teaching position at D’s college. She claims that she is a highly educated East Indian woman with a Degree, a Masters, and a Doctorate. She applied for 10 openings in 4 years and was never granted an interview for any of them. Instead of filing a complaint with the Ontario Human Rights Code, she claimed damages for discrimination and for breach of s.4 of the Code.
Issue: The court must assume that the P can show that she was discriminated against on grounds of ethnic origin and that she suffered damage as a result. The issue whether or not this could give rise to a civil cause of action is thus squarely before the court in this appeal.
It is important to not that there are 2 separate causes of action arising form the same set of facts: (1) P alleges that D was in breach of its common law duty not to discriminate against her; (2) that D was also in breach of its statutory duty not to discriminate against her; giving rise to a civil cause of action
Held: Appeal allowed. I do not regard the Code as in any way impeding the appropriate development of the common law in this area. While the fundamental human right we are concerned with is recognized by the Code, it was not created by it. Nor does the Code contain any expression of legislative intention to exclude the common law remedy.
It is unnecessary that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action.
-Wilson recognized a new tort for discrimination.
-Wilson saw the preamble in the Ontario Human Rights Code as evidencing “the public policy of the province of Ontario respecting fundamental human rights” and thought it appropriate that the declared rights of equality and freedom from discrimination “receive the full protection of the common law”.
Wilson did not regard the Code “as at all impeding the appropriate development of the common law in this important area”, as the fundamental human rights were recognized in the Code, but NOT created by it.
-Nor did Wilson see in the Code, any legislative intention to exclude the common law remedy.
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1981]
Held: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed.
The Court allowed the appeal. It held that there was a tort of discrimination in Common Law but that the law went further and established a regime integrating the court system and thus giving a remedy.
Bhadauria should have used the prescribed complain modalities outlined in the law instead of trying to bypass it and go straight to court.
Held that the courts could not enforce the Human Rights Code. Allegations of discrimination are not causes of action that can support a civil action.
2. SOURCES OF LAW:
v Chapter 2 pg47-87à “Nature, Divisions, and Sources of Law”
II. CANADIAN LEGAL INHERITANCES
A. LAW FROM HISTORY, CUSTOM, AND TRADITION
-Much of our current legal regime depends on the common law and a series of British imperial statutes, which were received into Canada upon its acquisition as territorial possession of the British Crown
-Quebec is different due to its French history. It remains a civil law jurisdiction which is influenced by common law.
-Aboriginal interests and concepts have emerged as a source of law in Canada.
1. Law and Aboriginal Peoples
-Aboriginal peoples = Indians, Inuits, and Metis
-Some early Canadian cases recognized that the assumption of control by the British Crown during the colonial period did not automatically erase aboriginal legal systems:
Connolly v Woolrich [1867] where validity of an 1803 marriage under Indian custom between an European and Indian was upheld a the assertion of English sovereignty it did not annul “the territorial rights, political organization, such as it was, or the laws and usages of Indian tribes”)
-However, this approach did not prevail is subsequent Canadian case law
-For years, there has been little or no place in our legal system for the original inhabitants.
-In Canada, by virtue of s.91(24) of Constitution Act 1867, the federal Parliament has power over “Indians” and “lands reserved for Indians”.
-In 1982, aboriginal rights were constitutionally entrenched in s.35 of Constitution Act 1982 which protects “existing aboriginal and treaty rights of the aboriginal peoples of Canada”
-A significant amount of jurisprudence in Canada expanding on aboriginal rights since 1982 has contributed to this debate.
-Although many economic, social, and health indicators continue to show that Canada’s aboriginal peoples are much worse off than other Canadians, and the paternalistic nature of the Indian Act continues to control many aspects of their lives, the constitutionalization of aboriginal rights has restored at least some recognition of the aboriginal interests in Canadian law.
___________Mitchell v Canada (Minister of National Revenue – MNR) [2001]_________
This is a leading SCC decision on aboriginal rights under section 35(1) of the Constitution Act, 1982.
Facts: In 1988, Grand Chief Michael Mitchell, a Mohawk of Akwesasne, attempted to bring goods from the US into Canada. At the border he declared everything that he had purchased in the US but refused to pay any duty on it, claiming that he had an aboriginal right to bring goods across the border.
At trial, the Federal Court agreed with Mitchell and held that there was an aboriginal right to import goods. The decision was upheld by the Federal Court of Appeal
Held: The court held that Mitchell's claim to an aboriginal right to import goods across the Canada-US border was invalid as he was unable to present enough evidence showing that the importation was an integral part of the band's distinctive culture.
SCC Held: The Supreme Court overturned the decision, and held that Mitchell was required to pay duty for all of the goods he imported.
-The next case provides an overview of recent developments in the area of aboriginal rights in the context of aboriginal title to land.
-This is a famous leading decision of the SCC where the Court made its most definitive statement on the nature of aboriginal title in Canada:
_____________________Delgamuukw v British Columbia [1997] ____________________
Facts: the Appellants, chiefs of the Gitksan or Wet’suwet’en tribes, claimed aboriginal title – that is, an interest in land that arises by virtue of an aboriginal group’s historical association with those lands – over separate portions of 58,000 sq km in British Columbia. The province of BC counterclaimed for a declaration that the appellants have no right or interest in the territory or, alternatively, that the appellants’ cause of action ought to be for compensation from the government of Canada. He went on to discuss the decisions at trial and at the BC CA and matters related to factual findings at trial.
SCC Held: Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers.
The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.
The Test for the Proof of Aboriginal Title:
In order to make out a claim for aboriginal title, the aboriginal group asserting the title MUST satisfy the following criteria:
(1) The land must have been occupied prior to sovereignty;
(2) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and
(3) At sovereignty, that occupation must be exclusive
2. Canada’s Common and Civil Law Traditions
a. Reception of European Law
-Despite renewed recognition of aboriginal interests in Canadian law, it is indisputable that Canadian law remains a largely European inheritance.
-How were Canada’s dominant common (and Quebec’s civil) law traditions “received” from their European origins?
-William Blackstone best summarized how colonial laws were to apply to the New World. It depended on whether colonies were simply settled, or were conquered by indigenous peoples.
-The PC in Cooper highlights the basic principles surrounding the rules of reception. Lord Watson provides a general overview of how British colonies adopted English law.
-The case focused on the application of the common law “rule against perpetuities” (a property law rule designed to limit the duration of a condition imposed as part of the transfer of land) in New South Wales colony, now part of Australia.
___________________________Cooper v Stuart [1889] ____________________________
Facts: The Governor of the colony, before 1824, had made a land grant that was subject to a reservation that the government could reacquire, at any time, a portion of the land that might be needed for public purposes. The landowner argued that this reservation was invalid because it was against a long-standing principle of property law known as 'the rule against perpetuities'. The Privy Council eventually held that the reservation was valid, but they first had to decide whether the laws of England operated in the colony at the time of the grant. They held that New South Wales should be treated as a settled colony as at 1788, such that applicable English law arrived with the first settlers. They so held on the basis that the land was 'practically unoccupied without settled inhabitants'.
This proposition was unchallengeable by Australian courts until the appeal to the Privy Council from the High Court of Australia was effectively abolished by statutes enacted by the Commonwealth Parliament in 1968 and 1975.
The Privy Council in 1889 described New South Wales in 1788 as 'practically unoccupied without settled inhabitants'. On that basis, it should be treated as a 'settled colony'.
As a consequence, the common law rule was that applicable laws of England had arrived with the First Fleet as some sort of invisible baggage.
One central feature of the property law of England was the feudal doctrine of tenures. Under this doctrine, no one could establish any title to land unless such title could be traced to a grant from the Crown. This doctrine made perfectly good sense among the newcomers. Needless to say, it set up yet another hurdle in the path of any recognition of pre-existing land rights.
-As this discussion and case suggests, the applicable rules of reception varied between conquered and “settled” colonies.
-In North America, the problem of determining which of these rules of reception would apply was compounded by 2 factors:
(1) aboriginal peoples were already present, so true “settlement” in Blackstone’s definition could apply; and
(2) France also had an interest in much of British North America, and claimed much of its territory.
-The rules of reception dictated that the entire body of English law, both statutory and common, was imported into the settled colony.
-In Canada, the dates of reception are not clearly demarked because there was no obvious statutory source providing for the administration of a province or colony.
-Thus, the courts became the arbiters of settlement dates, and determined date of statutory reception to be “the date of the institution of a local legislature in a colony”
-The date of reception for the common law was much less important...
-Common law decisions simply declared what had always been the law from time immemorial. Therefore, common law decisions operated retrospectively and applied to all colonies equally.
-Common law, as Blackstone also noted, is a universal, uniform set of principles and precepts. That the Judicial Committee of the PC was the final court of appeal throughout the British Empire, and could ensure some measure of uniformity over the common law, aided this notion.
-Once a decision was made by either the PC or the HL on a common law principle, all common law jurisdictions, at least in the formative years, would accept that decision as binding.
b. Nature of the Common and Civil Law
-Common law is an English invention which is judge-made law that is developed though the common law courts
-Two fundamental ideas permeate common law theory (1) judges do not make the law but merely declare it; and (2) all relevant past decisions are considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance.
-Thus, the common law is the law constructed out of a series of cases.
-Although common law jurisdictions such as Canada no longer rely exclusively on case law, it is largely true that cases remain a key source of law, while statutes are seen as incursions into common law. on the other hand, Quebec inherited the vastly different tradition of the civil law.
-Civil law legislation is seen as the primary source of law. Judgements normally rely on the provisions of codes and statures, from which solutions in particular cases are derived.
-As a result of this “bijiuralism”, Canada is a mixed-law jurisdiction: British common law is the basis of private law in all provinces except Quebec, and Canadian federal law derives from the common law.
-Private law in Quebec is based on French civil law tradition, but many of its aspects in the legal system are of common law jurisdiction.
-Quebec’s private law derives from its Civil Code, its provincial statutes, and from federal private law. This Code reflects the bijural nature of Canada’s legal systems: it relies on civil law jurisdictions such as French and Germany to preserve its civilian integrity, but marries that with the common law rules to ensure better harmonization with the rest of Canada and the U.S.
c. The Operation of Common Law and Precedent
-How does the common law work in practice? The genius of the common law is that it makes adherence to legal principles established on past cases a foundational principle that inevitably leads to a more or less stable and certain legal structure (precedence)
-The difficulty for lawyers, however, is often determining which parts of a precedent are binding in subsequent cases: every case has to be looked at from 2 points of view: (1) That of that narrowest rule that a subsequent unkind court will concede has been laid down, and
(2) the widest rule that a later friendly court could use to support a more novel position
-An example illustrates these issues is the SCC case of Bhaduria where, in Laskin’s reasoning, no claim based on a breach of the Ontario Human Rights Code, or the public policy found within it.
-In the next case, Tarnopolsky takes a much narrower readying of Bhadauria – “distinguishing” that case and contrasting to its facts – in order to allow the claim for discrimination in the context of a trust claim:
_____________Canada Trust Co. v Ontario Human Rights Commission [1990] ________
Issue: whether the terms of a scholarship trust established in 1923 are contrary to public policy? If they are, the question then is whether the cy-pres doctrine can be applied to preserve the trust? The terms of the trust restricted the scholarship funds to white Christians of British Nationality or British parentage.
Held: allowed scholarship to remain. The trustee is entitled to come to the superior court pursuant of s.60 of the Trustee Act to seek advice and direction.
-Tarnopolsky involved the cy-pres doctrine to bring into accord with public policy by removing all offensive restrictions, thus, permitting it to remain a scholarship.
(i) The state of law dealt with y this court and the SCC in Bhadauria [1981] is in contract with the situation in this case. In Bhadauria this court had attempted “to advance the common law” in filling a void by creating a new tort of discrimination. The SC held that not to be necessary because of the comprehensive scheme of the Ontario Human Rights Code. Here, however, we are concerned with the administration of a trust, over which superior courts have had inherent jurisdiction for centuries and with respect to charitable or public trusts. the trustee in this case applied to the High Court for advice and direction pursuant to the trust instrument itself as well as s.60 of the Trustee Act.
(2) We are not concerned here with a typical proceeding under the Human Rights Code in which an allegation of discrimination is brought against a respondent. In this case, resort to a court would have to be made to determine authoritatively whether the powers by the inquiry to alter the terms of the trust or declare it void, exist.
(3) This case is not a case where the fact-finding role of the Commission and a board of inquiry would be required. We are concerned here with a question of law; there are no facts in dispute. The trustee is entitled to come to the superior court pursuant of s.60 of the Trustee Act to seek advice and direction.
d. Common Law and Equity
-Common law has a variety of other “internal” meanings according to context. It must sometimes be distinguished from the body of law produced from the Chancery court and known as equity.
-Equity is the body of law developed by the Court of Chancery. Thus, equity developed in tandem with the common law.
-Its original function was to provide a corrective to the perceived harshness of the common law. The equitable jurisdiction began as a fluid, pragmatic, conscience-based system of law, profoundly anti-formal and anti-establishment.
-Cases were decided according to the rules of equity and good conscience
-Some form of equity may be necessary in the modern legal system.
-Because law is a body of rules and principles that is concerned with generalities, law sometimes fails to achieve adequate justice in a particular case.
-Equity is a supplementary system that allows for the exigencies of the special case: principles are more clearly tied to considerations of conscience, morality, and the conduct of particular persons than those of the law.
-The modern view of the equitable jurisdiction is that of a body of rules, principles, maxims, and doctrines that originated in the Court of Chancery but that has continued to evolve and develop since its abolition.
-It is now simply part of our law.
NOTE: despite the fact that the bulk of equity jurisprudence arose in the private law realm, equitable principles are slowly making inroads into public law.
-The following case is an early example which the equitable doctrine of fiduciary was involved to protect the religious upbringing of a child (not how the court relies on equitable principles to interpret a statutory provision):
____________________________Re v DeLaurier [1934] ___________________________
Facts: P applied in the SC of Ontario for the custody of their infant child Thelma, who, for about 10 years from early infancy, had been in the care of the respondents. The appellants were Roman Catholics and the respondents were Protestants and the child had become identified with the respondents’ church. The application was dismissed, an appeal to the CA of Ontario was dismissed, and an appeal was brought to the SCC.
Held: appeal dismissed.
Crocket – If the general welfare of the child requires that the father’s rights in respect of the religious faith in which his offspring is to be reared, should be suspended or superseded, the courts in the exercise of their equitable jurisdiction have undoubted power to override them, as they have the power to override all other parental rights, though in doing so they must act cautiously. Due consideration is, of course, to be given in all cases to the father’s wishes...but the father’s wishes cannot conflict with the child’s own best interests.
-In recent years, equitable principles have been adapted to public law circumstances. -The equitable fiduciary obligation, long thought to apply to private matters, has evolved into the public realm
-In certain circumstances, as the next 2 cases show, the Crown may be under a fiduciary obligation to particular individuals or groups:
__________________________Guerin v Canada [1984] ___________________________
Facts: An Indian Band surrendered valuable surplus reserve lands to the Crown for lease to a golf club. The terms obtained by the Crown, however, were much less favourable than those approved by the Band at the surrender meeting. The surrender document did not refer to the lease or disclose the terms approved by the Band. The Indian Affairs Branch officials did not return to the Band for its approval of the revised terms. Indeed, they withheld pertinent information from both the Band and an appraiser assessing the adequacy of the proposed rent. The trial judge found the Crown in breach of trust in entering the lease and awarded damages as of the date of the trial on the basis of the loss of income which might reasonably have been anticipated from other possible uses of the land. The Federal Court of Appeal set aside that judgment and dismissed a cross-appeal seeking more damages.
Issue: the question is whether the appellants, the Chief and Councillors of the Musqueam Indian Band, suing on their own behalf and on behalf of all other members of the Band, are entitled to recover damages from the federal Crown in respect of the leasing to a golf club of land on the M. Indian Reserve.
Held: appeal allowed.
The mere fact, however, that it is the Crown which is obligated to act on the Indians' behalf does not of itself remove the Crown's obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians' interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown's obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.
__________________________K.L.B v British Columbia [2003] _____________________
Facts: The appellants suffered abuse in two successive foster homes. In the second home the appellants were also exposed to inappropriate sexual behaviour by the older adopted sons. On one occasion, K. was sexually assaulted by one of these young men. The trial judge found that the government had failed to exercise reasonable care in arranging suitable placements for the children and in monitoring and supervising these placements. She also found that the children had suffered lasting damage as a result of their stays in the two homes. She rejected the defence that the tort actions were barred by the British Columbia Limitation Act.
The Court of Appeal allowed the Crown’s appeal. All three judges found that the appellants’ claims were statute-barred, with the exception of K.’s claim for sexual assault. In addition, all three judges overturned the ruling that the government had breached its fiduciary duty to the children. However, the majority upheld the trial judge’s conclusion that the government was vicariously liable and in breach of a nondelegable duty of care in the placement and supervision of the children.
The majority, however, upheld the trial judge’s conclusion that the government was vicariously liable and in breach of a non-delegable duty of care in the placement and supervision of the children.
The appellants appealed to the SCC.
Issue: This appeal raises the question of whether, and on what grounds, the government can be held liable for the tortuous conduct of foster parents toward children whom the government has placed under their care?
Held: appeal dismissed. I would uphold the CA’s conclusion that the government did not breach its fiduciary duty to the appellants.
“Returning to the facts of this case, there is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in a way that amounted to betrayal of trust or disloyalty. The worst that can be said of the Superintendent is that he, along with the social workers, failed properly to assess whether the children’s needs and problems could be met in the designated foster homes; failed to discuss the limits of acceptable discipline with the foster parents; and failed to conduct frequent visits to the homes given that they were overplaced and had a documented history of risk (trial judgment, at para. 74). The essence of the Superintendent’s misconduct was negligence, not disloyalty or breach of trust. There is no suggestion that he was serving anyone’s interest but that of the children. His fault was not disloyalty, but failure to take sufficient care.”
-Cases involving the Crown’s treatment toward aboriginal peoples have cemented the finding of a fiduciary relationship outlined in Guerin.
-In other areas, there is still some uncertainty and the outer limits of Crown fiduciary responsibility remain untested (see Authorson v Canada (AG) [2003])
B. INTERNATIONAL LAW
-Canadian law often ignores international law. This is unfortunate.
-Consider the brief overview of international law and its reception into Canadian domestic law:
Law Commission of Canada, Crossing Borders: Law in a Globalized World (2006)
-In modern legal system, 2 different species of law exists; international and domestic
A. Domestic Law
-In Canada, domestic law exists as legislation enacted by the legislatures or made as regulations by the executives. Outside Quebec, domestic law also comes in the form of the common law.
-In Canada, constitutional law comes in both written and unwritten forms (written is entrenched in legislation...unwritten is product of judicial decision-making)
B. International Law
-2 sources of international law are treaties and “customary international law” (treaties are binding on two states, “cil” binds all states, except those who persistently rejected it)
-Universal Declaration of Human Right was entrenched in Canadian “cil” in 1995 to bind all governments.
III. International Law as Parts of Canadian Law
-The government must ensure that domestic law does not run counter to international law
A. Receiving Treaties into Domestic Law and Questions of Legitimacy
1. “Dualism” and the Separate Solitudes of Domestic and International Law
-An international treaty may require Canada, as a matter of international law, to change its domestic law.
-But that treaty has no direct effect in domestic law until domestic legislation is passed to “transform” or “implement” it into Canadian law.
2. Dualism as a Rational Reaction to Democratic Legitimacy Questions in International Law-Making
-Canadian law insists that treaties be transformed into domestic federal law by an Act of Parliament.
-In constitutional law, when a treaty deals with provincial matters, it is the provincial legislatures who must legislate the treaty into domestic law.
3. The Dualist Dilemma
-When Parliament fails to implement treaty law into domestic law, the result is an unfortunate legal quandary: Canada is bound by the treaty as a matter of international law, and yet its policy-making need not abide by the treaty under the terms of domestic law.
-When the federal government exercises its power to conclude an international treaty, Parliament and provincial legislatures may face a dilemma in cases where the law is not consistent with the treaty.
-They may chose to disregard that international obligation, preserving their supreme law-making role in Canadian democracy at the potential cost of Canada’s adherence to an international rule of law.
-They may also implement these international requirements into domestic law, but with their role limited to stamping “approved” onto a treaty concluded exclusively by the federal executive branch.
-As globalization increases, this dilemma will become progressively more acute.
4. The Uncertainties of Dualist Reception
-There is no clear rules on when a treaty has been “transformed” or “implemented” into Canadian law. In many cases, existing statutes already conform to these obligations; in other cases, Canada can meet its international obligations through the formulation of policies.
-For example, Article 3 of Convention on the Rights of the Chid.
-The SCC in the decision addressing an immigration law matter, the SCC in Baker concluded that the treaty had never been implemented.
-The court in Baker did not describe how this implementation might be achieved. However, its approach seems to suggest that for Article 3 to be implemented, every time a statute gives power to a government official, the statute would have to include some reference to the “best interests of the child” standard.
-Thus, implementing Article 3 would require changes almost everywhere in Canada’s statutes, an enormous undertaking
5. Recent Judicial Reactions to Dualism
-Setting the bar high for what courts accept as implementation has consequences.
-Courts are increasingly prepared to view even unimplemented international treaties as important interpretive aids in understanding Canadian statutes. But this may produce awkward law
-For example Suresh v Canada [2002]
-The court considered whether deportation to torture violated Canadian constitutional law. Canadian immigration law at the time permitted deportation of refugees in national security grounds even when their “life or freedom would be threatened.” (It was silent on the question of torture)
-But the UN Convention Against Torture expressly bars deportation to torture.
-The SC assumed that since this specific prohibition was not replicated in Canadian immigration law, it had not been implemented. It then concluded that, despite this problem, the treaty still informed the content of the Canadian Charter of Rights and Freedoms.
-Yet in describing the requirements of the treaty-inspired Charter right, the Court declined to meet the requirements of the treaty itself: while the treaty contains as absolute ban on deportation to torture, the treaty-inspired Charter right developed by the Court permits such removal in “exceptional circumstances"
-The result is a Canadian rule that, while motivated by an unimplemented international treaty, is not compliant with it.
6. The Worst of Both Worlds
-The Suresh approach creates real problems: the courts are now prepared to seek inspiration from unimplemented treaties. Yet, because Canada’s dualist tradition means these treaties are not really the law of Canada, courts may ignore the actual requirements of these treaties and devise come hybrids standard of their own.
-The end product may be the worst of both words: the partial application of treaties never concretely implemented by legislature, but in a manner that does not actually comply with Canada’s international obligations.
________________________________________________________________________
B. Customary International Law Reception and Legitimacy
1. The Incorporation of Customary International Law
-This is very different from the “dualist” treaty reception doctrines.
-Once a rule becomes recognized as customary law, it is automatically part of the Canadian common law.
-With “cil”, Canada is a “monist” rather than “dualist” jurisdiction
-But like common law, directly-incorporated customary international law can always be displaced or overturned by a statute that is inconsistent with it
“Customary rules of international law are directly incorporated into Canadian domestic law unless explicitly outlined by contrary legislation. So far as possible, domestic legislation should be interpreted consistently with those obligations” (Bouzari v Iran [2004])
2. Issues Raised by the Incorporation of Customary International Law
-FIRST, when a legislature does legislate in a manner that displaces customary international law, Canada may be subsequently in violation of its international obligations.
-SECOND, if “cil” is part of the common law of Canada, its existence as domestic law is a matter determined by the courts exclusively. This “cil” is itself created by the international system in an organic rather than negotiated fashion. If “cil” is subsequently incorporated directly into Canadian law by the courts, there may never be any clear and direct input by political branches of government into the rules by which law in Canada is made binding.
-THIRD, since the content of “cil” is sometimes uncertain, courts asked to apply it as the domestic law of Canada rely on expert testimony from international lawyers and academics, raising further questions of legitimacy.
C. STATUTORY LAW
1.Introduction
-Much of English law developed through the accumulation of case law and the interpretation of judges, as opposed to being set out in legislation (thus, creating common law)
-There have been little in the way of statutory law. But in modern states, many areas of law are almost wholly controlled by statutory enactments.
2. Statutes and the Common Law
-One basic principle of common law interpretation is that a statutory rule will supersede a judge-made rule.
-This is relatively easy to apply in many situations, but the theory may be more difficult to apply where the statutory scheme does not expressly overturn a common law rule, or where the common law ventures into new territories.
-The following case shows the CA and the SCC grappling with how to treat the relationship between common and statutory law where the legislative enactment has not specifically responded to a common law rule:
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1979]
Wilson – Appeal allowed.
-Wilson recognized a new tort for discrimination.
-Wilson saw the preamble in the Ontario Human Rights Code as evidencing “the public policy of the province of Ontario respecting fundamental human rights” and thought it appropriate that the declared rights of equality and freedom from discrimination “receive the full protection of the common law”.
Wilson did not regard the Code “as at all impeding the appropriate development of the common law in this important area”, as the fundamental human rights were recognized in the Code, but NOT created by it.
-Nor did Wilson see in the Code, any legislative intention to exclude the common law remedy.
Held: Appeal allowed. I do not regard the Code as in any way impeding the appropriate development of the common law in this area. While the fundamental human right we are concerned with is recognized by the Code, it was not created by it. Nor does the Code contain any expression of legislative intention to exclude the common law remedy.
It is unnecessary that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action.
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1981]
Facts:Discrimination by way of repeated denial of an employment opportunity on the alleged ground of racial origin does not give rise to a common law tort, especially when The Ontario Human Rights Code provides for an administrative inquiry and remedial relief and allows a wide appeal to the Court on both law and fact. It was open to the plaintiff to invoke the procedures of the Code and her failure to do so did not entitle her to sue at common law or to found a right of action on alleged breach of the Code.
Held: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed.
Laskin – Appeal allowed.
-Laskin
“In my opinion, the attempt of the respondent to hold the judgment in her favour on the ground that a right of action springs directly from a breach of The Ontario Human Rights Code cannot succeed. The reason lies in the comprehensiveness of the Code in its administrative and adjudicative features, the latter including a wide right of appeal to the Courts on both fact and law.”
“In the present case, the enforcement scheme under The Ontario Human Rights Code ranges from administrative enforcement through complaint and settlement procedures to adjudicative or quasi-adjudicative enforcement by boards of inquiry. The boards are invested with a wide range of remedial authority including the award of compensation (damages in effect), and to full curial enforcement by wide rights of appeal which, potentially, could bring cases under the Code to this Court.”
“The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.
“For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.”
“The appeal is, accordingly, allowed, the judgment of the Ontario Court of Appeal is set aside and the judgment of Callaghan J. dismissing the action is restored. In the circumstances, there will be no order as to costs, either here or in the courts below.”
HELD: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed. There was a tort of discrimination in Common Law but that the law went further and established a regime integrating the court system and thus giving a remedy.
Bhadauria should have used the prescribed complain modalities outlined in the law instead of trying to bypass it and go straight to court. The courts could not enforce the Human Rights Code. Allegations of discrimination are not causes of action that can support a civil action.
3. Complexity in Canadian Law Making
-The interplay among common law, statutory law, and constitutional law can be complex
-The recent shift in policy overcomes a century or more of common and civil law tradition (i.e. the definition of marriage as a union between one man and one woman)
-The impetus for the modern changed allowing same-sex marriage arose piecemeal through a series of constitutional cases that began by establishing equal benefits for homosexual couples.
-The following case gives a brief glimpse into the intricate relationship between custom, common law, civil law, and constitutional law that exists in contemporary Canada:
________________________Halpern v Canada (AG) [2003] _________________________
Facts: Seven gay and lesbian couples (“the Couples”) want to celebrate their love and commitment to each other by getting married in civil ceremonies. In this respect, they share the same goal as countless other Canadian couples. Their reasons for wanting to engage in a formal civil ceremony of marriage are the same as the reasons of heterosexual couples.
Issue: We frame the issues as follows:
(1) What is the common law definition of marriage? Does it prohibit same-sex marriages?
(2) Is a constitutional amendment required to change the common law definition of marriage, or can a reformulation be accomplished by Parliament or the courts?
(3) Does the common law definition of marriage infringe MCCT’s rights under ss. 2(a) and 15(1) of the Charter?
(4) Does the common law definition of marriage infringe the Couples’ equality rights under s. 15(1) of the Charter?
(5) If the answer to question 3 or 4 is ‘Yes’, is the infringement saved by s. 1 of the Charter?
(6) If the common law definition of marriage is unconstitutional, what is the appropriate remedy and should it be suspended for any period of time?
HELD: the Court found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Canadian Charter of Rights and Freedoms.
The unanimous Court found that the exclusion of same-sex couples was a clear violation of the Charter and moreover did not constitute a "reasonable infringement" under section 1. In this respect the judgment followed much of what had been ruled elsewhere.
Surprisingly, the Court also held that there was to be no suspension of the remedy as it applied to the general population and that the new definition allowing same-sex couples to marry would take effect immediately.
-In the aftermath of Halpern, the federal government decided to accept the result reached by the Ontario CA and thus, did not seek leave to appeal to the SCC. However, their motion to leave was quashed by the court on Oct 10, 2003
-In July 2003, the federal government produced a draft bill that would redefine marriage.
-Before proceeding, the government decided to refer 4 questions regarding the validity to the SCC.
-The court handed down its decision in Reference re Same-Sex Marriage Act [2004], upholding the Bill in Parliament for same-sex marriage in all provinces
-It is now proclaimed as the Civil Marriage Act 2005
3.FUNDAMENTAL PRINCIPLES OF THE CANADIAN LEGAL SYSTEM
v Chapter 3 pg 89-129à “Recurring Constitutional Themes in Canadian Public Law”
-The state may impose its dictates on private persons without their individual consent. Nevertheless, in a society governed by the rule of law, the state may not act arbitrarily.
-To be legitimate, the state must impose its will lawfully, in accordance with law: the starting point in assessing the legitimacy of state action is the constitution.
-A constitution established the foundational law through which this “rule of law” can occur. It does so in 2 ways:
(1) A “Rule of Recognition” - it established as a matter of law who can make the law “ordinary law” of the land and also spells out any limits on the content of this ordinary law. Thus, a constitution allows us to recognize ordinary law and determine whether it is proper.
(2) A constitution establishes the respective relationships between the institutions of branches of the state that perform the functions necessary to “operationalize” law in society.
-This chapter’s intention is to set out and elaborate principles derived from Canada’s constitutional history and structure that help to explain the shape and operation of public law in Canada.
-Six such principles appear in this chapter:
o Rule of Law – all exercise of legitimate public power must have a source in law, and every state official or agency is subject to constrain of the law.
o Constitutional Supremacy – the Constitution is the supreme law of the society, and ordinary law that is inconsistent with the Constitution is of no force of effect.
o Parliamentary Supremacy – Subject to the Constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it deems fit.
o Federalism – legislative sovereignty in Canada is divided between an national legislature, or Parliament, and provincial legislatures, according to a division of law-making powers of jurisdictions set out in the Constitution.
o Statutory Authority – the executive branch f the state derives all its authority to act from statutory grants of power from the legislative branch, save and except for certain powers derived from “royal prerogative” and constitutional convention.
o Judicial Independence – the judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of state in order to perform its constitutional law functions.
-The “recurring constitutional principles” frame many of the public law issues analyzed more closely elsewhere in this volume.
-However, the constitutional foundations of Canadian public law are not easily grasped in isolation and are best understood as forming an integrated whole, whereby the principles work together and complement one another.
I. CONSTITUTIONALISM IN CANANADA
-This section addresses the nature of Canada’s Constitution and the principles of “constitutional supremacy” and the “rule of law”
A. THE PRINCIPLE OF THE RULE OF LAW
-This has a range of possible meanings. One most familiar is that a society should strive to operate on “the rule of law rather than the rule of men or women”.
-In replacing of arbitrary, unconstrained power with rule-governed authority is clearly a normative purpose of law.
-Many societies, including Canada, have placed a supreme constitution overtop of “ordinary” law and state functions.
-The constitution served as “a law to make law”: the ground rules for law making and governance.
-In this way, the rule-of-law principle is logically prior to a principle of constitutionalism.
-In Succession Reference [1998] the SCC viewed the principles of “constitutional supremacy” and “rule of law” as closely connected:
“The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodies in s.52(1) of Constitution Act 1982, which provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of inconsistency, of no force or effect.” Simply put, the constitutionalism principle requires that all government action comply with the Constitution, the rule of law principle requires that all government action comply with the law, including the Constitution.”
-In this usage, the rule of law if broader than constitutionalism, and indeed its necessary prerequisite.
-The idea that all state officials are subject to the legal order, and to the same legal obligations are individual citizens, was most strikingly affirmed by the SC in:
_______________________Roncarelli v Duplessis [1959] __________________________
Facts: In this pre-Charter case, the director of the province’s liquor commission, acting under the express direction of Premier Maurice Duplessis, revoked the licence of a Montreal restauranteur who had posted bail for several hundred Jehovah’s Witnesses, a group that had attracted the particular animus of the premier. The director purported to be acting under the commission’s unqualified statutory power to cancel permits “at its discretion.”
Held: The court rejected the idea that any statute could delegate such untrammelled power to a government official, or that the premier cold manipulate his own powers to pursue a personal vendetta.
-Statutory powers must be limited to the express or implied purposes for which they were granted, a principle enforceable by the judiciary.
Rand J (concurring)- Justice Rand wrote in his often-quoted reasons that the unwritten constitutional principle of the "rule of law" meant no public official was above the law, that is, they could neither suspend it or dispense it.
Though he had the authority to do this by the law granting him the discretion, he overstepped the reasons why he held this.
àIt is held as an example of a ruling showing we need, and have, rules governing the granting of authority
B. WHAT COMPRISES THE CONSTITUTION OF CANADA?
-We commonly think of Canada as having a written Constitution, embodies in 2 documents produced at distinct historical moments: The Constitution Act 1867 and The Constitution Act 1982.
-The principle achieved in 1867 Act is federalism: the division of legislative powers between a national Parliament and the legislatures of the provinces, where the division of powers is stated in s.91 and s.92
-The 1982 Act is known for the Canadian Charter of Rights and Freedoms: which guarantees a set of individual and minority rights
-The Constitution Act 1982, provides an express definition of the Constitution and its legal statue in s.52(1) and (2).
-By using the word “includes”, s.52(2) contemplates that the Constitution may comprise more elements than are stated in that section.
-In Succession Reference, the SCC confirmed that the Constitution also contains unwritten “principles” which are important to understand the legal constraints under which public power is exercised by the Canadian state.
-The first excerpt from this case constrains the SC’s discussion of the relationship between the text of the Constitution of Canada and what it identifies as “unwritten principles of the Constitution.”
-The discussion in paras.[49 and 50] has internal momentum.
-The court starts by describing unwritten constitutional principles as being part of the structure or “architecture” of the Constitution that retains its primacy.
-The court then states that the principles may be helpful to a proper interpretation of the text.
-In its final and most striking statement, however, the court describes unwritten principles as having the force of law and imposing substantive limits on the powers of government.
____________________Reference re Sucession of Quebec [1998] ___________________
Facts:Following the election of a majority of Parti Québécois (PQ) MNAs with 41.37% of the popular vote in the 1976 provincial election, the party formed a government and, in 1980, held a referendum. The government of Quebec asked the province's population if it should seek a mandate to negotiate sovereignty for Quebec coupled with the establishment of a new political and economic union with Canada. The referendum resulted in the defeat of the sovereignty option by a margin of 60% to 40%. The PQ was nevertheless re-elected in 1981, this time promising not to hold a referendum.
In 1982, the federal government, with the concurrence of all provinces except Quebec, petitioned the Imperial Parliament in London to amend Canada's constitution so that in the future, all further amendments would take place by means of a process of consent involving only the Parliament of Canada and the legislatures of the provinces. Up until this point, all amendments had taken place by means of Acts of the Parliament at Westminster, since the Canadian constitution was, strictly speaking, a simple statute of that Parliament.
Colloquially, the switch to a domestic amendment procedure was known as patriation. The particular formula for amendments that was adopted in 1982 was opposed by the then-government of Quebec, which also opposed the adoption of other constitutional changes made at the same time, such as the Canadian Charter of Rights and Freedoms—although this opposition was not necessarily based on a rejection of the content of these changes, as opposed to the manner of their adoption, and the failure to include amendments specific to Quebec in the package. Also, Quebec had already at that time a more complete Charter that was adopted in 1975.
Two further attempts were made at amending the Canadian constitution in 1987-1990 and 1992 in a manner that, it was hoped, would have caused the Quebec legislature to adopt a motion supporting the revised constitution. These failed packages of constitutional reforms were known as the Meech Lake Accord and the Charlottetown Accord. Thus, in the mid-1990s, there was a widespread sense that the Constitution of Canada was not fully legitimate, because it had not yet received the formal approval of Québec.
In 1994, the Parti Québécois was re-elected, and announced that it would be initiating a second referendum to take place in 1995. This time, the question was on sovereignty with an optional partnership with Canada. The "no" side won by only a slight margin. Prior to this referendum, the National Assembly of Quebec adopted a bill relating to the future of Quebec which laid out the Quebec's plan for secession in case of a winning referendum.
In response to the bill and the referendum result, several legal actions were initiated by opponents to the independence of Quebec, questioning the legality of secession. In 1996, Parti Québécois leader Lucien Bouchard announced that his government would make plans to hold another referendum when he was confident that the "winning conditions" were there, pointing to the political cost of losing a third referendum. In reaction to Bouchard's stated plans, Prime Minister Jean Chrétien initiated a reference to answer the legality of a unilateral declaration of independence from a Canadian province.
Issues: The Governor in Council (effectively, the Cabinet of Canada) submitted the request for an advisory opinion on the following three specific questions:
[50] Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today.
-In this case, there is little question that the SC was effectively expanding judicial authority in the constitutional sphere.
-It is important to note that in recognizing the primacy of the text of the Constitution, the court implicitly stated that unwritten principles cannot be viewed as overriding text.
-Their substantive role, at least to date, has been limited to supplementing or “filling gaps” in the text.
-Nevertheless, the SC’s discussion of 4 principles of the Constitution in the case raised the possibility of making arguments that each of these principles, and any other that might later come to be recognized, has a substantive content that directs and limits state action.
-With respect to the “rule of law” principle, this includes the idea that ordinary law must meet certain qualitative standards – including not being retrospective, or not being directed at a small class of persons – in order to be constitutional,.
-This idea was examined in Tobacco Damages and Health Care Costs Recovery Act 2000, c.30.
-In 2000, the BC legislature enacted this act, creating a civil cause of action for the BC government against tobacco manufacturers with respect to health care costs incurred by the government for tobacco-related illnesses resulting from tortuous of other misconduct by the manufacturers.
-The defendant companies, in Imperial Tobacco Canada, challenged the constitutionality of the legislation. They argued that the statute was beyond provincial powers due to its extra-territorial aspects. This was dismissed by the SCC.
-The manufacturers also argued that the legislation breached the unwritten constitutional principles of judicial independence and the rule of law, with respect to the latter, the defendants argued that several features of the statute violated substantive norms of the rule-of-law principle. The court’s unanimous decision was written by Justice Major in:
_________________British Columbia v Imperial Tobacco Canada Ltd. [2005] __________
Issue: Is the Tobacco Damages and Health Care Costs Recovery Act 2000 constitutionally invalid, in whole or in part, as offending the rule of law?
Major J - Rule of law
-The tobacco companies had claimed that the retrospectivity and retroactivity of the Act violated the rule of law by creating an unfair trial. Further, they felt that legislation should neither target a particular sector nor confer special privileges on the government.
-The rule of law, as protected by the Constitution, does not require that Acts ensure a fair civil trial or avoid giving the government advantages.
SCC Held: accepting this amorphous conception of the rule of law would render several provisions of the Charter redundant because they are more narrowly formulated.
-Constitutional “conventions” are another species of unwritten constitutional norms.
-Because the Constitution Act 1867 sought to effect “a Constitution similar in Principle to that of the UK,” Canada inherited these conventions, and the very concept of conventions, from the British constitutional structure.
-Conventions represent accepted understandings of how organs of government operate.
-Conventions are important.
-In Resolution To Amend the Constitution (the “Patriation Reference”), the SCC was called on to render a decision in the midst of a constitutional crisis. The federal government of PM Trudeau had decided to pursue amendment and patriation of the Constitution on the basis of the agreement of only 2 of the 10 provinces, Ontario and New Brunswick.
-The “Gang of Eight” opposing provinces sought a court ruling that this “unilateral” proposal to amend the Constitution breached a convention of the Constitution.
-A majority of the court agreed. And made several findings about the nature and effect of conventions of the Constitution, including:
1. Conventions come into existence on the basis of 3 factors:
a) a practice or agreement developed by political factors;
b) a recognition by political actors that they are bound to follow the convention;
c) the existence of a normative reason – that is, a purpose – for the convention
2. Conventions are NOT “law” and as such, CANNOT BE ENFORCED BY THE COURTS. They acquire and retain their binding force by agreement, and ultimately in the realm of politics. However, courts may recognize a convention.
-In Patriation Reference itself, the majority located a normative reason for a convention of “substantial provincial agreement” in the federal nature of Canadian democracy:
__________________________The Patriation Reference [1981] _____________________
Issue: Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the UK and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights, or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?
C. THE PRINCIPLE OF CONSTITUTIONAL SUPREMACY
-In the Succession Reference, the SC confirmed that with s.52(1) of Constitution Act 1982, the Canadian system of government now operates under a principle of constitutional supremacy.
-The court described the 1982 constitutional arrangements as completing a transformation over time from a system based “largely” on the principle of parliamentary supremacy to one of constitutional supremacy.
-In the Succession Reference, the SC set out its understandings of the principle of “constitutionalism” or “constitutional supremacy”. As we have already noted the court linked this concept with the “rule of law principle”:
_____________________Reference re Sucession of Quebec [1998] __________________
Constitionalism and the Rule of Law
-para [70-78]
-The doctrine of constitutional supremacy carries with it certain necessary implications that speak to other aspects of public law.
-The following are worth noting:
1. Hierarchy of Law
-The doctrine of parliamentary supremacy stands for the proposition that a rule of the common law can be overridden or amended by express statement of the legislature in the form of a statute.
-Statute law is binding to the extend it is not inconsistent with the Constitution
2. Adjudication
-To effect constitutional supremacy, it requires a mechanism for adjudicating alleged inconsistencies between the Constitution and ordinary law, including the power to declare the invalidity of inconsistent ordinary law.
-Our system accepts that constitutional interpretation cannot be performed definitively by the same body that enacts the ordinary law subject to constitutional scrutiny, that is, the legislature. This means that our system requires that the legislature will be checked by a judiciary with the authority to interpret and apply the Constitution (judicial independence).
-Ultimately, independent courts have the final adjudicative word (this includes administrative tribunals which are able to interpret and apply the Charter to invalidate legislation)
3. Counter-Majoritarianism
-To a greater of lesser degree depending on the nature and quality of a particular electoral system, legislatures express majority preferences.
-This may change over time, even very short times, and at any one time there may be a great many “majorities” represented in Parliament going to a whole host of different policy issues.
-Constitutional supremacy represents a check on majoritarian democracy by placing limits on majority preferences. Thus, in a system of constitutional supremacy, the power to interpret and enforce the Constitution against majority preferences MUST be present
4. Amendment by Super-Majority
-Constitutional supremacy implies that a constitution cannot be amended in the same way that an ordinary legislation is enacted – which is not bound y the Constitution.
-The process for amending a constitution must involve a “super-majority” which brings in more or other elements of society than comprise a legislative majority. The amending formula is adopted in part V of Constitution Act 1982.
D. CONSTITUTIONAL SUPREMACY AND HUMAN RIGHTS LAWS
-The SCC has described human rights legislation as “quasi-constitutional” in nature.
-The court appears to mean the following in using that phrase:
(1) human rights and anti-discrimination laws are important to individual rights in Canadian society and closely related to other civil liberties protected in the Constitution;
(2) due to their significance, human rights deserve a broad and liberal interpretation and can be used to interpret provisions in other legislation.
-Despite this status, human rights legislation is of the nature of “ordinary” statute law and subject to the Constitution.
-The principle of constitutional supremacy via human rights legislation is best demonstrated by the SC’s decision in Vriend v Alberta [1998]:
-V was an employee of a private Christian college in Edmonton. He lost his employment when he identified himself as gay, contrary to the college’s staff employment policy.
-V was unable to fine a HR complaint under Alberta’s legislation because the state did not include “sexual orientation” as a ground protected from discrimination.
-V challenged the legislation under s.15(1) of Charter claiming that this statutory omission discriminated against him on the grounds of sexual orientation.
-In 1995, the court in Egan and Nesbitt v Canada [1995] determined sexual orientation to be “analogous” to the grounds enumerated in s.15(1) and thus, equally deserving to constitutional protection.
-SCC Held: the appropriate remedy was to “read in” to the list of grounds protected from employment discrimination the phrase “and sexual orientation” in order that the Alberta statute comply with the Constitution.
II. THE EXERCISE OF PUBLIC POWER IN CANADA
A. THE SEPERATION-OF-POWERS DOCTRINE
-This refers to the division of governmental functions between the legislative, executive, and judicial branches of the state.
-The absence of a strict separation-of-powers doctrine has led to question the utility of the concept for Canadian constitutional law.
“There is no general “separation of powers in the British North America Act
1867. Our Constitution does not separate the legislative, executive, and
judicial functions and insist that each branch of government exercise only its own function.” (Re Residential Tenancies Act [1981])
-Nevertheless, the distinction between the legislature, executive, and judiciary is important to Canadian public law.
-It serves 2 principal purposes:
(1) a functional purpose of identifying the institutional homes of each of the three major forms of public power, and
(2) a normative purpose of providing general boundaries for the operation of each institution.
-On the functional side, the Constitutional Act 1867 itself, divides public power into 3 branches:
(1) Part III – “executive power” of federal law
(2) Part IV – federal “legislative power”
(3) Part V – provincial “executive power” and provincial “legislative power”.
--(4) Part VII – deals with the “judicature”
-More important is the recognition that each of these powers represents a unique form of authoritative decision making.
B. LEGISLATIVE POWER
-Divided between the federal legislature, or Parliament, comprising the elected House of Commons and an appointed Senate, and the elected legislature in each province.
-The division of authority between the two legislative levels is a feature of federalism: other law-making bodies in Canada receive their powers by delegation from the legislatures and do not otherwise have sovereign statue under the Constitution.
1. The Principle of Parliamentary Supremacy
-The principle is and was the basic constitutional rule of British constitutional law that Canada’s founders adopted.
-That they intended to do so is made clear in the preamble to the Constitution Act 1867, which states that it is the desire of the three federating provinces to adopt “a Constitution similar in Principle to the United Kingdom”.
-The simplicity of parliamentary supremacy as a constitutional principle explains why it does not require a written embodiment.
-“who” has law-making authority? The divisions of powers between the federal and provincial legislatures.
-Canada’s federal and provincial legislatures were understood to be the sole sovereign holders of state authority, subject to authority being divided between them along the lines largely set out in ss.91 and 91 of Constitution Act 1867.
-The doctrine of exhaustion of state power meant that if one level of legislature was unable to enact a law for jurisdictional reasons, then the law could be passed by the other level.
-With the Constitution Act 1982, Canada adopted a Charter and an express declaration of constitutional supremacy.
-The charter imposed significant new limits on the substantive laws that could be passed by either level of legislature. With these limits, the concept of parliamentary supremacy was modified beyond the point at which it could reasonably be used to describe the constitutional system.
-The limits placed on substantive law making by the Charter, together with the existing limits on who can pass which laws set out in s.91 and s.92 on 1867 Act, virtually required a recognition of the written Constitution as being the supreme source of law-making authority in Canada.
-Certain provincial government defended the principle of entrenched individual rights and what impact it would have on the principle of parliamentary supremacy. They reached a compromise with the federal government and the other provinces by agreeing to include an overriding provision, s.33 of Charter, the “notwithstanding clause”
-For this, and other reasons, parliamentary sovereignty remains considerable utility and explanatory power with respect to Canadian law.: it remains of great importance with respect to explaining the relationship between legislative and executive power in Canada.
-Babcock v Canada provides a recent example of how the court has approached parliamentary sovereignty as a principle in Canadian constitutional law.
-Here, the government of Canada sought to rely on a statutory right of non-disclosure of Cabinet documents, despite the documents having already been disclosed in the course of litigation. The applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear statutory statement to the contrary.
-Held: parliamentary sovereignty decided the issue.
____________________Babcock v Canada (Attorney General) [2002] _______________
Facts: The respondents, who are staff lawyers with the federal Department of Justice in Vancouver, sued the federal Crown for breach of contract and breach of fiduciary duty when they failed to be paid the same salary as staff lawyers in Toronto. Lists of documents were exchanged, in which the government listed a number of documents as producible. In support of a motion to have the action transferred to the Federal Court, which was dismissed, the government filed the affidavit of an officer of the Treasury Board Secretariat which set out the rationale for the pay raise for Toronto lawyers. The government later changed its position on disclosure and delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) of the Canada Evidence Act objecting to the disclosure of 51 documents and any examination thereon, on the ground that they contain “information constituting confidences of the Queen’s Privy Council for Canada”. The certificate claimed protection for 12 government documents previously listed as producible (some of which had already been disclosed), for five documents in the control or possession of the respondents, and for 34 government documents and information previously listed as not producible. The chambers judge dismissed the respondents’ application to compel production of the documents for which the government claimed protection. A majority of the Court of Appeal reversed this decision and ordered production on the ground that the government had waived its right to claim confidentiality by listing some of the documents as producible and by disclosing selective information in the affidavit
Issue: (1) What is the nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished? (2) Is s.39 of the Canada Evidence Act constitutional?
Held: The appeal should be allowed in part. The documents certified but disclosed are no longer protected and may be used in the litigation.
“I share the view of the Federal Court of Appeal that s. 39 does not offend the rule of law or the doctrines of separation of powers and the independence of the judiciary. It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government.”
The Constitutionality of Section 39
Because s. 39 applies to the undisclosed documents, it is necessary toconsider the constitutional questions in this case. The respondents argue that s. 39 of the Canada Evidence Act is of no force or effect by reason of one or both of the preambleto the Constitution Act, 1867 and s. 96 of the Constitution Act, 1867.
2. The Principle of Federalism
a. Overview
-As the SC stated in Reference re Secession of Quebec in 1998, the recognition of provincial legislatures with extensive areas of jurisdiction, principally over all private legal relationships under the rubric of “property and civil rights within the province”, was the sine qua non of Confederation for the leaders and people of Quebec and the maritime provinces.
-The court also recognized “federalism” as an unwritten principle of the Canadian Constitution.
___________________Reference re Sucession of Quebec [1998] ____________________
Federalism:
-para [55-60]
b. Federalism and Human Rights Legislation
-Federalism means that regulatory authority over different aspects of Canadian society divided between the federal and provincial governments.
-So, all 11 Canadian legislatures have enacted human rights laws to govern those areas subject to their regulatory authority.
-Certain sectors of the economy fall within the federal authority. Within the sectors, employment relationships are generally subject to federal authority as being incidental to their regulation.
-Provincial legislatures are unable to enact laws dealing with discrimination in these areas: Parliament has enacted the Canadian Human Rights Act, to cover these areas of the economy.
C. EXECUTIVE POWER
-The executive branch replicates the duality created by federalism, with executives at the federal and provincial levels.
-The executive includes all ministers of government and their employees (the civil service); the armed forces and Crown corporations; statutorily created bodies that carry out largely “governmental” functions.
-But where the control of an entity is derived more from private sources, such as the membership of a registered society or corporation, than from ministerial sources, we are no longer dealing with the executive, but with the entity belonging to civil society.
-In law, the executive branch is subordinate to the legislature, and the relationship between the legislative and executive branches in Canada has 2 important features:
(1) The exective branch derives any power it has solely from the laws or statutes passed by the legislature. That is, the executive must locate any authority it has to act in Canadian society from a statutory source. By way of statutes, legislatures delegate elements of their sovereign power to executive actors. The delegation is made on the terms of the statute. Thus, the executive is almost wholly dependent on and subordinate to the legislative branch for its authority to act.
(2) By constitutional convention, the executive is responsible to the legislature.
D. JUDICIAL POWER
-The Constitution Act 1867, ss.96-101 contains provisions on “Judicature”.
-The slender foundation in the text of the Constitution for the judicial system in Canada has not prevented the courts themselves from carving out an indispensable and essentially unassailable position in Canada’s constitutional system.
-This position goes to what the SCC has identified as the “core jurisdiction” of superior courts, which encompasses two crucial public law powers:
(1) The jurisdiction to rule on the constitutional validity of all ordinary laws in Canada (this represents the superior courts’ “constitutional law” jurisdiction)
(2) The jurisdiction to supervise the activities of executive government and other statutorily delegated actors to ensure that they act within their statutory authority (this represents the superior courts’ “administrative law” jurisdiction)
1. The Judiciary’s Constitutional Law Jurisdiction
-The principal remedy adopted by the judiciary in constitutional cases has been that of declaring laws invalid and of no force and effect.
-Since the adoption of the Charter, the question of remedies becomes more complex.
-The question of what scope s.24 of Charter may give for remedies in damages has received little elaboration by the courts to date.
2. The Judiciary’s Administrative Law Jurisdiction
-Superior courts exercise a supervisory jurisdiction with respect to exercises of executive government authority. This is the subject matter of administrative law.
-Executive authority is limited by and to the jurisdiction granted by statutory delegation from the legislature. Just as the judiciary acts as the “umpire” with respect to claims that legislatures have exceeded their constitutional mandate, superior courts have historically assumed the role of assuring that executive government acts within its delegated statutory authority. This administrative law or judicial review jurisdiction is understood to be a matter of common law development, and therefore not itself dependent on being granted by legislatures.
-As noted, the federal government has the power to create a s.101 courts and thereby confer administrative law powers on a new “court”.
-That is what Parliament did in 1970 by creating the Federal Courts and conferring on them, exclusive jurisdiction with respect to the supervision of federal statutory delegates.
-Since that time, administrative law jurisdiction in Canada has been divided between the Federal Courts and the provincial superior courts.
3. The Principle of Judicial Independence
-Judicial independence is an elemental constitutional doctrine, closely tied to the separation of powers.
“It is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of
law” (Mackin v New Brunswick (Minister of Finance) [2002])
-Judicial independence ensures that:
“judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference” ...it insulates judges from retaliation from other branches of government for their decisions and guarantees that “power of the state is exercised in accordance with the rule of law and the provisions of our Constitution” (Ell v Alberta [2003])
-Judicial independence also preserves the separation of powers between the 3 branches of our democracy by “depoliticizing” the relationship between the judiciary and the other 2 branches:
“the legislature and executive cannot, and cannot appear to, ecert 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 if political debate, and which do not relate to the proper administration of justice” (Re Remuneration of Judges (the “Provincial Judges Reference”) [1997])
4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM
v Chapter 4à “Parliament and the Legislative Process”
P A R T 2: THE KEY ACTORS IN PUBLIC LAW
-Having set the stage above of Canadian public law, it is not time to examine the key public law “actors”: legislature, the executive, and the judiciary.
I. STRUCTURE AND OPERATION OF PARLIAMENT
-This section describes the separate institutions that comprise Parliament: the monarch and her delegate; the governor general; the senate; and the House of Commons. It also describes how the Parliament is called into session, prorogued, and dissolved.
A. CONSTITUENT PARTS OF THE PARLIAMENT OF CANADA
-s.17 of Constitution Act 1867 - Parliament of Canada consists of the Queen, an Upper House styled the Senate, and the House of Commons.
1. The Monarch and Governor General
-The monarch – currently Queen Elizabeth II – plays a double role in the Canadian constitutional framework (part of Parliament, and is head of state)
-In practice, however, many of the Queen’s powers are to be exercised by the governor general (s.10 Constitution Act 1867)
-Canadian head of state is not elected. In the case of the monarch, its on birth. In the case of the governor general, its on appointment.
a. Selecting the Monarch
-Determined in the UK according to the rules and antiquated laws of succession (Act of Settlement of 1701)
-It bars Catholics from the Crown, and precludes the monarch from marrying a Roman Catholic.
-Monarch must be in communion with the Church of England.
-The Act’s rules are discriminatory, viewed by modern human rights law. Thus, it has been challenged in Canadian courts as a violation of the Charter:
________________________O’Donohue v The Queen [2003] ________________________
Facts: was a legal challenge to the exclusion of Roman Catholics from the throne of Canada. The applicant sought a declaratory judgment that certain provisions of the Act of Settlement 1701 violate the equality-rights section of the Canadian Charter of Rights and Freedoms. In 2003 the Ontario Superior Court of Justice dismissed the case, finding the matter non-justiciable. In 2005 that decision was upheld on appeal.
The application was brought by Tony O'Donohue, a civil engineer, former Toronto City Councillor and member of Citizens for a Canadian Republic, after over two decades of pursuing reform of the succession by constitutional amendment.
Currently Canada's head of state is Elizabeth II, Queen of Canada; a legally distinct position from the Queen of the United Kingdom, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but its Constitution includes the 1931 Statute of Westminster, which set out the convention that all of the Commonwealth realms must have symmetrical lines of succession to the throne, to maintain the unity of the Crown (See: Commonwealth realm - Sovereignty of the realms). Thus the constitutional law that predominantly governs the line of succession to the throne, the 1701 Act of Settlement, must remain identical to the same law in the other realms, including the United Kingdom. The Act of Settlement, in turn, forbids Catholics from becoming King or Queen of Canada.
O'Donohue argued that this law was discriminatory, and attempted to have it repealed. As a sovereign country, Canada, it was argued, should be free to change any laws regarding who becomes the country's head of state. The Court File (NO.: 01-CV-217147CM) stated:
The applicant. Tony O’Donohue, has brought the present application for a declaration that certain provisions of the Act of Settlement, 1710 [sic], are of no force or effect as they discriminate against Roman Catholics in violation of the equality provisions of the Canadian Charter of Rights and Freedoms. Pursuant to the order of Mr. Justice Spiegel dated May 29, 2002. only the issues of standing and justiciability are to be dealt with at this point. Should I grant the applicant standing and find justiciability the matter will proceed to be heard on the merits; if not, the application will be struck.
Held: On June 26, 2003 the Ontario Superior Court of Justice ruled in favour of the respondents—who were named as Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of Ontario. The judgement was subsequently upheld by the Court of Appeal for Ontario on March 16, 2005. It read as follows:
[36] "The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. As stated by Prime Minister St. Laurent to the House of Commons during the debate on the bill altering the royal title:
“Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom. . . It is not a separate office .. it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign. . .” Hansard. February 3, 1953, page 1566."
[37] "These rules of succession, and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny."
[38] "In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure."
[39] In conclusion, the lis raised in the present application is not justiciable and there is no serious issue to be tried. Public interest standing should not be granted. Given my ruling on these issues I need not deal with the other considerations that apply to the granting of public interest standing. The application is dismissed."
b. Selecting the Governor General
-In practice, the monarch appoints the GG
-But by Canadian constitutional convention, the Queen follows the Canadian prime minister’s recommendations in appointing the governor general.
-This is not really a legal decision from the P.M, but more of a political one.
-Thus, the Queen takes her direction from what is known as an “instrument of advice” (essentially, a personal letter from the P.M).
2. Senate
-s.24 of Constitution Act 1867 – expressly anticipates the appointment of senators by the governor general
-The GG follows the advice of the PM when exercising this power (a constitutional convention)
-However, the appointment process – too often treated as a means for the party tin power to reward friends and supporters – has fuelled substantial controversy.
-Given this deadlock, several provincial governments have attempted to assert control over appointments.
i.e. Alberta enacted a Senatorial Selection Act 2000 – providing for the direct election of senatorial candidates. Once selected by election, the provincial government is to submit the nominees’ names for the federal government, identifying these individuals as persons who may be summoned to the Senate for the purpose of filling vacancies relating to Alberta.
-This law has only a modest impact on senator selections.
-Alberta has had 3 election (1989, 1999, 2004). Stan Waters was elected in 1989, and in fact was appointed to the Senate in 1990 by PM Mulroney, then trying to elicit provincial support for the Meech Lake accord.
-However, PM Chretien declined to appoint the two so-called senators-in-waiting elected in 1999 – Bert Brown and Ted Morton.
-In response, Mr. Brown sued Alberta courts seeking a declaration that the senatorial appointment provisions of 1867 Act were contrary to democratic principles, as set out by the SC in Reference re Secession of Quebec
_____________________________Brown v Alberta [1999] __________________________
Facts: Appeal by Brown from an order striking out his action as disclosing no cause of action. Brown had been elected under the Alberta Senatorial Selection Act as a senate nominee, although at the time of the motion there was no senate vacancy. Brown commenced proceedings seeking an order declaring provisions of the Constitution Act, 1867 that dealt with the appointment of senators to be contrary to democratic principles. On the motion to strike the claim, the court held that it had no jurisdiction to grant the declaration sought because no legal interest was engaged. After the decision was delivered, the Supreme Court of Canada delivered reasons in the Quebec succession reference case and Brown asked the Court of Appeal to reconsider the issue in light of the Quebec case.
HELD: Appeal dismissed. There was nothing in the succession reference case that altered the scope of the court's power to award declaratory relief. The motions judge properly found that no legal issue had been raised. Absent a legal issue, it was not within the competence of the court to make statements whose sole purpose was political persuasion or social comment. Brown had asked the court to determine that appointments made inconsistently with the Senatorial Selection Act were undemocratic.
-In a second case, brought in the Federal Court, the Reform Party of Canada sought an interlocutory injunction to restrain the governor general from appointing a senator from Alberta, unless that person has been elected pursuant to the provision of the Senatorial Selection Act:
____________________Samson v Attorney General of Canada [1998] _________________
HELD: Application dismissed. There was no serious issue to be tried. Under the express and unequivocal terms of sections 24 and 32 of the Constitution Act, 1867, there were no procedural or other limitations restricting the exercise of the Governor General's discretionary power to appoint qualified persons to the Senate. As well, this power was a purely political decision to be made without court interference. The fact that the Governor General had, on one previous occasion, appointed a person elected under the Senatorial Election Act to the Senate did not constitute a convention that altered the express wording of the Constitution Act, 1867.
-Following the 2006 election, PM Harper proposed to rethink the manner in which the senators are selected, including opening the door to election of nominees under provincial Senate selection laws.
-These elected nominees could then be appointed to the Upper Chamber by the governor general.
-When this textbook was in print, the Harper government proposed term limits on new senators, restricting their tenure to 8 years (the current Constitution allows senators to remain in office until age 75).
-Subsequently, the PM might honour provincial senatorial selection laws, opening the door to a Senate with regular elections!
3. House of Commons
-Unlike senators, members of the House of Commons are elected, a requirement anticipated in s.37 of Constitution Act 1867.
-The following is an overview of elections of members of Parliament to the House of Commons:
Elections Canada, Canada’s Electoral System (2001): (p.163)
________________________________________________________________________
-Elections to the House of Commons are run according to a rich blend of constitutional and statutory law.
-s.3 of Charter
-The Canada Elections Act 2000
-Until recently, the Canada Elections Act required a registered arty to run candidates in at least 50 electoral districts. This rule was struck down y the SC in 2003 in:
________________________Figueroa v Canada [2003] __________________________
Facts: Miguel Figueroa, the leader of the Communist Party of Canada, challenged the constitutionality of section 24 and 28 of the Canada Elections Act providing for a 50 candidate threshold as a violation of section 3 of the Charter.
The court challenge originated after the 1993 general federal election, when the CPC failed to field at least 50 candidates. Under the then Canada Elections Act, which had been amended just prior to the 1993 vote by the former Conservative government of Brian Mulroney, a registered federal party which fails to run at least 50 candidates in a general election would not only be automatically de-registered, but would also be stripped of its net assets which would then be turned over to the Government of Canada.
Miguel Figueroa, acting on behalf of the Communist Party's membership, challenged these provisions in the Act, arguing that the 50-candidate rule, combined with the increase in candidate deposits - which for smaller parties would be only partially refundable - and the seizure of party assets, together constituted draconian and unfair discrimination against smaller political parties. In 1999, Justice Anne Molloy of the Superior Court of Ontario (General Division) struck down many of the Act's provisions as unconstitutional, including the seizure of party assets and the non-refundability of candidate deposits for those failing to garner at least 15% of the vote in an election. Justice Molloy also struck down the 50-candidate threshold requirement for federal parties to maintain their registration.
The Attorney-General, on behalf of the Government of Canada, did not appeal the Molloy rulings on the seizure of assets and the non-refundability of candidate's deposits; these sections of the Canada Elections Act were subsequently changed by the Parliament of Canada.
However, the A-G did appeal Molloy's decision striking down the 50-candidate threshold rule. The case then proceeded to the Ontario Court of Appeal. In 2001, the Court of Appeal rendered a split decision, holding that while in its opinion the 50-candidate rule itself was constitutional, it was unconstitutional to fail to provide the party identifier on the ballot, as this denied important information about candidates to electors when completing their ballot. The Court instructed Parliament to establish a lower threshold in such cases. Following this ruling, Parliament again amended the Act to set a 12-candidate threshold for the party identifier, meaning that parties fielding at least 12 candidates in a general election would have the party name included on the ballot next to their candidates' names.
Figueroa, represented by Peter Rosenthal, then sought to appeal this judgment to the Supreme Court of Canada, arguing that the ruling of the Ontario Court of Appeal was flawed in interpreting the Charter of Rights and Freedoms, and that the 50-candidate rule did in fact constitute discrimination against smaller parties under the Charter.
SCC HELD: granted leave to appeal this important constitutional case, which was then argued before the SCC in 2002.
“In the final analysis, I conclude both that the 50-candidate threshold is inconsistent with the right of each citizen to play a meaningful role in the electoral process, and that the government has failed to justify this violation”
Iacobucci
-writing for the majority, stated that section 3 protects not just the right to vote but also provides the right of every citizen to participate in politics. The right ensures that each citizen can express an opinion about the formation of the country's public policy and the country's institutions.
-However, Iacobucci noted that section 3 does not protect unlimited participation. Rather it protects:
the right of each citizen to play a meaningful role in the process; the mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process
-For a violation to be found there must be a prohibition against "meaningful" participation.
NOTE: this is a leading SCC decision on the right to participate in a federal election under section 3 of the Charter. The Court struck down a provision requiring a political party to nominate 50 candidates before receiving certain benefits.
B. BRINGING THE CONSTITUENT ELEMENT OF PARLIAMENT TOGETHER:
-A Parliament is not a permanent feature
-Elections to the House of Commons take place in the period after the dissolution of the old Parliament and the summoning of a new Parliament.
-During the life of a Parliament itself, most Parliaments have “prorogued” between “sessions” of that Parliament.
-In this section, we discuss the process of summoning, proroguing, and dissolving a Parliament.
1. Summoning
-s.38 of Constitution Act 1867 – empowers the GG from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, to summon and call together the House of Commons
-But this apparent discretion is constrained by constitutional convention and now by the Charter.
-By convention, the GG calls Parliament to session on the advice of the PM.
-This convention is codified in the Writ of Election (sch.1 Canada Elections Act).
-This writ empowers the monarch, and thus, the GG, to set the date for a new Parliament by the advice of the PM.
-The events that follow soon after the summoning of a new Parliament:
House of Commons, Precis of Procedure (2003): (p.172)
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-The House of Commons, Precis of Procedure notes that opposition amendments to the address in reply to the speech from the throne constitute “direct questions of confidence in the Government”.
-Thus, a failure by the government to carry an un-amended address in reply, will likely constitute a vote of no confidence, causing the government to fall.
2. Prorogation
-Once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation.
-A prorogation is the prerogative of the GG, acting on the advice of the MP
-This may not endure indefinitely, however, Parliament cannot be entirely sidelined (see Charter s.5).
-The following illustrates the implications of prorogation:
House of Commons, Precis of Procedure (2003):(p.174)
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3. Dissolution
- Parliament must be dissolved and elections must happen at least every 5 years.
-Almost always, Parliaments do not last 5 years, and the GG act at a time of the PM’s choosing in dissolving a Parliament. This dissolution prompts a new electoral cycle, governed by the Canada Elections Act.
-There might be instances where a PM might be forced by constitutional convention to seek a dissolution from the GG at a time not of his or her choosing.
-This constitutional convention requires the PM to resign their government, or to seek Parliamentary dissolution after a “no confidence” vote by the House.
NOTE: without a “no confidence” vote in the House, it seems unlikely that the GG has the power to dissolve Parliament when opposed by the MP.
-But it is not always clear where a vote in the House of Commons is one of “no confidence”:
Special Committee on the Reform of the House of Commons, Report (1985): (p.175)
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-One of the McGrath committee observations: “As a rule, the GG accepts the advice of the PM. In certain cases, however, the GG is justified in refusing an immediate request for dissolution.”
-Indeed, the GG may have a constitutional duty to exercise this power of refusal.
-The exercise of this “reverse” power is likely most legitimate where a government seeks a dissolution soon after an election.
-In comparison, is of the reverse power to refuse dissolution is led appropriate if exercised several years into a Parliament, at a time near its natural expiry.
II. KEY ACTORS IN PARLIAMENT
-While in session, parliamentary procedures implicate several key actors, including political parties, the Speaker, and parliamentary committees.
A. POLITICAL PARTIES
-Politically, parties act to marshal collective resources in the hope of achieving electoral success.
-Parties are also the partial product of 2 legal aspects of parliamentary democracy. These are constitutional motivations for parties:
(1) Decision making in Parliament depends on swaying a majority of votes in each chamber
(2) Stems from the confidence convention: by constitutional convention, the individual commanding the confidence of the Commons is appointed PM. Thus, arty control of a majority of the House brings with it executive power.
-Both these legal considerations ensure that Westminster parliamentary systems are preoccupied with maintaining “party discipline”
-The political affiliation of a given parliamentarian is a matter of politics, not law
B. THE SPEAKER
-Further key players/actors in Parliament are the Speakers of the 2 houses of Parliament.
-In the Commons, the Speaker is a member of the Parliament elected to the Speaker’s position by the other MPs. The manner of their selection and powers are set out in the “standing orders” of the House of Commons.
-The following discusses the Speaker’s selection and function:
House of Commons, Precis of Procesure (2003): (p.180)
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C. PARLIAMENTARY COMMITTEES
-These are subsets of Parliament tasked with much of the detailed work in Parliament.
-The Following is a description of committee functions and membership:
House of Commons, Precis of Procedure (2003): (p.183)
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III. PARLIAMENTARY PROCEDURE
-How does Parliament perform its law-making functions?
-Here, we examine the sources of law governing the parliamentary law-making function, before reviewing the actual procedure followed in converting a bill into a statute.
A. SOURCES OF PARLIAMENTARY LAW
-“Parliamentary Law” – the rules determining parliamentary procedure – flows from an array of sources: Constitution; assorted statutes; the standing orders; and assorted usages, customs, and precedents, as assessed by the Speaker
1. Constitutional and Legislative Basis: Parliamentary Privilege
-The starting point for understanding “parliamentary law” is the Constitution.
-“Parliamentary privileges” are those rights “necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts” (see Provincial Judges Reference [1997]).
-“Privilege” in its context means “the legal exemption from some duty, burden, attendance or liability to which others are subject” (see New Brunswick Broadcasting Co. v Nova Scotia [1993])
-Consider the SCC’s most recent analysis of “parliamentary privilege”, its scope, and the role of the courts in deciding its existence:
_____________________Canada (House of Commons) v Vaid [2005] _________________
Facts: Satnam Vaid was a chauffeur employed by the Canadian House of Commons until he was dismissed. Vaid filed a complaint to the Canadian Human Rights Commission for his dismissal. The House of Commons argued that its reason for firing him was protected under parliamentary privilege and so it could not be reviewed by any tribunal or court.
SCC HELD: that parliamentary privilege was not so broad as to protect employment matters. Justice Binnie, writing for a unanimous Court held that:
“I have no doubt that privilege attaches to the House's relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all. ... The appellants having failed to establish the privilege in the broad and all-inclusive terms asserted, the respondents are entitled to have the appeal disposed of according to the ordinary employment and human rights law that Parliament has enacted with respect to employees within federal legislative jurisdiction.”
2. Standing Orders
-In Vaid, the SCC grappled with privilege as a source of potential immunity of parliamentarians from human rights law.
-This case suggests that parliamentary privilege is a broad concept that extends beyond these immunity issues. It includes Parliament’s power “to establish rules of procedure for itself and to enforce them” without external interference.
-Courts have specifically held that Canada’s legislatures has the power to administer that part of the statute law relating to its internal procedure, as well as to determine the content of such things as Standing Orders on Procedure, without any intervention from the courts.
-The standing orders are rules of procedure adopted by at least a simple majority vote of the members of Commons.
-They constitute a fairly comprehensive code of Commons operations, including law making.
-The orders, however, do not anticipate every circumstance, and their meaning often requires interpretation.
-We now turn to how these standing orders and other legal standings govern law making in Parliament
B. PARLIAMENTARY LAW MAKING
-Our discussion of parliamentary law making focuses on both substance and procedure.
-Substantially = what is the scope of Parliament’s law-making jurisdiction?
-Procedurally = what process does Parliament follow?
1. The Scope of Parliament’s Law-Making Jurisdiction
-Of course, there is no full federal parliamentary supremacy in Canada
-Parliament is subordinated to other constrains in the Constitution, most notably the divisions of powers between the federal and provincial governments in the Constitution Act 1867, and constitutionally protected individual rights and liberties found in the Charter.
-But so long as it falls within these constitutional bounds, Parliament may make any law on any topic it wishes, as an exercise of its parliamentary supremacy (see Babcock v Canada [2002]).
a. The Power to Pass Bad Law
-Yes, parliamentary supremacy also means that Parliament is free to pass careless, unwise statutes, so long as the flaws do not also constitute constitutional violations.
_________________Bacon v Saskatchewan Crop Insurance Corp. [1999] ______________
Facts: Appeal by Bacon and other Saskatchewan farmers from the dismissal of their action against the Saskatchewan Crop Insurance Corporation and the Government of Saskatchewan to set aside the Farm Income Insurance Legislation Amendment Act and for damages. The farmers were registered under the 1991 Gross Revenue Insurance Program, as applied by the Corporation. The Provincial Government structured a new Program for 1992. It then passed the Amendment Act to establish the changed terms and to extinguish any breach of contract claims. The trial judge found that the legislative authority of the Government was subject to the limitation imposed by the rule of law so that it could not arbitrarily cancel its contractual obligation. The judge found, however, that the Government had not acted arbitrarily.
This appeal calls into question the legality of the Gross Revenue Insurance Program (GRIP) as it was applied in 1992 by the Saskatchewan Crop Insurance Corporation (SCIC). The appellants are Wayne Bacon and Gary Svenkeson who sued as representatives of three hundred and eighty six farmers who were registered under GRIP 91 and took exception to the manner in which GRIP 92 had been legislatively imposed upon them by virtue of the passage of amendments to The Agricultural Safety Net Act, S.S. 1990-91 c. A-14.2 as amended S.S. 1992, c. 51. The appellants brought this action against SCIC and the Government of Saskatchewan (Government) to set aside the legislation establishing GRIP 92 and seeking damages.
HELD: Appeal dismissed, without endorsing the reasoning of the trial judge. There was no basis on which to challenge the validity of the Amendment Act. The public's protection from the arbitrary use of power by officials was provided by the courts in certain situations, but the public's protection from the arbitrary use of power by the elected legislators was the ballot box. The trial judge departed needlessly from the known path by finding that legislative authority of the Government was subject to the rule of law.
“In the result, I find that there is no basis to challenge the validity of the legislation which was used to impose the GRIP 92 contract and to extinguish the right to challenge its application through reliance upon the usual common law remedies. That being so, the appeal is dismissed and the judgment of the trial judge is upheld but without endorsing the reasons he relied upon.”
-The Saskatchewan CA’s reasoning has been followed by other courts.
PSAC v Canada [2000] where the issue was the justiciability of a union’s complaint about a statute ordering striking workers back to their job. The union argued that the legislation was contrary to the rule of law because it was arbitrary and was passed in bad faith. The court held that this argument disclosed no legal foundation for a lawsuit.
-Indeed, even when it is alleged that an ill-intention ministry tricked Parliament into enacting legislation, the courts will not probe that statue’s promulgation (broadcast):
____________________________Turner v Canada [1992] __________________________
Facts: This is an appeal from a decision of the Trial Division which struck out the substantive allegations of the statement of claim herein, preserving only those paragraphs identifying the parties and claiming relief. The learned Trial Judge refused, however, to dismiss the action as against any of the individual defendants: the Prime Minister and three named Ministers of the Crown, and gave the respondent [plaintiff] leave to amend the statement of claim. The appellants say the Trial Judge erred in not dismissing the action entirely as the statement of claim discloses no reasonable cause of action and also in not dismissing it as against the named individuals for want of jurisdiction.
Held: We are all of a view that an action against Her Majesty based on allegations that Parliament has been induced to enact legislation by the tortious acts and omissions of Ministers of the Crown is not justiciable. The appeal will be allowed with costs, the statement of claim entirely struck out and the action dismissed with costs.
-Still, even if Parliament is competent to pass bad laws, it is not to be presumed that it means to do so.
-Parliament may strip away contractual rights, for instance, but to so do it must be emphatic:
__________________________Wells v Newfoundland [1999] ________________________
Facts: In August 1985, the respondent Andrew Wells, was appointed as a member of the Public Utilities Board (“Board”) with the designation Commissioner (Consumer Representative) under the provisions of the Public Utilities Act, R.S.N. 1970, c. 322 (“1970 Act”). Pursuant to the 1970 Act’s provisions, he was entitled to hold office during good behaviour. The terms of the respondent’s appointment were discussed in a meeting with the Clerk of the Executive Council of Newfoundland, on August 28, 1985, at which time he was given the choice of serving for a fixed term of 10 years, or until age 70.
The respondent chose the latter option. These terms, as well as the rates of remuneration, were confirmed by the Honourable William W. Marshall, President of the Executive Council, in a letter dated September 18, 1985. The following day the respondent was sworn in as Commissioner. The respondent’s tenure proved to be a short and turbulent one. On April 6, 1988, the Executive Council of the Government of Newfoundland ordered the Departments of Justice and Transportation and the Treasury Board Secretariat to assess the continuing need for the Board.
This review stemmed from the deregulation of the trucking industry in Newfoundland, and this Court’s decision on regulatory authority over telephone utilities.
All the foregoing factors resulted in a substantially decreased workload for the Board given its loss of jurisdiction over two areas of authority that had previously accounted for a substantial amount of its work. The assessment recommended a differently constituted Board with fewer Commissioners, and that the respondent’s position be replaced by an office of Consumer Advocate in the Department of Consumer Affairs and Communications or the Department of Justice.
In the wake of this review, a new Public Utilities Act was tabled.
The respondent was informed by the Minister of Justice that the government intended to act on the recommendations of the review and that on “the balance of probabilities” his position would be abolished.
On December 18, 1989, the Newfoundland House of Assembly passed Bill 44, which comprehensively restructured the Board, reduced the number of Commissioners from six to three, and abolished the Consumer Representative position. Under its provisions, all existing commissioners were to cease holding office, but remained eligible for re-appointment to limited positions on the new Board. This Bill was proclaimed into force on February 16, 1990, as the Public Utilities Act, 1989, S.N. 1989, c. 37, and the respondent ceased to hold office on that date.
The respondent’s salary on the date of his termination was $70,058 per year. Having served for four and a half years, he was six months short of having his pension vest. The respondent was not re-appointed to the new Board. Furthermore, Cabinet Directive MC 0359-’90 directed that the respondent receive no compensation. The respondent was asked by the Minister of Justice whether he was interested in filling the office of Consumer Advocate. He was not, and subsequently commenced this action seeking damages.
SCC HELD:
[54] The separation of powers is not a rigid and absolute structure. The Court should not be blind to the reality of Canadian governance that, except in certain rare cases, the executive frequently and de facto controls the legislature. The new Public Utilities Act in Newfoundland was a government bill, introduced by a member, as directed by Cabinet Directive C 328-’89. Therefore, the same “directing minds”, namely the executive, were responsible for both the respondent’s appointment and his termination. Moreover, since a number of positions equivalent to that previously held by the respondent were created under the new Act, the executive could have re- appointed him and remedied its breach of contract. This continues to demonstrate the futility of the frustration argument in the circumstances of this case.
[55] Crown had a contractual obligation to the respondent, which it breached by eliminating his position. As his right to seek damages for that breach was not taken from him by legislation, he is entitled to compensation.
Major J.
- This appeal deals with the position of the Crown and its senior civil servants who hold tenured appointments subject to good behaviour. Are such office-holders owed compensation in the event that their positions are eliminated by legislation? There is no dispute that Parliament and the provincial legislatures have the authority to structure the public service as they see fit, and to eliminate or alter positions in the process. But can it escape the financial consequences for doing so without explicitly extinguishing the rights they have abrogated? I conclude that they cannot.
b. The Power To Follow Unfair Procedures
-The discussion above underscores that not every ill that afflicts a statute may be cured by the courts, even in a system where Parliament’s sovereignty is constrained by a constitution. Also, when reviewing the process by which Parliament makes its laws, courts are even more reluctant to impose standards on the legislative branch.
-But so long as the Constitution Act 1867 ss.36, 49, 35, 48, 53, 133, and 55 prerequisites are met, the courts have no role in querying the procedure Parliament select in passing its law.
-Any effort by courts to scrutinize the procedure by which laws are passed by Parliament would quickly trench on parliamentary privilege.
-The SC has implied that “three readings in the Senate and House of Commons” is a procedure due any citizen of Canada by “long-standing parliamentary tradition” (Authorson v Canada (Attorney General) [2003]).
-However, nothing constitutionalizes this practice: Canadians are not entitled to any sort of due process or procedural fairness in the law-making process.
-Consider how the SC addressed this issue in Wells v Newfoundland [para 57, 59, 61]. Recall that here, Wells was arguing that legislative changes eliminating the board of which he was a member violated employment rights and entitled him to compensation. Ultimately, another of his arguments have failed.
___________________Authorson v Canada (Attorney General) [2003] _______________
Facts: a group of disabled veterans and their representatives sued the federal government for payment of interest on pension monies held and managed by the government on their behalf over many years, alleging this to constitute a breach of fiduciary duty. The government conceded that it had owed such a duty, and had breached it by failing to any interest. However, the attorney general defended the claim on the basis that Parliament had passed legislation denying and such claim for monies owed prior to 1990, effectively expropriating the claim without compensation. The veterans argued that the Canadian Bill of Rights, an ordinary statute passed by Parliament in 1960, and described by the SC as “quasi-constitutional” in nature, applied to the expropriating legislation and, as a matter of substantive law, prohibited expropriation without compensation. The veterans cited in particular reference to “due process” in s.1(a) of Canadian Bill of Rights.
Issue: Does the Bill of Rights require that Parliament give just compensation to the veterans? The governmental expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear and unambiguous language to do so.
-The Department of Veterans Affairs Act, s. 5.1(4) takes a property claim from a vulnerable group, in disregard of the Crown's fiduciary duty to disabled veterans. However, that taking is within the power of Parliament. The appeal has to be allowed.
-Also, see Wells v. Newfoundland:
[59]... legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate. The judgment in Reference re Canada Assistance Plan ... was conclusive on this point in stating that: "the rules governing procedural fairness do not apply to a body exercising purely legislative functions".
-The submission that a court can compel Parliament to change its legislative procedures based on the Bill of Rights must fail. The Bill of Rights purports to guide the proper interpretation. Court interference with the legislative process is not an interpretation of an already enacted law.
-Due process protections cannot interfere with the right of the legislative branch to determine its own procedure. For the Bill of Rights to confer such a power would effectively amend the Canadian constitution, which, in the preamble to the Constitution Act, 1867, enshrines a constitution similar in principle to that of the United Kingdom. In the United Kingdom, no such pre-legislative procedural rights have existed. From that, it follows that the Bill of Rights does not authorize such power.
Held:
Major –
62 The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in [page62] the adjudication of individual rights and obligations, but no such rights are at issue in this appeal.
63 While the due process guarantees may have some substantive content not apparent in this appeal, there is no due process right against duly enacted legislation unambiguously expropriating property interests.
c. Ethics in Law Making
-No prudential constraints exist on Parliament other than those found in the Constitution.
-Parliament may be sovereign, but individual parliamentarians are not.
-A parliamentarian induced by the prospect of financial gain to vote one way or another in performing his or her law-making functions is subject to sanction in a number of different ways.
-Ethics rules exist in statutory law and in the internal procedural rules governing each house of Parliament:
Margaret Young, Conflict-of-Interest Rules for Federal Legislators (2003): (p.204)
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-As this textbook goes to press, the Harper Conservative government has introduced a comprehensive Federal Accountability Act that will have the effect of legislating many of the ethics rules found in the Public Office Holders’ Code.
-Recently, rules have become more detailed. Bill C-4, amending the Parliament of Canada Act, established the new posts of ethics commissioner and Senate ethics officer in 2004. So, the 2 new officers of Parliament are supported to administer new ethics codes, created by each house of Parliament as part of their internal procedure rules.
-Consider the key terms of the ethics code for MPs , as it existed at the end of the 38th Parliament:
Conflict of Interest Code for Members of the House of Commons (2004): (p.209)
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2. Parliament’s Law-Making Procedure
-If Parliament is free to determine its own procedure and pass laws as it places within its constitutional zone of jurisdiction, what rules does it, in fact, follow?
-The law-making process is governed mostly by the rules of procedure of each chamber of Parliament (i.e. the Standing Orders of the House of Commons)
-Consider the following description of the means by which Parliament makes laws:
House of Commons, Precis of Procedure (2003): (p.215)
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4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM
v Chapter 5à “The Exercise of Executive Authority”
-Notwithstanding the absence o a rigid separation-of-powers doctrine in Canada, it is still useful to speak about a distinct executive branch of government.
-The executive branch refers to those institutions in government that are responsible for implementing and enforcing laws, whether those laws are formulated by the legislature or, in the case of the common law, by the judiciary.
-This chapter identifies and describes the various institutions and officials that make up the executive branch of government and the roles that administrative institutions play in the implementation and development and public policy in Canada.
I. THE RISE OF THE ADMINISTRATIVE STATE IN CANADA
-Here, we discuss the historical context by highlighting the notable rise of the “administrative state”, and the swelling of executive size of powers
-The Constitution Act 1867 recognizes the formal institutions of the federal executive in ss.9-16 and the provincial executive in ss.58-68.
-As a consequence, the executive branches of the federal and provincial governments were both smaller in size and much less extensive in their scope.
-However, as the excerpt below describes, over the past century, the role of government has undergone a significant transformation.
-As the role of government expanded, so did the need for a more decentralized, expert-driven bureaucracy.
-One of the implications of this transformation is a more attenuated link between decision makers and elected officials:
Law Reform Commission of Canada“Independent Administrative Agencies”(1980)(p224)
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-Since the Law Reform Commission of Canada published this report in 1980, the trend of growing size and pervasiveness of government activity has continued.
-This trend saw the government divest ownership in Crown corporations such as Air Canada and Petro-Canada, and also saw the increased delivery of government services by private actors.
II. THE EXECUTIVE BRANCH DEFINED
-Here, we define the executive branch and examine the functions of the Crown, the ministry, the public service, independent administrative agencies, Crown corporations, municipalities, and enforcement officials.
A. THE CROWN
-s.9 of Constitutional Act 1867 – The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
-Thus, the entire authority of the executive branch is vested in the monarchy. So, the Crown, as a symbol of the monarchy, is a reference to the executive itself.
-The Crown is the formal legal entity of government and, like other entities possessing a legal personality, the Crown is the bearer of both legal rights and legal obligations.
-Can own property, enter into contracts, can sue and be sued.
-The identification of the government with the Crown speaks only to the formal legal status of the executive. The Queen herself does not exercise authority over matters of public policy in Canada, or for the matter in the UK.
-In a system of representative government like Canada’s, the Crown’s representative is NOT as potent as the provisions imply.
-The Constitution Act 1867 never actually mentions the “Cabinet”. Instead, the reference is to the “Queen’s Privy Council.”
-Thus, s.13 provides that references to the “Governor General in Council” in the 1867 Act “shall be construed as referring to the Governor General acting by and with the Advice of the Queen’s Privy Council for Canada”
-The PC is not technically the same thing as the federal Cabinet: all Cabinet ministers are privy councillors, but not all of privy councillors are sitting Cabinet ministers.
-Nevertheless, by constitutional convention, only those privy councillors who are also presently in Cabinet are entitled to exercise the powers of the PC. For this reason, where powers in the 1867 Act are exercisable by the “Governor General in Council” or the “Lieutenant Governor in Council” they are in effect exercised by federal and provincial cabinets, respectively
B. THE PRIME MINISTER AND CABINET
-Ministers and PM together comprise the “ministry”, a category sometimes also referred to colloquially as the government.
-“Ministry” and “Cabinet” are usually used interchangeably.
-The question of who obtains a seat at the Cabinet table is a political matter for the prime minister to decide.
-Well, it is the PM who is the first among equals in the ministry and who presides over Cabinet.
-They have sole authority to determine who the GG swears in as a minister, who sits in cabinet, and what portfolio within Cabinet that person holds.
-And all ministerial appointments are “at the pleasure” of the PM – the PM has unfettered authority to compel the removal of ministers.
-By constitutional convention, PM also possesses authority to exercise so-called personal prerogatives.
-Formally, beyond these powers, the PM does not hold a privileged position within Cabinet in the sense that he or she can formulate policy or exercise decision-making powers independently of Cabinet.
-As a political matter, however, the PM exercises considerable influence.
-The separation of the executive branch from the legislative branch is not, however, absolute.
-The constitutional convention of “responsible government|” lies at the foundation of Canadian governance. (1) in a system of r.g, Cabinet members are drawn from the legislative branch, almost always the House of Commons for the federal Cabinet; (2) the ministry is accountable to the legislative branch both collectively and individually.
-In addition to their Cabinet responsibilities, Cabinet ministers have administrative responsibility for departments under their charge, which may often include specific powers to make decisions affecting the rights of individuals.
-At times, the multiple roles of ministerial officials can give rise to claims of conflict.
-i.e. Idziak v Canada (Minister of Justice) [1992] (p.233)
C. THE PUBLIC SERVICE
-The employees of the various ministries of the government, often referred to as civil servants, are also part of the executive branch.
-Civil servants are politically neutral and as such, continue their employment with the government regardless of the Political fortunes of the government of the day (unlike political members of the executive)
-Kenneth Kernaghan, a political scientist, identifies 3 principles that structure the relationship between the civil service and political officials within the government:
(1) Ministerial responsibility
(2) Political neutrality
(3) Public service anonymity
-These 3 suggest, the loyalty owed by civil servants is not boundless, bit requires that civil servants refrain from public criticism of government policies.
____________Fraser v Canada (Public Service Staff Relations Board) [1985]___________
Facts: the appellant, who was an employee of Revenue Canada, was discharged after repeatedly criticizing the government’s policies regarding metrification. On a review of the original decision, the appellant argued that the duty to refrain from criticism only extends to areas related to the civil servants’ direct responsibilities.
SCC Held: In upholding the original decision of an adjudicator of the Public Service Staff Relations Board, the SC comments on the particular nature of public employment
Dickson-
“But it does not follow that the Adjudicator erred in law in finding that Mr. Fraser's criticisms were related to his job. A job in the public service has two dimensions, one relating to the employee's tasks and how he or she performs them, the other relating to the perception of a job held by the public. In my opinion, the Adjudicator appreciated these two dimensions.
...In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.
The federal public service in Canada is part of the executive branch of Government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third....As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada.... In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.
There is in Canada, in my opinion, a similar tradition surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.”
-A related issue to the matter of public service loyalty is the extent to which members of the civil service can engage in partisan political activities.
-The statutes governing public employment include restrictions on the kinds of political activities that certain bureaucrats can participate in.
-i.e. there are statutory restrictions requiring civil servants not to actively campaign for a political candidate or political party and not to run as a candidate themselves in an election.
-These types of statutory restrictions have been the subject of judicial scrutiny, most notably in 2 SCC decisions: OPSEAU v Ontario (A-G) [1987]; Osborne v Canada (Treasury Board) [1991], as both cases acknowledge the existence of a constitutional convention of public service neutrality and affirmed its importance as a principle of executive governance.
-In OPSEAU, the Ontario legislation restricting provincial civil servants political activities, including activities in federal politics, was upheld as valid provincial legislation, but the legislation was not subject to Charter scrutiny in that case.
-In Osborne, the question whether such restrictions were consistent with the Charter was considered, and resulted in the federal statutory restrictions being struck down as contrary to the right of free expression. The court was concerned that the legislation, which applied to all civil servants, was over inclusive because it failed to make distinctions between the kinds of work the employees may be involved in and his or her level of responsibility within the civil service.
-NOTE: the restrictions on political activities NOW apply ONLY to senior members of the bureaucracy.
D. INDEPENDENT ADMINISTRATIVE AGENCIES
-The formal executive bodies are limited to the governor general and lieutenant governors, the federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers, including the civil service.
-However executive functions are extensively carried out by a variety of bodies that have a measure of independence from the government.
-So then, what’s the point of establishing bodies that are independent from the government to carry out governmental functions?
-Independent administrative bodies appear in a broad range of forms depending on their function: an administrative body is a product of the legislative instrument that creates it.
-Thus, there are few restrictions placed on legislates who want to create an administrative body and delegate powers to it. The provisions establishing the Canadian Human Rights Commission are typical of the stator provisions used to create an independent administrative body.
-See Canadian Human Rights Act 1985, s.26-27 (p.239)
-The Canadian Human Rights Commission is a creation of the federal Parliament, with the commissioners themselves being appointed by the governor in council (in effect, the Cabinet).
-The independence of the commission is established though the provision of security of tenure to the commissioners who may only be removed upon the address of both Houses. Independence is also established though the assignment of powers under s.27.
-Also see s.61
-In addition to creating the commission, the Canadian Human Rights Act also creates a further independent body called the Canadian Human Rights Tribunal, which has the responsibility of holding, at the request of the commission, inquiries into human rights complaints filed with the commission.
-Provincial human rights legislation has created similar independent administrative bodies to those created under the Canadian Human Rights Act.
-The adjudicative administrative bodies do not have to be independent as a constitutional matter, but there are circumstances where independence may be required (i.e. s.7 of Charter, and s.2(e) of Canadian Bill of Rights)
-The SCC has recognized that where a body exercises power of a sort triggering these provisions, some measure of independence may be required of that organization
-In Bell Canada v Communications, Energy and Paperworkers Union of Canada [2003] where the court agreed that, by virtue of the Canadian Bill of Rights, the Canadian Human Rights Tribunal must have at least some independence guarantees)
-Nevertheless, in the next case, the SC drew a sharp distinction between administrative tribunals and decision makers, as emanations of the executive that must take their policy direction from the legislature, and the courts, which are protected by the constitutional principle of judicial independence:
_______Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and __________________________Licensing Branch) [2001]___________________________
Facts: An initial police investigation and a subsequent investigation by a Senior Inspector with the Liquor Control and Licensing Branch led to allegations that the respondent, which operates a hotel and pub, had committed five infractions of the Liquor Control and Licensing Act and Regulations. Following a hearing, another Senior Inspector with the Branch concluded that the allegations had been substantiated and imposed a penalty that included a two-day suspension of the respondent's liquor licence. The respondent appealed to the Liquor Appeal Board by way of a hearing de novo. The findings on four of the five allegations were upheld, and the penalty was confirmed. Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board "serve at the pleasure of the Lieutenant Governor in Council". In practice, members are appointed for a one-year term and serve on a part-time basis. All members, but the chair, are paid on a per diem basis. The chair establishes panels of one or three members to hear matters before the Board "as the chair considers advisable".
The Court of Appeal concluded that members of the Board lacked the necessary guarantees of independence required of administrative decision makers imposing penalties and set aside the Board's decision.
SCC Held: The appeal should be allowed and the matter remitted to the British Columbia Court of Appeal to decide the issues which it did not address.
It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. The statute must be construed as a whole to determine the degree of independence the legislature intended. Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal's process to comport with principles of natural justice. However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication.
There is a fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts. Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. Given their primary policy-making function, however, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure [page783] required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not.
The legislature's intention that Board members should serve at pleasure is unequivocal. As such, it does not permit the argument that the statute is ambiguous and hence should be read as imposing a higher degree of independence to meet the requirements of natural justice, if indeed a higher standard is required. Where the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence. Nor is a constitutional guarantee of independence implicated here. There is no basis upon which to extend the constitutional guarantee of judicial independence that animated the Provincial Court Judges Reference to the Liquor Appeal Board. The Board is not a court, nor does it approach the constitutional role of the courts. It is first and foremost a licensing body. The suspension complained of was an incident of the Board's licensing function. Licences are granted on condition of compliance with the Act, and can be suspended for non-compliance. The exercise of power here at issue falls squarely within the executive power of the provincial government.
This Court's conclusion affirming the independence of the Board makes it necessary to remit the case to the Court of Appeal for consideration of the issues it expressly refrained from addressing. Many of these issues directly relate to the validity of the decision at first instance. Since the Court of Appeal will have the benefit of full argument on the nature of the initial hearing and the relevant provisions of the Act, the Court also remits for its consideration the issue of whether this hearing gave rise to a reasonable apprehension of bias and, if so, whether this apprehension was cured by the de novo proceedings before the Board.
E. CROWN CORPORATIONS
-Where there is a strong commercial aspect to the government service, it may require that decisions be made free from political influences that may unduly interfere with commercial objectives.
-The use of crown corporations should also be understood as a distinct form of regulation that arises from direct ownership, as opposed to the imposition of regulatory controls on private entities.
-C.C will have public objectives. But in some cases, the government may decide that the justification for providing a service through a Crown corporation can no longer be maintained, resulting in the elimination or privatization of the Crown corporation, as was the case with Petro-Canada and Air Canada.
-The private and public objectives of C.C require the government to balance the operational benefits of independence and the need for accountability
-The primary vehicle for accountability of federal C.C is the Financial Administration Act 1985.
F. MUNICIPALITIES
-These are created under provincial legislation and they deliver a wide range of public services, much as the provision of road, sewer, and water services.
-They also have a significant policy-making function in matters that affect local residents: a power enacted via municipal bylaws.
-They operate independently from provincial governments that created them, and because municipal councils are elected, their democratic legitimacy is independent from that of the provincial legislature.
-Like other independent administrative bodies, municipal powers are subject to the regulatory qualifications superior levels of government placed on them, including the radical restructuring or even elimination of municipalities.
-i.e. East York (Borough) v Ontario (A-G) [1997] where a decision by the Ontario government to amalgamate a number of municipalities into a single municipal government was challenged on the basis that such a radical alternation required the consent of the affected local governments. The court rejected this and was unequivocal about the inferior status of municipal governments
-Because municipalities are governed by elected officials and because they exercise broad plenary powers, municipalities are unlike most other forms of independent administrative bodies, where officials are appointed by senior levels of government.
-The legal significance of an administrative body with direct lines of democratic accountability was considered by the SCC in a case concerning the legal authority of a municipality to refuse to do business with companies that had business ties to South Africa during the apartheid era:
______________Shell Canada Products Ltd. v Vancouver (City) [1994] ________________
Facts: Appellant, a subsidiary of Shell Canada Ltd. involved in retail and wholesale marketing of petroleum products in Vancouver, was periodically invited to tender bids for municipal contracts to supply petroleum products until the city council passed resolutions that the city would not do business with Shell until "Royal Dutch/ Shell completely withdraws from South Africa." In fact, the city itself purchased petroleum products from another company which, through one of its subsidiaries, also did business with South Africa. In an action by appellant, the British Columbia Supreme Court quashed the resolutions as being ultra vires the municipality. The court of appeal reversed the judgment.
SCC HELD (by a majority): appeal allowed. In passing the resolutions, the city was clearly purporting to exercise its statutory powers, and such exercise was reviewable to the extent of determining whether the actions were intra vires. Generally, a municipal authority was authorized to act only for municipal purposes, including purposes compatible with the purpose and objects of the enabling statute. Here, the city was seeking to use its powers to do business to affect matters in another part of the world, a purpose which was directed at matters outside the city's territorial limits. The Vancouver Charter, which stated that the council could provide for "the good rule and government of the city" placed a territorial limit on council's jurisdiction. While council could have regard for matters beyond its boundaries in exercising its powers, any action taken in so doing had to have as its purpose benefit to the citizens of Vancouver. Sections of the Charter expressly providing for activities in which the council could engage outside the city's limits even when such activities clearly redounded to the benefit of its inhabitants were general sections found in most if not all municipal Acts which were to be construed subject to the limitations imposed by the purpose of the statute as a whole. Any powers implied from their general language had to be restricted to municipal purposes and could not extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality. Even if there was a municipal purpose, the resolutions constituted unauthorized discrimination. While discrimination for commercial or business reasons was a power incidental to the powers to carry on business or acquire property, considerations relating to the political policy of a foreign state were not so essential to the exercise of enumerated powers as to be implied. Discrimination of the kind involved here was not only not authorized by the Vancouver Charter, but was arguably prohibited by it.
NOTE:
While the majority, relying on a long standing rule that municipal authority can only be exercised in relation to activities that fell within municipal purposes, held that the extra-territorial purpose of the resolution was improper...
...McLachlin (for the dissent)
-considered the question of permissible municipal purposes in light of the democratic nature of municipal government.
“The question is whether the City Council’s motives on this case fall outside the area of the City’s legitimate concern?...s189 of the Vancouver Charter empowers Council to ‘provide for the good rule and government of the city.’ ”
“In summary...I am satisfied that the purpose of the City Council in resolving not to do business with Shell were proper and fell within the powers of the City under the Vancouver Charter”
-In the majority decision in Shell, Sopinka J was less willing to see the purposes of municipal government in such broad terms, preferring instead to see municipal purposes as having to relate more directly to matters within the boundaries of the local area.
-Whereas McLachlin was inclined to see the municipalities as a distinct form of administrative decision maker in light of its democratic structure, Sopinka was more circumspect about deferring to democratic entities [para 95].
-Of particular concern in this case was the open-ended nature of the authorizing provision relied on by the City of Vancouver in support of its action, which could be taken to confer an almost limitless authority if not checked by the courts.
-In a subsequent case, 114957 Canada Ltee (Spraytech, Societe d’arrosage) v Hudson (Town) [2001], addressing municipal authority, LeBel sought to draw a line between the kinds of popular concerns that could properly become the subject of municipal legislation [para.53].
-Here, the case also introduced the concept of “subsidiary” into governance-related legal disputes, which was relied upon in support of an expansive approach to the interpretation of municipal powers.
G. ENFORCEMENT BODIES: POLICE AND PROSECUTORS
-The executive branch of the government is also required to enforce those policies that have the force of law.
-The enforcement duties of the executive fall primarily on the police, to maintain order and to investigate illegal conduct, and to prosecutors....etc.
-Provincial police have the authority to investigate matters in relation to both provincial and municipal laws and federal criminal laws.
-Federal police (The Mounties) have the authority to police federal statutes (although provincial policing have responsibility for offences under the Criminal Code), police the federal territories and, in much of Canada, to provide police services in provinces under contract.
-Both the federal government and the provinces have prosecutorial power, exercised by their respective attorneys general
-In common law, police and prosecutors have been distinguished from other civil servants in that in their enforcement duties they are not subject to political oversight in that they must exercise their powers without direction from political officials or in furtherance of partisan political activities.
-On the other hand, police and prosecutors cannot operate without accountability for their actions
-The 2 cases that follow consider the tension between accountability and independence in the context of enforcement:
_____________________________R v Campbell [1999]_____________________________
Facts: The RCMP were alleged to have violated the Narcotic Control Act by selling a large quantity of hashish to senior “executives” in a drug trafficking organization as part of a reverse sting operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard their motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention”. The stay was refused by the courts below.
As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown’s position implied that the RCMP acted in accordance with legal advice.
At issue here is the effect, in the context of the “war on drugs”, of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.
Held: The appeal should be allowed in part.
At this stage of the proceedings, the door is finally and firmly closed against both appellants on the question of guilt or innocence notwithstanding the contention of one appellant that the conspiracy alleged by the Crown, and encompassed in the indictment, was a larger agreement than his demonstrated involvement. The appellant was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indictment as was required by the jurisprudence.
The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. Here, the RCMP acted in a manner facially prohibited by the Narcotic Control Act. Their motive in doing so does not matter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence.
A police officer investigating a crime occupies a public office initially defined by the common law and subsequently set out in various statutes and is not acting as a government functionary or as an agent. Here, the only issue was the status of an RCMP officer in the course of a criminal investigation and in that regard the police are independent of the control of the executive government.
Even if the police could be considered agents of the Crown for some purposes, and even if the Crown itself were not bound by the Narcotic Control Act, in this case the police stepped outside the lawful ambit of their agency, and whatever immunity was associated with that agency was lost. Parliament made it clear that the RCMP must act “in accordance with the law” and that illegality by the RCMP is neither part of any valid public purpose nor necessarily “incidental” to its achievement. If some form of public interest immunity is to be extended to the police to assist in the “war on drugs”, it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available.
Even if it should turn out here that the police acted contrary to the legal advice provided by the Department of Justice, there would still be no right to an automatic stay. The trial judge would still have to consider any other information or explanatory circumstances that emerge during the inquiry into whether the police or prosecutorial conduct “shocks the conscience of the community”. A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. There was no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.
The RCMP must be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings. Here, the officer’s consultation with the Department of Justice lawyer fell squarely within this functional definition, and the fact that the lawyer worked for an “in-house” government legal service did not affect the creation or character of the privilege. Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
An exception to the principle of confidentiality of solicitor-client communications exists where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime. Here, the officer sought advice as to whether or not the operation he had in mind was lawful. The privilege is not automatically destroyed if the transaction turns out to be illegal.
Destruction of the solicitor-client privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with a lawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a “dupe or conspirator”. The RCMP, by adopting the position that the decision to proceed with the reverse sting had been taken with the participation and agreement of the Department of Justice, belatedly brought itself within the “future crimes” exception and put in question the continued existence of its privilege.
Another exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence. Although the entire jeopardy of the appellants remained an open issue until disposition of the stay application, the appellants were not providing “full answer and defence” to the stay application. They were the moving parties of an application being defended by the Crown. The appellants’ initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
The RCMP put the officer’s good faith belief in the legality of the reverse sting in issue, and asserted its reliance upon his consultations with the Department of Justice to buttress that position. The RCMP thus waived the right to shelter the contents of that advice behind solicitor-client privilege. It is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. Non-disclosure of information clearly relevant to the good faith reliance issue here cannot properly be disposed of by adverse inferences. The appellants were entitled to disclosure of legal advice with respect to: (1) the legality of the police posing as sellers of drugs to persons believed to be distributors of drugs; (2) the legality of the police offering drugs for sale to persons believed to be distributors of drugs; and (3) the possible consequences to the members of the RCMP who engaged in one or both of the above, including the likelihood of prosecution. If there is a dispute concerning the adequacy of disclosure, the disputed documents or information should be provided by the Crown to the trial judge for an initial determination whether this direction has been complied with. The trial judge should then determine what, if any, additional disclosure should be made to the appellants.
_____________________Krieger v Law Society (Alberta) [2002] _____________________
Facts: Appeal by the Law Society of Alberta from a decision allowing an appeal by Krieger and the Alberta Minister of Justice and the Attorney General from the dismissal of Krieger's application for an order that the Society did not have jurisdiction to hear a complaint against him. Krieger was assigned as Crown prosecutor in a murder trial against Ward. He received preliminary blood test results implicating a person other than Ward, but advised Ward's counsel that the test results would not be available before the preliminary inquiry. Counsel learned about the results at the preliminary hearing and complained to the Deputy Attorney General. Krieger was reprimanded and removed as prosecutor. Six months later, Ward filed a complaint with the Society. The Deputy Secretary referred the complaint to the Conduct Committee Panel. Krieger argued before the Committee that it did not have jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor. He and the Attorney General also argued that Rule 28(d) of the Alberta Code of Conduct, which required Crown prosecutors to disclose evidence in a timely manner, was ultra vires the Province.
SCC HELD: Appeal allowed. Rule 28(d) was not ultra vires the province. The Rule's pith and substance was directed at governing the ethical conduct of lawyers. As such, it solely applied to matters of professional discipline and did not intrude upon the Federal area of criminal law and procedure. Pursuant to the Legal Professions Act, the Society had the jurisdiction to regulate the conduct of all Alberta lawyers, including Crown prosecutors. The Society had the jurisdiction to review the conduct of a prosecutor to determine whether he or she acted dishonestly or in bad faith by failing to disclose information in a timely manner. This was so notwithstanding that the prosecutor's employer, the Attorney General, had reviewed Krieger's conduct from the perspective of an employer.
-Until 1984, the RCMP was responsible for national security issues. However, revelations that the RCMP had engaged in illegal activity in the conduct of their investigations of the political activities of the Parti Quebecois, a royal commission recommended that a separate civilian security agency be created (the Canadian Security Intelligence Service – CSIS)
-More recently, the respective involvement of the RCMP, CSIS, and other government agencies in the removal of Maher Arar to, and his maltreatment in, Syria has been the topic of a federal inquiry. The final results of the inquiry were not available at the time of this text.
-HOWEVER, the inquiry has unearthed the still significant role that the RCMP plays in national security matters, thanks to the Security Offences Act 1985, which gives the RCMP a role in the “apprehension of the commission” of offences constituting threats to the security of Canada.
III. SOURCES OF EXECUTIVE POWER
-Where does executive power come from? It flows from the royal prerogative and statutory delegation.
A. PREROGATIVE POWERS
-Powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown
-They are residual
-In exercising P.P, the Crown is restricted to execute acts. Consequently, the Crown cannot exercise legislative powers pursuant to its prerogative, nor can it exercise judicial powers.
-Where a legislature enacts a stature in relation to a matter previously exercised through P.P, the statute has the effect of superseding the P.P
-At the present time, the powers exercised by way of prerogative include many of the Crown’s powers of appointment and powers relating to foreign affairs, such as declarations of war, the appointment of ambassadors, and the issuing of passports
-There have been some legal debate over who in the executive can exercise prerogative powers and whether prerogative powers can be subjected to judicial oversight.
-These questions are considered in the following case involving a decision by the PM to recommend against the conferral of a foreign honour on a Canadian citizen, Conrad Black:
_____________________________Black v Chretien [2001] _________________________
Facts: legal dispute between businessman Conrad Black and Canadian Prime Minister Jean Chrétien over the former's right to obtain British citizenship and become a member of the House of Lords.
Issue: The main issue on appeal is whether: the Prerogative power exercised by the PM reviewable in the courts?
HELD: Appeal dismissed. The decision was written by the court of Appeal for Ontario in favour of Chrétien. The court stated that Chrétien's exercise of such powers was entirely within the discretion of the Prime Minister. It declared that Chrétien had a constitutional right to advise the Queen on exercising her Royal Prerogative.
[63] In other words, the discretion to confer or refuse to confer an honour is the kind of discretion that is not reviewable by the court. In this case, the court has even less reason to intervene because the decision whether to confer a British peerage on Mr. Black rests not with Prime Minister Chrétien, but with the Queen. At its highest, all the Prime Minister could do was give the Queen advice not to confer a peerage on Mr. Black.
[64] For these reasons, I agree with the motions judge that Prime Minister Chrétien's exercise of the honours prerogative by giving advice to the Queen about granting Mr. Black's peerage is not justiciable and therefore not judicially reviewable.
[65] Once Prime Minister Chrétien's exercise of the honours prerogative is found to be beyond review by the courts, how the Prime Minister exercised the prerogative is also beyond review. Even if the advice was wrong or careless or negligent, even if his motives were questionable, they cannot be challenged by judicial review. To paraphrase Dickson J. in Thorne's Hardware, supra, at p. 112 S.C.R.: "It is neither our duty nor our right" to investigate the Prime Minister's motives or his reasons for his advice. Therefore, the declaratory relief and the tort claims asserted by Mr. Black cannot succeed. For these reasons, I would dismiss his appeal.
B. STATUTORY POWERS
-Far and away the vast majority of executive powers originate from a delegation of authority by the legislature by statute.
-The provisions form the Canadian Human Rights Act are illustrative of the typical form of delegation. Here the statute creates the administrative body, in this case, the Canadian Human Rights Commission, and enumerates the specific powers to be exercised by it. The authority of the commission is determined solely by the statutory grant because as an administrative body, the commission has no inherent powers.
-There are few constrains for the legislature’s ability to delegate powers to administrative bodies.
-The legislature cannot in law delegate powers that exceed the legislature’s own powers. The application of the Charter to the executive is expressly confirmed by s.32 of Charter.
-Pursuant to the rule of law principle, Canadian law imposes another, further limit on the power of executive government and other entities delegated statutory power: the legislature in incapable of delegating power that is not bounded by the purpose for which the statute was enacted.
-In other words, no delegate can be authorized to exercise an absolute discretion.
-The SCC established this principle in Roncarelli v Duplessis
-Another recurring argument that is made in relation to delegation is that a delegation must not amount to a complete abdication of legislative authority
-This was considered by the SCC in the following case, which considered the sweeping delegation of authority to the governor general in council under the War Measures Act 1914:
________________________________Re Gray [1918] ______________________________
Facts: This was an application by way of habeas corpus ad subjiciendum for the discharge of the applicant from military custody and service, under s. 62 of the Supreme Court Act, R.S.C. 1906, c. 139, and made to the full court of the Supreme Court of Canada. The sentence had been imposed by a Court-Martial, and the offence was punishable under the Army Act, 44 and 45 Vict., c. 58 (Imp.) by imprisonment.
Held: That the application should be granted, for reference to the full court. The commitment was one "in a criminal case under an Act of the Parliament of Canada", since by both the Militia Act, R.S.C. 1906, c. 41, and the Military Service Act, 1917, c. 19, the Army Act was made part of the law of Canada; the commitment therefore came within s. 62 of the Supreme Court Act, R.S.C. 1906, c. 139.
-It is important to note that neither judge rejected the existence of a constitutional principle that denies the legislature the power to fully divest itself of its legislative powers.
-However, in light of the wide scope of the delegation in ReGray, it is difficult to conceive of a delegation, short of one that purports to be of a permanent nature, that would offend this principle.
-A related principle that constrains the ability of legislatures to delegate authority requires that neither the federal Parliament nor the provincial legislatures may delegate legislative powers to the others. The basis of this rule is that an inter-delegation would upset the constitutional division of powers contained in s.91 and s.92 of Constitution Act 1867.
-In the next case, the SCC was required to consider the constitutionality of a scheme by which provincial powers regarding employment matters would be delegated to the federal Parliament and certain taxation powers would be delegated from Parliament to NS legislature in order to facilitate and unemployment insurance scheme:
____________A-G NS v A-G Can. (Nova Scotia Inter-delegation) [1951] ______________
Facts:
-Shortly after deciding this case, the SCC was presented with another inter-delegation scheme, except in THIS case, the delegations were made, not directly from one legislature to another, but from Parliament to a provincially created administrative body.
-PEI Potato Marketing Board v Willis [1952] – Here, the object of the scheme was to confer comprehensive regulatory authority to market potatoes from PEI to the provincial marketing board, which required the federal Parliament to delegate powers relating to the export and interprovincial trade in PEI potatoes to the marketing board, a provincial administrative body. This form of inter-delegation was found to be unobjectionable on the basis that the inter-delegation was to an administrative body, as opposed to the legislature itself.
-The principle policy basis behind the distinction between invalid legislative inter-delegation, and valid administrative inter-delegation relates to the democratic expectations of the legislature, which must be seen to be acting free of allegiances to other bodies (as opposed to those of an administrative body, where the recipient of authority is expected to exercise that power in accordance with the requirements of the delegating body).
-one further constitutional restriction that may intrude on the power of a legislative body to delegate authority to an administrative body concerns whether the conferral of judicial functions on administrative tribunals interferes with the jurisdiction of the superior courts as defined by s.96-s.100 of Constitution Act 1867.
-The difficulty has been determining what the powers of s.96 court are. To answer this question, the SCC has been developed a 3-part test enunciated first in Re Residential Tenancies Act [1981] (see below).
IV. THE NATURE AND FUNCTION OF DELEGATED POWERS
-Delegated authority has been granted in virtually every area of public polity .
-Although there is no accepted typology classifying the various forms of delegated power, it is common for commentators on administrative law to discuss administrative powers in terms of legislative, juridical, and administrative functions.
-In the last 25 years, the use of these classifications as a basis to determine the availability of procedural rights and remedies has given way to an approach that recognizes that a general duty to be fair is owed by a broader range of administrative decision makers and is related to matters beyond simply the identity of the decision maker, such as the type of interest affected and nature of the decision itself.
-Despite the courts’ current de-emphasis on functional distinctions, it remains helpful to review the major types of decisions commonly made by administrative decision makers.
A. RULE MAKING
-The rise in the use of executive bodies to create rules of general application parallels the more general rise of administrative bodies.
-The most pervasive form of administrative rule making is the regulation-making power that is delegated to the Cabinet through the governor in council. However, administrative rule making in not restricted to this form.
-Regulation-making power is often delegated to other bodies, other than Cabinet (i.e. municipal bylaws)
-The expansive use of delegated legislation has led to concerns over the amount of scrutiny by elected officials and the public that regulations receive. The multiple readings of a bill in the legislature and the committee process in practice ensure that there is opportunity for interested groups and opposition politicians to consider the contents of a bill before it passes into law.
-Regulations, on the other hand, can be enacted by Cabinet without prior notice or consultation
-To date, the courts have not generally been willing to extend the administrative law procedural obligations relating to notice and the opportunity to be heard to the executive’s rule-making functions.
-That said, it should be noted that the courts have been more willing to impose procedural obligations in rule-making processes where the legislative outcomes have a particular impact on specific individuals
-i.e. Homex Realty and Development Co. v Wyoming (Village) [1989] – where land-use bylaws particularly affect the property rights of individual landowners, the courts look past the formal legislative nature of the decision in imposing procedural obligations on municipal councils.
-In practice, regulation making is usually a fairly open activity, by virtue of government policy and some statutory law.
-consider the procedure for federal regulation making by the governor in council:
Government of Canada, Guide to Making Federal Acts and Regulations (2001): (p.273)
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B. DISPUTE RESOLUTION
-It is common for administrative agencies to be created in order to hear and decide specific kinds of disputes.
-In some cases, administrative tribunals are very similar in their form to courts in that they adjudicate claims between competing parties strictly on the basis of existing law, they cannot initiate proceedings themselves, and they are given similar powers to courts, such as the power to summon witnesses and to award costs.
-In some cases, distinct tribunals are created to hear appeals by arties dissatisfied with a decision from an administrative decision maker of first instance.
-On the other hand, administrative dispute resolution mechanisms do not always take a highly legalized form.
-In addition, the use of administrative tribunals may afford greater flexibility in the range of considerations that decision makers may take into account.
-Administrative tribunals can be designed such that tribunal members have broad discretion to determine and apply public policy.
-Consider the Ontario Municipal Board, an administrative tribunal that decides land-use matters.
-Landowners who are dissatisfied with planning decisions taken at the municipal or provincial legal may appeal those decisions to the Ontario Municipal Board, but the board considers the matter as a hearing de novo (the board does not review the adequacy of the prior decision), but hears the matter afresh. In doing so, the board exercises the same policy discretion as the original decision maker.
-The Ontario CA in Cloverdale Shopping Centre Ltd. v Etobicoke (Township) [1966] discusses the nature of the board’s adjudicatory function (p.283)
C. BENEFIT OR OBLIGATION DETERMINATION
-Benefit determinations will often have distributive consequences that require decision makers to confer certain benefit, such as a broadcast licence, on some but not on others, raising fairness concerns.
-In addition, benefit determination may require decision makers to attach complex sets of conditions to an approval, as is the case with many land-use or environment approvals.
-Obligation determinations may arise slightly different issues than benefit determinations.
-They are usually initiated by the imposing agency, leaving an affected person to take affirmative steps to protect his or her interests, if they feel aggrieved.
-The desire for fairness in individual cases is often in conflict with the need for administrative efficiency.
-In many cases benefit and obligation determination need to occur on a very large scale govern the large numbers of applications involved.
D. ENFORCEMENT DECISIONS
-The final area of delegated authority is those decisions and activities that are required to promote compliance with legal obligations, including criminal and quasi-criminal enforcement proceedings.
-The executive branches of government use police and prosecutors to investigate and prosecute violations of statutory and regulatory requirements, most commonly through the courts.
-Where reasonable grounds for violations of legal requirements are found by this body, the statute may empower the investigator to lay any information in order to initiate proceedings before a court pursuant to a statutory offence provision.
-Alternatively, the scheme may provide that a penalty be imposed directly by the investigating agency or by an administrative tribunal after hearing evidence.
E. OVERLAPPING FUNCTIONS
-It should be apparent from these discussions that any one administrative body may carry out a variety of administrative functions.
-i.e. Canadian Human Rights Commission engages in rule making in issuing guidelines, it has investigatory powers in connection with discriminatory-practices complaints, and it has decision-making powers, such as the authority to dismiss a complaint, that affect the rights of individuals.
-As noted, tribunals may be structured in ways that are similar to courts, but may engage in policy creation
-Conversely, an ostensibly legislative body may have to exercise its powers of decision in accordance with certain procedural requirements due to the nature of the interests affected.
V. LIMITS ON THE EXERCISE OF DELEGATED AUTHORITY
-Once authority is delegated to an administrative actor, the law imposes a rigorous set of limitations on the exercise of power by the recipient of delegated authority.
-The overreaching principle that governs the exercise of delegated authority is that it must be exercised within the confines of the delegation itself.
-Any acts done outside the boundaries of the statutory grant is without legal authority and unlawful – that is, it is ultra vires.
-Jurisdiction in this sense relates to WHAT powers are exercised
-But there are also a set of rules that dictate HOW delegated power must be exercised – An administrative agency may embark on an inquiry properly within its statutory mandate, but in carrying out the inquiry, the agency may nevertheless act without proper legal basis due to a failure to abide by the requirements of procedural fairness or abide of discretion.
-The remainder of this section discusses some of the principal constraints that operate on administrative decision makers.
-The requirements outlined in this part are intended to provide a sense of the legal limitations that bear on administrative decision making.
A. CONTROLLING JURISDICTION: SUBSTANTIVE ULTRA VIRES
-The rule that a delegated authority can exercise only those powers that are granted to it is conceptually straightforward and tends to turn on questions of the interpretation of the authorizing legislation.
-i.e. In Shell v Vancouver there was no disagreement on the general rule that administrative bodies, in that case municipalities, “must stay within the powers conferred on them by provincial statutes”.
-However, McLachlin and the majority disagreed in respect of the proper interpretation of the statutory provision relied upon in support of the municipality’s decision, within McLachlin being more willing to take a “benevolent” (expansive) interpretive approach.
-Determining whether an administrative act or decision is properly clothed with jurisdiction may require a consideration of whether the decision maker has complied with applicable statutory conditions or whether a certain set of required factual circumstances is present.
-i.e. Bell v Ontario (Human Rights Commission) [1971] – whether the Ontario Human Rights Commission could exercise its authority in relation to a discrimination complaint involving the renting of accommodation. The commission’s powers over discrimination matters were in relation to a “self- contained dwelling unit.” In deciding that the commission was properly prevented from initiating proceedings, the SCC held that the commission’s jurisdiction was dependent upon the preliminary finding that the allegation of discrimination was in relation to a “self-contained dwelling until,” and the commission could not proceed in circumstances where that preliminary condition was not established.
-A related jurisdictional rule requires that delegated authority must be exercised by the specific delegate to whom the authority is granted.
NOTE: “merely administrative” matters are those that do not involve the exercise of substantial amounts of discretion and thus, may lawfully be sub-delegated!
-This exception is in keeping with the overall purpose of the rule that recognizes that where the legislature entrusted decision-making powers to a certain official or body, then those powers should be exercised specifically by that delegate.
-In cases where there is little or no discretion to exercise, it should not matter who the decision maker is because their outcomes are dictated by the scheme itself.
NOTE: a delegate may sub-delegate where the power to sub-delegate is specifically provided for in the statute.
B. CONTROLLING PROCEDURES: THE DUTY TO BE FAIR
-Administrative decision makers are generally required by the common law to act fairly toward those persons affected by their decisions.
-In this context, the duty to be fair refers to the procedures adopted by the decision maker, as opposed to imposing a substantive obligation of a fair outcome.
-The difficulty with the rules of natural justice from a policy perspective was that they failed to afford any procedural protections to those affected by the decisions found to be of a legislative or administrative nature, although it was becoming clearer that these decisions could have significant impacts on individuals.
-The essence of the content of the rules of natural justice was captured by the 2 maxims:
(1) audi alteram artem – the right of a person to know and answer the case against him or her
(2) nemo judex in sua causa – requiring that a person not be the judge in his or her own cause (that the administrative decision maker not be biased)
-The extent of their application depended on the particular context.
-The contours of the duty to be fair are considered below:
_______________Knight v Indian Head of School Division No.19 [1990] ______________
Facts: Ronald Gary Knight was dismissed as superintendent of a school board. His position was held at pleasure. His dismissal was not for personal reasons, but he claimed procedural fairness should apply and a hearing should have been held.
Held: In order for procedural fairness to apply at common-law, certain requirements must be met.
According to L'HEUREUX-DUBÉ J. they are:
1. Nature of the decision to be made by the administrative body:
(a)Administrative vs. Legislative use of power
NOTE: is a leading decision of the SCC on procedural fairness in Canadian administrative law. The Court created a threshold test to determine whether an administrative process invoked a common law duty of fairness based on the nature of the decision, relationship between the parties, and the effect
___________Baker v Canada (Minister of Citizenship & Immigration) [1999]___________
Facts: Mavis Baker was a Jamaican woman who lived illegally in Canada for 11 years as a domestic worker. During this time she gave birth to four children in Canada. When the government discovered that she was in Canada illegally she was ordered deported. She brought an application for permanent residence under section 114(2) of the Immigration Act. The immigration officer rejected her application without giving reasons. Baker was able to make a request for the immigration officer's notes, and, based on the notes, she applied for judicial review of the decision.
Held: The Federal Court rejected the application. The Federal Court of Appeal agreed and held that the evaluation of the application did not need to be founded on the best interests of the child.
Issue: Ms Baker argued that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.
SCC HELD: On appeal, The SCC reversed this decision. It held that procedural fairness required the decision-maker to consider the human rights of Baker's children. Children's human rights are outlined in the international Convention on the Rights of the Child. SCC said that decision-makers must be “reasonable.” They also found that Ministerial decisions in this case should follow values that are in international human rights law. The disposition in the case was that the matter was returned to the Minister for redetermination by a different immigration officer.
Justice L'Heureux-Dubé (for the majority), allowed the appeal.
-On the issue of determining the content of the duty of fairness, she outlined several factors that should be taken into consideration:
(1) FACTORS AFFECTING THE CONTENT OF THE DUTY OF FAIRNESS:
The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances – “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness (Knight).
Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances (non-exhaustive list):
(i) The nature of the decision being made and the process followed in making it.
· “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making” (Knight).
o The more the process is provided for (the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision to resemble judicial decision making), the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.
o i.e. if there is a ‘right of appeal’ this is a factor illustrating that the procedure was designed to be more judicial, thus a factor is favour of greater procedural protections. Thus, the more rights for the appellant usually.
(ii) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
· Greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.
o i.e. if there are no procedural protections in the statute, this is a factor illustrating that the procedure was designed to be more judicial, thus a factor in favour of greater procedural protections.
(iii) The importance of the decision to the individual(s) affected.
· The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.
· Kane – “A high standard of justice is required when the right to continue in one’s profession or employment is at stake. ... A disciplinary suspension can have grave and permanent consequences upon a professional career”.
· R v Higher Education ... Dental Surgery (1994)– The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.
(v) The legitimate expectations of the person challenging the decision.
· Old St. Boniface– this doctrine is part of the doctrine of fairness or natural justice, and it does not create substantive rights.
· Qi v Canada – if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.
· If a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights. Nevertheless, the doctrine of LE cannot lead to substantive rights outside the procedural domain.
(vi) Take into account and respect the choices of procedure made by the agency itself.
· This is particularly so when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
(2) LEGITIMATE EXPECTATIONS:
-No legitimate expectation based upon the articles of the Convention. The Convention is not the equivalent for a government representation about how H&C applications will be decided.
(3) PATICIPATORY RIGHTS:
Was the failure to accord an oral hearing and give notice to Ms. Baker or her children inconsistent with the participatory rights required by the duty of fairness in these circumstances?
-Court evaluated this question based on the above 5 considerations of procedural fairness above.
Answer – Baker v Canada:
-It cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different way in different situations....
-I agree that an oral hearing is not a general requirement for H&C decisions. ...
-Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances.
-The opportunity which was afforded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
(4) THE PROVISION OF REASONS:
-The appellant submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker.
-She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision ... be taken to be a breach of the principles of fairness.
Shah – The Federal Court of Appeal held that reasons are unnecessary.
Tylo (1995) – the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons.
Gheorlan (1995) and Chan (1994) – the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists.
Marques (1995) – an H&C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision.
-Traditional position at common law: the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions – Northwestern Utilities [1979].
-Importance of giving reasons:
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
· Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out.
· The process of writing reasons for decision by itself may be a guarantee of a better decision.
· Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review
· Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given.
-Concerns about giving reasons:
Osmond
· A reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers.
· That it may lead to increased cost and delay.
· It might induce a lack of candour (being frank and open) on the part of the administrative officers concerned.
-However, some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant
Orlowski v British Columbia (AG) (1992)– reasons would generally be required for decisions of a review board ...
RDR Construction (1982)– because of the existence of a statutory right of appeal, there was an implied duty to give reasons.
Boyle (1996) – Bastarache emphasized the importance of adequate reasons when appealing a decision.
Answer – Baker v Canada
- It is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. ...
-It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
HOWEVER ... the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.
(5) REASONABLE APPREHENSION OF BIAS:
-The duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision.
-The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. ...
-the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.
Newfoundland Telephone Co and Old St. Boniface– the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness.
-Test for Reasonable Apprehension of Bias:
Committee for Justice and Liberty v National Energy Board (1978)
“...The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... That test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
Answer – Baker v Canada
-The well-informed member of the community would perceive bias when reading Officer Loren’s comments.
-His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. ... the conclusion drawn was contrary to the psychiatrist’s letter. ...
-His use of capitals to highlight the number of Ms. Baker’s children may also suggest to a reader that this was a reason to deny her status.
-Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer.
-I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.
C. CONTROLLING DISCRETON: BAD FAITH, IMPROPER PURPOSES, AND IRRELEVANT CONSIDERATIONS
-As seen in Re Gray, there is no legal requirement that a delegation of authority be narrowly defined. Indeed, it is not uncommon for powers to be delegated with little or no statutory guidance as to how the decision maker’s discretion should be exercised.
-The benefit of conferring broad discretion on administrative decision makers is that discretion allows the decision maker to fully account for the particular facts and context of the question before it
-The concern with broad discretion is that is open for decision makers to exercise that discretion in ways that were not contemplated by the legislature and for purposes that do not reflect the public interest.
-Concerns over the exercise of discretion are quite distinct from procedural fairness questions, in that what is at issue is the substance of the decision-making process, what kinds of considerations were taken into account and the motivations of the decision makers themselves.
-Where administrative actions are attacked on the basis of bad faith, it is not necessary for the aggrieved person to show that the decision maker acted with mal fides. On the other hand, bad faith should be distinguished from unreasonableness.
-Bad faith goes BEYOND unreasonableness and amounts to a jurisdictional error since it is implied that the legislature would not have intended for a delegated authority to act for some improper and ulterior purpose.
_______Equity Waste Management of Canada Corp. v Halton Hills (Town) [1997]_______
Facts: A municipal land-use bylaw was attacked by the affected landowners on the basis that the bylaw was passed for reasons of political expediency and not for land-use planning reasons, a purpose that was alleged to have amounted to bad faith.
-A further way by which the courts seek to control the exercise of discretion is by way of reviewing he nature of the considerations that the decision makers takes into account in achieving at its decision.
-Here, the court distinguishes among a variety of different considerations: mandatory considerations; relevant considerations; irrelevant considerations.
-Looking at Baker, while the SCC found that there had been a breach of the rules of procedural fairness in that case that was sufficient to dispose of the appeal, the court went on to consider, as a substantial matter, whether the H&C decision was improperly made.
-In the course of this discussion, the court considers the proper approach to the JR of discretionary decisions and the requirements of administrative decision makers who exercise discretionary power:
___________Baker v Canada (Minister of Citizenship & Immigration) [1999]___________
L’Heureux-Dube:
The Approach to Review of Discretionary Decision-Making:
[51] As stated earlier, the legislation and Regulations delegate considerable discretion to the Minister in deciding whether an exemption should be granted based upon humanitarian and compassionate considerations. The Regulations state that "[t]he Minister is ... authorized to" grant an exemption or otherwise facilitate the admission to Canada of any person "where the Minister is satisfied that" this should be done "owing to the existence of compassionate or humanitarian considerations". This language signals an intention to leave considerable choice to the Minister on the question of whether to grant an H & C application.
...It is necessary in this case to consider the approach to judicial review of administrative discretion, taking into account the "pragmatic and functional" approach to judicial review...
[53] Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: (see Maple Lodge Farms Ltd. v. Government of Canada; Shell Canada Products Ltd. v. Vancouver (City), [1994]). A general doctrine of "unreasonableness" has also sometimes been applied to discretionary decisions. In my opinion, these doctrines incorporate two central ideas -- that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).
[62] ...I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
Was This Decision Unreasonable?
[65] In my opinion, the approach taken to the children's interests shows that this decision was unreasonable in the sense contemplated in Southam, supra. The officer was completely dismissive of the interests of Ms. Baker's children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer.
[67] ...In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself.
(a) The Objection of the Act
(b) International Law
(c) The Ministerial Guidelines
[76] Therefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H & C discretion was unreasonable, I would allow this appeal.
NOTE: Substantive review -Baker repudiates the dichotomy which previously existed in the case law between discretionary and non-discretionary decisions. -Instead, the court argued that there is great "difficulty in making rigid classifications between discretionary and non-discretionary decisions 4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM
v Chapter 6à “The Courts and the Judiciary”
I. STRUCTURE OF THE CANADIAN COURT SYSTEM
-This provides an overview of the structure of the Canadian court system, including the constitutional foundation for the judiciary in Canada.
A. CONSTITUTIONAL FRAMEWORK OF THE JUDICIARY
-The Canadian court system straddles the federal-provincial division of power
-Provincial division of power – s.92(14) and s.96 of Constitution Act 1867
-This means that the provincial governments create s.96 courts, but it is the federal government that appoints the judges to these “superior” courts and pays their salaries.
-Federal division of power – s.101 of Constitution Act 1867
-An obvious question is this: in what circumstances may the provinces create these “provincial” courts that are not s.96 courts?
-The SCC has repeatedly guarded against this possibility, employing s.96 to limit provincial (and now federal) powers to strip jurisdiction from the superior courts.
-In Re Residential Tenancies Act [1981] the issue was whether a province was encroaching on the federal government’s s.96 power to appoint judges by creating its own quasi-judicial body to adjudicate in an area of jurisdiction that belongs to the superior courts. The SC established a 3-part test for determining whether the provincial grant of power is valid.
(1) The FIRST part requires a consideration of whether the powers exercised by the impugned provincial tribunal conformed to those that were the “exclusive jurisdiction” of s.96 court at the time of the Confederation (consequently, powers shared with inferior courts at Confederation fall outside the area addressed in this first question, and can validly be exercised by provincial tribunal)
(2) The SECOND part is that if the powers were found to fall under the exclusive jurisdiction of a s.96 court at Confederation, one must ask whether the power in question is to be exercised in a judicial manner – that is, do the tribunal’s proceedings concern a dispute that is to be determined on solely legal, as opposed to policy, grounds?
(3) The THIRD part requires a consideration of whether the “institutional setting” itself is fundamentally judicial. Here the inquiry looks at whether the tribunal is ancillary to a broader administrative scheme. Only where a tribunal is found not to be ancillary to an administrative scheme will the tribunal’s authority be found to be unconstitutional.
NOTE: cases have modified this test. These cases establish that the superior courts are a fundamental institution protected by our Constitution through the interpretation of s.96. The provinces cannot enact legislation to encroach on their core jurisdiction, nor may the federal Parliament.
B. OVERVIEW OF THE CURRENT CANADIAN COURT SYSTEM
-The result of these constitutional provisions is a complicated Canadian court system:
Department of Justice of Canada, Canadian Court System (2005): (p312)
II. JUDICIAL APPOINTMENTS
-Given that courts play such a fundamental role in preserving our constitutional order, the natural question this observation raises is: Are the right people selected to be judges?
-The manner n which judges are chosen has been an issue of some controversy, especially at the federal level.
A. A RANGE OF MODELS
-Judicial selection processes vary internationally
-There are 2 alternatives: (1) confirmation hearings;
(2) nominating committees; and
(3) direct elections
-How these approaches is employed to varying degrees in the U.S:
US Department of Justice, State Court Organization 1998: (p.318)
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B. PROVINCIAL JUDICIAL APPOINTMENT PROCESS
-The Canadian judicial selection process: judges are selected by the executive branch
-For provincial/territorially appointed judges, the process of choosing judges varies depending on the province/territory
-The basic model is built on an advisory committee composed of a mixture of members from the legal community and laypersons. The committee accepts applications and interviews candidates before submitting a list of recommendations to the provincial A-G.
-Considerations listed on p321
C. FEDERAL JUDICIAL APPOINTMENT PROCESS
-The federal government appoints superior court judges, and this process varies:
s.96 court, Federal Court, and Tax Court judges are appointed by the governor in council (the Cabinet) usually following review of candidates by an advisory committee.
No such advisory committee has existed for the SCC appointments. Rather, the SC justices have traditionally been simply appointed by the governor in council
1. Non-Supreme Court of Canada Appointment
a. Overview
-The Office of the Commissioner for Federal Judicial Affairs oversees the federal judicial appointment process for s.96 courts, the Federal Courts, and the Tax Court.
-Consider the discussion of the appointment process:
Office of the Commissioner for Federal Judicial Affairs, Federal Judicial Appointments Process: Guide for Candidates (2005): (p.322)
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-Ultimately, appointments must be made by the governor in council as required by s.96 of Constitution Act 1867, or the statutes governing the s.101 courts.
-The recommendation for appointment as a judge is made to the Cabinet by the minister of justice
b. Criticisms of the Non-Supreme Court Federal Appointment Process
-In the 1960s, any process at all was established to assist the minister of justice in deciding upon what recommendations to make to the Cabinet.
-Since then, questions have remained about political influence on the selection process
-Common criticisms of the current federal appointment process are summarized:
àToo much discretion in the hands of the government – the minister has the power to appoint from the “recommended” list as well as the “highly recommended” list
àNo transparency or accountability – candidates face no formal scrutiny and no information is made public to support the choice of appointee
àPatronage appointments – allegations have been made that appointments are tainted by political considerations and that candidates who contributed to political parties are appointed.
NOTE: the basic criticism s that the pool of “recommended” as well as “highly recommended” candidates vetted by the advisory committees is so large that recommendations to Cabinet may be influenced by considerations other than strict merit.
àIt has also been argued that the minister of justice requires flexibility in making recommendations in order to bring greater diversity to the courts and to meet the special needs of a court at any particular time.
-Calls for changes to the process have been made by various bar associations, independent public policy organizations, and legal scholars.
-In a report on the Federal Judicial Appointment Process (Oct 2005), the Canadian Bar Association states: “Some modifications would strengthen the process to ensure that it is open and transparent, and results in judicial appointments based solely on merit and which are ultimately representative of the diversity of Canadian society.”
-Also consider the following report of a parliamentary committee:
Standing Committee on Justice, Human Rights, Public Safety, and Emergency Preparedness, Report 18 – Study on the Process for Appointment to the Federal Judiciary (Nov 2005): (p.330)
________________________________________________________________________
2. Supreme Court Appointments
-Calls for changes to the federal appointments process have been especially persistent in relation to appointments to the SC. This relates to the great influence that the court’s decisions may have on public policy, especially in the post-Charter era.
-The Canadian Bar Association is strongly opposed to a US-style confirmation hearing process.
-In 2005, in response to demands for more transparent process, the minister of justice launched a Proposal which, the minister announced in Aug 2005, would be used in filling the vacancy created by the retirement of Mr. Justice John C. Major:
Minister of Justice, Proposal To Reform the Supreme Courts of Canada Appointment Process (2005): (p.334)
_________________________________________________________________________
NOTE:
-In early 2006, Conservative PM Harper announced a hybrid selection process, incorporating elements of the Liberal plan plus pseudo-parliamentary questing of the nominee.
-Thus, the PM nominated Mr. Justice Rothstein based on the short list of candidates compiled by the preceding Liberal government.
-However, before he was formally appointed to the SC, a special committee comprising member of Parliament and including the new minister of justice questioned him in a public tv hearing.
-Nevertheless, critics such as the Canadian Bar Association denounced the process, noting that open questioning of judicial nominees would ultimately impair judicial independence by forcing candidates to take positions on exactly these sort of issues.
-The committee was retrained, but in its questioning of Mr Justice Rothstein, and the whole process, it seemed to please most observers.
III. JUDICIAL INDEPENDENCE
-Judicial independence is the notion that judges are at arm’s length from the other branches of government.
A. SOURCES AND SCOPE
-Judicial independence is a richly constitutional concept (s.96-100 of Constitution Act 1867)
-The scope of s.99 and s.100 of Constitution Act 1867 has been elaborated by judicial interpretation to further protect judicial independence.
-Thus, federally appointed superior court judges are removable only for breach of “good behaviour” until the mandatory retirement age of 75.
-As we will see, physical or mental incapacity constitutes the inability to act as a judge, and so, breaches “good behaviour”
-But these Constitution Act 1867 provisions apply ONLY to superior courts.
-But, most obviously, s.11(d) of Charter imposes a requirement for judicial independence in all courts, including provincial courts.
-Since most criminal cases are tried by provincially appointed judges, this Charter provision requires that these courts are the individual judges that are appointed to provincial courts by “independent and impartial.” Otherwise, an accused person facing trial before such a court would be entitled to a stay of proceedings for the denial of the Charter right under s.11(d).
-In the mind-1990s, a political and legal crisis arose with respect to the issues of “financial security” of the provincial court, or non-s.96 judiciary across the country.
-A number of challenges succeeded.
-A reference case (stated below) came before the SCC dealing with the situations in 3 provinces” Alberta, Manitoba, and P.E.I
-The court majority recognized that the issues in the case could be resolved solely within the context of interpreting and applying s.11(d).
-Nevertheless, the majority took the opportunity to consider the constitutional status of the judiciary as a whole, and not merely in its criminal law jurisdiction.
-The court majority recognized an unwritten principle of judicial independence in the Constitution
-Portions of the majority judgement are reproduced here for their enunciation of the principle of judicial independence in our Constitution:
_Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island__
_______________et al. (the “Provincial Judges Reference”) [1997]___________________
Facts: A number of provincial governments were implementing policies of financial restraint. The remuneration of provincially appointed judges made them a politically vulnerable target since their salaries are high in relation to the average citizen. However, they are low in relation to federally appointed judges and to the more successful practicing lawyers. Some provinces sought to reduce these judicial salaries. One province retroactively repealed its legislation requiring it to accept the recommendations of an advisory committee on judicial salaries.
These four appeals raise a range of issues relating to the independence of provincial courts, but are united by a single issue:
Issue: whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges?
Issue: In these appeals, it is the content of the collective or institutional dimension of financial security for judges of Provincial Courts which is at issue.
SC HELD:
[109] In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. However, since the parties and interveners have grounded their arguments in s. 11(d), I will resolve these appeals by reference to that provision.
NOTE: SC was concerned about ongoing and unseemly confrontations between the executive and the judicial branches over judicial remuneration.
(See below on pg 84 on how the SC addressed the problem)
-The SC returned to this issue of Ell v Alberta [2003]. There, the issue related to the application of the principle of judicial independence to the office of justice of the peace. In the result, the court held that the justices of the peace were “constitutionally required to be independent in the exercise of their duties”
B. ASSESSING INDEPENDENCE
-How is this independence measures?
-For the SC, “the general test for the presence or absence of independence consists n asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status.” (Mackin v New Brunswick (Minister of Finance) [2002])
-Thus, independence includes both a requirement of actual independence, and also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well-informed person.
-In Canada (Minister of Citizenship and Immigration) v Tobiass [1997], the SC considered whether judicial independence had been impaired by a private meeting between a senior Department of Justice official and the chief justice of the Federal Court in relation to delay in the hearing of certain cases in which the Justice Department was a litigant [para.24,67-72]
D. DIMENSIONS AND CORE CHARACTERISTICS
-What does Judicial independence require?
-In Provincial Judges Reference [1997] (above), Lamer also provided a conceptual analysis of judicial independence stated in para.118-120.
-The 3 core characteristics stated; security of tenure, financial security, and administrative independence, are now discussed:
1. Security of Tenure
-Individual security of tenure = judges may not be dismissed by the executive before the age of retirement except for misconduct or disability. Thus, a judge may only be removed from office for a reason relating to his or her capacity to perform his or her judicial duties. (Arbitrary removal is prohibited: Mackin)
-Institutional security of tenure = before a judge may be removed for cause, “there must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded an opportunity to be heard” (Re Therrien). Superior court judges are removable only by a joint address of the House of Commons and the Senate (s.99 of Constitution Act 1867; Ell)
-In practice, every judge facing convincing allegations of misconduct has resigned at some stage of the council’s proceedings rather than going before Parliament for an ultimate determination.
-Consider this description of the CJC complaint process:
Canadian Judicial Council, About the CJC (2006): (p.348)
__________________________________________________________________________
-Then, an inquiry committee of the council conducts a formal public hearing into the allegations of misconduct and reports to the full council
-The council, in turn, may then make a report to the minister of justice.
-Consider the 1996 report of the CJC in relation to Justice Bienvenue:
Report of the Canadian Judicial Council to the Minister of Justice Under Section 63(1) of the Judges Act Concerning the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Quebec in R v T Theberge (1996): (p.350)
________________________________________________________________________
2. Financial Security
-Relates to the pay judges receive for performing their job.
-It protects against an “unscrupulous government” that “could utilize its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication” (Provincial Judges Reference [1997[)
_Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island__
_______________et al. (the “Provincial Judges Reference”) [1997]___________________
Facts: A number of provincial governments were implementing policies of financial restraint. The remuneration of provincially appointed judges made them a politically vulnerable target since their salaries are high in relation to the average citizen. However, they are low in relation to federally appointed judges and to the more successful practicing lawyers. Some provinces sought to reduce these judicial salaries. One province retroactively repealed its legislation requiring it to accept the recommendations of an advisory committee on judicial salaries.
-Since the SC was concerned about ongoing and unseemly confrontations between the executive and the judicial branches over judicial remuneration, Lamer illustrates how the SC addresses this problem:
Lamer CJ –
[121] What I do propose, however, is that financial security has both an individual and an institutional or collective dimension. ...
[130] ...Independence of the judiciary implies not only that a judge should be free from executive or legislative encroachment and from political pressures and entanglements but also that he should be removed from financial or business entanglement likely to affect or rather to seem to affect him in the exercise of his judicial functions.
[131] Given the importance of the institutional or collective dimension of judicial independence generally, what is the institutional or collective dimension of financial security? To my mind, financial security for the courts as an institution has three components, which all flow from the constitutional imperative that, to the extent possible, the relationship between the judiciary and the other branches of government be depoliticized. ...
[133] First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class.
[134] Second, under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature.
[135] Third, and finally, any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge.
[166] Although provincial executives and legislatures, as the case may be, are constitutionally permitted to change or freeze judicial remuneration, those decisions have the potential to jeopardize judicial independence. The imperative of protecting the courts from political interference through economic manipulation is served by interposing an independent body — a judicial compensation commission — between the judiciary and the other branches of government. The constitutional function of this body is to depoliticize the process of determining changes or freezes to judicial remuneration. 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, responding to the particular proposals made by the government to increase, reduce, or freeze judges’ salaries.
[169] The commissions charged with the responsibility of dealing with the issue of judicial remuneration must meet three general criteria. They must be independent, objective, and effective. ...
[170] First and foremost, these commissions must be independent. The rationale for independence flows from the constitutional function performed by these commissions — they serve as an institutional sieve, to prevent the setting or freezing of judicial remuneration from being used as a means to exert political pressure through the economic manipulation of the judiciary. It would undermine that goal if the independent commissions were under the control of the executive or the legislature.
[173] In addition to being independent, the salary commissions must be objective. They must make recommendations on judges’ remuneration by reference to objective criteria, not political expediencies. The goal is to present “an objective and fair set of recommendations dictated by the public interest” (Canada, Department of Justice, Report and Recommendations of the 1995 Commission on Judges’ Salaries and Benefits (1996), at p. 7). ... Moreover, I recommend (but do not require) that the objectivity of the commission be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission’s deliberations. These factors need not be exhaustive. A list of relevant factors might include, for example, increases in the cost of living, the need to ensure that judges’ salaries remain adequate, as well as the need to attract excellent candidates to the judiciary.
[174] Finally, and most importantly, the commission must also be effective.
[185] By laying down a set of guidelines to assist provincial legislatures in designing judicial compensation commissions, I do not intend to lay down a particular institutional framework in constitutional stone. What s. 11(d) requires is an institutional sieve between the judiciary and the other branches of government. Commissions are merely a means to that end. In the future, governments may create new institutional arrangements which can serve the same end, but in a different way. As long as those institutions meet the three cardinal requirements of independence, effectiveness, and objectivity, s. 11(d) will be complied with.
-In Provincial Judges Association of New Brunswick v New Brunswick et al. [2005], the SCC revisited and somewhat amended the test it established in the Provincial Judges Reference [1997] case.
“Provincial Court judges in New Brunswick, Ontario, and Quebec, justices of the peace in Alberta and municipal court judges in Quebec sought judicial review of their provincial governments’ decisions to reject certain compensation commission recommendations relating to their salaries and benefits” [para.45]
Provincial Court Judges’ Assn. of New Brunswick v New Brunswick (Minister of Justice); Ontario Judges’ Assn. v Ontario (Management Board); Bodner v Alberta; Conference des juges du Quebec v Quebec (Attorney General); Minc v Quebec (Attorney General) [2005]
[3] In the “Provincial Judges Reference”) [1997] it was held that independent commissions were required to improve the process designed to ensure judicial independence but that the commissions’ recommendations need not be binding....These commissions were intended to remove the amount of judges’ remuneration form the political sphere and to avoid confrontation between governments and the judiciary....BUT, THIS CASE HAS NOT PROVIDED THE ANTICIPATED SOLUTION, AND MORE IS NEEDED.
[21] A commission's report is consultative. The government may turn it into something more. Unless the legislature provides that the report is binding, the government retains the power to depart from the commission's recommendations as long as it justifies its decision with rational reasons. These rational reasons must be included in the government's response to the commission's recommendations.
[25] The government can reject or vary the commission's recommendations, provided that legitimate reasons are given. Reasons that are complete and that deal with the commission's recommendations in a meaningful way will meet the standard of rationality. Legitimate reasons must be compatible with the common law and the Constitution. The government must deal with the issues at stake in good faith. Bald expressions of rejection or disapproval are inadequate. Instead, the reasons must show that the commission's recommendations have been taken into account and must be based on facts and sound reasoning. They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation. The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately. They must preclude any suggestion of attempting to manipulate the judiciary. The reasons must reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence.
-The court concluded that the rejection of commission recommendations met the “rationality” test in New Brunswick, Ontario, and Alberta, but not Quebec.
3. Administrative Independence
-Administrative independence requires that courts themselves have control over the administrative decisions
“that bear directly and immediately on the exercise of the judicial function, [such as] assignment of judges, sitting of the court, and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions” (Provincial Judges Reference [1997])
-Administrative independence was at issue in the Tobiass case. Recall that the SC was asked to consider whether judicial independence had been impaired by a private meeting a senior Department of Justice Official and the chief justice of the Federal Court.
-This meeting concerned a delay in the hearing of certain cases in which the Justice Department was a litigant.
-The court concluded that at least the appearance of independence was transgressed, for the following reasons:
____________Canada (Minister Citizenship and Immigration) v Tobiass [1997] _________
Facts:
[74] First, and as a general rule of conduct, counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case. ...
[75] Second, and again as a general rule, a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views. ...
[83] What all this means is that Mr. Thompson went to the Chief Justice with a legitimate grievance. This fact does not excuse what Mr. Thompson did ‑‑ he assuredly chose an impermissible means of presenting his grievance ‑‑ but it does cast into very real doubt the sinister interpretation that the appellants have attempted to place on his conduct. Given the vexing delay that the respondent had faced in the Trial Division, it is quite understandable that Mr. Thompson would have wished to do something about it. We believe that Mr. Thompson’s motives were proper. It was his judgment that is questionable. What Mr. Thompson did was not wicked or done in bad faith. It is enough to say that what he did was inappropriate. As senior counsel in the Department of Justice, he arranged to speak privately ‑‑ without opposing counsel present ‑‑ to the Chief Justice, concerning cases which were pending. This he should not have done.
[85] In short, the evidence supports the conclusion that the appearance of judicial independence suffered a serious affront as a result of the March 1, 1996 meeting between Mr. Thompson and Isaac C.J. This affront very seriously compromised the appearance of judicial independence. A reasonable observer apprised of the workings of the Federal Court and of all the circumstances would perceive that the Chief Justice and the Associate Chief Justice were improperly and unduly influenced by a senior officer of the Department of Justice. However, there is no persuasive evidence of bad faith on the part of any of the actors in this drama, nor is there any solid evidence that the independence of the judges in question was actually compromised.
– FOUNDATIONS OF CANADIAN LAW –
1. BASIC THEORIES OF LAW:
v Chapter 2 pg7-47à “Nature, Divisions, and Sources of Law”
P A R T 1: SETTING THE STAGE
I. LEGAL THEORY IN RELATION TO PUBLIC LAW
A. INTRODUCTION
-This section looks at public law through the lens of several prominent approaches to legal scholarship -positivism and natural law
-feminism (feminist perspectives on law)
-critical legal studies
-law and economics
B. POSITIVISM AND NATURAL LAW
-Legal Positivism = reflects the belief that law is nothing more than the rules and principles that actually govern or regulate a society. Positivism insists on the separation of law and morality, and, as a result, focuses on describing laws within reference to justness or legitimacy.
-Natural Law Theory = is aspirational in the sense that laws, properly called, are not simply all those official rules and principles that govern us, but only those that adhere to certain moral truths, most often of a universal and immutable nature.
-Law and morality can part ways:
-Law must deal with specific and detailed problems and objectives, whereas Morality is usually framed in general and open-ended concepts.
-Law is also generally thought to be easily determined and more or less certain, while Morality can be contingent and relative.
NOTE: natural law does NOT deny the necessity of positive law, but where positive law contravenes natural law, the contravening positive law rules are held by natural law theorists not to be “true” law in the sense that a citizen (or a judge) owes no allegiance to them.
-The 2 case that follow arguably represent a natural law and positivist view, respectively, of legal theory:
__________________________Re Drummond Wren [1945] _______________________
Facts: The Worker’s Education Association (WEA) had purchased a lot with intentions of building a house on it and then raffle it off for fund-raising. The land was restricted by a covenant pronouncing that it was “not to be sold to Jews or persons of objectionable nationality.” The WEA applied to have the covenant declared invalid because the covenant was void as against policy, it contravened the provisions of the Racial Discrimination Act 1944, and the contemporary version of s.13 of Ontario Human Rights Code which prohibits the publication or display of representations indicating intent to discriminate on the basis of race or creed.
Held: the covenant is void because it is offensive to the public policy of this jurisdiction.
“I do not deem it necessary for the purpose of this case to deal with
this argument, except to say that it appears to me to have considerable merit.
My opinion as to the public policy applicable to this case in no way depends
on the terms of The Racial Discrimination Act, save to the extent that such
Act constitutes a legislative recognition of the policy which I have applied...
“An order will therefore go declaring that the restrictive covenant
attacked by the applicant is void and of no effect.”
-The argument of the applicant is that the impugned covenant is void because it is injurious to the public good
- If the sale of one piece of land can be so prohibited, the sale of other pieces of land can likewise be prohibited. In my opinion, nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business or residential areas, or, conversely, would exclude particular groups from particular business or residential areas.
__________________________Re Noble and Wolf [1948] _________________________
Facts: Individual cottage lots contained a covenant that the lands shall not be sold or transferred to any person of the “Jewish, Hebrew, Semitic, Negro or coloured race or blood.” Relying on Re Drummond Wren, Wolf, an interested purchaser of a cottage lot, applied to have the covenant rendered invalid on grounds of public policy. This time, however, other property owners defended the covenant”
Held: Motion dismissed.
“In my view it is within the province of the competent legislative bodies to discuss and determine what is best for the public good and to provide for it by the proper enactments....
For the reasons set forth, I hold that the said covenant is valid and enforceable, and that the vendor has not satisfactorily answered the purchaser's objection thereto. The motion will therefore be dismissed. The vendor shall pay the costs of the third parties who intervened after being served with notice of these proceedings, but no costs are awarded to the purchaser, who supported the vendor's motion.”
“It is no doubt desirable that freedom of contract should be reconciled with other public interests which are regarded as of not less importance -- something which cannot always be accomplished without difficulty; nevertheless, if there is any doubt as to the prevailing public policy or its effect, I should deem it to be the duty of the Court to extend the benefit of the doubt to the contract which the supposed public is claimed to supersede. The notion of any danger to public interests involved in the use of restrictive covenants such as the one in question seems to me fanciful and unreal. Whatever view I may entertain, based upon my conception of justice, morality or convenience, I must always have present to my mind the proper conception of the judicial function, namely, to expound and interpret the law and not to create the law or any principles recognized in the courts or by the State as part of our public law which enables me to conclude that the covenant under review should be struck down as offending against the policy of the law.”
-An appeal by Wolf in Re Noble and Wolf to the Ontario CA was dismissed. On further appeal to the SCC, the appeal was allowed and the racially restrictive covenant struck down, but on technical grounds resulting from the application of well-established common law rules
-There was no discussion on the public policy implications of restrictive covenants.
NOTE: after the Ontario CA decision in Re Noble and Wolf, and before its hearing at the SCC, the Ontario legislature passed s.22 of the Conveyancing and Law of Property Act 1990 which acted to correct a deficiency that at least some judges were unprepared to correct.
-Both positivism and natural law are descriptive theories in that they are principally concerned with identifying what law is, as opposed to what law ought to be.
-The remaining approaches in this section are normative theories in that they seek to describe how existing laws fail to achieve an external objective, be it gender or class equality or the efficient distribution of scarce societal resources.
-Feminism, critical legal studies, and law and economics approaches are often critical in theor posture and oriented toward reform.
C. FEMINIST PERSPECTIVES ON LAW:
1.Introduction
-Laws that existed from the 17th century, even those based on liberal ideals such as individualism and liberty, did not typically respond to the needs of women and more often than not aided in their oppression.
2. Early Formalist Feminism
-SCC use to not see women as “qualified persons”
__________________________Edwards v AG Canada [1930] _______________________
Issue: whether the words “qualified persons” in s.24 of the BNA Act include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada?
The case, put forward by a group of women known as the Famous Five, went all the way to the Imperial Privy Council, then the court of last resort for Canada, and was a landmark case in at least two respects. The Persons Case established that Canadian women were eligible to be appointed senators and more generally, that Canadian women had the same rights as Canadian men with respect to positions of political power. Second, it established what came to be known as the "living tree doctrine", which is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.
Held: Appeal allowed. In applying this approach to the current case, Sankey held that "[t]he exclusion of women from all public offices is a relic of days more barbarous than ours," and that "to those who ask why the word ["person"] should include females, the obvious answer is why should it not." Finally, he writes:
[T]heir Lordships have come to the conclusion that the word "persons" in sec. 24 includes members both of the male and female sex and that, therefore, ... women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly.
SCC:
-The five Justices who heard the case held that the meaning of "qualified persons" did not include women.
-Francis Alexander Anglin wrote the majority judgment, with Lamont J. and Smith J. concurring.
-Mignault J. and Duff J. wrote separate concurring opinions.
-A common misinterpretation of the case is that the Supreme Court held that women are not persons. For example, at the Canadian Status of Women, Government of Canada, it says that: "After five weeks of debate and argument the Supreme Court of Canada decided that the word 'person' did not include women." On the contrary, the Supreme Court of Canada noted explicitly that "[t]here can be no doubt that the word 'persons' when standing alone prima facie includes women."
-The Court interpreted the definition of "qualified person" as intended by the drafters of the BNA Act, 1867, despite acknowledging that the role of women in society had changed since that date.
-The Court held that the common law incapacity of women to exercise public functions excluded women from the class of "qualified persons" under section 24 of the BNA Act.
-In 1867, women could not sit in Parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated.
3. Contemporary Feminism
-Today, it is seen as simplistic to argue that there is a monolithic group of “feminist scholars” (like any well developed philosophy, feminism is now filled with complexity and richness)
-There are “liberal feminists”
-There are radical feminists
-Some would argue that Western law is partial: law’s rules and structure are presumed on a belief system that prefers men and their view of the world.
-Others view law as fostering social practices that are combative and litigation oriented – where the idea of a dispassionate judge handing down decisions is also case as male-centric.
-Vague notions of “policy”, “common sense”, or “human nature” have also found their way into law, and been used by judges to preserve male privilege.
-Regardless of whether one subscribes to a liberal or radical vision of feminism, implicit in many of feminism’s central themes is that women, given the ability to reconstruct society, could do better (i.e. the subject of abortion).
-In 1988, in Morgentaler, the SC was asked to determine whether s.251 of the Criminal Code – criminalizing the procurement of an abortion unless properly authorized by a physician – was contrary to s.7 of the Charter?
______________________________R v Morgentaler [1988] _________________________
Facts: 3 doctors, Morgentaler, Smoling, and Scott, were charged with the offence of procuring a miscarriage contrary to s.251(1).
Held: The majority of the court found the provision to offend the Charter.
Jusice Bertha Wilson, who agreed with the majority in the end, rendered a separate opinion:
-Wilson J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates two rights: liberty, and security of person.
-She emphasized how section 251 violated a woman's personal autonomy by preventing her from making decisions affecting her and her fetus' life.
-To Wilson, the women's decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well.
-By removing the women's ability to make the decision and giving it to a committee would be a clear violation of their liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman's capacity to reproduce.
-Wilson goes on to agree with the other Justices that section 251 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of section 7 also has the effect of violating section 2(a) of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice."
-The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman's right to conscientiously-held beliefs.
-With the abortion law, the government is supporting one conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their "essential humanity".
She also stated that:
“The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual.”
-In her analysis of section 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test.
-Compared with other justices in the Mortgentaler decision, Wilson looks at the very heard of the matter – whether a pregnant woman can be compelled by law to carry a foetus to term?.
NOTE: Wilson was a SCC judge during the formative years of the Charter and she was the first woman appointed to the SC and participated in many groundbreaking Charter decisions.
-Feminists, for the first time, heralded her judgement as showing, for the first time, a true understanding of the plight of women in Canadian law
D. CRITICAL LEGAL STUDIES
1. Introduction
-Like some forms of feminism, critical legal studies (CLS) is a radical alternative to established legal theories.
-CLS adherents reject that there is any kind of “natural legal order” discoverable by objective means.
“...critical legal theory not only denies the possibility of discovering a universal foundation for law through pure reason, but sees the whole enterprise of jurisprudence....as operating to confer a spurious legitimacy on law and legal systems” (A. Thomson).
-CLS is a direct attack on traditional legal theory, scholarship, and education.
-CLS says that: law institutionalizes and legitimates the authority and power of particular social groups or classes.
The rule of law is NOT a rational, quasi-scientific ordering of society’s norms, but is indeterminate, full of subjective interpretations and a large degree of incoherency.
-The liberal belief that law should be certain and neutral is, for CLS scholars, illusory!
-Law reproduces the oppressive characteristic of contemporary Western societies
-Law is NOT independent or instrumental – it is simply another form of politics
-Lawyers and the legal profession are part of this pretence, and there is nothing special about legal reasoning to distinguish it from other reasoning.
-Thus, there is nothing about lawyers that should give them monopoly on reason or justice!
2. Judging with CLS: A Case Study:
-Today, CLS is still considered radical and outside most mainstream legal thought.
-Because of this, the movement was never likely to garner wholesale acceptance outside academia. However, it would be naive to think that some lawyers and judges who attended law school during the 1970s and 1980s were not influenced by it.
-In the following case, consider the differing opinions of the judges arise from different conceptions of the practice of judging itself. Also, compare the judges’ approach to questions of race and equality with the judges in Re Drummond and Re Noble and Wolf.
-Examine the differences in approach of the two majority decisions with the approach of the dissent:
______________________________R v R.D.S [1997] _____________________________
Facts: During the fall of 1993, in the city Halifax, Nova Scotia, a black youth was arrested, allegedly for assaulting a police officer while he was attempting to arrest another individual. The police officer claimed that the youth ran into him with his bike attempting to free the individual the police officer had in a chokehold. The youth, on the other hand, alleges that he stopped his bike to see what the police officer was doing, as a crowd had amassed at the scene. The youth recognised the individual being arrested and asked him repeatedly if he should call his mother, not once addressing the officer. Hearing the youth, the officer threatened to arrest him. When the youth continued to talk the police officer arrested him.
The Youth Court judge determined that the youth should be acquitted. The judge remarked in response to a rhetorical question by the Crown, that they were known to overreact particularly with non-white groups, and that would indicate a questionable state of mind. The judge also stated that her comments were not tied to the police officer testifying before the court.
The Crown challenged these comments as raising a reasonable apprehension of bias. The Crown appealed to the Nova Scotia SC (Trial Division) and the appeal was allowed and the judgement was upheld by the NS CA and this decision was appealed to the SCC.
Issue: In the appeal, it must be determined whether a reasonable apprehension of bias arises from comments made by the trial judge in providing her for acquitting the accused?
At the trial level, Judge Sparks acquitted the youth, for the reason that the only evidence was the testimony of the officer and the youth, and both had reasonable credibility. In the end of her judgement she added,
"I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of Mr. S. that he was told to shut up or he would be under arrest. That seems to be in keeping with the prevalent attitude of the day."
The last phrase became the focus of all the appeals to follow. Judgements needs to be based solely on the evidence while the phrase suggests some preconceived notions.
It was determined at the trial and appeal level that there was an "apprehension of bias" on the part of Judge Sparks.
SCC Held: We agree with Cory as to the disposition of this case. We would allow the appeal, overturn the findings of the NS SC (Trial division) and the majority of the NS CA, and resort the acquittal of the appellant R.D.S
The Supreme Court of Canada allowed the appeal and restored Judge Sparks' acquittal of RDS. The Court noted that "A high standard must be met before a finding of reasonable apprehension of bias can be made. Troubling as Judge Sparks’ remarks may be, the Crown has not satisfied its onus to provide the cogent evidence needed to impugn the impartiality of Judge Sparks. Although her comments, viewed in isolation, were unfortunate and unnecessary, a reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias."
E. LAW AND ECONOMICS
1. Introduction
-Law and Economics theories look at law from a less moral perspective, and more in ideas about efficiency.
-Scholars have applied economic analysis to explain contract law, crime, torts, family law, property, legislation, abortion, and more.
-A traditional law and economics approach applies economics methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient.
-Efficiency tends to be defined in terms of an ideal where the welfare of each of the relevant parties can no longer be maximized except at the expense of other parties reddened to as a state of “Pareto optimality”
-Central to all economic analysis is the assumption that human beings are rational actors and individuals have preferences and act in order to achieve those preferences: they act as if they were rational maximizes of their welfare.
2. Public Law and Economic Theory
a. Overview
-Justice and Efficiency are interrelated: Justice involves considerations of utility, Efficiency can be seen as a concept concerned with maximizing justice.
-The economic theory of regulation, or public choice theory, applies basic economic theory in an attempt to understand public policy. It attempts to explain government intervention as a “corrective” to market failure. The theory seeks to understand why some government programs seem to run counter to the public good (or at least, do NOT maximize the public good)?
-A basic proposition of public choice theory is that diffuse and fragmented groups are less effective than more focused and concentrated groups in achieving success in the political arena and in influencing legislators and regulators.
-This will usually lead to legislation favouring the self-interest of legislators and/or the interests of powerful social groups.
-THEREFORE, there is an echo in the public choice critique of the complaints voiced by the CLS and feminist scholars. Does Canadian public law sufficiently guard against these predicted outcomes?
b. Examples
-One of the themes of public law is to show how common law has been displaced by policy formulation (legislation) as the primary means of social regulation.
-Consider how the Alberta CA relies on economic theory, public choice, legislative policy, common law jurisprudence, and morality:
_______________________Duncan Estate v Baddeley [1997] ________________________
Issue: the main issue in this appeal is whether a claim in tort for loss of future earnings survives the death of the victim, and, if it does, how to calculate such a claim...
Held: The majority of the Court of Appeal held that the claim should survive the wronged person's death, that is, the Court answered the question yes. They awarded damages to the wronged person's estate against the wrongdoer for the loss of the chance. In so doing, they interpreted secs.5 and 6 of the Survival of Actions Actas permitting the award.
However, this interpretation of the Act is not inevitable, and it is possible that the question may fall for decision by the Supreme Court of Canada in this or a future case. It is desirable that the legislation make it clear either that the claim survives the wronged person's death or that it does not.
-Justice Kerans ruled that, regardless of whether the deceased had any dependants,
. . . in Alberta a claim for loss of future earnings does survive the death of the victim. And, with two important qualifications, that claim should be assessed as would any claim for loss of future earnings (Duncan, at 2).
-The two qualifications to which he referred are that deductions are to be made from the deceased’s projected annual income for
(i) income taxes and (ii) the "cost of personal living expenses."
-The purpose of this section is to assess the impact of the Duncan decision on the calculation of damages in fatal accident cases.
-This assessment is conducted in three parts. In the first of these, I review the calculation of the two deductions.
-In the second, I consider the arguments concerning a "tax gross up" in calculations based on Duncan.
-Finally, in the third, I identify whether there are any cases in which dependants, who are eligible to sue under the Fatal Accidents Act, might find it advantageous to base their claim on Duncan (that is, on the Survival of Actions Act).
-The next case also provides an interesting backdrop to the idea of public choice theory.
-Although the main issue in the case was whether the human rights regime covers the entire field of anti-discrimination law, in the excerpts that follow notice how both the CA of Ontario and SCC define the legislative choices differently:
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1979]
Facts: P claims that she was discriminated against by D on the ground of her ethnic origin when she applied for a teaching position at D’s college. She claims that she is a highly educated East Indian woman with a Degree, a Masters, and a Doctorate. She applied for 10 openings in 4 years and was never granted an interview for any of them. Instead of filing a complaint with the Ontario Human Rights Code, she claimed damages for discrimination and for breach of s.4 of the Code.
Issue: The court must assume that the P can show that she was discriminated against on grounds of ethnic origin and that she suffered damage as a result. The issue whether or not this could give rise to a civil cause of action is thus squarely before the court in this appeal.
It is important to not that there are 2 separate causes of action arising form the same set of facts: (1) P alleges that D was in breach of its common law duty not to discriminate against her; (2) that D was also in breach of its statutory duty not to discriminate against her; giving rise to a civil cause of action
Held: Appeal allowed. I do not regard the Code as in any way impeding the appropriate development of the common law in this area. While the fundamental human right we are concerned with is recognized by the Code, it was not created by it. Nor does the Code contain any expression of legislative intention to exclude the common law remedy.
It is unnecessary that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action.
-Wilson recognized a new tort for discrimination.
-Wilson saw the preamble in the Ontario Human Rights Code as evidencing “the public policy of the province of Ontario respecting fundamental human rights” and thought it appropriate that the declared rights of equality and freedom from discrimination “receive the full protection of the common law”.
Wilson did not regard the Code “as at all impeding the appropriate development of the common law in this important area”, as the fundamental human rights were recognized in the Code, but NOT created by it.
-Nor did Wilson see in the Code, any legislative intention to exclude the common law remedy.
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1981]
Held: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed.
The Court allowed the appeal. It held that there was a tort of discrimination in Common Law but that the law went further and established a regime integrating the court system and thus giving a remedy.
Bhadauria should have used the prescribed complain modalities outlined in the law instead of trying to bypass it and go straight to court.
Held that the courts could not enforce the Human Rights Code. Allegations of discrimination are not causes of action that can support a civil action.
2. SOURCES OF LAW:
v Chapter 2 pg47-87à “Nature, Divisions, and Sources of Law”
II. CANADIAN LEGAL INHERITANCES
A. LAW FROM HISTORY, CUSTOM, AND TRADITION
-Much of our current legal regime depends on the common law and a series of British imperial statutes, which were received into Canada upon its acquisition as territorial possession of the British Crown
-Quebec is different due to its French history. It remains a civil law jurisdiction which is influenced by common law.
-Aboriginal interests and concepts have emerged as a source of law in Canada.
1. Law and Aboriginal Peoples
-Aboriginal peoples = Indians, Inuits, and Metis
-Some early Canadian cases recognized that the assumption of control by the British Crown during the colonial period did not automatically erase aboriginal legal systems:
Connolly v Woolrich [1867] where validity of an 1803 marriage under Indian custom between an European and Indian was upheld a the assertion of English sovereignty it did not annul “the territorial rights, political organization, such as it was, or the laws and usages of Indian tribes”)
-However, this approach did not prevail is subsequent Canadian case law
-For years, there has been little or no place in our legal system for the original inhabitants.
-In Canada, by virtue of s.91(24) of Constitution Act 1867, the federal Parliament has power over “Indians” and “lands reserved for Indians”.
-In 1982, aboriginal rights were constitutionally entrenched in s.35 of Constitution Act 1982 which protects “existing aboriginal and treaty rights of the aboriginal peoples of Canada”
-A significant amount of jurisprudence in Canada expanding on aboriginal rights since 1982 has contributed to this debate.
-Although many economic, social, and health indicators continue to show that Canada’s aboriginal peoples are much worse off than other Canadians, and the paternalistic nature of the Indian Act continues to control many aspects of their lives, the constitutionalization of aboriginal rights has restored at least some recognition of the aboriginal interests in Canadian law.
___________Mitchell v Canada (Minister of National Revenue – MNR) [2001]_________
This is a leading SCC decision on aboriginal rights under section 35(1) of the Constitution Act, 1982.
Facts: In 1988, Grand Chief Michael Mitchell, a Mohawk of Akwesasne, attempted to bring goods from the US into Canada. At the border he declared everything that he had purchased in the US but refused to pay any duty on it, claiming that he had an aboriginal right to bring goods across the border.
At trial, the Federal Court agreed with Mitchell and held that there was an aboriginal right to import goods. The decision was upheld by the Federal Court of Appeal
Held: The court held that Mitchell's claim to an aboriginal right to import goods across the Canada-US border was invalid as he was unable to present enough evidence showing that the importation was an integral part of the band's distinctive culture.
SCC Held: The Supreme Court overturned the decision, and held that Mitchell was required to pay duty for all of the goods he imported.
-The next case provides an overview of recent developments in the area of aboriginal rights in the context of aboriginal title to land.
-This is a famous leading decision of the SCC where the Court made its most definitive statement on the nature of aboriginal title in Canada:
_____________________Delgamuukw v British Columbia [1997] ____________________
Facts: the Appellants, chiefs of the Gitksan or Wet’suwet’en tribes, claimed aboriginal title – that is, an interest in land that arises by virtue of an aboriginal group’s historical association with those lands – over separate portions of 58,000 sq km in British Columbia. The province of BC counterclaimed for a declaration that the appellants have no right or interest in the territory or, alternatively, that the appellants’ cause of action ought to be for compensation from the government of Canada. He went on to discuss the decisions at trial and at the BC CA and matters related to factual findings at trial.
SCC Held: Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers.
The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.
The Test for the Proof of Aboriginal Title:
In order to make out a claim for aboriginal title, the aboriginal group asserting the title MUST satisfy the following criteria:
(1) The land must have been occupied prior to sovereignty;
(2) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and
(3) At sovereignty, that occupation must be exclusive
2. Canada’s Common and Civil Law Traditions
a. Reception of European Law
-Despite renewed recognition of aboriginal interests in Canadian law, it is indisputable that Canadian law remains a largely European inheritance.
-How were Canada’s dominant common (and Quebec’s civil) law traditions “received” from their European origins?
-William Blackstone best summarized how colonial laws were to apply to the New World. It depended on whether colonies were simply settled, or were conquered by indigenous peoples.
-The PC in Cooper highlights the basic principles surrounding the rules of reception. Lord Watson provides a general overview of how British colonies adopted English law.
-The case focused on the application of the common law “rule against perpetuities” (a property law rule designed to limit the duration of a condition imposed as part of the transfer of land) in New South Wales colony, now part of Australia.
___________________________Cooper v Stuart [1889] ____________________________
Facts: The Governor of the colony, before 1824, had made a land grant that was subject to a reservation that the government could reacquire, at any time, a portion of the land that might be needed for public purposes. The landowner argued that this reservation was invalid because it was against a long-standing principle of property law known as 'the rule against perpetuities'. The Privy Council eventually held that the reservation was valid, but they first had to decide whether the laws of England operated in the colony at the time of the grant. They held that New South Wales should be treated as a settled colony as at 1788, such that applicable English law arrived with the first settlers. They so held on the basis that the land was 'practically unoccupied without settled inhabitants'.
This proposition was unchallengeable by Australian courts until the appeal to the Privy Council from the High Court of Australia was effectively abolished by statutes enacted by the Commonwealth Parliament in 1968 and 1975.
The Privy Council in 1889 described New South Wales in 1788 as 'practically unoccupied without settled inhabitants'. On that basis, it should be treated as a 'settled colony'.
As a consequence, the common law rule was that applicable laws of England had arrived with the First Fleet as some sort of invisible baggage.
One central feature of the property law of England was the feudal doctrine of tenures. Under this doctrine, no one could establish any title to land unless such title could be traced to a grant from the Crown. This doctrine made perfectly good sense among the newcomers. Needless to say, it set up yet another hurdle in the path of any recognition of pre-existing land rights.
-As this discussion and case suggests, the applicable rules of reception varied between conquered and “settled” colonies.
-In North America, the problem of determining which of these rules of reception would apply was compounded by 2 factors:
(1) aboriginal peoples were already present, so true “settlement” in Blackstone’s definition could apply; and
(2) France also had an interest in much of British North America, and claimed much of its territory.
-The rules of reception dictated that the entire body of English law, both statutory and common, was imported into the settled colony.
-In Canada, the dates of reception are not clearly demarked because there was no obvious statutory source providing for the administration of a province or colony.
-Thus, the courts became the arbiters of settlement dates, and determined date of statutory reception to be “the date of the institution of a local legislature in a colony”
-The date of reception for the common law was much less important...
-Common law decisions simply declared what had always been the law from time immemorial. Therefore, common law decisions operated retrospectively and applied to all colonies equally.
-Common law, as Blackstone also noted, is a universal, uniform set of principles and precepts. That the Judicial Committee of the PC was the final court of appeal throughout the British Empire, and could ensure some measure of uniformity over the common law, aided this notion.
-Once a decision was made by either the PC or the HL on a common law principle, all common law jurisdictions, at least in the formative years, would accept that decision as binding.
b. Nature of the Common and Civil Law
-Common law is an English invention which is judge-made law that is developed though the common law courts
-Two fundamental ideas permeate common law theory (1) judges do not make the law but merely declare it; and (2) all relevant past decisions are considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance.
-Thus, the common law is the law constructed out of a series of cases.
-Although common law jurisdictions such as Canada no longer rely exclusively on case law, it is largely true that cases remain a key source of law, while statutes are seen as incursions into common law. on the other hand, Quebec inherited the vastly different tradition of the civil law.
-Civil law legislation is seen as the primary source of law. Judgements normally rely on the provisions of codes and statures, from which solutions in particular cases are derived.
-As a result of this “bijiuralism”, Canada is a mixed-law jurisdiction: British common law is the basis of private law in all provinces except Quebec, and Canadian federal law derives from the common law.
-Private law in Quebec is based on French civil law tradition, but many of its aspects in the legal system are of common law jurisdiction.
-Quebec’s private law derives from its Civil Code, its provincial statutes, and from federal private law. This Code reflects the bijural nature of Canada’s legal systems: it relies on civil law jurisdictions such as French and Germany to preserve its civilian integrity, but marries that with the common law rules to ensure better harmonization with the rest of Canada and the U.S.
c. The Operation of Common Law and Precedent
-How does the common law work in practice? The genius of the common law is that it makes adherence to legal principles established on past cases a foundational principle that inevitably leads to a more or less stable and certain legal structure (precedence)
-The difficulty for lawyers, however, is often determining which parts of a precedent are binding in subsequent cases: every case has to be looked at from 2 points of view: (1) That of that narrowest rule that a subsequent unkind court will concede has been laid down, and
(2) the widest rule that a later friendly court could use to support a more novel position
-An example illustrates these issues is the SCC case of Bhaduria where, in Laskin’s reasoning, no claim based on a breach of the Ontario Human Rights Code, or the public policy found within it.
-In the next case, Tarnopolsky takes a much narrower readying of Bhadauria – “distinguishing” that case and contrasting to its facts – in order to allow the claim for discrimination in the context of a trust claim:
_____________Canada Trust Co. v Ontario Human Rights Commission [1990] ________
Issue: whether the terms of a scholarship trust established in 1923 are contrary to public policy? If they are, the question then is whether the cy-pres doctrine can be applied to preserve the trust? The terms of the trust restricted the scholarship funds to white Christians of British Nationality or British parentage.
Held: allowed scholarship to remain. The trustee is entitled to come to the superior court pursuant of s.60 of the Trustee Act to seek advice and direction.
-Tarnopolsky involved the cy-pres doctrine to bring into accord with public policy by removing all offensive restrictions, thus, permitting it to remain a scholarship.
(i) The state of law dealt with y this court and the SCC in Bhadauria [1981] is in contract with the situation in this case. In Bhadauria this court had attempted “to advance the common law” in filling a void by creating a new tort of discrimination. The SC held that not to be necessary because of the comprehensive scheme of the Ontario Human Rights Code. Here, however, we are concerned with the administration of a trust, over which superior courts have had inherent jurisdiction for centuries and with respect to charitable or public trusts. the trustee in this case applied to the High Court for advice and direction pursuant to the trust instrument itself as well as s.60 of the Trustee Act.
(2) We are not concerned here with a typical proceeding under the Human Rights Code in which an allegation of discrimination is brought against a respondent. In this case, resort to a court would have to be made to determine authoritatively whether the powers by the inquiry to alter the terms of the trust or declare it void, exist.
(3) This case is not a case where the fact-finding role of the Commission and a board of inquiry would be required. We are concerned here with a question of law; there are no facts in dispute. The trustee is entitled to come to the superior court pursuant of s.60 of the Trustee Act to seek advice and direction.
d. Common Law and Equity
-Common law has a variety of other “internal” meanings according to context. It must sometimes be distinguished from the body of law produced from the Chancery court and known as equity.
-Equity is the body of law developed by the Court of Chancery. Thus, equity developed in tandem with the common law.
-Its original function was to provide a corrective to the perceived harshness of the common law. The equitable jurisdiction began as a fluid, pragmatic, conscience-based system of law, profoundly anti-formal and anti-establishment.
-Cases were decided according to the rules of equity and good conscience
-Some form of equity may be necessary in the modern legal system.
-Because law is a body of rules and principles that is concerned with generalities, law sometimes fails to achieve adequate justice in a particular case.
-Equity is a supplementary system that allows for the exigencies of the special case: principles are more clearly tied to considerations of conscience, morality, and the conduct of particular persons than those of the law.
-The modern view of the equitable jurisdiction is that of a body of rules, principles, maxims, and doctrines that originated in the Court of Chancery but that has continued to evolve and develop since its abolition.
-It is now simply part of our law.
NOTE: despite the fact that the bulk of equity jurisprudence arose in the private law realm, equitable principles are slowly making inroads into public law.
-The following case is an early example which the equitable doctrine of fiduciary was involved to protect the religious upbringing of a child (not how the court relies on equitable principles to interpret a statutory provision):
____________________________Re v DeLaurier [1934] ___________________________
Facts: P applied in the SC of Ontario for the custody of their infant child Thelma, who, for about 10 years from early infancy, had been in the care of the respondents. The appellants were Roman Catholics and the respondents were Protestants and the child had become identified with the respondents’ church. The application was dismissed, an appeal to the CA of Ontario was dismissed, and an appeal was brought to the SCC.
Held: appeal dismissed.
Crocket – If the general welfare of the child requires that the father’s rights in respect of the religious faith in which his offspring is to be reared, should be suspended or superseded, the courts in the exercise of their equitable jurisdiction have undoubted power to override them, as they have the power to override all other parental rights, though in doing so they must act cautiously. Due consideration is, of course, to be given in all cases to the father’s wishes...but the father’s wishes cannot conflict with the child’s own best interests.
-In recent years, equitable principles have been adapted to public law circumstances. -The equitable fiduciary obligation, long thought to apply to private matters, has evolved into the public realm
-In certain circumstances, as the next 2 cases show, the Crown may be under a fiduciary obligation to particular individuals or groups:
__________________________Guerin v Canada [1984] ___________________________
Facts: An Indian Band surrendered valuable surplus reserve lands to the Crown for lease to a golf club. The terms obtained by the Crown, however, were much less favourable than those approved by the Band at the surrender meeting. The surrender document did not refer to the lease or disclose the terms approved by the Band. The Indian Affairs Branch officials did not return to the Band for its approval of the revised terms. Indeed, they withheld pertinent information from both the Band and an appraiser assessing the adequacy of the proposed rent. The trial judge found the Crown in breach of trust in entering the lease and awarded damages as of the date of the trial on the basis of the loss of income which might reasonably have been anticipated from other possible uses of the land. The Federal Court of Appeal set aside that judgment and dismissed a cross-appeal seeking more damages.
Issue: the question is whether the appellants, the Chief and Councillors of the Musqueam Indian Band, suing on their own behalf and on behalf of all other members of the Band, are entitled to recover damages from the federal Crown in respect of the leasing to a golf club of land on the M. Indian Reserve.
Held: appeal allowed.
The mere fact, however, that it is the Crown which is obligated to act on the Indians' behalf does not of itself remove the Crown's obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians' interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown's obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.
__________________________K.L.B v British Columbia [2003] _____________________
Facts: The appellants suffered abuse in two successive foster homes. In the second home the appellants were also exposed to inappropriate sexual behaviour by the older adopted sons. On one occasion, K. was sexually assaulted by one of these young men. The trial judge found that the government had failed to exercise reasonable care in arranging suitable placements for the children and in monitoring and supervising these placements. She also found that the children had suffered lasting damage as a result of their stays in the two homes. She rejected the defence that the tort actions were barred by the British Columbia Limitation Act.
The Court of Appeal allowed the Crown’s appeal. All three judges found that the appellants’ claims were statute-barred, with the exception of K.’s claim for sexual assault. In addition, all three judges overturned the ruling that the government had breached its fiduciary duty to the children. However, the majority upheld the trial judge’s conclusion that the government was vicariously liable and in breach of a nondelegable duty of care in the placement and supervision of the children.
The majority, however, upheld the trial judge’s conclusion that the government was vicariously liable and in breach of a non-delegable duty of care in the placement and supervision of the children.
The appellants appealed to the SCC.
Issue: This appeal raises the question of whether, and on what grounds, the government can be held liable for the tortuous conduct of foster parents toward children whom the government has placed under their care?
Held: appeal dismissed. I would uphold the CA’s conclusion that the government did not breach its fiduciary duty to the appellants.
“Returning to the facts of this case, there is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in a way that amounted to betrayal of trust or disloyalty. The worst that can be said of the Superintendent is that he, along with the social workers, failed properly to assess whether the children’s needs and problems could be met in the designated foster homes; failed to discuss the limits of acceptable discipline with the foster parents; and failed to conduct frequent visits to the homes given that they were overplaced and had a documented history of risk (trial judgment, at para. 74). The essence of the Superintendent’s misconduct was negligence, not disloyalty or breach of trust. There is no suggestion that he was serving anyone’s interest but that of the children. His fault was not disloyalty, but failure to take sufficient care.”
-Cases involving the Crown’s treatment toward aboriginal peoples have cemented the finding of a fiduciary relationship outlined in Guerin.
-In other areas, there is still some uncertainty and the outer limits of Crown fiduciary responsibility remain untested (see Authorson v Canada (AG) [2003])
B. INTERNATIONAL LAW
-Canadian law often ignores international law. This is unfortunate.
-Consider the brief overview of international law and its reception into Canadian domestic law:
Law Commission of Canada, Crossing Borders: Law in a Globalized World (2006)
-In modern legal system, 2 different species of law exists; international and domestic
A. Domestic Law
-In Canada, domestic law exists as legislation enacted by the legislatures or made as regulations by the executives. Outside Quebec, domestic law also comes in the form of the common law.
-In Canada, constitutional law comes in both written and unwritten forms (written is entrenched in legislation...unwritten is product of judicial decision-making)
B. International Law
-2 sources of international law are treaties and “customary international law” (treaties are binding on two states, “cil” binds all states, except those who persistently rejected it)
-Universal Declaration of Human Right was entrenched in Canadian “cil” in 1995 to bind all governments.
III. International Law as Parts of Canadian Law
-The government must ensure that domestic law does not run counter to international law
A. Receiving Treaties into Domestic Law and Questions of Legitimacy
1. “Dualism” and the Separate Solitudes of Domestic and International Law
-An international treaty may require Canada, as a matter of international law, to change its domestic law.
-But that treaty has no direct effect in domestic law until domestic legislation is passed to “transform” or “implement” it into Canadian law.
2. Dualism as a Rational Reaction to Democratic Legitimacy Questions in International Law-Making
-Canadian law insists that treaties be transformed into domestic federal law by an Act of Parliament.
-In constitutional law, when a treaty deals with provincial matters, it is the provincial legislatures who must legislate the treaty into domestic law.
3. The Dualist Dilemma
-When Parliament fails to implement treaty law into domestic law, the result is an unfortunate legal quandary: Canada is bound by the treaty as a matter of international law, and yet its policy-making need not abide by the treaty under the terms of domestic law.
-When the federal government exercises its power to conclude an international treaty, Parliament and provincial legislatures may face a dilemma in cases where the law is not consistent with the treaty.
-They may chose to disregard that international obligation, preserving their supreme law-making role in Canadian democracy at the potential cost of Canada’s adherence to an international rule of law.
-They may also implement these international requirements into domestic law, but with their role limited to stamping “approved” onto a treaty concluded exclusively by the federal executive branch.
-As globalization increases, this dilemma will become progressively more acute.
4. The Uncertainties of Dualist Reception
-There is no clear rules on when a treaty has been “transformed” or “implemented” into Canadian law. In many cases, existing statutes already conform to these obligations; in other cases, Canada can meet its international obligations through the formulation of policies.
-For example, Article 3 of Convention on the Rights of the Chid.
-The SCC in the decision addressing an immigration law matter, the SCC in Baker concluded that the treaty had never been implemented.
-The court in Baker did not describe how this implementation might be achieved. However, its approach seems to suggest that for Article 3 to be implemented, every time a statute gives power to a government official, the statute would have to include some reference to the “best interests of the child” standard.
-Thus, implementing Article 3 would require changes almost everywhere in Canada’s statutes, an enormous undertaking
5. Recent Judicial Reactions to Dualism
-Setting the bar high for what courts accept as implementation has consequences.
-Courts are increasingly prepared to view even unimplemented international treaties as important interpretive aids in understanding Canadian statutes. But this may produce awkward law
-For example Suresh v Canada [2002]
-The court considered whether deportation to torture violated Canadian constitutional law. Canadian immigration law at the time permitted deportation of refugees in national security grounds even when their “life or freedom would be threatened.” (It was silent on the question of torture)
-But the UN Convention Against Torture expressly bars deportation to torture.
-The SC assumed that since this specific prohibition was not replicated in Canadian immigration law, it had not been implemented. It then concluded that, despite this problem, the treaty still informed the content of the Canadian Charter of Rights and Freedoms.
-Yet in describing the requirements of the treaty-inspired Charter right, the Court declined to meet the requirements of the treaty itself: while the treaty contains as absolute ban on deportation to torture, the treaty-inspired Charter right developed by the Court permits such removal in “exceptional circumstances"
-The result is a Canadian rule that, while motivated by an unimplemented international treaty, is not compliant with it.
6. The Worst of Both Worlds
-The Suresh approach creates real problems: the courts are now prepared to seek inspiration from unimplemented treaties. Yet, because Canada’s dualist tradition means these treaties are not really the law of Canada, courts may ignore the actual requirements of these treaties and devise come hybrids standard of their own.
-The end product may be the worst of both words: the partial application of treaties never concretely implemented by legislature, but in a manner that does not actually comply with Canada’s international obligations.
________________________________________________________________________
B. Customary International Law Reception and Legitimacy
1. The Incorporation of Customary International Law
-This is very different from the “dualist” treaty reception doctrines.
-Once a rule becomes recognized as customary law, it is automatically part of the Canadian common law.
-With “cil”, Canada is a “monist” rather than “dualist” jurisdiction
-But like common law, directly-incorporated customary international law can always be displaced or overturned by a statute that is inconsistent with it
“Customary rules of international law are directly incorporated into Canadian domestic law unless explicitly outlined by contrary legislation. So far as possible, domestic legislation should be interpreted consistently with those obligations” (Bouzari v Iran [2004])
2. Issues Raised by the Incorporation of Customary International Law
-FIRST, when a legislature does legislate in a manner that displaces customary international law, Canada may be subsequently in violation of its international obligations.
-SECOND, if “cil” is part of the common law of Canada, its existence as domestic law is a matter determined by the courts exclusively. This “cil” is itself created by the international system in an organic rather than negotiated fashion. If “cil” is subsequently incorporated directly into Canadian law by the courts, there may never be any clear and direct input by political branches of government into the rules by which law in Canada is made binding.
-THIRD, since the content of “cil” is sometimes uncertain, courts asked to apply it as the domestic law of Canada rely on expert testimony from international lawyers and academics, raising further questions of legitimacy.
C. STATUTORY LAW
1.Introduction
-Much of English law developed through the accumulation of case law and the interpretation of judges, as opposed to being set out in legislation (thus, creating common law)
-There have been little in the way of statutory law. But in modern states, many areas of law are almost wholly controlled by statutory enactments.
2. Statutes and the Common Law
-One basic principle of common law interpretation is that a statutory rule will supersede a judge-made rule.
-This is relatively easy to apply in many situations, but the theory may be more difficult to apply where the statutory scheme does not expressly overturn a common law rule, or where the common law ventures into new territories.
-The following case shows the CA and the SCC grappling with how to treat the relationship between common and statutory law where the legislative enactment has not specifically responded to a common law rule:
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1979]
Wilson – Appeal allowed.
-Wilson recognized a new tort for discrimination.
-Wilson saw the preamble in the Ontario Human Rights Code as evidencing “the public policy of the province of Ontario respecting fundamental human rights” and thought it appropriate that the declared rights of equality and freedom from discrimination “receive the full protection of the common law”.
Wilson did not regard the Code “as at all impeding the appropriate development of the common law in this important area”, as the fundamental human rights were recognized in the Code, but NOT created by it.
-Nor did Wilson see in the Code, any legislative intention to exclude the common law remedy.
Held: Appeal allowed. I do not regard the Code as in any way impeding the appropriate development of the common law in this area. While the fundamental human right we are concerned with is recognized by the Code, it was not created by it. Nor does the Code contain any expression of legislative intention to exclude the common law remedy.
It is unnecessary that a cause of action exists at common law, to determine whether or not the Code gives rise to a civil cause of action.
Bhadauria v Board of Governors of Seneca College of Applied Arts and Technology [1981]
Facts:Discrimination by way of repeated denial of an employment opportunity on the alleged ground of racial origin does not give rise to a common law tort, especially when The Ontario Human Rights Code provides for an administrative inquiry and remedial relief and allows a wide appeal to the Court on both law and fact. It was open to the plaintiff to invoke the procedures of the Code and her failure to do so did not entitle her to sue at common law or to found a right of action on alleged breach of the Code.
Held: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed.
Laskin – Appeal allowed.
-Laskin
“In my opinion, the attempt of the respondent to hold the judgment in her favour on the ground that a right of action springs directly from a breach of The Ontario Human Rights Code cannot succeed. The reason lies in the comprehensiveness of the Code in its administrative and adjudicative features, the latter including a wide right of appeal to the Courts on both fact and law.”
“In the present case, the enforcement scheme under The Ontario Human Rights Code ranges from administrative enforcement through complaint and settlement procedures to adjudicative or quasi-adjudicative enforcement by boards of inquiry. The boards are invested with a wide range of remedial authority including the award of compensation (damages in effect), and to full curial enforcement by wide rights of appeal which, potentially, could bring cases under the Code to this Court.”
“The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.
“For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.”
“The appeal is, accordingly, allowed, the judgment of the Ontario Court of Appeal is set aside and the judgment of Callaghan J. dismissing the action is restored. In the circumstances, there will be no order as to costs, either here or in the courts below.”
HELD: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed. There was a tort of discrimination in Common Law but that the law went further and established a regime integrating the court system and thus giving a remedy.
Bhadauria should have used the prescribed complain modalities outlined in the law instead of trying to bypass it and go straight to court. The courts could not enforce the Human Rights Code. Allegations of discrimination are not causes of action that can support a civil action.
3. Complexity in Canadian Law Making
-The interplay among common law, statutory law, and constitutional law can be complex
-The recent shift in policy overcomes a century or more of common and civil law tradition (i.e. the definition of marriage as a union between one man and one woman)
-The impetus for the modern changed allowing same-sex marriage arose piecemeal through a series of constitutional cases that began by establishing equal benefits for homosexual couples.
-The following case gives a brief glimpse into the intricate relationship between custom, common law, civil law, and constitutional law that exists in contemporary Canada:
________________________Halpern v Canada (AG) [2003] _________________________
Facts: Seven gay and lesbian couples (“the Couples”) want to celebrate their love and commitment to each other by getting married in civil ceremonies. In this respect, they share the same goal as countless other Canadian couples. Their reasons for wanting to engage in a formal civil ceremony of marriage are the same as the reasons of heterosexual couples.
Issue: We frame the issues as follows:
(1) What is the common law definition of marriage? Does it prohibit same-sex marriages?
(2) Is a constitutional amendment required to change the common law definition of marriage, or can a reformulation be accomplished by Parliament or the courts?
(3) Does the common law definition of marriage infringe MCCT’s rights under ss. 2(a) and 15(1) of the Charter?
(4) Does the common law definition of marriage infringe the Couples’ equality rights under s. 15(1) of the Charter?
(5) If the answer to question 3 or 4 is ‘Yes’, is the infringement saved by s. 1 of the Charter?
(6) If the common law definition of marriage is unconstitutional, what is the appropriate remedy and should it be suspended for any period of time?
HELD: the Court found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Canadian Charter of Rights and Freedoms.
The unanimous Court found that the exclusion of same-sex couples was a clear violation of the Charter and moreover did not constitute a "reasonable infringement" under section 1. In this respect the judgment followed much of what had been ruled elsewhere.
Surprisingly, the Court also held that there was to be no suspension of the remedy as it applied to the general population and that the new definition allowing same-sex couples to marry would take effect immediately.
-In the aftermath of Halpern, the federal government decided to accept the result reached by the Ontario CA and thus, did not seek leave to appeal to the SCC. However, their motion to leave was quashed by the court on Oct 10, 2003
-In July 2003, the federal government produced a draft bill that would redefine marriage.
-Before proceeding, the government decided to refer 4 questions regarding the validity to the SCC.
-The court handed down its decision in Reference re Same-Sex Marriage Act [2004], upholding the Bill in Parliament for same-sex marriage in all provinces
-It is now proclaimed as the Civil Marriage Act 2005
3.FUNDAMENTAL PRINCIPLES OF THE CANADIAN LEGAL SYSTEM
v Chapter 3 pg 89-129à “Recurring Constitutional Themes in Canadian Public Law”
-The state may impose its dictates on private persons without their individual consent. Nevertheless, in a society governed by the rule of law, the state may not act arbitrarily.
-To be legitimate, the state must impose its will lawfully, in accordance with law: the starting point in assessing the legitimacy of state action is the constitution.
-A constitution established the foundational law through which this “rule of law” can occur. It does so in 2 ways:
(1) A “Rule of Recognition” - it established as a matter of law who can make the law “ordinary law” of the land and also spells out any limits on the content of this ordinary law. Thus, a constitution allows us to recognize ordinary law and determine whether it is proper.
(2) A constitution establishes the respective relationships between the institutions of branches of the state that perform the functions necessary to “operationalize” law in society.
-This chapter’s intention is to set out and elaborate principles derived from Canada’s constitutional history and structure that help to explain the shape and operation of public law in Canada.
-Six such principles appear in this chapter:
o Rule of Law – all exercise of legitimate public power must have a source in law, and every state official or agency is subject to constrain of the law.
o Constitutional Supremacy – the Constitution is the supreme law of the society, and ordinary law that is inconsistent with the Constitution is of no force of effect.
o Parliamentary Supremacy – Subject to the Constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it deems fit.
o Federalism – legislative sovereignty in Canada is divided between an national legislature, or Parliament, and provincial legislatures, according to a division of law-making powers of jurisdictions set out in the Constitution.
o Statutory Authority – the executive branch f the state derives all its authority to act from statutory grants of power from the legislative branch, save and except for certain powers derived from “royal prerogative” and constitutional convention.
o Judicial Independence – the judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of state in order to perform its constitutional law functions.
-The “recurring constitutional principles” frame many of the public law issues analyzed more closely elsewhere in this volume.
-However, the constitutional foundations of Canadian public law are not easily grasped in isolation and are best understood as forming an integrated whole, whereby the principles work together and complement one another.
I. CONSTITUTIONALISM IN CANANADA
-This section addresses the nature of Canada’s Constitution and the principles of “constitutional supremacy” and the “rule of law”
A. THE PRINCIPLE OF THE RULE OF LAW
-This has a range of possible meanings. One most familiar is that a society should strive to operate on “the rule of law rather than the rule of men or women”.
-In replacing of arbitrary, unconstrained power with rule-governed authority is clearly a normative purpose of law.
-Many societies, including Canada, have placed a supreme constitution overtop of “ordinary” law and state functions.
-The constitution served as “a law to make law”: the ground rules for law making and governance.
-In this way, the rule-of-law principle is logically prior to a principle of constitutionalism.
-In Succession Reference [1998] the SCC viewed the principles of “constitutional supremacy” and “rule of law” as closely connected:
“The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodies in s.52(1) of Constitution Act 1982, which provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of inconsistency, of no force or effect.” Simply put, the constitutionalism principle requires that all government action comply with the Constitution, the rule of law principle requires that all government action comply with the law, including the Constitution.”
-In this usage, the rule of law if broader than constitutionalism, and indeed its necessary prerequisite.
-The idea that all state officials are subject to the legal order, and to the same legal obligations are individual citizens, was most strikingly affirmed by the SC in:
_______________________Roncarelli v Duplessis [1959] __________________________
Facts: In this pre-Charter case, the director of the province’s liquor commission, acting under the express direction of Premier Maurice Duplessis, revoked the licence of a Montreal restauranteur who had posted bail for several hundred Jehovah’s Witnesses, a group that had attracted the particular animus of the premier. The director purported to be acting under the commission’s unqualified statutory power to cancel permits “at its discretion.”
Held: The court rejected the idea that any statute could delegate such untrammelled power to a government official, or that the premier cold manipulate his own powers to pursue a personal vendetta.
-Statutory powers must be limited to the express or implied purposes for which they were granted, a principle enforceable by the judiciary.
Rand J (concurring)- Justice Rand wrote in his often-quoted reasons that the unwritten constitutional principle of the "rule of law" meant no public official was above the law, that is, they could neither suspend it or dispense it.
Though he had the authority to do this by the law granting him the discretion, he overstepped the reasons why he held this.
àIt is held as an example of a ruling showing we need, and have, rules governing the granting of authority
B. WHAT COMPRISES THE CONSTITUTION OF CANADA?
-We commonly think of Canada as having a written Constitution, embodies in 2 documents produced at distinct historical moments: The Constitution Act 1867 and The Constitution Act 1982.
-The principle achieved in 1867 Act is federalism: the division of legislative powers between a national Parliament and the legislatures of the provinces, where the division of powers is stated in s.91 and s.92
-The 1982 Act is known for the Canadian Charter of Rights and Freedoms: which guarantees a set of individual and minority rights
-The Constitution Act 1982, provides an express definition of the Constitution and its legal statue in s.52(1) and (2).
-By using the word “includes”, s.52(2) contemplates that the Constitution may comprise more elements than are stated in that section.
-In Succession Reference, the SCC confirmed that the Constitution also contains unwritten “principles” which are important to understand the legal constraints under which public power is exercised by the Canadian state.
-The first excerpt from this case constrains the SC’s discussion of the relationship between the text of the Constitution of Canada and what it identifies as “unwritten principles of the Constitution.”
-The discussion in paras.[49 and 50] has internal momentum.
-The court starts by describing unwritten constitutional principles as being part of the structure or “architecture” of the Constitution that retains its primacy.
-The court then states that the principles may be helpful to a proper interpretation of the text.
-In its final and most striking statement, however, the court describes unwritten principles as having the force of law and imposing substantive limits on the powers of government.
____________________Reference re Sucession of Quebec [1998] ___________________
Facts:Following the election of a majority of Parti Québécois (PQ) MNAs with 41.37% of the popular vote in the 1976 provincial election, the party formed a government and, in 1980, held a referendum. The government of Quebec asked the province's population if it should seek a mandate to negotiate sovereignty for Quebec coupled with the establishment of a new political and economic union with Canada. The referendum resulted in the defeat of the sovereignty option by a margin of 60% to 40%. The PQ was nevertheless re-elected in 1981, this time promising not to hold a referendum.
In 1982, the federal government, with the concurrence of all provinces except Quebec, petitioned the Imperial Parliament in London to amend Canada's constitution so that in the future, all further amendments would take place by means of a process of consent involving only the Parliament of Canada and the legislatures of the provinces. Up until this point, all amendments had taken place by means of Acts of the Parliament at Westminster, since the Canadian constitution was, strictly speaking, a simple statute of that Parliament.
Colloquially, the switch to a domestic amendment procedure was known as patriation. The particular formula for amendments that was adopted in 1982 was opposed by the then-government of Quebec, which also opposed the adoption of other constitutional changes made at the same time, such as the Canadian Charter of Rights and Freedoms—although this opposition was not necessarily based on a rejection of the content of these changes, as opposed to the manner of their adoption, and the failure to include amendments specific to Quebec in the package. Also, Quebec had already at that time a more complete Charter that was adopted in 1975.
Two further attempts were made at amending the Canadian constitution in 1987-1990 and 1992 in a manner that, it was hoped, would have caused the Quebec legislature to adopt a motion supporting the revised constitution. These failed packages of constitutional reforms were known as the Meech Lake Accord and the Charlottetown Accord. Thus, in the mid-1990s, there was a widespread sense that the Constitution of Canada was not fully legitimate, because it had not yet received the formal approval of Québec.
In 1994, the Parti Québécois was re-elected, and announced that it would be initiating a second referendum to take place in 1995. This time, the question was on sovereignty with an optional partnership with Canada. The "no" side won by only a slight margin. Prior to this referendum, the National Assembly of Quebec adopted a bill relating to the future of Quebec which laid out the Quebec's plan for secession in case of a winning referendum.
In response to the bill and the referendum result, several legal actions were initiated by opponents to the independence of Quebec, questioning the legality of secession. In 1996, Parti Québécois leader Lucien Bouchard announced that his government would make plans to hold another referendum when he was confident that the "winning conditions" were there, pointing to the political cost of losing a third referendum. In reaction to Bouchard's stated plans, Prime Minister Jean Chrétien initiated a reference to answer the legality of a unilateral declaration of independence from a Canadian province.
Issues: The Governor in Council (effectively, the Cabinet of Canada) submitted the request for an advisory opinion on the following three specific questions:
- Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
- Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
- In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?
[50] Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today.
-In this case, there is little question that the SC was effectively expanding judicial authority in the constitutional sphere.
-It is important to note that in recognizing the primacy of the text of the Constitution, the court implicitly stated that unwritten principles cannot be viewed as overriding text.
-Their substantive role, at least to date, has been limited to supplementing or “filling gaps” in the text.
-Nevertheless, the SC’s discussion of 4 principles of the Constitution in the case raised the possibility of making arguments that each of these principles, and any other that might later come to be recognized, has a substantive content that directs and limits state action.
-With respect to the “rule of law” principle, this includes the idea that ordinary law must meet certain qualitative standards – including not being retrospective, or not being directed at a small class of persons – in order to be constitutional,.
-This idea was examined in Tobacco Damages and Health Care Costs Recovery Act 2000, c.30.
-In 2000, the BC legislature enacted this act, creating a civil cause of action for the BC government against tobacco manufacturers with respect to health care costs incurred by the government for tobacco-related illnesses resulting from tortuous of other misconduct by the manufacturers.
-The defendant companies, in Imperial Tobacco Canada, challenged the constitutionality of the legislation. They argued that the statute was beyond provincial powers due to its extra-territorial aspects. This was dismissed by the SCC.
-The manufacturers also argued that the legislation breached the unwritten constitutional principles of judicial independence and the rule of law, with respect to the latter, the defendants argued that several features of the statute violated substantive norms of the rule-of-law principle. The court’s unanimous decision was written by Justice Major in:
_________________British Columbia v Imperial Tobacco Canada Ltd. [2005] __________
Issue: Is the Tobacco Damages and Health Care Costs Recovery Act 2000 constitutionally invalid, in whole or in part, as offending the rule of law?
Major J - Rule of law
-The tobacco companies had claimed that the retrospectivity and retroactivity of the Act violated the rule of law by creating an unfair trial. Further, they felt that legislation should neither target a particular sector nor confer special privileges on the government.
-The rule of law, as protected by the Constitution, does not require that Acts ensure a fair civil trial or avoid giving the government advantages.
SCC Held: accepting this amorphous conception of the rule of law would render several provisions of the Charter redundant because they are more narrowly formulated.
-Constitutional “conventions” are another species of unwritten constitutional norms.
-Because the Constitution Act 1867 sought to effect “a Constitution similar in Principle to that of the UK,” Canada inherited these conventions, and the very concept of conventions, from the British constitutional structure.
-Conventions represent accepted understandings of how organs of government operate.
-Conventions are important.
-In Resolution To Amend the Constitution (the “Patriation Reference”), the SCC was called on to render a decision in the midst of a constitutional crisis. The federal government of PM Trudeau had decided to pursue amendment and patriation of the Constitution on the basis of the agreement of only 2 of the 10 provinces, Ontario and New Brunswick.
-The “Gang of Eight” opposing provinces sought a court ruling that this “unilateral” proposal to amend the Constitution breached a convention of the Constitution.
-A majority of the court agreed. And made several findings about the nature and effect of conventions of the Constitution, including:
1. Conventions come into existence on the basis of 3 factors:
a) a practice or agreement developed by political factors;
b) a recognition by political actors that they are bound to follow the convention;
c) the existence of a normative reason – that is, a purpose – for the convention
2. Conventions are NOT “law” and as such, CANNOT BE ENFORCED BY THE COURTS. They acquire and retain their binding force by agreement, and ultimately in the realm of politics. However, courts may recognize a convention.
-In Patriation Reference itself, the majority located a normative reason for a convention of “substantial provincial agreement” in the federal nature of Canadian democracy:
__________________________The Patriation Reference [1981] _____________________
Issue: Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the UK and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights, or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?
C. THE PRINCIPLE OF CONSTITUTIONAL SUPREMACY
-In the Succession Reference, the SC confirmed that with s.52(1) of Constitution Act 1982, the Canadian system of government now operates under a principle of constitutional supremacy.
-The court described the 1982 constitutional arrangements as completing a transformation over time from a system based “largely” on the principle of parliamentary supremacy to one of constitutional supremacy.
-In the Succession Reference, the SC set out its understandings of the principle of “constitutionalism” or “constitutional supremacy”. As we have already noted the court linked this concept with the “rule of law principle”:
_____________________Reference re Sucession of Quebec [1998] __________________
Constitionalism and the Rule of Law
-para [70-78]
-The doctrine of constitutional supremacy carries with it certain necessary implications that speak to other aspects of public law.
-The following are worth noting:
1. Hierarchy of Law
-The doctrine of parliamentary supremacy stands for the proposition that a rule of the common law can be overridden or amended by express statement of the legislature in the form of a statute.
-Statute law is binding to the extend it is not inconsistent with the Constitution
2. Adjudication
-To effect constitutional supremacy, it requires a mechanism for adjudicating alleged inconsistencies between the Constitution and ordinary law, including the power to declare the invalidity of inconsistent ordinary law.
-Our system accepts that constitutional interpretation cannot be performed definitively by the same body that enacts the ordinary law subject to constitutional scrutiny, that is, the legislature. This means that our system requires that the legislature will be checked by a judiciary with the authority to interpret and apply the Constitution (judicial independence).
-Ultimately, independent courts have the final adjudicative word (this includes administrative tribunals which are able to interpret and apply the Charter to invalidate legislation)
3. Counter-Majoritarianism
-To a greater of lesser degree depending on the nature and quality of a particular electoral system, legislatures express majority preferences.
-This may change over time, even very short times, and at any one time there may be a great many “majorities” represented in Parliament going to a whole host of different policy issues.
-Constitutional supremacy represents a check on majoritarian democracy by placing limits on majority preferences. Thus, in a system of constitutional supremacy, the power to interpret and enforce the Constitution against majority preferences MUST be present
4. Amendment by Super-Majority
-Constitutional supremacy implies that a constitution cannot be amended in the same way that an ordinary legislation is enacted – which is not bound y the Constitution.
-The process for amending a constitution must involve a “super-majority” which brings in more or other elements of society than comprise a legislative majority. The amending formula is adopted in part V of Constitution Act 1982.
D. CONSTITUTIONAL SUPREMACY AND HUMAN RIGHTS LAWS
-The SCC has described human rights legislation as “quasi-constitutional” in nature.
-The court appears to mean the following in using that phrase:
(1) human rights and anti-discrimination laws are important to individual rights in Canadian society and closely related to other civil liberties protected in the Constitution;
(2) due to their significance, human rights deserve a broad and liberal interpretation and can be used to interpret provisions in other legislation.
-Despite this status, human rights legislation is of the nature of “ordinary” statute law and subject to the Constitution.
-The principle of constitutional supremacy via human rights legislation is best demonstrated by the SC’s decision in Vriend v Alberta [1998]:
-V was an employee of a private Christian college in Edmonton. He lost his employment when he identified himself as gay, contrary to the college’s staff employment policy.
-V was unable to fine a HR complaint under Alberta’s legislation because the state did not include “sexual orientation” as a ground protected from discrimination.
-V challenged the legislation under s.15(1) of Charter claiming that this statutory omission discriminated against him on the grounds of sexual orientation.
-In 1995, the court in Egan and Nesbitt v Canada [1995] determined sexual orientation to be “analogous” to the grounds enumerated in s.15(1) and thus, equally deserving to constitutional protection.
-SCC Held: the appropriate remedy was to “read in” to the list of grounds protected from employment discrimination the phrase “and sexual orientation” in order that the Alberta statute comply with the Constitution.
II. THE EXERCISE OF PUBLIC POWER IN CANADA
A. THE SEPERATION-OF-POWERS DOCTRINE
-This refers to the division of governmental functions between the legislative, executive, and judicial branches of the state.
-The absence of a strict separation-of-powers doctrine has led to question the utility of the concept for Canadian constitutional law.
“There is no general “separation of powers in the British North America Act
1867. Our Constitution does not separate the legislative, executive, and
judicial functions and insist that each branch of government exercise only its own function.” (Re Residential Tenancies Act [1981])
-Nevertheless, the distinction between the legislature, executive, and judiciary is important to Canadian public law.
-It serves 2 principal purposes:
(1) a functional purpose of identifying the institutional homes of each of the three major forms of public power, and
(2) a normative purpose of providing general boundaries for the operation of each institution.
-On the functional side, the Constitutional Act 1867 itself, divides public power into 3 branches:
(1) Part III – “executive power” of federal law
(2) Part IV – federal “legislative power”
(3) Part V – provincial “executive power” and provincial “legislative power”.
--(4) Part VII – deals with the “judicature”
-More important is the recognition that each of these powers represents a unique form of authoritative decision making.
B. LEGISLATIVE POWER
-Divided between the federal legislature, or Parliament, comprising the elected House of Commons and an appointed Senate, and the elected legislature in each province.
-The division of authority between the two legislative levels is a feature of federalism: other law-making bodies in Canada receive their powers by delegation from the legislatures and do not otherwise have sovereign statue under the Constitution.
1. The Principle of Parliamentary Supremacy
-The principle is and was the basic constitutional rule of British constitutional law that Canada’s founders adopted.
-That they intended to do so is made clear in the preamble to the Constitution Act 1867, which states that it is the desire of the three federating provinces to adopt “a Constitution similar in Principle to the United Kingdom”.
-The simplicity of parliamentary supremacy as a constitutional principle explains why it does not require a written embodiment.
-“who” has law-making authority? The divisions of powers between the federal and provincial legislatures.
-Canada’s federal and provincial legislatures were understood to be the sole sovereign holders of state authority, subject to authority being divided between them along the lines largely set out in ss.91 and 91 of Constitution Act 1867.
-The doctrine of exhaustion of state power meant that if one level of legislature was unable to enact a law for jurisdictional reasons, then the law could be passed by the other level.
-With the Constitution Act 1982, Canada adopted a Charter and an express declaration of constitutional supremacy.
-The charter imposed significant new limits on the substantive laws that could be passed by either level of legislature. With these limits, the concept of parliamentary supremacy was modified beyond the point at which it could reasonably be used to describe the constitutional system.
-The limits placed on substantive law making by the Charter, together with the existing limits on who can pass which laws set out in s.91 and s.92 on 1867 Act, virtually required a recognition of the written Constitution as being the supreme source of law-making authority in Canada.
-Certain provincial government defended the principle of entrenched individual rights and what impact it would have on the principle of parliamentary supremacy. They reached a compromise with the federal government and the other provinces by agreeing to include an overriding provision, s.33 of Charter, the “notwithstanding clause”
-For this, and other reasons, parliamentary sovereignty remains considerable utility and explanatory power with respect to Canadian law.: it remains of great importance with respect to explaining the relationship between legislative and executive power in Canada.
-Babcock v Canada provides a recent example of how the court has approached parliamentary sovereignty as a principle in Canadian constitutional law.
-Here, the government of Canada sought to rely on a statutory right of non-disclosure of Cabinet documents, despite the documents having already been disclosed in the course of litigation. The applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear statutory statement to the contrary.
-Held: parliamentary sovereignty decided the issue.
____________________Babcock v Canada (Attorney General) [2002] _______________
Facts: The respondents, who are staff lawyers with the federal Department of Justice in Vancouver, sued the federal Crown for breach of contract and breach of fiduciary duty when they failed to be paid the same salary as staff lawyers in Toronto. Lists of documents were exchanged, in which the government listed a number of documents as producible. In support of a motion to have the action transferred to the Federal Court, which was dismissed, the government filed the affidavit of an officer of the Treasury Board Secretariat which set out the rationale for the pay raise for Toronto lawyers. The government later changed its position on disclosure and delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) of the Canada Evidence Act objecting to the disclosure of 51 documents and any examination thereon, on the ground that they contain “information constituting confidences of the Queen’s Privy Council for Canada”. The certificate claimed protection for 12 government documents previously listed as producible (some of which had already been disclosed), for five documents in the control or possession of the respondents, and for 34 government documents and information previously listed as not producible. The chambers judge dismissed the respondents’ application to compel production of the documents for which the government claimed protection. A majority of the Court of Appeal reversed this decision and ordered production on the ground that the government had waived its right to claim confidentiality by listing some of the documents as producible and by disclosing selective information in the affidavit
Issue: (1) What is the nature of Cabinet confidentiality and the processes by which it may be claimed and relinquished? (2) Is s.39 of the Canada Evidence Act constitutional?
Held: The appeal should be allowed in part. The documents certified but disclosed are no longer protected and may be used in the litigation.
“I share the view of the Federal Court of Appeal that s. 39 does not offend the rule of law or the doctrines of separation of powers and the independence of the judiciary. It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government.”
The Constitutionality of Section 39
Because s. 39 applies to the undisclosed documents, it is necessary toconsider the constitutional questions in this case. The respondents argue that s. 39 of the Canada Evidence Act is of no force or effect by reason of one or both of the preambleto the Constitution Act, 1867 and s. 96 of the Constitution Act, 1867.
2. The Principle of Federalism
a. Overview
-As the SC stated in Reference re Secession of Quebec in 1998, the recognition of provincial legislatures with extensive areas of jurisdiction, principally over all private legal relationships under the rubric of “property and civil rights within the province”, was the sine qua non of Confederation for the leaders and people of Quebec and the maritime provinces.
-The court also recognized “federalism” as an unwritten principle of the Canadian Constitution.
___________________Reference re Sucession of Quebec [1998] ____________________
Federalism:
-para [55-60]
b. Federalism and Human Rights Legislation
-Federalism means that regulatory authority over different aspects of Canadian society divided between the federal and provincial governments.
-So, all 11 Canadian legislatures have enacted human rights laws to govern those areas subject to their regulatory authority.
-Certain sectors of the economy fall within the federal authority. Within the sectors, employment relationships are generally subject to federal authority as being incidental to their regulation.
-Provincial legislatures are unable to enact laws dealing with discrimination in these areas: Parliament has enacted the Canadian Human Rights Act, to cover these areas of the economy.
C. EXECUTIVE POWER
-The executive branch replicates the duality created by federalism, with executives at the federal and provincial levels.
-The executive includes all ministers of government and their employees (the civil service); the armed forces and Crown corporations; statutorily created bodies that carry out largely “governmental” functions.
-But where the control of an entity is derived more from private sources, such as the membership of a registered society or corporation, than from ministerial sources, we are no longer dealing with the executive, but with the entity belonging to civil society.
-In law, the executive branch is subordinate to the legislature, and the relationship between the legislative and executive branches in Canada has 2 important features:
(1) The exective branch derives any power it has solely from the laws or statutes passed by the legislature. That is, the executive must locate any authority it has to act in Canadian society from a statutory source. By way of statutes, legislatures delegate elements of their sovereign power to executive actors. The delegation is made on the terms of the statute. Thus, the executive is almost wholly dependent on and subordinate to the legislative branch for its authority to act.
(2) By constitutional convention, the executive is responsible to the legislature.
D. JUDICIAL POWER
-The Constitution Act 1867, ss.96-101 contains provisions on “Judicature”.
-The slender foundation in the text of the Constitution for the judicial system in Canada has not prevented the courts themselves from carving out an indispensable and essentially unassailable position in Canada’s constitutional system.
-This position goes to what the SCC has identified as the “core jurisdiction” of superior courts, which encompasses two crucial public law powers:
(1) The jurisdiction to rule on the constitutional validity of all ordinary laws in Canada (this represents the superior courts’ “constitutional law” jurisdiction)
(2) The jurisdiction to supervise the activities of executive government and other statutorily delegated actors to ensure that they act within their statutory authority (this represents the superior courts’ “administrative law” jurisdiction)
1. The Judiciary’s Constitutional Law Jurisdiction
-The principal remedy adopted by the judiciary in constitutional cases has been that of declaring laws invalid and of no force and effect.
-Since the adoption of the Charter, the question of remedies becomes more complex.
-The question of what scope s.24 of Charter may give for remedies in damages has received little elaboration by the courts to date.
2. The Judiciary’s Administrative Law Jurisdiction
-Superior courts exercise a supervisory jurisdiction with respect to exercises of executive government authority. This is the subject matter of administrative law.
-Executive authority is limited by and to the jurisdiction granted by statutory delegation from the legislature. Just as the judiciary acts as the “umpire” with respect to claims that legislatures have exceeded their constitutional mandate, superior courts have historically assumed the role of assuring that executive government acts within its delegated statutory authority. This administrative law or judicial review jurisdiction is understood to be a matter of common law development, and therefore not itself dependent on being granted by legislatures.
-As noted, the federal government has the power to create a s.101 courts and thereby confer administrative law powers on a new “court”.
-That is what Parliament did in 1970 by creating the Federal Courts and conferring on them, exclusive jurisdiction with respect to the supervision of federal statutory delegates.
-Since that time, administrative law jurisdiction in Canada has been divided between the Federal Courts and the provincial superior courts.
3. The Principle of Judicial Independence
-Judicial independence is an elemental constitutional doctrine, closely tied to the separation of powers.
“It is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of
law” (Mackin v New Brunswick (Minister of Finance) [2002])
-Judicial independence ensures that:
“judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference” ...it insulates judges from retaliation from other branches of government for their decisions and guarantees that “power of the state is exercised in accordance with the rule of law and the provisions of our Constitution” (Ell v Alberta [2003])
-Judicial independence also preserves the separation of powers between the 3 branches of our democracy by “depoliticizing” the relationship between the judiciary and the other 2 branches:
“the legislature and executive cannot, and cannot appear to, ecert 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 if political debate, and which do not relate to the proper administration of justice” (Re Remuneration of Judges (the “Provincial Judges Reference”) [1997])
4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM
v Chapter 4à “Parliament and the Legislative Process”
P A R T 2: THE KEY ACTORS IN PUBLIC LAW
-Having set the stage above of Canadian public law, it is not time to examine the key public law “actors”: legislature, the executive, and the judiciary.
I. STRUCTURE AND OPERATION OF PARLIAMENT
-This section describes the separate institutions that comprise Parliament: the monarch and her delegate; the governor general; the senate; and the House of Commons. It also describes how the Parliament is called into session, prorogued, and dissolved.
A. CONSTITUENT PARTS OF THE PARLIAMENT OF CANADA
-s.17 of Constitution Act 1867 - Parliament of Canada consists of the Queen, an Upper House styled the Senate, and the House of Commons.
1. The Monarch and Governor General
-The monarch – currently Queen Elizabeth II – plays a double role in the Canadian constitutional framework (part of Parliament, and is head of state)
-In practice, however, many of the Queen’s powers are to be exercised by the governor general (s.10 Constitution Act 1867)
-Canadian head of state is not elected. In the case of the monarch, its on birth. In the case of the governor general, its on appointment.
a. Selecting the Monarch
-Determined in the UK according to the rules and antiquated laws of succession (Act of Settlement of 1701)
-It bars Catholics from the Crown, and precludes the monarch from marrying a Roman Catholic.
-Monarch must be in communion with the Church of England.
-The Act’s rules are discriminatory, viewed by modern human rights law. Thus, it has been challenged in Canadian courts as a violation of the Charter:
________________________O’Donohue v The Queen [2003] ________________________
Facts: was a legal challenge to the exclusion of Roman Catholics from the throne of Canada. The applicant sought a declaratory judgment that certain provisions of the Act of Settlement 1701 violate the equality-rights section of the Canadian Charter of Rights and Freedoms. In 2003 the Ontario Superior Court of Justice dismissed the case, finding the matter non-justiciable. In 2005 that decision was upheld on appeal.
The application was brought by Tony O'Donohue, a civil engineer, former Toronto City Councillor and member of Citizens for a Canadian Republic, after over two decades of pursuing reform of the succession by constitutional amendment.
Currently Canada's head of state is Elizabeth II, Queen of Canada; a legally distinct position from the Queen of the United Kingdom, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but its Constitution includes the 1931 Statute of Westminster, which set out the convention that all of the Commonwealth realms must have symmetrical lines of succession to the throne, to maintain the unity of the Crown (See: Commonwealth realm - Sovereignty of the realms). Thus the constitutional law that predominantly governs the line of succession to the throne, the 1701 Act of Settlement, must remain identical to the same law in the other realms, including the United Kingdom. The Act of Settlement, in turn, forbids Catholics from becoming King or Queen of Canada.
O'Donohue argued that this law was discriminatory, and attempted to have it repealed. As a sovereign country, Canada, it was argued, should be free to change any laws regarding who becomes the country's head of state. The Court File (NO.: 01-CV-217147CM) stated:
The applicant. Tony O’Donohue, has brought the present application for a declaration that certain provisions of the Act of Settlement, 1710 [sic], are of no force or effect as they discriminate against Roman Catholics in violation of the equality provisions of the Canadian Charter of Rights and Freedoms. Pursuant to the order of Mr. Justice Spiegel dated May 29, 2002. only the issues of standing and justiciability are to be dealt with at this point. Should I grant the applicant standing and find justiciability the matter will proceed to be heard on the merits; if not, the application will be struck.
Held: On June 26, 2003 the Ontario Superior Court of Justice ruled in favour of the respondents—who were named as Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of Ontario. The judgement was subsequently upheld by the Court of Appeal for Ontario on March 16, 2005. It read as follows:
[36] "The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. As stated by Prime Minister St. Laurent to the House of Commons during the debate on the bill altering the royal title:
“Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom. . . It is not a separate office .. it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign. . .” Hansard. February 3, 1953, page 1566."
[37] "These rules of succession, and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny."
[38] "In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure."
[39] In conclusion, the lis raised in the present application is not justiciable and there is no serious issue to be tried. Public interest standing should not be granted. Given my ruling on these issues I need not deal with the other considerations that apply to the granting of public interest standing. The application is dismissed."
b. Selecting the Governor General
-In practice, the monarch appoints the GG
-But by Canadian constitutional convention, the Queen follows the Canadian prime minister’s recommendations in appointing the governor general.
-This is not really a legal decision from the P.M, but more of a political one.
-Thus, the Queen takes her direction from what is known as an “instrument of advice” (essentially, a personal letter from the P.M).
2. Senate
-s.24 of Constitution Act 1867 – expressly anticipates the appointment of senators by the governor general
-The GG follows the advice of the PM when exercising this power (a constitutional convention)
-However, the appointment process – too often treated as a means for the party tin power to reward friends and supporters – has fuelled substantial controversy.
-Given this deadlock, several provincial governments have attempted to assert control over appointments.
i.e. Alberta enacted a Senatorial Selection Act 2000 – providing for the direct election of senatorial candidates. Once selected by election, the provincial government is to submit the nominees’ names for the federal government, identifying these individuals as persons who may be summoned to the Senate for the purpose of filling vacancies relating to Alberta.
-This law has only a modest impact on senator selections.
-Alberta has had 3 election (1989, 1999, 2004). Stan Waters was elected in 1989, and in fact was appointed to the Senate in 1990 by PM Mulroney, then trying to elicit provincial support for the Meech Lake accord.
-However, PM Chretien declined to appoint the two so-called senators-in-waiting elected in 1999 – Bert Brown and Ted Morton.
-In response, Mr. Brown sued Alberta courts seeking a declaration that the senatorial appointment provisions of 1867 Act were contrary to democratic principles, as set out by the SC in Reference re Secession of Quebec
_____________________________Brown v Alberta [1999] __________________________
Facts: Appeal by Brown from an order striking out his action as disclosing no cause of action. Brown had been elected under the Alberta Senatorial Selection Act as a senate nominee, although at the time of the motion there was no senate vacancy. Brown commenced proceedings seeking an order declaring provisions of the Constitution Act, 1867 that dealt with the appointment of senators to be contrary to democratic principles. On the motion to strike the claim, the court held that it had no jurisdiction to grant the declaration sought because no legal interest was engaged. After the decision was delivered, the Supreme Court of Canada delivered reasons in the Quebec succession reference case and Brown asked the Court of Appeal to reconsider the issue in light of the Quebec case.
HELD: Appeal dismissed. There was nothing in the succession reference case that altered the scope of the court's power to award declaratory relief. The motions judge properly found that no legal issue had been raised. Absent a legal issue, it was not within the competence of the court to make statements whose sole purpose was political persuasion or social comment. Brown had asked the court to determine that appointments made inconsistently with the Senatorial Selection Act were undemocratic.
-In a second case, brought in the Federal Court, the Reform Party of Canada sought an interlocutory injunction to restrain the governor general from appointing a senator from Alberta, unless that person has been elected pursuant to the provision of the Senatorial Selection Act:
____________________Samson v Attorney General of Canada [1998] _________________
HELD: Application dismissed. There was no serious issue to be tried. Under the express and unequivocal terms of sections 24 and 32 of the Constitution Act, 1867, there were no procedural or other limitations restricting the exercise of the Governor General's discretionary power to appoint qualified persons to the Senate. As well, this power was a purely political decision to be made without court interference. The fact that the Governor General had, on one previous occasion, appointed a person elected under the Senatorial Election Act to the Senate did not constitute a convention that altered the express wording of the Constitution Act, 1867.
-Following the 2006 election, PM Harper proposed to rethink the manner in which the senators are selected, including opening the door to election of nominees under provincial Senate selection laws.
-These elected nominees could then be appointed to the Upper Chamber by the governor general.
-When this textbook was in print, the Harper government proposed term limits on new senators, restricting their tenure to 8 years (the current Constitution allows senators to remain in office until age 75).
-Subsequently, the PM might honour provincial senatorial selection laws, opening the door to a Senate with regular elections!
3. House of Commons
-Unlike senators, members of the House of Commons are elected, a requirement anticipated in s.37 of Constitution Act 1867.
-The following is an overview of elections of members of Parliament to the House of Commons:
Elections Canada, Canada’s Electoral System (2001): (p.163)
________________________________________________________________________
-Elections to the House of Commons are run according to a rich blend of constitutional and statutory law.
-s.3 of Charter
-The Canada Elections Act 2000
-Until recently, the Canada Elections Act required a registered arty to run candidates in at least 50 electoral districts. This rule was struck down y the SC in 2003 in:
________________________Figueroa v Canada [2003] __________________________
Facts: Miguel Figueroa, the leader of the Communist Party of Canada, challenged the constitutionality of section 24 and 28 of the Canada Elections Act providing for a 50 candidate threshold as a violation of section 3 of the Charter.
The court challenge originated after the 1993 general federal election, when the CPC failed to field at least 50 candidates. Under the then Canada Elections Act, which had been amended just prior to the 1993 vote by the former Conservative government of Brian Mulroney, a registered federal party which fails to run at least 50 candidates in a general election would not only be automatically de-registered, but would also be stripped of its net assets which would then be turned over to the Government of Canada.
Miguel Figueroa, acting on behalf of the Communist Party's membership, challenged these provisions in the Act, arguing that the 50-candidate rule, combined with the increase in candidate deposits - which for smaller parties would be only partially refundable - and the seizure of party assets, together constituted draconian and unfair discrimination against smaller political parties. In 1999, Justice Anne Molloy of the Superior Court of Ontario (General Division) struck down many of the Act's provisions as unconstitutional, including the seizure of party assets and the non-refundability of candidate deposits for those failing to garner at least 15% of the vote in an election. Justice Molloy also struck down the 50-candidate threshold requirement for federal parties to maintain their registration.
The Attorney-General, on behalf of the Government of Canada, did not appeal the Molloy rulings on the seizure of assets and the non-refundability of candidate's deposits; these sections of the Canada Elections Act were subsequently changed by the Parliament of Canada.
However, the A-G did appeal Molloy's decision striking down the 50-candidate threshold rule. The case then proceeded to the Ontario Court of Appeal. In 2001, the Court of Appeal rendered a split decision, holding that while in its opinion the 50-candidate rule itself was constitutional, it was unconstitutional to fail to provide the party identifier on the ballot, as this denied important information about candidates to electors when completing their ballot. The Court instructed Parliament to establish a lower threshold in such cases. Following this ruling, Parliament again amended the Act to set a 12-candidate threshold for the party identifier, meaning that parties fielding at least 12 candidates in a general election would have the party name included on the ballot next to their candidates' names.
Figueroa, represented by Peter Rosenthal, then sought to appeal this judgment to the Supreme Court of Canada, arguing that the ruling of the Ontario Court of Appeal was flawed in interpreting the Charter of Rights and Freedoms, and that the 50-candidate rule did in fact constitute discrimination against smaller parties under the Charter.
SCC HELD: granted leave to appeal this important constitutional case, which was then argued before the SCC in 2002.
“In the final analysis, I conclude both that the 50-candidate threshold is inconsistent with the right of each citizen to play a meaningful role in the electoral process, and that the government has failed to justify this violation”
Iacobucci
-writing for the majority, stated that section 3 protects not just the right to vote but also provides the right of every citizen to participate in politics. The right ensures that each citizen can express an opinion about the formation of the country's public policy and the country's institutions.
-However, Iacobucci noted that section 3 does not protect unlimited participation. Rather it protects:
the right of each citizen to play a meaningful role in the process; the mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process
-For a violation to be found there must be a prohibition against "meaningful" participation.
NOTE: this is a leading SCC decision on the right to participate in a federal election under section 3 of the Charter. The Court struck down a provision requiring a political party to nominate 50 candidates before receiving certain benefits.
B. BRINGING THE CONSTITUENT ELEMENT OF PARLIAMENT TOGETHER:
-A Parliament is not a permanent feature
-Elections to the House of Commons take place in the period after the dissolution of the old Parliament and the summoning of a new Parliament.
-During the life of a Parliament itself, most Parliaments have “prorogued” between “sessions” of that Parliament.
-In this section, we discuss the process of summoning, proroguing, and dissolving a Parliament.
1. Summoning
-s.38 of Constitution Act 1867 – empowers the GG from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, to summon and call together the House of Commons
-But this apparent discretion is constrained by constitutional convention and now by the Charter.
-By convention, the GG calls Parliament to session on the advice of the PM.
-This convention is codified in the Writ of Election (sch.1 Canada Elections Act).
-This writ empowers the monarch, and thus, the GG, to set the date for a new Parliament by the advice of the PM.
-The events that follow soon after the summoning of a new Parliament:
House of Commons, Precis of Procedure (2003): (p.172)
__________________________________________________________________________
-The House of Commons, Precis of Procedure notes that opposition amendments to the address in reply to the speech from the throne constitute “direct questions of confidence in the Government”.
-Thus, a failure by the government to carry an un-amended address in reply, will likely constitute a vote of no confidence, causing the government to fall.
2. Prorogation
-Once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation.
-A prorogation is the prerogative of the GG, acting on the advice of the MP
-This may not endure indefinitely, however, Parliament cannot be entirely sidelined (see Charter s.5).
-The following illustrates the implications of prorogation:
House of Commons, Precis of Procedure (2003):(p.174)
_______________________________________________________________________
3. Dissolution
- Parliament must be dissolved and elections must happen at least every 5 years.
-Almost always, Parliaments do not last 5 years, and the GG act at a time of the PM’s choosing in dissolving a Parliament. This dissolution prompts a new electoral cycle, governed by the Canada Elections Act.
-There might be instances where a PM might be forced by constitutional convention to seek a dissolution from the GG at a time not of his or her choosing.
-This constitutional convention requires the PM to resign their government, or to seek Parliamentary dissolution after a “no confidence” vote by the House.
NOTE: without a “no confidence” vote in the House, it seems unlikely that the GG has the power to dissolve Parliament when opposed by the MP.
-But it is not always clear where a vote in the House of Commons is one of “no confidence”:
Special Committee on the Reform of the House of Commons, Report (1985): (p.175)
_________________________________________________________________________
-One of the McGrath committee observations: “As a rule, the GG accepts the advice of the PM. In certain cases, however, the GG is justified in refusing an immediate request for dissolution.”
-Indeed, the GG may have a constitutional duty to exercise this power of refusal.
-The exercise of this “reverse” power is likely most legitimate where a government seeks a dissolution soon after an election.
-In comparison, is of the reverse power to refuse dissolution is led appropriate if exercised several years into a Parliament, at a time near its natural expiry.
II. KEY ACTORS IN PARLIAMENT
-While in session, parliamentary procedures implicate several key actors, including political parties, the Speaker, and parliamentary committees.
A. POLITICAL PARTIES
-Politically, parties act to marshal collective resources in the hope of achieving electoral success.
-Parties are also the partial product of 2 legal aspects of parliamentary democracy. These are constitutional motivations for parties:
(1) Decision making in Parliament depends on swaying a majority of votes in each chamber
(2) Stems from the confidence convention: by constitutional convention, the individual commanding the confidence of the Commons is appointed PM. Thus, arty control of a majority of the House brings with it executive power.
-Both these legal considerations ensure that Westminster parliamentary systems are preoccupied with maintaining “party discipline”
-The political affiliation of a given parliamentarian is a matter of politics, not law
B. THE SPEAKER
-Further key players/actors in Parliament are the Speakers of the 2 houses of Parliament.
-In the Commons, the Speaker is a member of the Parliament elected to the Speaker’s position by the other MPs. The manner of their selection and powers are set out in the “standing orders” of the House of Commons.
-The following discusses the Speaker’s selection and function:
House of Commons, Precis of Procesure (2003): (p.180)
____________________________________________________________________
C. PARLIAMENTARY COMMITTEES
-These are subsets of Parliament tasked with much of the detailed work in Parliament.
-The Following is a description of committee functions and membership:
House of Commons, Precis of Procedure (2003): (p.183)
_________________________________________________________________
III. PARLIAMENTARY PROCEDURE
-How does Parliament perform its law-making functions?
-Here, we examine the sources of law governing the parliamentary law-making function, before reviewing the actual procedure followed in converting a bill into a statute.
A. SOURCES OF PARLIAMENTARY LAW
-“Parliamentary Law” – the rules determining parliamentary procedure – flows from an array of sources: Constitution; assorted statutes; the standing orders; and assorted usages, customs, and precedents, as assessed by the Speaker
1. Constitutional and Legislative Basis: Parliamentary Privilege
-The starting point for understanding “parliamentary law” is the Constitution.
-“Parliamentary privileges” are those rights “necessary to ensure that legislatures can perform their functions, free from interference by the Crown and the courts” (see Provincial Judges Reference [1997]).
-“Privilege” in its context means “the legal exemption from some duty, burden, attendance or liability to which others are subject” (see New Brunswick Broadcasting Co. v Nova Scotia [1993])
-Consider the SCC’s most recent analysis of “parliamentary privilege”, its scope, and the role of the courts in deciding its existence:
_____________________Canada (House of Commons) v Vaid [2005] _________________
Facts: Satnam Vaid was a chauffeur employed by the Canadian House of Commons until he was dismissed. Vaid filed a complaint to the Canadian Human Rights Commission for his dismissal. The House of Commons argued that its reason for firing him was protected under parliamentary privilege and so it could not be reviewed by any tribunal or court.
SCC HELD: that parliamentary privilege was not so broad as to protect employment matters. Justice Binnie, writing for a unanimous Court held that:
“I have no doubt that privilege attaches to the House's relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all. ... The appellants having failed to establish the privilege in the broad and all-inclusive terms asserted, the respondents are entitled to have the appeal disposed of according to the ordinary employment and human rights law that Parliament has enacted with respect to employees within federal legislative jurisdiction.”
2. Standing Orders
-In Vaid, the SCC grappled with privilege as a source of potential immunity of parliamentarians from human rights law.
-This case suggests that parliamentary privilege is a broad concept that extends beyond these immunity issues. It includes Parliament’s power “to establish rules of procedure for itself and to enforce them” without external interference.
-Courts have specifically held that Canada’s legislatures has the power to administer that part of the statute law relating to its internal procedure, as well as to determine the content of such things as Standing Orders on Procedure, without any intervention from the courts.
-The standing orders are rules of procedure adopted by at least a simple majority vote of the members of Commons.
-They constitute a fairly comprehensive code of Commons operations, including law making.
-The orders, however, do not anticipate every circumstance, and their meaning often requires interpretation.
-We now turn to how these standing orders and other legal standings govern law making in Parliament
B. PARLIAMENTARY LAW MAKING
-Our discussion of parliamentary law making focuses on both substance and procedure.
-Substantially = what is the scope of Parliament’s law-making jurisdiction?
-Procedurally = what process does Parliament follow?
1. The Scope of Parliament’s Law-Making Jurisdiction
-Of course, there is no full federal parliamentary supremacy in Canada
-Parliament is subordinated to other constrains in the Constitution, most notably the divisions of powers between the federal and provincial governments in the Constitution Act 1867, and constitutionally protected individual rights and liberties found in the Charter.
-But so long as it falls within these constitutional bounds, Parliament may make any law on any topic it wishes, as an exercise of its parliamentary supremacy (see Babcock v Canada [2002]).
a. The Power to Pass Bad Law
-Yes, parliamentary supremacy also means that Parliament is free to pass careless, unwise statutes, so long as the flaws do not also constitute constitutional violations.
_________________Bacon v Saskatchewan Crop Insurance Corp. [1999] ______________
Facts: Appeal by Bacon and other Saskatchewan farmers from the dismissal of their action against the Saskatchewan Crop Insurance Corporation and the Government of Saskatchewan to set aside the Farm Income Insurance Legislation Amendment Act and for damages. The farmers were registered under the 1991 Gross Revenue Insurance Program, as applied by the Corporation. The Provincial Government structured a new Program for 1992. It then passed the Amendment Act to establish the changed terms and to extinguish any breach of contract claims. The trial judge found that the legislative authority of the Government was subject to the limitation imposed by the rule of law so that it could not arbitrarily cancel its contractual obligation. The judge found, however, that the Government had not acted arbitrarily.
This appeal calls into question the legality of the Gross Revenue Insurance Program (GRIP) as it was applied in 1992 by the Saskatchewan Crop Insurance Corporation (SCIC). The appellants are Wayne Bacon and Gary Svenkeson who sued as representatives of three hundred and eighty six farmers who were registered under GRIP 91 and took exception to the manner in which GRIP 92 had been legislatively imposed upon them by virtue of the passage of amendments to The Agricultural Safety Net Act, S.S. 1990-91 c. A-14.2 as amended S.S. 1992, c. 51. The appellants brought this action against SCIC and the Government of Saskatchewan (Government) to set aside the legislation establishing GRIP 92 and seeking damages.
HELD: Appeal dismissed, without endorsing the reasoning of the trial judge. There was no basis on which to challenge the validity of the Amendment Act. The public's protection from the arbitrary use of power by officials was provided by the courts in certain situations, but the public's protection from the arbitrary use of power by the elected legislators was the ballot box. The trial judge departed needlessly from the known path by finding that legislative authority of the Government was subject to the rule of law.
“In the result, I find that there is no basis to challenge the validity of the legislation which was used to impose the GRIP 92 contract and to extinguish the right to challenge its application through reliance upon the usual common law remedies. That being so, the appeal is dismissed and the judgment of the trial judge is upheld but without endorsing the reasons he relied upon.”
-The Saskatchewan CA’s reasoning has been followed by other courts.
PSAC v Canada [2000] where the issue was the justiciability of a union’s complaint about a statute ordering striking workers back to their job. The union argued that the legislation was contrary to the rule of law because it was arbitrary and was passed in bad faith. The court held that this argument disclosed no legal foundation for a lawsuit.
-Indeed, even when it is alleged that an ill-intention ministry tricked Parliament into enacting legislation, the courts will not probe that statue’s promulgation (broadcast):
____________________________Turner v Canada [1992] __________________________
Facts: This is an appeal from a decision of the Trial Division which struck out the substantive allegations of the statement of claim herein, preserving only those paragraphs identifying the parties and claiming relief. The learned Trial Judge refused, however, to dismiss the action as against any of the individual defendants: the Prime Minister and three named Ministers of the Crown, and gave the respondent [plaintiff] leave to amend the statement of claim. The appellants say the Trial Judge erred in not dismissing the action entirely as the statement of claim discloses no reasonable cause of action and also in not dismissing it as against the named individuals for want of jurisdiction.
Held: We are all of a view that an action against Her Majesty based on allegations that Parliament has been induced to enact legislation by the tortious acts and omissions of Ministers of the Crown is not justiciable. The appeal will be allowed with costs, the statement of claim entirely struck out and the action dismissed with costs.
-Still, even if Parliament is competent to pass bad laws, it is not to be presumed that it means to do so.
-Parliament may strip away contractual rights, for instance, but to so do it must be emphatic:
__________________________Wells v Newfoundland [1999] ________________________
Facts: In August 1985, the respondent Andrew Wells, was appointed as a member of the Public Utilities Board (“Board”) with the designation Commissioner (Consumer Representative) under the provisions of the Public Utilities Act, R.S.N. 1970, c. 322 (“1970 Act”). Pursuant to the 1970 Act’s provisions, he was entitled to hold office during good behaviour. The terms of the respondent’s appointment were discussed in a meeting with the Clerk of the Executive Council of Newfoundland, on August 28, 1985, at which time he was given the choice of serving for a fixed term of 10 years, or until age 70.
The respondent chose the latter option. These terms, as well as the rates of remuneration, were confirmed by the Honourable William W. Marshall, President of the Executive Council, in a letter dated September 18, 1985. The following day the respondent was sworn in as Commissioner. The respondent’s tenure proved to be a short and turbulent one. On April 6, 1988, the Executive Council of the Government of Newfoundland ordered the Departments of Justice and Transportation and the Treasury Board Secretariat to assess the continuing need for the Board.
This review stemmed from the deregulation of the trucking industry in Newfoundland, and this Court’s decision on regulatory authority over telephone utilities.
All the foregoing factors resulted in a substantially decreased workload for the Board given its loss of jurisdiction over two areas of authority that had previously accounted for a substantial amount of its work. The assessment recommended a differently constituted Board with fewer Commissioners, and that the respondent’s position be replaced by an office of Consumer Advocate in the Department of Consumer Affairs and Communications or the Department of Justice.
In the wake of this review, a new Public Utilities Act was tabled.
The respondent was informed by the Minister of Justice that the government intended to act on the recommendations of the review and that on “the balance of probabilities” his position would be abolished.
On December 18, 1989, the Newfoundland House of Assembly passed Bill 44, which comprehensively restructured the Board, reduced the number of Commissioners from six to three, and abolished the Consumer Representative position. Under its provisions, all existing commissioners were to cease holding office, but remained eligible for re-appointment to limited positions on the new Board. This Bill was proclaimed into force on February 16, 1990, as the Public Utilities Act, 1989, S.N. 1989, c. 37, and the respondent ceased to hold office on that date.
The respondent’s salary on the date of his termination was $70,058 per year. Having served for four and a half years, he was six months short of having his pension vest. The respondent was not re-appointed to the new Board. Furthermore, Cabinet Directive MC 0359-’90 directed that the respondent receive no compensation. The respondent was asked by the Minister of Justice whether he was interested in filling the office of Consumer Advocate. He was not, and subsequently commenced this action seeking damages.
SCC HELD:
[54] The separation of powers is not a rigid and absolute structure. The Court should not be blind to the reality of Canadian governance that, except in certain rare cases, the executive frequently and de facto controls the legislature. The new Public Utilities Act in Newfoundland was a government bill, introduced by a member, as directed by Cabinet Directive C 328-’89. Therefore, the same “directing minds”, namely the executive, were responsible for both the respondent’s appointment and his termination. Moreover, since a number of positions equivalent to that previously held by the respondent were created under the new Act, the executive could have re- appointed him and remedied its breach of contract. This continues to demonstrate the futility of the frustration argument in the circumstances of this case.
[55] Crown had a contractual obligation to the respondent, which it breached by eliminating his position. As his right to seek damages for that breach was not taken from him by legislation, he is entitled to compensation.
Major J.
- This appeal deals with the position of the Crown and its senior civil servants who hold tenured appointments subject to good behaviour. Are such office-holders owed compensation in the event that their positions are eliminated by legislation? There is no dispute that Parliament and the provincial legislatures have the authority to structure the public service as they see fit, and to eliminate or alter positions in the process. But can it escape the financial consequences for doing so without explicitly extinguishing the rights they have abrogated? I conclude that they cannot.
b. The Power To Follow Unfair Procedures
-The discussion above underscores that not every ill that afflicts a statute may be cured by the courts, even in a system where Parliament’s sovereignty is constrained by a constitution. Also, when reviewing the process by which Parliament makes its laws, courts are even more reluctant to impose standards on the legislative branch.
-But so long as the Constitution Act 1867 ss.36, 49, 35, 48, 53, 133, and 55 prerequisites are met, the courts have no role in querying the procedure Parliament select in passing its law.
-Any effort by courts to scrutinize the procedure by which laws are passed by Parliament would quickly trench on parliamentary privilege.
-The SC has implied that “three readings in the Senate and House of Commons” is a procedure due any citizen of Canada by “long-standing parliamentary tradition” (Authorson v Canada (Attorney General) [2003]).
-However, nothing constitutionalizes this practice: Canadians are not entitled to any sort of due process or procedural fairness in the law-making process.
-Consider how the SC addressed this issue in Wells v Newfoundland [para 57, 59, 61]. Recall that here, Wells was arguing that legislative changes eliminating the board of which he was a member violated employment rights and entitled him to compensation. Ultimately, another of his arguments have failed.
___________________Authorson v Canada (Attorney General) [2003] _______________
Facts: a group of disabled veterans and their representatives sued the federal government for payment of interest on pension monies held and managed by the government on their behalf over many years, alleging this to constitute a breach of fiduciary duty. The government conceded that it had owed such a duty, and had breached it by failing to any interest. However, the attorney general defended the claim on the basis that Parliament had passed legislation denying and such claim for monies owed prior to 1990, effectively expropriating the claim without compensation. The veterans argued that the Canadian Bill of Rights, an ordinary statute passed by Parliament in 1960, and described by the SC as “quasi-constitutional” in nature, applied to the expropriating legislation and, as a matter of substantive law, prohibited expropriation without compensation. The veterans cited in particular reference to “due process” in s.1(a) of Canadian Bill of Rights.
Issue: Does the Bill of Rights require that Parliament give just compensation to the veterans? The governmental expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear and unambiguous language to do so.
-The Department of Veterans Affairs Act, s. 5.1(4) takes a property claim from a vulnerable group, in disregard of the Crown's fiduciary duty to disabled veterans. However, that taking is within the power of Parliament. The appeal has to be allowed.
-Also, see Wells v. Newfoundland:
[59]... legislative decision making is not subject to any known duty of fairness. Legislatures are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. The wisdom and value of legislative decisions are subject only to review by the electorate. The judgment in Reference re Canada Assistance Plan ... was conclusive on this point in stating that: "the rules governing procedural fairness do not apply to a body exercising purely legislative functions".
-The submission that a court can compel Parliament to change its legislative procedures based on the Bill of Rights must fail. The Bill of Rights purports to guide the proper interpretation. Court interference with the legislative process is not an interpretation of an already enacted law.
-Due process protections cannot interfere with the right of the legislative branch to determine its own procedure. For the Bill of Rights to confer such a power would effectively amend the Canadian constitution, which, in the preamble to the Constitution Act, 1867, enshrines a constitution similar in principle to that of the United Kingdom. In the United Kingdom, no such pre-legislative procedural rights have existed. From that, it follows that the Bill of Rights does not authorize such power.
Held:
Major –
62 The respondent and the class of disabled veterans it represents are owed decades of interest on their pension and benefit funds. The Crown does not dispute these findings. But Parliament has chosen for undisclosed reasons to lawfully deny the veterans, to whom the Crown owed a fiduciary duty, these benefits whether legal, equitable or fiduciary. The due process protections of property in the Bill of Rights do not grant procedural rights in the process of legislative enactment. They do confer certain rights to notice and an opportunity to make submissions in [page62] the adjudication of individual rights and obligations, but no such rights are at issue in this appeal.
63 While the due process guarantees may have some substantive content not apparent in this appeal, there is no due process right against duly enacted legislation unambiguously expropriating property interests.
c. Ethics in Law Making
-No prudential constraints exist on Parliament other than those found in the Constitution.
-Parliament may be sovereign, but individual parliamentarians are not.
-A parliamentarian induced by the prospect of financial gain to vote one way or another in performing his or her law-making functions is subject to sanction in a number of different ways.
-Ethics rules exist in statutory law and in the internal procedural rules governing each house of Parliament:
Margaret Young, Conflict-of-Interest Rules for Federal Legislators (2003): (p.204)
_______________________________________________________________________
-As this textbook goes to press, the Harper Conservative government has introduced a comprehensive Federal Accountability Act that will have the effect of legislating many of the ethics rules found in the Public Office Holders’ Code.
-Recently, rules have become more detailed. Bill C-4, amending the Parliament of Canada Act, established the new posts of ethics commissioner and Senate ethics officer in 2004. So, the 2 new officers of Parliament are supported to administer new ethics codes, created by each house of Parliament as part of their internal procedure rules.
-Consider the key terms of the ethics code for MPs , as it existed at the end of the 38th Parliament:
Conflict of Interest Code for Members of the House of Commons (2004): (p.209)
________________________________________________________________________
2. Parliament’s Law-Making Procedure
-If Parliament is free to determine its own procedure and pass laws as it places within its constitutional zone of jurisdiction, what rules does it, in fact, follow?
-The law-making process is governed mostly by the rules of procedure of each chamber of Parliament (i.e. the Standing Orders of the House of Commons)
-Consider the following description of the means by which Parliament makes laws:
House of Commons, Precis of Procedure (2003): (p.215)
__________________________________________________________________________
4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM
v Chapter 5à “The Exercise of Executive Authority”
-Notwithstanding the absence o a rigid separation-of-powers doctrine in Canada, it is still useful to speak about a distinct executive branch of government.
-The executive branch refers to those institutions in government that are responsible for implementing and enforcing laws, whether those laws are formulated by the legislature or, in the case of the common law, by the judiciary.
-This chapter identifies and describes the various institutions and officials that make up the executive branch of government and the roles that administrative institutions play in the implementation and development and public policy in Canada.
I. THE RISE OF THE ADMINISTRATIVE STATE IN CANADA
-Here, we discuss the historical context by highlighting the notable rise of the “administrative state”, and the swelling of executive size of powers
-The Constitution Act 1867 recognizes the formal institutions of the federal executive in ss.9-16 and the provincial executive in ss.58-68.
-As a consequence, the executive branches of the federal and provincial governments were both smaller in size and much less extensive in their scope.
-However, as the excerpt below describes, over the past century, the role of government has undergone a significant transformation.
-As the role of government expanded, so did the need for a more decentralized, expert-driven bureaucracy.
-One of the implications of this transformation is a more attenuated link between decision makers and elected officials:
Law Reform Commission of Canada“Independent Administrative Agencies”(1980)(p224)
________________________________________________________________________
-Since the Law Reform Commission of Canada published this report in 1980, the trend of growing size and pervasiveness of government activity has continued.
-This trend saw the government divest ownership in Crown corporations such as Air Canada and Petro-Canada, and also saw the increased delivery of government services by private actors.
II. THE EXECUTIVE BRANCH DEFINED
-Here, we define the executive branch and examine the functions of the Crown, the ministry, the public service, independent administrative agencies, Crown corporations, municipalities, and enforcement officials.
A. THE CROWN
-s.9 of Constitutional Act 1867 – The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
-Thus, the entire authority of the executive branch is vested in the monarchy. So, the Crown, as a symbol of the monarchy, is a reference to the executive itself.
-The Crown is the formal legal entity of government and, like other entities possessing a legal personality, the Crown is the bearer of both legal rights and legal obligations.
-Can own property, enter into contracts, can sue and be sued.
-The identification of the government with the Crown speaks only to the formal legal status of the executive. The Queen herself does not exercise authority over matters of public policy in Canada, or for the matter in the UK.
-In a system of representative government like Canada’s, the Crown’s representative is NOT as potent as the provisions imply.
-The Constitution Act 1867 never actually mentions the “Cabinet”. Instead, the reference is to the “Queen’s Privy Council.”
-Thus, s.13 provides that references to the “Governor General in Council” in the 1867 Act “shall be construed as referring to the Governor General acting by and with the Advice of the Queen’s Privy Council for Canada”
-The PC is not technically the same thing as the federal Cabinet: all Cabinet ministers are privy councillors, but not all of privy councillors are sitting Cabinet ministers.
-Nevertheless, by constitutional convention, only those privy councillors who are also presently in Cabinet are entitled to exercise the powers of the PC. For this reason, where powers in the 1867 Act are exercisable by the “Governor General in Council” or the “Lieutenant Governor in Council” they are in effect exercised by federal and provincial cabinets, respectively
B. THE PRIME MINISTER AND CABINET
-Ministers and PM together comprise the “ministry”, a category sometimes also referred to colloquially as the government.
-“Ministry” and “Cabinet” are usually used interchangeably.
-The question of who obtains a seat at the Cabinet table is a political matter for the prime minister to decide.
-Well, it is the PM who is the first among equals in the ministry and who presides over Cabinet.
-They have sole authority to determine who the GG swears in as a minister, who sits in cabinet, and what portfolio within Cabinet that person holds.
-And all ministerial appointments are “at the pleasure” of the PM – the PM has unfettered authority to compel the removal of ministers.
-By constitutional convention, PM also possesses authority to exercise so-called personal prerogatives.
-Formally, beyond these powers, the PM does not hold a privileged position within Cabinet in the sense that he or she can formulate policy or exercise decision-making powers independently of Cabinet.
-As a political matter, however, the PM exercises considerable influence.
-The separation of the executive branch from the legislative branch is not, however, absolute.
-The constitutional convention of “responsible government|” lies at the foundation of Canadian governance. (1) in a system of r.g, Cabinet members are drawn from the legislative branch, almost always the House of Commons for the federal Cabinet; (2) the ministry is accountable to the legislative branch both collectively and individually.
-In addition to their Cabinet responsibilities, Cabinet ministers have administrative responsibility for departments under their charge, which may often include specific powers to make decisions affecting the rights of individuals.
-At times, the multiple roles of ministerial officials can give rise to claims of conflict.
-i.e. Idziak v Canada (Minister of Justice) [1992] (p.233)
C. THE PUBLIC SERVICE
-The employees of the various ministries of the government, often referred to as civil servants, are also part of the executive branch.
-Civil servants are politically neutral and as such, continue their employment with the government regardless of the Political fortunes of the government of the day (unlike political members of the executive)
-Kenneth Kernaghan, a political scientist, identifies 3 principles that structure the relationship between the civil service and political officials within the government:
(1) Ministerial responsibility
(2) Political neutrality
(3) Public service anonymity
-These 3 suggest, the loyalty owed by civil servants is not boundless, bit requires that civil servants refrain from public criticism of government policies.
____________Fraser v Canada (Public Service Staff Relations Board) [1985]___________
Facts: the appellant, who was an employee of Revenue Canada, was discharged after repeatedly criticizing the government’s policies regarding metrification. On a review of the original decision, the appellant argued that the duty to refrain from criticism only extends to areas related to the civil servants’ direct responsibilities.
SCC Held: In upholding the original decision of an adjudicator of the Public Service Staff Relations Board, the SC comments on the particular nature of public employment
Dickson-
“But it does not follow that the Adjudicator erred in law in finding that Mr. Fraser's criticisms were related to his job. A job in the public service has two dimensions, one relating to the employee's tasks and how he or she performs them, the other relating to the perception of a job held by the public. In my opinion, the Adjudicator appreciated these two dimensions.
...In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.
The federal public service in Canada is part of the executive branch of Government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third....As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada.... In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.
There is in Canada, in my opinion, a similar tradition surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.”
-A related issue to the matter of public service loyalty is the extent to which members of the civil service can engage in partisan political activities.
-The statutes governing public employment include restrictions on the kinds of political activities that certain bureaucrats can participate in.
-i.e. there are statutory restrictions requiring civil servants not to actively campaign for a political candidate or political party and not to run as a candidate themselves in an election.
-These types of statutory restrictions have been the subject of judicial scrutiny, most notably in 2 SCC decisions: OPSEAU v Ontario (A-G) [1987]; Osborne v Canada (Treasury Board) [1991], as both cases acknowledge the existence of a constitutional convention of public service neutrality and affirmed its importance as a principle of executive governance.
-In OPSEAU, the Ontario legislation restricting provincial civil servants political activities, including activities in federal politics, was upheld as valid provincial legislation, but the legislation was not subject to Charter scrutiny in that case.
-In Osborne, the question whether such restrictions were consistent with the Charter was considered, and resulted in the federal statutory restrictions being struck down as contrary to the right of free expression. The court was concerned that the legislation, which applied to all civil servants, was over inclusive because it failed to make distinctions between the kinds of work the employees may be involved in and his or her level of responsibility within the civil service.
-NOTE: the restrictions on political activities NOW apply ONLY to senior members of the bureaucracy.
D. INDEPENDENT ADMINISTRATIVE AGENCIES
-The formal executive bodies are limited to the governor general and lieutenant governors, the federal and provincial Cabinets, and the system of governmental departments and ministries that are overseen by individual ministers, including the civil service.
-However executive functions are extensively carried out by a variety of bodies that have a measure of independence from the government.
-So then, what’s the point of establishing bodies that are independent from the government to carry out governmental functions?
-Independent administrative bodies appear in a broad range of forms depending on their function: an administrative body is a product of the legislative instrument that creates it.
-Thus, there are few restrictions placed on legislates who want to create an administrative body and delegate powers to it. The provisions establishing the Canadian Human Rights Commission are typical of the stator provisions used to create an independent administrative body.
-See Canadian Human Rights Act 1985, s.26-27 (p.239)
-The Canadian Human Rights Commission is a creation of the federal Parliament, with the commissioners themselves being appointed by the governor in council (in effect, the Cabinet).
-The independence of the commission is established though the provision of security of tenure to the commissioners who may only be removed upon the address of both Houses. Independence is also established though the assignment of powers under s.27.
-Also see s.61
-In addition to creating the commission, the Canadian Human Rights Act also creates a further independent body called the Canadian Human Rights Tribunal, which has the responsibility of holding, at the request of the commission, inquiries into human rights complaints filed with the commission.
-Provincial human rights legislation has created similar independent administrative bodies to those created under the Canadian Human Rights Act.
-The adjudicative administrative bodies do not have to be independent as a constitutional matter, but there are circumstances where independence may be required (i.e. s.7 of Charter, and s.2(e) of Canadian Bill of Rights)
-The SCC has recognized that where a body exercises power of a sort triggering these provisions, some measure of independence may be required of that organization
-In Bell Canada v Communications, Energy and Paperworkers Union of Canada [2003] where the court agreed that, by virtue of the Canadian Bill of Rights, the Canadian Human Rights Tribunal must have at least some independence guarantees)
-Nevertheless, in the next case, the SC drew a sharp distinction between administrative tribunals and decision makers, as emanations of the executive that must take their policy direction from the legislature, and the courts, which are protected by the constitutional principle of judicial independence:
_______Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and __________________________Licensing Branch) [2001]___________________________
Facts: An initial police investigation and a subsequent investigation by a Senior Inspector with the Liquor Control and Licensing Branch led to allegations that the respondent, which operates a hotel and pub, had committed five infractions of the Liquor Control and Licensing Act and Regulations. Following a hearing, another Senior Inspector with the Branch concluded that the allegations had been substantiated and imposed a penalty that included a two-day suspension of the respondent's liquor licence. The respondent appealed to the Liquor Appeal Board by way of a hearing de novo. The findings on four of the five allegations were upheld, and the penalty was confirmed. Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board "serve at the pleasure of the Lieutenant Governor in Council". In practice, members are appointed for a one-year term and serve on a part-time basis. All members, but the chair, are paid on a per diem basis. The chair establishes panels of one or three members to hear matters before the Board "as the chair considers advisable".
The Court of Appeal concluded that members of the Board lacked the necessary guarantees of independence required of administrative decision makers imposing penalties and set aside the Board's decision.
SCC Held: The appeal should be allowed and the matter remitted to the British Columbia Court of Appeal to decide the issues which it did not address.
It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. The statute must be construed as a whole to determine the degree of independence the legislature intended. Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal's process to comport with principles of natural justice. However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication.
There is a fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts. Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. Given their primary policy-making function, however, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure [page783] required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not.
The legislature's intention that Board members should serve at pleasure is unequivocal. As such, it does not permit the argument that the statute is ambiguous and hence should be read as imposing a higher degree of independence to meet the requirements of natural justice, if indeed a higher standard is required. Where the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence. Nor is a constitutional guarantee of independence implicated here. There is no basis upon which to extend the constitutional guarantee of judicial independence that animated the Provincial Court Judges Reference to the Liquor Appeal Board. The Board is not a court, nor does it approach the constitutional role of the courts. It is first and foremost a licensing body. The suspension complained of was an incident of the Board's licensing function. Licences are granted on condition of compliance with the Act, and can be suspended for non-compliance. The exercise of power here at issue falls squarely within the executive power of the provincial government.
This Court's conclusion affirming the independence of the Board makes it necessary to remit the case to the Court of Appeal for consideration of the issues it expressly refrained from addressing. Many of these issues directly relate to the validity of the decision at first instance. Since the Court of Appeal will have the benefit of full argument on the nature of the initial hearing and the relevant provisions of the Act, the Court also remits for its consideration the issue of whether this hearing gave rise to a reasonable apprehension of bias and, if so, whether this apprehension was cured by the de novo proceedings before the Board.
E. CROWN CORPORATIONS
-Where there is a strong commercial aspect to the government service, it may require that decisions be made free from political influences that may unduly interfere with commercial objectives.
-The use of crown corporations should also be understood as a distinct form of regulation that arises from direct ownership, as opposed to the imposition of regulatory controls on private entities.
-C.C will have public objectives. But in some cases, the government may decide that the justification for providing a service through a Crown corporation can no longer be maintained, resulting in the elimination or privatization of the Crown corporation, as was the case with Petro-Canada and Air Canada.
-The private and public objectives of C.C require the government to balance the operational benefits of independence and the need for accountability
-The primary vehicle for accountability of federal C.C is the Financial Administration Act 1985.
F. MUNICIPALITIES
-These are created under provincial legislation and they deliver a wide range of public services, much as the provision of road, sewer, and water services.
-They also have a significant policy-making function in matters that affect local residents: a power enacted via municipal bylaws.
-They operate independently from provincial governments that created them, and because municipal councils are elected, their democratic legitimacy is independent from that of the provincial legislature.
-Like other independent administrative bodies, municipal powers are subject to the regulatory qualifications superior levels of government placed on them, including the radical restructuring or even elimination of municipalities.
-i.e. East York (Borough) v Ontario (A-G) [1997] where a decision by the Ontario government to amalgamate a number of municipalities into a single municipal government was challenged on the basis that such a radical alternation required the consent of the affected local governments. The court rejected this and was unequivocal about the inferior status of municipal governments
-Because municipalities are governed by elected officials and because they exercise broad plenary powers, municipalities are unlike most other forms of independent administrative bodies, where officials are appointed by senior levels of government.
-The legal significance of an administrative body with direct lines of democratic accountability was considered by the SCC in a case concerning the legal authority of a municipality to refuse to do business with companies that had business ties to South Africa during the apartheid era:
______________Shell Canada Products Ltd. v Vancouver (City) [1994] ________________
Facts: Appellant, a subsidiary of Shell Canada Ltd. involved in retail and wholesale marketing of petroleum products in Vancouver, was periodically invited to tender bids for municipal contracts to supply petroleum products until the city council passed resolutions that the city would not do business with Shell until "Royal Dutch/ Shell completely withdraws from South Africa." In fact, the city itself purchased petroleum products from another company which, through one of its subsidiaries, also did business with South Africa. In an action by appellant, the British Columbia Supreme Court quashed the resolutions as being ultra vires the municipality. The court of appeal reversed the judgment.
SCC HELD (by a majority): appeal allowed. In passing the resolutions, the city was clearly purporting to exercise its statutory powers, and such exercise was reviewable to the extent of determining whether the actions were intra vires. Generally, a municipal authority was authorized to act only for municipal purposes, including purposes compatible with the purpose and objects of the enabling statute. Here, the city was seeking to use its powers to do business to affect matters in another part of the world, a purpose which was directed at matters outside the city's territorial limits. The Vancouver Charter, which stated that the council could provide for "the good rule and government of the city" placed a territorial limit on council's jurisdiction. While council could have regard for matters beyond its boundaries in exercising its powers, any action taken in so doing had to have as its purpose benefit to the citizens of Vancouver. Sections of the Charter expressly providing for activities in which the council could engage outside the city's limits even when such activities clearly redounded to the benefit of its inhabitants were general sections found in most if not all municipal Acts which were to be construed subject to the limitations imposed by the purpose of the statute as a whole. Any powers implied from their general language had to be restricted to municipal purposes and could not extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality. Even if there was a municipal purpose, the resolutions constituted unauthorized discrimination. While discrimination for commercial or business reasons was a power incidental to the powers to carry on business or acquire property, considerations relating to the political policy of a foreign state were not so essential to the exercise of enumerated powers as to be implied. Discrimination of the kind involved here was not only not authorized by the Vancouver Charter, but was arguably prohibited by it.
NOTE:
While the majority, relying on a long standing rule that municipal authority can only be exercised in relation to activities that fell within municipal purposes, held that the extra-territorial purpose of the resolution was improper...
...McLachlin (for the dissent)
-considered the question of permissible municipal purposes in light of the democratic nature of municipal government.
“The question is whether the City Council’s motives on this case fall outside the area of the City’s legitimate concern?...s189 of the Vancouver Charter empowers Council to ‘provide for the good rule and government of the city.’ ”
“In summary...I am satisfied that the purpose of the City Council in resolving not to do business with Shell were proper and fell within the powers of the City under the Vancouver Charter”
-In the majority decision in Shell, Sopinka J was less willing to see the purposes of municipal government in such broad terms, preferring instead to see municipal purposes as having to relate more directly to matters within the boundaries of the local area.
-Whereas McLachlin was inclined to see the municipalities as a distinct form of administrative decision maker in light of its democratic structure, Sopinka was more circumspect about deferring to democratic entities [para 95].
-Of particular concern in this case was the open-ended nature of the authorizing provision relied on by the City of Vancouver in support of its action, which could be taken to confer an almost limitless authority if not checked by the courts.
-In a subsequent case, 114957 Canada Ltee (Spraytech, Societe d’arrosage) v Hudson (Town) [2001], addressing municipal authority, LeBel sought to draw a line between the kinds of popular concerns that could properly become the subject of municipal legislation [para.53].
-Here, the case also introduced the concept of “subsidiary” into governance-related legal disputes, which was relied upon in support of an expansive approach to the interpretation of municipal powers.
G. ENFORCEMENT BODIES: POLICE AND PROSECUTORS
-The executive branch of the government is also required to enforce those policies that have the force of law.
-The enforcement duties of the executive fall primarily on the police, to maintain order and to investigate illegal conduct, and to prosecutors....etc.
-Provincial police have the authority to investigate matters in relation to both provincial and municipal laws and federal criminal laws.
-Federal police (The Mounties) have the authority to police federal statutes (although provincial policing have responsibility for offences under the Criminal Code), police the federal territories and, in much of Canada, to provide police services in provinces under contract.
-Both the federal government and the provinces have prosecutorial power, exercised by their respective attorneys general
-In common law, police and prosecutors have been distinguished from other civil servants in that in their enforcement duties they are not subject to political oversight in that they must exercise their powers without direction from political officials or in furtherance of partisan political activities.
-On the other hand, police and prosecutors cannot operate without accountability for their actions
-The 2 cases that follow consider the tension between accountability and independence in the context of enforcement:
_____________________________R v Campbell [1999]_____________________________
Facts: The RCMP were alleged to have violated the Narcotic Control Act by selling a large quantity of hashish to senior “executives” in a drug trafficking organization as part of a reverse sting operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard their motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention”. The stay was refused by the courts below.
As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown’s position implied that the RCMP acted in accordance with legal advice.
At issue here is the effect, in the context of the “war on drugs”, of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.
Held: The appeal should be allowed in part.
At this stage of the proceedings, the door is finally and firmly closed against both appellants on the question of guilt or innocence notwithstanding the contention of one appellant that the conspiracy alleged by the Crown, and encompassed in the indictment, was a larger agreement than his demonstrated involvement. The appellant was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indictment as was required by the jurisprudence.
The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. Here, the RCMP acted in a manner facially prohibited by the Narcotic Control Act. Their motive in doing so does not matter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence.
A police officer investigating a crime occupies a public office initially defined by the common law and subsequently set out in various statutes and is not acting as a government functionary or as an agent. Here, the only issue was the status of an RCMP officer in the course of a criminal investigation and in that regard the police are independent of the control of the executive government.
Even if the police could be considered agents of the Crown for some purposes, and even if the Crown itself were not bound by the Narcotic Control Act, in this case the police stepped outside the lawful ambit of their agency, and whatever immunity was associated with that agency was lost. Parliament made it clear that the RCMP must act “in accordance with the law” and that illegality by the RCMP is neither part of any valid public purpose nor necessarily “incidental” to its achievement. If some form of public interest immunity is to be extended to the police to assist in the “war on drugs”, it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available.
Even if it should turn out here that the police acted contrary to the legal advice provided by the Department of Justice, there would still be no right to an automatic stay. The trial judge would still have to consider any other information or explanatory circumstances that emerge during the inquiry into whether the police or prosecutorial conduct “shocks the conscience of the community”. A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. There was no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.
The RCMP must be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings. Here, the officer’s consultation with the Department of Justice lawyer fell squarely within this functional definition, and the fact that the lawyer worked for an “in-house” government legal service did not affect the creation or character of the privilege. Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
An exception to the principle of confidentiality of solicitor-client communications exists where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime. Here, the officer sought advice as to whether or not the operation he had in mind was lawful. The privilege is not automatically destroyed if the transaction turns out to be illegal.
Destruction of the solicitor-client privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with a lawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a “dupe or conspirator”. The RCMP, by adopting the position that the decision to proceed with the reverse sting had been taken with the participation and agreement of the Department of Justice, belatedly brought itself within the “future crimes” exception and put in question the continued existence of its privilege.
Another exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence. Although the entire jeopardy of the appellants remained an open issue until disposition of the stay application, the appellants were not providing “full answer and defence” to the stay application. They were the moving parties of an application being defended by the Crown. The appellants’ initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
The RCMP put the officer’s good faith belief in the legality of the reverse sting in issue, and asserted its reliance upon his consultations with the Department of Justice to buttress that position. The RCMP thus waived the right to shelter the contents of that advice behind solicitor-client privilege. It is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. Non-disclosure of information clearly relevant to the good faith reliance issue here cannot properly be disposed of by adverse inferences. The appellants were entitled to disclosure of legal advice with respect to: (1) the legality of the police posing as sellers of drugs to persons believed to be distributors of drugs; (2) the legality of the police offering drugs for sale to persons believed to be distributors of drugs; and (3) the possible consequences to the members of the RCMP who engaged in one or both of the above, including the likelihood of prosecution. If there is a dispute concerning the adequacy of disclosure, the disputed documents or information should be provided by the Crown to the trial judge for an initial determination whether this direction has been complied with. The trial judge should then determine what, if any, additional disclosure should be made to the appellants.
_____________________Krieger v Law Society (Alberta) [2002] _____________________
Facts: Appeal by the Law Society of Alberta from a decision allowing an appeal by Krieger and the Alberta Minister of Justice and the Attorney General from the dismissal of Krieger's application for an order that the Society did not have jurisdiction to hear a complaint against him. Krieger was assigned as Crown prosecutor in a murder trial against Ward. He received preliminary blood test results implicating a person other than Ward, but advised Ward's counsel that the test results would not be available before the preliminary inquiry. Counsel learned about the results at the preliminary hearing and complained to the Deputy Attorney General. Krieger was reprimanded and removed as prosecutor. Six months later, Ward filed a complaint with the Society. The Deputy Secretary referred the complaint to the Conduct Committee Panel. Krieger argued before the Committee that it did not have jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor. He and the Attorney General also argued that Rule 28(d) of the Alberta Code of Conduct, which required Crown prosecutors to disclose evidence in a timely manner, was ultra vires the Province.
SCC HELD: Appeal allowed. Rule 28(d) was not ultra vires the province. The Rule's pith and substance was directed at governing the ethical conduct of lawyers. As such, it solely applied to matters of professional discipline and did not intrude upon the Federal area of criminal law and procedure. Pursuant to the Legal Professions Act, the Society had the jurisdiction to regulate the conduct of all Alberta lawyers, including Crown prosecutors. The Society had the jurisdiction to review the conduct of a prosecutor to determine whether he or she acted dishonestly or in bad faith by failing to disclose information in a timely manner. This was so notwithstanding that the prosecutor's employer, the Attorney General, had reviewed Krieger's conduct from the perspective of an employer.
-Until 1984, the RCMP was responsible for national security issues. However, revelations that the RCMP had engaged in illegal activity in the conduct of their investigations of the political activities of the Parti Quebecois, a royal commission recommended that a separate civilian security agency be created (the Canadian Security Intelligence Service – CSIS)
-More recently, the respective involvement of the RCMP, CSIS, and other government agencies in the removal of Maher Arar to, and his maltreatment in, Syria has been the topic of a federal inquiry. The final results of the inquiry were not available at the time of this text.
-HOWEVER, the inquiry has unearthed the still significant role that the RCMP plays in national security matters, thanks to the Security Offences Act 1985, which gives the RCMP a role in the “apprehension of the commission” of offences constituting threats to the security of Canada.
III. SOURCES OF EXECUTIVE POWER
-Where does executive power come from? It flows from the royal prerogative and statutory delegation.
A. PREROGATIVE POWERS
-Powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown
-They are residual
-In exercising P.P, the Crown is restricted to execute acts. Consequently, the Crown cannot exercise legislative powers pursuant to its prerogative, nor can it exercise judicial powers.
-Where a legislature enacts a stature in relation to a matter previously exercised through P.P, the statute has the effect of superseding the P.P
-At the present time, the powers exercised by way of prerogative include many of the Crown’s powers of appointment and powers relating to foreign affairs, such as declarations of war, the appointment of ambassadors, and the issuing of passports
-There have been some legal debate over who in the executive can exercise prerogative powers and whether prerogative powers can be subjected to judicial oversight.
-These questions are considered in the following case involving a decision by the PM to recommend against the conferral of a foreign honour on a Canadian citizen, Conrad Black:
_____________________________Black v Chretien [2001] _________________________
Facts: legal dispute between businessman Conrad Black and Canadian Prime Minister Jean Chrétien over the former's right to obtain British citizenship and become a member of the House of Lords.
Issue: The main issue on appeal is whether: the Prerogative power exercised by the PM reviewable in the courts?
HELD: Appeal dismissed. The decision was written by the court of Appeal for Ontario in favour of Chrétien. The court stated that Chrétien's exercise of such powers was entirely within the discretion of the Prime Minister. It declared that Chrétien had a constitutional right to advise the Queen on exercising her Royal Prerogative.
[63] In other words, the discretion to confer or refuse to confer an honour is the kind of discretion that is not reviewable by the court. In this case, the court has even less reason to intervene because the decision whether to confer a British peerage on Mr. Black rests not with Prime Minister Chrétien, but with the Queen. At its highest, all the Prime Minister could do was give the Queen advice not to confer a peerage on Mr. Black.
[64] For these reasons, I agree with the motions judge that Prime Minister Chrétien's exercise of the honours prerogative by giving advice to the Queen about granting Mr. Black's peerage is not justiciable and therefore not judicially reviewable.
[65] Once Prime Minister Chrétien's exercise of the honours prerogative is found to be beyond review by the courts, how the Prime Minister exercised the prerogative is also beyond review. Even if the advice was wrong or careless or negligent, even if his motives were questionable, they cannot be challenged by judicial review. To paraphrase Dickson J. in Thorne's Hardware, supra, at p. 112 S.C.R.: "It is neither our duty nor our right" to investigate the Prime Minister's motives or his reasons for his advice. Therefore, the declaratory relief and the tort claims asserted by Mr. Black cannot succeed. For these reasons, I would dismiss his appeal.
B. STATUTORY POWERS
-Far and away the vast majority of executive powers originate from a delegation of authority by the legislature by statute.
-The provisions form the Canadian Human Rights Act are illustrative of the typical form of delegation. Here the statute creates the administrative body, in this case, the Canadian Human Rights Commission, and enumerates the specific powers to be exercised by it. The authority of the commission is determined solely by the statutory grant because as an administrative body, the commission has no inherent powers.
-There are few constrains for the legislature’s ability to delegate powers to administrative bodies.
-The legislature cannot in law delegate powers that exceed the legislature’s own powers. The application of the Charter to the executive is expressly confirmed by s.32 of Charter.
-Pursuant to the rule of law principle, Canadian law imposes another, further limit on the power of executive government and other entities delegated statutory power: the legislature in incapable of delegating power that is not bounded by the purpose for which the statute was enacted.
-In other words, no delegate can be authorized to exercise an absolute discretion.
-The SCC established this principle in Roncarelli v Duplessis
-Another recurring argument that is made in relation to delegation is that a delegation must not amount to a complete abdication of legislative authority
-This was considered by the SCC in the following case, which considered the sweeping delegation of authority to the governor general in council under the War Measures Act 1914:
________________________________Re Gray [1918] ______________________________
Facts: This was an application by way of habeas corpus ad subjiciendum for the discharge of the applicant from military custody and service, under s. 62 of the Supreme Court Act, R.S.C. 1906, c. 139, and made to the full court of the Supreme Court of Canada. The sentence had been imposed by a Court-Martial, and the offence was punishable under the Army Act, 44 and 45 Vict., c. 58 (Imp.) by imprisonment.
Held: That the application should be granted, for reference to the full court. The commitment was one "in a criminal case under an Act of the Parliament of Canada", since by both the Militia Act, R.S.C. 1906, c. 41, and the Military Service Act, 1917, c. 19, the Army Act was made part of the law of Canada; the commitment therefore came within s. 62 of the Supreme Court Act, R.S.C. 1906, c. 139.
-It is important to note that neither judge rejected the existence of a constitutional principle that denies the legislature the power to fully divest itself of its legislative powers.
-However, in light of the wide scope of the delegation in ReGray, it is difficult to conceive of a delegation, short of one that purports to be of a permanent nature, that would offend this principle.
-A related principle that constrains the ability of legislatures to delegate authority requires that neither the federal Parliament nor the provincial legislatures may delegate legislative powers to the others. The basis of this rule is that an inter-delegation would upset the constitutional division of powers contained in s.91 and s.92 of Constitution Act 1867.
-In the next case, the SCC was required to consider the constitutionality of a scheme by which provincial powers regarding employment matters would be delegated to the federal Parliament and certain taxation powers would be delegated from Parliament to NS legislature in order to facilitate and unemployment insurance scheme:
____________A-G NS v A-G Can. (Nova Scotia Inter-delegation) [1951] ______________
Facts:
-Shortly after deciding this case, the SCC was presented with another inter-delegation scheme, except in THIS case, the delegations were made, not directly from one legislature to another, but from Parliament to a provincially created administrative body.
-PEI Potato Marketing Board v Willis [1952] – Here, the object of the scheme was to confer comprehensive regulatory authority to market potatoes from PEI to the provincial marketing board, which required the federal Parliament to delegate powers relating to the export and interprovincial trade in PEI potatoes to the marketing board, a provincial administrative body. This form of inter-delegation was found to be unobjectionable on the basis that the inter-delegation was to an administrative body, as opposed to the legislature itself.
-The principle policy basis behind the distinction between invalid legislative inter-delegation, and valid administrative inter-delegation relates to the democratic expectations of the legislature, which must be seen to be acting free of allegiances to other bodies (as opposed to those of an administrative body, where the recipient of authority is expected to exercise that power in accordance with the requirements of the delegating body).
-one further constitutional restriction that may intrude on the power of a legislative body to delegate authority to an administrative body concerns whether the conferral of judicial functions on administrative tribunals interferes with the jurisdiction of the superior courts as defined by s.96-s.100 of Constitution Act 1867.
-The difficulty has been determining what the powers of s.96 court are. To answer this question, the SCC has been developed a 3-part test enunciated first in Re Residential Tenancies Act [1981] (see below).
IV. THE NATURE AND FUNCTION OF DELEGATED POWERS
-Delegated authority has been granted in virtually every area of public polity .
-Although there is no accepted typology classifying the various forms of delegated power, it is common for commentators on administrative law to discuss administrative powers in terms of legislative, juridical, and administrative functions.
-In the last 25 years, the use of these classifications as a basis to determine the availability of procedural rights and remedies has given way to an approach that recognizes that a general duty to be fair is owed by a broader range of administrative decision makers and is related to matters beyond simply the identity of the decision maker, such as the type of interest affected and nature of the decision itself.
-Despite the courts’ current de-emphasis on functional distinctions, it remains helpful to review the major types of decisions commonly made by administrative decision makers.
A. RULE MAKING
-The rise in the use of executive bodies to create rules of general application parallels the more general rise of administrative bodies.
-The most pervasive form of administrative rule making is the regulation-making power that is delegated to the Cabinet through the governor in council. However, administrative rule making in not restricted to this form.
-Regulation-making power is often delegated to other bodies, other than Cabinet (i.e. municipal bylaws)
-The expansive use of delegated legislation has led to concerns over the amount of scrutiny by elected officials and the public that regulations receive. The multiple readings of a bill in the legislature and the committee process in practice ensure that there is opportunity for interested groups and opposition politicians to consider the contents of a bill before it passes into law.
-Regulations, on the other hand, can be enacted by Cabinet without prior notice or consultation
-To date, the courts have not generally been willing to extend the administrative law procedural obligations relating to notice and the opportunity to be heard to the executive’s rule-making functions.
-That said, it should be noted that the courts have been more willing to impose procedural obligations in rule-making processes where the legislative outcomes have a particular impact on specific individuals
-i.e. Homex Realty and Development Co. v Wyoming (Village) [1989] – where land-use bylaws particularly affect the property rights of individual landowners, the courts look past the formal legislative nature of the decision in imposing procedural obligations on municipal councils.
-In practice, regulation making is usually a fairly open activity, by virtue of government policy and some statutory law.
-consider the procedure for federal regulation making by the governor in council:
Government of Canada, Guide to Making Federal Acts and Regulations (2001): (p.273)
________________________________________________________________
B. DISPUTE RESOLUTION
-It is common for administrative agencies to be created in order to hear and decide specific kinds of disputes.
-In some cases, administrative tribunals are very similar in their form to courts in that they adjudicate claims between competing parties strictly on the basis of existing law, they cannot initiate proceedings themselves, and they are given similar powers to courts, such as the power to summon witnesses and to award costs.
-In some cases, distinct tribunals are created to hear appeals by arties dissatisfied with a decision from an administrative decision maker of first instance.
-On the other hand, administrative dispute resolution mechanisms do not always take a highly legalized form.
-In addition, the use of administrative tribunals may afford greater flexibility in the range of considerations that decision makers may take into account.
-Administrative tribunals can be designed such that tribunal members have broad discretion to determine and apply public policy.
-Consider the Ontario Municipal Board, an administrative tribunal that decides land-use matters.
-Landowners who are dissatisfied with planning decisions taken at the municipal or provincial legal may appeal those decisions to the Ontario Municipal Board, but the board considers the matter as a hearing de novo (the board does not review the adequacy of the prior decision), but hears the matter afresh. In doing so, the board exercises the same policy discretion as the original decision maker.
-The Ontario CA in Cloverdale Shopping Centre Ltd. v Etobicoke (Township) [1966] discusses the nature of the board’s adjudicatory function (p.283)
C. BENEFIT OR OBLIGATION DETERMINATION
-Benefit determinations will often have distributive consequences that require decision makers to confer certain benefit, such as a broadcast licence, on some but not on others, raising fairness concerns.
-In addition, benefit determination may require decision makers to attach complex sets of conditions to an approval, as is the case with many land-use or environment approvals.
-Obligation determinations may arise slightly different issues than benefit determinations.
-They are usually initiated by the imposing agency, leaving an affected person to take affirmative steps to protect his or her interests, if they feel aggrieved.
-The desire for fairness in individual cases is often in conflict with the need for administrative efficiency.
-In many cases benefit and obligation determination need to occur on a very large scale govern the large numbers of applications involved.
D. ENFORCEMENT DECISIONS
-The final area of delegated authority is those decisions and activities that are required to promote compliance with legal obligations, including criminal and quasi-criminal enforcement proceedings.
-The executive branches of government use police and prosecutors to investigate and prosecute violations of statutory and regulatory requirements, most commonly through the courts.
-Where reasonable grounds for violations of legal requirements are found by this body, the statute may empower the investigator to lay any information in order to initiate proceedings before a court pursuant to a statutory offence provision.
-Alternatively, the scheme may provide that a penalty be imposed directly by the investigating agency or by an administrative tribunal after hearing evidence.
E. OVERLAPPING FUNCTIONS
-It should be apparent from these discussions that any one administrative body may carry out a variety of administrative functions.
-i.e. Canadian Human Rights Commission engages in rule making in issuing guidelines, it has investigatory powers in connection with discriminatory-practices complaints, and it has decision-making powers, such as the authority to dismiss a complaint, that affect the rights of individuals.
-As noted, tribunals may be structured in ways that are similar to courts, but may engage in policy creation
-Conversely, an ostensibly legislative body may have to exercise its powers of decision in accordance with certain procedural requirements due to the nature of the interests affected.
V. LIMITS ON THE EXERCISE OF DELEGATED AUTHORITY
-Once authority is delegated to an administrative actor, the law imposes a rigorous set of limitations on the exercise of power by the recipient of delegated authority.
-The overreaching principle that governs the exercise of delegated authority is that it must be exercised within the confines of the delegation itself.
-Any acts done outside the boundaries of the statutory grant is without legal authority and unlawful – that is, it is ultra vires.
-Jurisdiction in this sense relates to WHAT powers are exercised
-But there are also a set of rules that dictate HOW delegated power must be exercised – An administrative agency may embark on an inquiry properly within its statutory mandate, but in carrying out the inquiry, the agency may nevertheless act without proper legal basis due to a failure to abide by the requirements of procedural fairness or abide of discretion.
-The remainder of this section discusses some of the principal constraints that operate on administrative decision makers.
-The requirements outlined in this part are intended to provide a sense of the legal limitations that bear on administrative decision making.
A. CONTROLLING JURISDICTION: SUBSTANTIVE ULTRA VIRES
-The rule that a delegated authority can exercise only those powers that are granted to it is conceptually straightforward and tends to turn on questions of the interpretation of the authorizing legislation.
-i.e. In Shell v Vancouver there was no disagreement on the general rule that administrative bodies, in that case municipalities, “must stay within the powers conferred on them by provincial statutes”.
-However, McLachlin and the majority disagreed in respect of the proper interpretation of the statutory provision relied upon in support of the municipality’s decision, within McLachlin being more willing to take a “benevolent” (expansive) interpretive approach.
-Determining whether an administrative act or decision is properly clothed with jurisdiction may require a consideration of whether the decision maker has complied with applicable statutory conditions or whether a certain set of required factual circumstances is present.
-i.e. Bell v Ontario (Human Rights Commission) [1971] – whether the Ontario Human Rights Commission could exercise its authority in relation to a discrimination complaint involving the renting of accommodation. The commission’s powers over discrimination matters were in relation to a “self- contained dwelling unit.” In deciding that the commission was properly prevented from initiating proceedings, the SCC held that the commission’s jurisdiction was dependent upon the preliminary finding that the allegation of discrimination was in relation to a “self-contained dwelling until,” and the commission could not proceed in circumstances where that preliminary condition was not established.
-A related jurisdictional rule requires that delegated authority must be exercised by the specific delegate to whom the authority is granted.
NOTE: “merely administrative” matters are those that do not involve the exercise of substantial amounts of discretion and thus, may lawfully be sub-delegated!
-This exception is in keeping with the overall purpose of the rule that recognizes that where the legislature entrusted decision-making powers to a certain official or body, then those powers should be exercised specifically by that delegate.
-In cases where there is little or no discretion to exercise, it should not matter who the decision maker is because their outcomes are dictated by the scheme itself.
NOTE: a delegate may sub-delegate where the power to sub-delegate is specifically provided for in the statute.
B. CONTROLLING PROCEDURES: THE DUTY TO BE FAIR
-Administrative decision makers are generally required by the common law to act fairly toward those persons affected by their decisions.
-In this context, the duty to be fair refers to the procedures adopted by the decision maker, as opposed to imposing a substantive obligation of a fair outcome.
-The difficulty with the rules of natural justice from a policy perspective was that they failed to afford any procedural protections to those affected by the decisions found to be of a legislative or administrative nature, although it was becoming clearer that these decisions could have significant impacts on individuals.
-The essence of the content of the rules of natural justice was captured by the 2 maxims:
(1) audi alteram artem – the right of a person to know and answer the case against him or her
(2) nemo judex in sua causa – requiring that a person not be the judge in his or her own cause (that the administrative decision maker not be biased)
-The extent of their application depended on the particular context.
-The contours of the duty to be fair are considered below:
_______________Knight v Indian Head of School Division No.19 [1990] ______________
Facts: Ronald Gary Knight was dismissed as superintendent of a school board. His position was held at pleasure. His dismissal was not for personal reasons, but he claimed procedural fairness should apply and a hearing should have been held.
Held: In order for procedural fairness to apply at common-law, certain requirements must be met.
According to L'HEUREUX-DUBÉ J. they are:
1. Nature of the decision to be made by the administrative body:
(a)Administrative vs. Legislative use of power
- Administrative powers attract procedural fairness while legislative powers do not
- Preliminary or interlocutory decisions don’t envoke procedural fairness
- Exercise of power in pursuant to statute (or prerogative) (executive action)
- Low threshold requiring only that applicant have an interest and that it be impacted
NOTE: is a leading decision of the SCC on procedural fairness in Canadian administrative law. The Court created a threshold test to determine whether an administrative process invoked a common law duty of fairness based on the nature of the decision, relationship between the parties, and the effect
___________Baker v Canada (Minister of Citizenship & Immigration) [1999]___________
Facts: Mavis Baker was a Jamaican woman who lived illegally in Canada for 11 years as a domestic worker. During this time she gave birth to four children in Canada. When the government discovered that she was in Canada illegally she was ordered deported. She brought an application for permanent residence under section 114(2) of the Immigration Act. The immigration officer rejected her application without giving reasons. Baker was able to make a request for the immigration officer's notes, and, based on the notes, she applied for judicial review of the decision.
Held: The Federal Court rejected the application. The Federal Court of Appeal agreed and held that the evaluation of the application did not need to be founded on the best interests of the child.
Issue: Ms Baker argued that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.
SCC HELD: On appeal, The SCC reversed this decision. It held that procedural fairness required the decision-maker to consider the human rights of Baker's children. Children's human rights are outlined in the international Convention on the Rights of the Child. SCC said that decision-makers must be “reasonable.” They also found that Ministerial decisions in this case should follow values that are in international human rights law. The disposition in the case was that the matter was returned to the Minister for redetermination by a different immigration officer.
Justice L'Heureux-Dubé (for the majority), allowed the appeal.
-On the issue of determining the content of the duty of fairness, she outlined several factors that should be taken into consideration:
(1) FACTORS AFFECTING THE CONTENT OF THE DUTY OF FAIRNESS:
The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances – “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness (Knight).
Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances (non-exhaustive list):
(i) The nature of the decision being made and the process followed in making it.
· “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making” (Knight).
o The more the process is provided for (the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision to resemble judicial decision making), the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.
o i.e. if there is a ‘right of appeal’ this is a factor illustrating that the procedure was designed to be more judicial, thus a factor is favour of greater procedural protections. Thus, the more rights for the appellant usually.
(ii) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
· Greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.
o i.e. if there are no procedural protections in the statute, this is a factor illustrating that the procedure was designed to be more judicial, thus a factor in favour of greater procedural protections.
(iii) The importance of the decision to the individual(s) affected.
· The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.
· Kane – “A high standard of justice is required when the right to continue in one’s profession or employment is at stake. ... A disciplinary suspension can have grave and permanent consequences upon a professional career”.
· R v Higher Education ... Dental Surgery (1994)– The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.
(v) The legitimate expectations of the person challenging the decision.
· Old St. Boniface– this doctrine is part of the doctrine of fairness or natural justice, and it does not create substantive rights.
· Qi v Canada – if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness.
· If a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights. Nevertheless, the doctrine of LE cannot lead to substantive rights outside the procedural domain.
(vi) Take into account and respect the choices of procedure made by the agency itself.
· This is particularly so when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
(2) LEGITIMATE EXPECTATIONS:
-No legitimate expectation based upon the articles of the Convention. The Convention is not the equivalent for a government representation about how H&C applications will be decided.
(3) PATICIPATORY RIGHTS:
Was the failure to accord an oral hearing and give notice to Ms. Baker or her children inconsistent with the participatory rights required by the duty of fairness in these circumstances?
-Court evaluated this question based on the above 5 considerations of procedural fairness above.
Answer – Baker v Canada:
-It cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different way in different situations....
-I agree that an oral hearing is not a general requirement for H&C decisions. ...
-Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances.
-The opportunity which was afforded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
(4) THE PROVISION OF REASONS:
-The appellant submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker.
-She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision ... be taken to be a breach of the principles of fairness.
Shah – The Federal Court of Appeal held that reasons are unnecessary.
Tylo (1995) – the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons.
Gheorlan (1995) and Chan (1994) – the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists.
Marques (1995) – an H&C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision.
-Traditional position at common law: the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions – Northwestern Utilities [1979].
-Importance of giving reasons:
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3
· Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out.
· The process of writing reasons for decision by itself may be a guarantee of a better decision.
· Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review
· Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given.
-Concerns about giving reasons:
Osmond
· A reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers.
· That it may lead to increased cost and delay.
· It might induce a lack of candour (being frank and open) on the part of the administrative officers concerned.
-However, some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant
Orlowski v British Columbia (AG) (1992)– reasons would generally be required for decisions of a review board ...
RDR Construction (1982)– because of the existence of a statutory right of appeal, there was an implied duty to give reasons.
Boyle (1996) – Bastarache emphasized the importance of adequate reasons when appealing a decision.
Answer – Baker v Canada
- It is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. ...
-It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
HOWEVER ... the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision.
(5) REASONABLE APPREHENSION OF BIAS:
-The duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision.
-The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. ...
-the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.
Newfoundland Telephone Co and Old St. Boniface– the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness.
-Test for Reasonable Apprehension of Bias:
Committee for Justice and Liberty v National Energy Board (1978)
“...The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... That test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
Answer – Baker v Canada
-The well-informed member of the community would perceive bias when reading Officer Loren’s comments.
-His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. ... the conclusion drawn was contrary to the psychiatrist’s letter. ...
-His use of capitals to highlight the number of Ms. Baker’s children may also suggest to a reader that this was a reason to deny her status.
-Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer.
-I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.
C. CONTROLLING DISCRETON: BAD FAITH, IMPROPER PURPOSES, AND IRRELEVANT CONSIDERATIONS
-As seen in Re Gray, there is no legal requirement that a delegation of authority be narrowly defined. Indeed, it is not uncommon for powers to be delegated with little or no statutory guidance as to how the decision maker’s discretion should be exercised.
-The benefit of conferring broad discretion on administrative decision makers is that discretion allows the decision maker to fully account for the particular facts and context of the question before it
-The concern with broad discretion is that is open for decision makers to exercise that discretion in ways that were not contemplated by the legislature and for purposes that do not reflect the public interest.
-Concerns over the exercise of discretion are quite distinct from procedural fairness questions, in that what is at issue is the substance of the decision-making process, what kinds of considerations were taken into account and the motivations of the decision makers themselves.
-Where administrative actions are attacked on the basis of bad faith, it is not necessary for the aggrieved person to show that the decision maker acted with mal fides. On the other hand, bad faith should be distinguished from unreasonableness.
-Bad faith goes BEYOND unreasonableness and amounts to a jurisdictional error since it is implied that the legislature would not have intended for a delegated authority to act for some improper and ulterior purpose.
_______Equity Waste Management of Canada Corp. v Halton Hills (Town) [1997]_______
Facts: A municipal land-use bylaw was attacked by the affected landowners on the basis that the bylaw was passed for reasons of political expediency and not for land-use planning reasons, a purpose that was alleged to have amounted to bad faith.
-A further way by which the courts seek to control the exercise of discretion is by way of reviewing he nature of the considerations that the decision makers takes into account in achieving at its decision.
-Here, the court distinguishes among a variety of different considerations: mandatory considerations; relevant considerations; irrelevant considerations.
-Looking at Baker, while the SCC found that there had been a breach of the rules of procedural fairness in that case that was sufficient to dispose of the appeal, the court went on to consider, as a substantial matter, whether the H&C decision was improperly made.
-In the course of this discussion, the court considers the proper approach to the JR of discretionary decisions and the requirements of administrative decision makers who exercise discretionary power:
___________Baker v Canada (Minister of Citizenship & Immigration) [1999]___________
L’Heureux-Dube:
The Approach to Review of Discretionary Decision-Making:
[51] As stated earlier, the legislation and Regulations delegate considerable discretion to the Minister in deciding whether an exemption should be granted based upon humanitarian and compassionate considerations. The Regulations state that "[t]he Minister is ... authorized to" grant an exemption or otherwise facilitate the admission to Canada of any person "where the Minister is satisfied that" this should be done "owing to the existence of compassionate or humanitarian considerations". This language signals an intention to leave considerable choice to the Minister on the question of whether to grant an H & C application.
...It is necessary in this case to consider the approach to judicial review of administrative discretion, taking into account the "pragmatic and functional" approach to judicial review...
[53] Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: (see Maple Lodge Farms Ltd. v. Government of Canada; Shell Canada Products Ltd. v. Vancouver (City), [1994]). A general doctrine of "unreasonableness" has also sometimes been applied to discretionary decisions. In my opinion, these doctrines incorporate two central ideas -- that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).
[62] ...I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
Was This Decision Unreasonable?
[65] In my opinion, the approach taken to the children's interests shows that this decision was unreasonable in the sense contemplated in Southam, supra. The officer was completely dismissive of the interests of Ms. Baker's children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer.
[67] ...In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself.
(a) The Objection of the Act
(b) International Law
(c) The Ministerial Guidelines
[76] Therefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H & C discretion was unreasonable, I would allow this appeal.
NOTE: Substantive review -Baker repudiates the dichotomy which previously existed in the case law between discretionary and non-discretionary decisions. -Instead, the court argued that there is great "difficulty in making rigid classifications between discretionary and non-discretionary decisions 4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM
v Chapter 6à “The Courts and the Judiciary”
I. STRUCTURE OF THE CANADIAN COURT SYSTEM
-This provides an overview of the structure of the Canadian court system, including the constitutional foundation for the judiciary in Canada.
A. CONSTITUTIONAL FRAMEWORK OF THE JUDICIARY
-The Canadian court system straddles the federal-provincial division of power
-Provincial division of power – s.92(14) and s.96 of Constitution Act 1867
-This means that the provincial governments create s.96 courts, but it is the federal government that appoints the judges to these “superior” courts and pays their salaries.
-Federal division of power – s.101 of Constitution Act 1867
-An obvious question is this: in what circumstances may the provinces create these “provincial” courts that are not s.96 courts?
-The SCC has repeatedly guarded against this possibility, employing s.96 to limit provincial (and now federal) powers to strip jurisdiction from the superior courts.
-In Re Residential Tenancies Act [1981] the issue was whether a province was encroaching on the federal government’s s.96 power to appoint judges by creating its own quasi-judicial body to adjudicate in an area of jurisdiction that belongs to the superior courts. The SC established a 3-part test for determining whether the provincial grant of power is valid.
(1) The FIRST part requires a consideration of whether the powers exercised by the impugned provincial tribunal conformed to those that were the “exclusive jurisdiction” of s.96 court at the time of the Confederation (consequently, powers shared with inferior courts at Confederation fall outside the area addressed in this first question, and can validly be exercised by provincial tribunal)
(2) The SECOND part is that if the powers were found to fall under the exclusive jurisdiction of a s.96 court at Confederation, one must ask whether the power in question is to be exercised in a judicial manner – that is, do the tribunal’s proceedings concern a dispute that is to be determined on solely legal, as opposed to policy, grounds?
(3) The THIRD part requires a consideration of whether the “institutional setting” itself is fundamentally judicial. Here the inquiry looks at whether the tribunal is ancillary to a broader administrative scheme. Only where a tribunal is found not to be ancillary to an administrative scheme will the tribunal’s authority be found to be unconstitutional.
NOTE: cases have modified this test. These cases establish that the superior courts are a fundamental institution protected by our Constitution through the interpretation of s.96. The provinces cannot enact legislation to encroach on their core jurisdiction, nor may the federal Parliament.
B. OVERVIEW OF THE CURRENT CANADIAN COURT SYSTEM
-The result of these constitutional provisions is a complicated Canadian court system:
Department of Justice of Canada, Canadian Court System (2005): (p312)
II. JUDICIAL APPOINTMENTS
-Given that courts play such a fundamental role in preserving our constitutional order, the natural question this observation raises is: Are the right people selected to be judges?
-The manner n which judges are chosen has been an issue of some controversy, especially at the federal level.
A. A RANGE OF MODELS
-Judicial selection processes vary internationally
-There are 2 alternatives: (1) confirmation hearings;
(2) nominating committees; and
(3) direct elections
-How these approaches is employed to varying degrees in the U.S:
US Department of Justice, State Court Organization 1998: (p.318)
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B. PROVINCIAL JUDICIAL APPOINTMENT PROCESS
-The Canadian judicial selection process: judges are selected by the executive branch
-For provincial/territorially appointed judges, the process of choosing judges varies depending on the province/territory
-The basic model is built on an advisory committee composed of a mixture of members from the legal community and laypersons. The committee accepts applications and interviews candidates before submitting a list of recommendations to the provincial A-G.
-Considerations listed on p321
C. FEDERAL JUDICIAL APPOINTMENT PROCESS
-The federal government appoints superior court judges, and this process varies:
s.96 court, Federal Court, and Tax Court judges are appointed by the governor in council (the Cabinet) usually following review of candidates by an advisory committee.
No such advisory committee has existed for the SCC appointments. Rather, the SC justices have traditionally been simply appointed by the governor in council
1. Non-Supreme Court of Canada Appointment
a. Overview
-The Office of the Commissioner for Federal Judicial Affairs oversees the federal judicial appointment process for s.96 courts, the Federal Courts, and the Tax Court.
-Consider the discussion of the appointment process:
Office of the Commissioner for Federal Judicial Affairs, Federal Judicial Appointments Process: Guide for Candidates (2005): (p.322)
__________________________________________________________________________
-Ultimately, appointments must be made by the governor in council as required by s.96 of Constitution Act 1867, or the statutes governing the s.101 courts.
-The recommendation for appointment as a judge is made to the Cabinet by the minister of justice
b. Criticisms of the Non-Supreme Court Federal Appointment Process
-In the 1960s, any process at all was established to assist the minister of justice in deciding upon what recommendations to make to the Cabinet.
-Since then, questions have remained about political influence on the selection process
-Common criticisms of the current federal appointment process are summarized:
àToo much discretion in the hands of the government – the minister has the power to appoint from the “recommended” list as well as the “highly recommended” list
àNo transparency or accountability – candidates face no formal scrutiny and no information is made public to support the choice of appointee
àPatronage appointments – allegations have been made that appointments are tainted by political considerations and that candidates who contributed to political parties are appointed.
NOTE: the basic criticism s that the pool of “recommended” as well as “highly recommended” candidates vetted by the advisory committees is so large that recommendations to Cabinet may be influenced by considerations other than strict merit.
àIt has also been argued that the minister of justice requires flexibility in making recommendations in order to bring greater diversity to the courts and to meet the special needs of a court at any particular time.
-Calls for changes to the process have been made by various bar associations, independent public policy organizations, and legal scholars.
-In a report on the Federal Judicial Appointment Process (Oct 2005), the Canadian Bar Association states: “Some modifications would strengthen the process to ensure that it is open and transparent, and results in judicial appointments based solely on merit and which are ultimately representative of the diversity of Canadian society.”
-Also consider the following report of a parliamentary committee:
Standing Committee on Justice, Human Rights, Public Safety, and Emergency Preparedness, Report 18 – Study on the Process for Appointment to the Federal Judiciary (Nov 2005): (p.330)
________________________________________________________________________
2. Supreme Court Appointments
-Calls for changes to the federal appointments process have been especially persistent in relation to appointments to the SC. This relates to the great influence that the court’s decisions may have on public policy, especially in the post-Charter era.
-The Canadian Bar Association is strongly opposed to a US-style confirmation hearing process.
-In 2005, in response to demands for more transparent process, the minister of justice launched a Proposal which, the minister announced in Aug 2005, would be used in filling the vacancy created by the retirement of Mr. Justice John C. Major:
Minister of Justice, Proposal To Reform the Supreme Courts of Canada Appointment Process (2005): (p.334)
_________________________________________________________________________
NOTE:
-In early 2006, Conservative PM Harper announced a hybrid selection process, incorporating elements of the Liberal plan plus pseudo-parliamentary questing of the nominee.
-Thus, the PM nominated Mr. Justice Rothstein based on the short list of candidates compiled by the preceding Liberal government.
-However, before he was formally appointed to the SC, a special committee comprising member of Parliament and including the new minister of justice questioned him in a public tv hearing.
-Nevertheless, critics such as the Canadian Bar Association denounced the process, noting that open questioning of judicial nominees would ultimately impair judicial independence by forcing candidates to take positions on exactly these sort of issues.
-The committee was retrained, but in its questioning of Mr Justice Rothstein, and the whole process, it seemed to please most observers.
III. JUDICIAL INDEPENDENCE
-Judicial independence is the notion that judges are at arm’s length from the other branches of government.
A. SOURCES AND SCOPE
-Judicial independence is a richly constitutional concept (s.96-100 of Constitution Act 1867)
-The scope of s.99 and s.100 of Constitution Act 1867 has been elaborated by judicial interpretation to further protect judicial independence.
-Thus, federally appointed superior court judges are removable only for breach of “good behaviour” until the mandatory retirement age of 75.
-As we will see, physical or mental incapacity constitutes the inability to act as a judge, and so, breaches “good behaviour”
-But these Constitution Act 1867 provisions apply ONLY to superior courts.
-But, most obviously, s.11(d) of Charter imposes a requirement for judicial independence in all courts, including provincial courts.
-Since most criminal cases are tried by provincially appointed judges, this Charter provision requires that these courts are the individual judges that are appointed to provincial courts by “independent and impartial.” Otherwise, an accused person facing trial before such a court would be entitled to a stay of proceedings for the denial of the Charter right under s.11(d).
-In the mind-1990s, a political and legal crisis arose with respect to the issues of “financial security” of the provincial court, or non-s.96 judiciary across the country.
-A number of challenges succeeded.
-A reference case (stated below) came before the SCC dealing with the situations in 3 provinces” Alberta, Manitoba, and P.E.I
-The court majority recognized that the issues in the case could be resolved solely within the context of interpreting and applying s.11(d).
-Nevertheless, the majority took the opportunity to consider the constitutional status of the judiciary as a whole, and not merely in its criminal law jurisdiction.
-The court majority recognized an unwritten principle of judicial independence in the Constitution
-Portions of the majority judgement are reproduced here for their enunciation of the principle of judicial independence in our Constitution:
_Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island__
_______________et al. (the “Provincial Judges Reference”) [1997]___________________
Facts: A number of provincial governments were implementing policies of financial restraint. The remuneration of provincially appointed judges made them a politically vulnerable target since their salaries are high in relation to the average citizen. However, they are low in relation to federally appointed judges and to the more successful practicing lawyers. Some provinces sought to reduce these judicial salaries. One province retroactively repealed its legislation requiring it to accept the recommendations of an advisory committee on judicial salaries.
These four appeals raise a range of issues relating to the independence of provincial courts, but are united by a single issue:
Issue: whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges?
Issue: In these appeals, it is the content of the collective or institutional dimension of financial security for judges of Provincial Courts which is at issue.
SC HELD:
[109] In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. However, since the parties and interveners have grounded their arguments in s. 11(d), I will resolve these appeals by reference to that provision.
NOTE: SC was concerned about ongoing and unseemly confrontations between the executive and the judicial branches over judicial remuneration.
(See below on pg 84 on how the SC addressed the problem)
-The SC returned to this issue of Ell v Alberta [2003]. There, the issue related to the application of the principle of judicial independence to the office of justice of the peace. In the result, the court held that the justices of the peace were “constitutionally required to be independent in the exercise of their duties”
B. ASSESSING INDEPENDENCE
-How is this independence measures?
-For the SC, “the general test for the presence or absence of independence consists n asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status.” (Mackin v New Brunswick (Minister of Finance) [2002])
-Thus, independence includes both a requirement of actual independence, and also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well-informed person.
-In Canada (Minister of Citizenship and Immigration) v Tobiass [1997], the SC considered whether judicial independence had been impaired by a private meeting between a senior Department of Justice official and the chief justice of the Federal Court in relation to delay in the hearing of certain cases in which the Justice Department was a litigant [para.24,67-72]
D. DIMENSIONS AND CORE CHARACTERISTICS
-What does Judicial independence require?
-In Provincial Judges Reference [1997] (above), Lamer also provided a conceptual analysis of judicial independence stated in para.118-120.
-The 3 core characteristics stated; security of tenure, financial security, and administrative independence, are now discussed:
1. Security of Tenure
-Individual security of tenure = judges may not be dismissed by the executive before the age of retirement except for misconduct or disability. Thus, a judge may only be removed from office for a reason relating to his or her capacity to perform his or her judicial duties. (Arbitrary removal is prohibited: Mackin)
-Institutional security of tenure = before a judge may be removed for cause, “there must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded an opportunity to be heard” (Re Therrien). Superior court judges are removable only by a joint address of the House of Commons and the Senate (s.99 of Constitution Act 1867; Ell)
-In practice, every judge facing convincing allegations of misconduct has resigned at some stage of the council’s proceedings rather than going before Parliament for an ultimate determination.
-Consider this description of the CJC complaint process:
Canadian Judicial Council, About the CJC (2006): (p.348)
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-Then, an inquiry committee of the council conducts a formal public hearing into the allegations of misconduct and reports to the full council
-The council, in turn, may then make a report to the minister of justice.
-Consider the 1996 report of the CJC in relation to Justice Bienvenue:
Report of the Canadian Judicial Council to the Minister of Justice Under Section 63(1) of the Judges Act Concerning the Conduct of Mr. Justice Jean Bienvenue of the Superior Court of Quebec in R v T Theberge (1996): (p.350)
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2. Financial Security
-Relates to the pay judges receive for performing their job.
-It protects against an “unscrupulous government” that “could utilize its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication” (Provincial Judges Reference [1997[)
_Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island__
_______________et al. (the “Provincial Judges Reference”) [1997]___________________
Facts: A number of provincial governments were implementing policies of financial restraint. The remuneration of provincially appointed judges made them a politically vulnerable target since their salaries are high in relation to the average citizen. However, they are low in relation to federally appointed judges and to the more successful practicing lawyers. Some provinces sought to reduce these judicial salaries. One province retroactively repealed its legislation requiring it to accept the recommendations of an advisory committee on judicial salaries.
-Since the SC was concerned about ongoing and unseemly confrontations between the executive and the judicial branches over judicial remuneration, Lamer illustrates how the SC addresses this problem:
Lamer CJ –
[121] What I do propose, however, is that financial security has both an individual and an institutional or collective dimension. ...
[130] ...Independence of the judiciary implies not only that a judge should be free from executive or legislative encroachment and from political pressures and entanglements but also that he should be removed from financial or business entanglement likely to affect or rather to seem to affect him in the exercise of his judicial functions.
[131] Given the importance of the institutional or collective dimension of judicial independence generally, what is the institutional or collective dimension of financial security? To my mind, financial security for the courts as an institution has three components, which all flow from the constitutional imperative that, to the extent possible, the relationship between the judiciary and the other branches of government be depoliticized. ...
[133] First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class.
[134] Second, under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature.
[135] Third, and finally, any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge.
[166] Although provincial executives and legislatures, as the case may be, are constitutionally permitted to change or freeze judicial remuneration, those decisions have the potential to jeopardize judicial independence. The imperative of protecting the courts from political interference through economic manipulation is served by interposing an independent body — a judicial compensation commission — between the judiciary and the other branches of government. The constitutional function of this body is to depoliticize the process of determining changes or freezes to judicial remuneration. 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, responding to the particular proposals made by the government to increase, reduce, or freeze judges’ salaries.
[169] The commissions charged with the responsibility of dealing with the issue of judicial remuneration must meet three general criteria. They must be independent, objective, and effective. ...
[170] First and foremost, these commissions must be independent. The rationale for independence flows from the constitutional function performed by these commissions — they serve as an institutional sieve, to prevent the setting or freezing of judicial remuneration from being used as a means to exert political pressure through the economic manipulation of the judiciary. It would undermine that goal if the independent commissions were under the control of the executive or the legislature.
[173] In addition to being independent, the salary commissions must be objective. They must make recommendations on judges’ remuneration by reference to objective criteria, not political expediencies. The goal is to present “an objective and fair set of recommendations dictated by the public interest” (Canada, Department of Justice, Report and Recommendations of the 1995 Commission on Judges’ Salaries and Benefits (1996), at p. 7). ... Moreover, I recommend (but do not require) that the objectivity of the commission be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission’s deliberations. These factors need not be exhaustive. A list of relevant factors might include, for example, increases in the cost of living, the need to ensure that judges’ salaries remain adequate, as well as the need to attract excellent candidates to the judiciary.
[174] Finally, and most importantly, the commission must also be effective.
[185] By laying down a set of guidelines to assist provincial legislatures in designing judicial compensation commissions, I do not intend to lay down a particular institutional framework in constitutional stone. What s. 11(d) requires is an institutional sieve between the judiciary and the other branches of government. Commissions are merely a means to that end. In the future, governments may create new institutional arrangements which can serve the same end, but in a different way. As long as those institutions meet the three cardinal requirements of independence, effectiveness, and objectivity, s. 11(d) will be complied with.
-In Provincial Judges Association of New Brunswick v New Brunswick et al. [2005], the SCC revisited and somewhat amended the test it established in the Provincial Judges Reference [1997] case.
“Provincial Court judges in New Brunswick, Ontario, and Quebec, justices of the peace in Alberta and municipal court judges in Quebec sought judicial review of their provincial governments’ decisions to reject certain compensation commission recommendations relating to their salaries and benefits” [para.45]
Provincial Court Judges’ Assn. of New Brunswick v New Brunswick (Minister of Justice); Ontario Judges’ Assn. v Ontario (Management Board); Bodner v Alberta; Conference des juges du Quebec v Quebec (Attorney General); Minc v Quebec (Attorney General) [2005]
[3] In the “Provincial Judges Reference”) [1997] it was held that independent commissions were required to improve the process designed to ensure judicial independence but that the commissions’ recommendations need not be binding....These commissions were intended to remove the amount of judges’ remuneration form the political sphere and to avoid confrontation between governments and the judiciary....BUT, THIS CASE HAS NOT PROVIDED THE ANTICIPATED SOLUTION, AND MORE IS NEEDED.
[21] A commission's report is consultative. The government may turn it into something more. Unless the legislature provides that the report is binding, the government retains the power to depart from the commission's recommendations as long as it justifies its decision with rational reasons. These rational reasons must be included in the government's response to the commission's recommendations.
[25] The government can reject or vary the commission's recommendations, provided that legitimate reasons are given. Reasons that are complete and that deal with the commission's recommendations in a meaningful way will meet the standard of rationality. Legitimate reasons must be compatible with the common law and the Constitution. The government must deal with the issues at stake in good faith. Bald expressions of rejection or disapproval are inadequate. Instead, the reasons must show that the commission's recommendations have been taken into account and must be based on facts and sound reasoning. They must state in what respect and to what extent they depart from the recommendations, articulating the grounds for rejection or variation. The reasons should reveal a consideration of the judicial office and an intention to deal with it appropriately. They must preclude any suggestion of attempting to manipulate the judiciary. The reasons must reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence.
-The court concluded that the rejection of commission recommendations met the “rationality” test in New Brunswick, Ontario, and Alberta, but not Quebec.
3. Administrative Independence
-Administrative independence requires that courts themselves have control over the administrative decisions
“that bear directly and immediately on the exercise of the judicial function, [such as] assignment of judges, sitting of the court, and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions” (Provincial Judges Reference [1997])
-Administrative independence was at issue in the Tobiass case. Recall that the SC was asked to consider whether judicial independence had been impaired by a private meeting a senior Department of Justice Official and the chief justice of the Federal Court.
-This meeting concerned a delay in the hearing of certain cases in which the Justice Department was a litigant.
-The court concluded that at least the appearance of independence was transgressed, for the following reasons:
____________Canada (Minister Citizenship and Immigration) v Tobiass [1997] _________
Facts:
[74] First, and as a general rule of conduct, counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case. ...
[75] Second, and again as a general rule, a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views. ...
[83] What all this means is that Mr. Thompson went to the Chief Justice with a legitimate grievance. This fact does not excuse what Mr. Thompson did ‑‑ he assuredly chose an impermissible means of presenting his grievance ‑‑ but it does cast into very real doubt the sinister interpretation that the appellants have attempted to place on his conduct. Given the vexing delay that the respondent had faced in the Trial Division, it is quite understandable that Mr. Thompson would have wished to do something about it. We believe that Mr. Thompson’s motives were proper. It was his judgment that is questionable. What Mr. Thompson did was not wicked or done in bad faith. It is enough to say that what he did was inappropriate. As senior counsel in the Department of Justice, he arranged to speak privately ‑‑ without opposing counsel present ‑‑ to the Chief Justice, concerning cases which were pending. This he should not have done.
[85] In short, the evidence supports the conclusion that the appearance of judicial independence suffered a serious affront as a result of the March 1, 1996 meeting between Mr. Thompson and Isaac C.J. This affront very seriously compromised the appearance of judicial independence. A reasonable observer apprised of the workings of the Federal Court and of all the circumstances would perceive that the Chief Justice and the Associate Chief Justice were improperly and unduly influenced by a senior officer of the Department of Justice. However, there is no persuasive evidence of bad faith on the part of any of the actors in this drama, nor is there any solid evidence that the independence of the judges in question was actually compromised.