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ADDITIONAL CASES FOR SECTION 1:
_______________________Hill v Church of Scientology (1995)______________________
PRINCIPLE: Charter does not apply if (1) the dispute is between two private parties, and (2) it is based on the common law.
Facts: A Crown attorney brought an action for defamation against the Church of Scientology and its lawyer.
Church’s argument: the attorney was employed as an agent of the Crown and that the defamatory statements related to his official duties, thus the Charter should apply (this way they could argue freedom of expression).
SCC Held: In the context of a defamation action, the attorney was a private party, because the action was brought, not as part of his governmental duties, but to vindicate his personal reputation. Since it was the common law that governed the cause of action, it followed that the Charter did not apply.
o The rule of common law that should be developed into conformity with “Charter values” means that:
Although the Charter does not apply directly to the common law, it DOES apply indirectly.
o Despite some differences in the way s.1 justification is assessed, the indirect application has the same effects as the direct application.
o Charter values are relevant to statutory interpretation only where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity.
o The SCC refused to alter the common law of defamation to protect criticism of public officials:
Hill v Church of Scientology [1995]
o Facts: Hill was a crown attorney employed by the A.G in Ontario, who was accused by Church of Scientology of having violated court orders sealing certain documents belonging to the Church that had been seized under search warrant.
o Issue: the CofS held a press conference at which the lawyer described the allegations and announced that contempt proceedings were being brought against Hill. After the proceeding against Hill, Hill sued CofS and its lawyer for defamation.
o SCC Held: upheld Hill’s reward. The Charter did not directly apply to the proceedings (despite Hill’s public position), but that the common law should be reviewed, and modified if necessary, to make it consistent with “Charter values”.
o Therefore, held that the common law of defamation was consistent with Charter values, and did not need to be modified
The court made one change in the law to defamation to bring it into line with the “Charter value” of freedom of expression: by expanding the defence of qualified privilege that exists in the common law of defamation for reports of judicial proceedings in open courts
____________Societe de l’assurance automobile du Quebec v Cyr [2008]_______________
Facts: Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ) entered into a contract with the Centre de vérification mécanique de Montréal (CVMM) to carry out the mechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program. However, following notices of breach for failure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked. Cyr and CVMM filed a motion for judicial review of the decision to revoke the accreditation, claiming that it had not been rendered in a manner consistent with the Act respecting administrative justice (AAJ). The Superior Court concluded that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights and dismissed the application. The majority of the Court of Appeal set aside the decision, holding that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid the obligations codified by s. 5 of the AAJ.
HELD: Appeal dismissed with dissent. Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considered a party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was granting him the authorization to act on its behalf. Moreover, the authorization in the present case is specifically provided for in s. 520 of the HSC. The legislative origin of the authorization further confirms its administrative nature. Consequently, section 5 of the AAJ and its procedural requirements are applicable to the present matter because (1) the revocation of Cyr's designation is a "decision concerning a permit or licence or other authorization of like nature", and (2) Cyr is a "citizen" as contemplated by the AAJ. Not all acts of the SAAQ are subject to public law, but the act of authorization has specifically been deemed worthy of procedural fairness protection by the legislature.
ADDITIONAL CASES FOR SECTION 2:
_________________St-Hilaire v Canada (Attorney General) [2001]___________________
Facts: Appeal by the Attorney General of Canada and the Treasury Board of Canada from a decision allowing St-Hilaire's application for surviving spouse benefits. St-Hilaire was charged with second degree murder for stabbing her husband with a knife during a domestic quarrel. She pleaded guilty to a charge of manslaughter. The husband had been a member of the Public Service of Canada and for many years had contributed to a superannuation account. St-Hilaire, in her capacity both as surviving spouse and as heir of her husband's succession, asked the Treasury Board to pay her the allowances prescribed by the Public Service Superannuation Act. The Treasury Board refused on the public policy ground that she was not entitled to profit from her crime. St-Hilaire applied to a judge for a declaration to recognize her right to benefits. The judge applied the Civil Code of Quebec, which provided that a person making an attempt on the life of the deceased was not unworthy of inheriting by operation of law. The Code also provided that a beneficiary of insurance coverage forfeited coverage by making an attempt on the life of a contributor. The judge held that the offence of manslaughter did not result in unworthiness to inherit, as there was no intention to commit the alleged crime. Therefore, St-Hilaire was entitled to inherit and to be paid a surviving spouse's annuity. On appeal, the appellants argued that the subject matter of the litigation was to be determined by common law.
This was an appeal from a Trial Division decision allowing the respondent's application for a declaratory judgment that would recognize her right to the benefits provided by the Public Service Superannuation Act, and ordering the Treasury Board to pay her the sums she claimed. In February 1995, the respondent killed her husband during a violent domestic quarrel. Charged with second degree murder, she pleaded guilty to a reduced charge of manslaughter. The husband was a public servant who had worked for the Canadian Coast Guard for 25 years and had been contributing to the Superannuation Account under section 4 of the Act and the Public Service death benefit account opened under section 56. The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. The respondent then applied to the Federal Court, Trial Division for a declaratory judgment that would recognize her right to the benefits provided by the Act. Allowing the application, Blais J. ruled that the applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. The main issue on appeal was whether the civil law of Quebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Quebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under subsection 620(1) of the Civil Code of Québec.
HELD: Appeal allowed. The civil law of Quebec applied. The wording of the Civil Code did not exclude from its purview all cases of manslaughter. The fact that St-Hilaire pleaded guilty to a reduced charge of manslaughter did not alter the nature of her act, which was an unlawful act consisting of aggravated assaults likely to cause death, with knowledge that death may result. She consciously and deliberately made an attempt on the life of the deceased and was unworthy of inheriting by operation of law. The attempt on the husband's life also resulted in the forfeiture of superannuation benefits.
Per Létourneau J.A.-
The Federal Court of Appeal has on many occasions recognized the complementarity of the Quebec civil law with federal law where the latter is silent. It has also endeavoured to harmonize the effects of federal statutes in order to avoid possible inequities as a result of disparities while acknowledging a right to be different where harmonization proves impossible. The unworthiness to inherit under subsection 620(1) of the Civil Code of Québec attaches to the person convicted of making an attempt on the life of the deceased. The wording of this article creates serious difficulties since there is no offence in Canadian criminal law of making an attempt on the life of the deceased. In our criminal law, manslaughter is a residual category which encompasses whatever is not otherwise assigned to murder and infanticide. The three categories of [page291] offences in the Criminal Code (murder, manslaughter and infanticide) are far from being mutually watertight and it would be an error to hide behind the label "manslaughter" and conclude that each and every attack on life that falls within that category cannot be a source of unworthiness to inherit by operation of law. Moreover, one could not infer from the presence of the word "involontaire" in the concept of "homicide involontaire coupable" (manslaughter) a lack of intention to kill or to produce the death. Subsection 620(1) of the Civil Code of Québec does not exclude from its purview all cases of manslaughter. Where, as here, a person commits aggravated assault or inflicts serious bodily harm likely to cause death, knowing that death may result but being indifferent as to whether or not it results, that person is by operation of law unworthy of inheriting from his victim. This act fulfills all the conditions of murder prescribed in subparagraph 229(a)(ii) of the Criminal Code and constitutes a murder. The respondent wanted, if not to kill her husband, to at least cause serious bodily harm to him likely to cause his death. She consciously and deliberately made an attempt on the life of the deceased within the meaning of subsection 620(1) of the Civil Code of Québec. Therefore, she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse annuity.
Per Desjardins J.A.-
To determine the meaning of the words "surviving spouse" and "succession" when the federal statute in question, the Public Service Superannuation Act, is silent, it is necessary to refer to the Civil Code of Québec and not the common law. The Civil Code of Québec is the foundation not only of all other Quebec laws, but also of the relevant provisions of the Act in question. The first paragraph of article 620 of the Code, which states that "a person convicted of making an attempt on the life of the deceased" is unworthy of inheriting by operation of law, does not rule out the applicability thereto of some cases of manslaugther, let alone the manslaughter committed by the respondent. If the Quebec legislature had actually intended to exclude any recourse to the courts of civil procedure in article 620 of the Civil Code of Québec, it could have borrowed the terminology peculiar to the criminal law in drafting the first paragraph of article 620, but refrained from doing so. Since the respondent was "convicted of making an attempt on the life of the deceased", she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse's annuity.
Per Décary J.A. (dissenting in part) –
The benefit in the form of a monthly allowance contemplated in subsection 13(3) of the Act is payable to the "surviving spouse" and the "children". There was no child herein and the respondent was the "surviving spouse". The parties erred in assuming that the respondent and her husband's "succession" were one and the same. The Criminal Code of Canada recognizes three kinds of culpable homicide: murder, manslaughter and [page292] infanticide. In the case at bar, the respondent, in criminal law terms, intentionally caused serious bodily harm that resulted in the death of her husband. At the relevant time the Public Service Superannuation Act did not contain any provision concerning the disqualification of a beneficiary for attempting to take the contributor's life. In Quebec the "ordinary law" of the province is constituted by the Civil Code of Québec and the Code of Civil Procedure, although these are statutory documents. A judge who must interpret and apply a federal enactment that is silent in a dispute concerning civil rights in Quebec must know that, as a general rule, the suppletive law is the civil law. The Attorney General's submission that the eligibility for benefits of federal government employees is a question of administrative law governed by the rules peculiar to public law, and therefore by the common law, had two flaws. First, the Public Service Superannuation Act is not a statute that is exclusively administrative in nature. Second, the common law rule that a person may not profit from his crime is not a rule of public law but a rule of private law. What should determine whether it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. When the latter are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. The civil law applies in Quebec to any federal legislation that does not exclude it. A federal statute, albeit one characterized as public law, that refers to a private law concept such as succession without defining it, should be interpreted in Quebec in terms of civil law. Since it is the civil rights of the surviving spouse and the heirs that are in dispute, Parliament's silence should be interpreted as an acquiescence in the application of the principle of legal asymmetry that characterizes Canadian federal law.
The Civil Code of Québec recognizes the principle that no one should profit from his crime. Article 620 of the Civil Code of Québec, which states that a person convicted of making an attempt on the life of the deceased is unworthy of inheriting by operation of law, has not substantially altered the previous law, at least within the context of the legal succession. The solution that appears to be the most restrictive, the most objective, the most certain and the only one that can entail automatic exclusion should be adopted. This solution is likewise the one adopted in France by the majority of judges and legal scholars. Under the current Quebec law of succession, the respondent, in her capacity as heir, was not unworthy by operation of law. Since she has not been judged unworthy by judicial declaration and the limitation period within which successors may seek a judicial declaration of unworthiness has expired, the respondent [page293] was entitled to claim from the Treasury Board, as the heir of her husband's succession, the sum of $81,750 payable under subsection 55(1) of the Act as the supplementary death benefit. However, under article 2443 of the Civil Code of Québec which governs the present situation, an attempt on the life of the contributor by the beneficiary entails the forfeiture of this beneficiary. The circumstances of the crime in the case at bar lead to the disqualification of the respondent. The description of the events revealed a clearly settled intention to take advantage of the opportunity that was presented to "stick it to" the victim once and for all. This was an attempt on the life of the victim within the meaning of the law of insurance and the respondent would profit from her crime if she were allowed to receive the benefits payable to a surviving spouse. The respondent was forfeited from her entitlement to the benefits payable to a surviving spouse under subsection 13(3) of the Act, but she was entitled in her capacity as heir, to the minimum amount of $75,202.50 payable under subsection 27(2) of Part I of the Act and to the supplementary death benefit of about $81,750.
______________Re: Resolution to amend the Constitution [1981]_____________________
Facts:
Baker v Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817 (Can.)
Facts: Mavis Baker, Jamaican who entered Canada as a visitor in 1981 and has remained since. She never received permanent resident status, but supported herself illegally as a domestic worker for 11 years. She has 4 children in Canada and 4 in Jamaica. She was ordered to be deported in 1992. In 1993 she applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate (H & C) considerations, pursuant to s.114(2) of the Immigration Act. In 1994 she was denied stating in the letter that there were insufficient H & C grounds. This letter contained no reasons for the decision.
Held: the appropriate standard of review is reasonableness simpliciter. 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 humanitarian and compassionate (H&C) discretion was unreasonable. The matter was returned to the Minister for redetermination by a different immigration officer.
Issues (raised by this appeal):
(1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children?
NOTE: In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration
Analysis:
B. The Statutory Scheme and the Nature of the Decision
-Immigration officers who make H&C decisions are provided with a set of guidelines, contained in Chapter 9 of the Immigration Manual. The Guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them.
-Officers have a duty to ask themselves what a reasonable person would do in such a situation (Guideline 9.05)
-Officers also have a duty to assure themselves, first, whether a public policy consideration is present, and if there is none, ask whether humanitarian and compassionate circumstances exist.
-Humanitarian and compassionate grounds will exist if unusual, underserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada (Guideline 9.07).
-The Guidelines also address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident.
-Also to be considered is the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country.
C. Procedural Fairness
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.
(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.
D. Review of the Exercise of the Minister’s Discretion
-Although the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does NOT address the issues contained in the “serious question of general importance” which relates to the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and Regulations.
(a) The Approach to Review of Discretionary Decision-Making
-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.
-In my opinion, these doctrines incorporate two central ideas:
(i) That discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but
(ii) 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 the general principles of administrative law governing the exercise of discretion, and consistent with the Charter (Slaight Communications Inc. V Davidson [1989]) .
-Therefore, although discretionary decisions will generally be given considerable respect, that discretion MUST BE exercised in accordance with the boundaries imposed by:
àthe statute,
àthe principles of the rule of law,
àthe principles of administrative law,
àthe fundamental values of Canadian society, and
àthe principles of the Charter.
(2) The Standard of Review in Baker
-The "pragmatic and functional" approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less deference.
-3 standards of review have been defined: patent unreasonableness,
reasonableness simpliciter, and
correctness:
-Applying the Pragmatic and Functional approach in Baker v Canada to determine the appropriate standard of review for decisions under s.114(2) of the Immigration Act and Regulation 2.1 of the Immigration Regulations, and the factors affecting the determination of that standard outlines in ...it has held that the decision, which related to the determination of a question of law was subject to a standard of review of correctness.
-However, this types of decision at issue was very different, as was the decision-maker.
-Thus, the appropriate standard of review must, therefore, be considered separately in Baker:
First factor – the presence or absence of a privative clause, and in appropriate cases, the wording of that clause.
· There is no privative clause contained in the Immigration Act.
Second factor – the expertise of the decision-maker.
· The fact that the formal decision-maker is the Minister is a factor militating in favour of deference.
· The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.
Third factor – the purpose of the provision in particular, and of the Act as a whole.
· This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively "open-textured" legal principles, a factor militating in favour of greater deference (Pushpanathan).
· The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister.
Fourth factor – considers the nature of the problem in question, especially whether it relates to the determination of law or facts.
· The decision about whether to grant an H&C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
Answer – Baker v Canada
-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.
NOTE: The four above factors aid in determining what standard of review is required. Once determined, it must then be decided whether that standard was upheld.
(3) Was This Decision Unreasonable?
-Next, I will examine whether the decision in Baker, and the immigration officer’s interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in Southam: “An unreasonable decision is one that, is not supported by any reasons that can stand up to a somewhat probing examination”.
Answer - Baker v Canada
-The approach taken to the children’s interests shows that this decision was unreasonable in the sense contemplated in Southam.
-The officer was completely dismissive of the interests of Ms. Baker’s children. ...
-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. ...
-In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children.
NOTE: The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations". These words and their meaning must be central in determining whether an individual H&C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person's admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner.
-Thus, Baker has found that it is necessary for the Minister to consider an H&C request when an application is made. AND the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.
-Children’s rights, and attention to their interest, are central H&C 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 in the purposes of the Act, in international instruments, and in the guidelines for making H&C decisions by the Minister herself.
a. The Objectives of the Act:
-s.3(c)
-In my opinion, it is consistent to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada.
b. International law:
-Francis v The Queen (1956)– International treaties and conventions are not part of Canadian law unless they have been implemented by statute.
Answer – Baker v Canada
-I agree with the respondent and the CA that the Convention has not been implemented by Parliament.
- Its provisions therefore have no direct application within Canadian law (Francis and Capital Cities).
-Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
-Iacobucci (dissent): ... I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.
c. The Ministerial Guidelines:
Baker v Canada
Held: Immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. ...
I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children ... it was an unreasonable exercise of the power conferred by the legislation and must be overturned.
E. Conclusions and Disposition
-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.
________De Guzman v Canada (Minister of Citizenship and Immigration) [2005] _______
Facts: Appeal by De Guzman from the decision of the Federal Court trial judge dismissing her application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board dismissing her appeal from the decision of the visa officer refusing to issue visas to her two sons as members of the family class. De Guzman was a citizen of the Philippines. In 1993, she applied for permanent residence status on the basis that she was single and had no dependants other than her daughter, who was travelling with her. She was being sponsored as the unmarried daughter of her mother. De Guzman actually had two other children who were left in the Philippines with their father. Eight years later, she applied to sponsor their admission to Canada. At the time, the sons were 17 and 16 years old. The visa officer refused de Guzman's sponsorship application on the basis that the sons had not been examined when de Guzman applied for permanent residence. The Board held that the sons were not members of the family class and therefore could not be sponsored by de Guzman. De Guzman argued that section 117(9)(d) of the Immigration and Refugee Protection Regulations was invalid on the basis that it was not authorized by the enabling section of the Immigration and Refugee Protection Act and it infringed her rights under section 7 of the Charter by preventing the reunification of parent and child. She argued that a person removed for misrepresentation was only inadmissible for two years, which made it unreasonable to hold that Parliament implicitly made a lifetime ban on sponsorship for the same conduct.
HELD: Appeal dismissed. The right to sponsor members of the family class created by section 13(1) of the Act was expressly made subject to the regulations. Section 117(9)(d) was within the powers delegated by Parliament to the Governor in Council. De Guzman provided no evidence of any special hardship or psychological stress that she was suffering as a result of the separation. She was not a refugee or a person in need of protection. She could reunite with her sons in the Philippines if she wished to. In addition, any stress was not state-imposed. Section 3(3)(f) of the Act was to be interpreted and applied in a manner that complied with the relevant international instruments to which Canada was a signatory. De Guzman's sons could be admitted under other provisions of the Act. The fact that they had to initiate these applications rather than de Guzman was insufficient to conclude that paragraph 117(9)(d) rendered the Act in breach of any of the human rights instruments. When considered with other provisions in the Act, paragraph 117(9)(d) did not make the Act non-compliant with any international human rights instrument to which Canada was a signatory. Removal of an individual for misrepresentation was a more serious sanction than an inability to sponsor a person as a member of the family class.
ADDITIONAL CASES FOR SECTION 3:
-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 Secession of Quebec [1998] ____________________
Federalism:
-para [55-60]
Reference re Secession of Quebec (1998) – SCC invoked unwritten principles of:
(1) democracy,
(2) federalism,
(3) constitutionalism and
(4) the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish session.
35 Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat. In March 1864, a select committee of the Legislative Assembly of the Province of Canada, chaired by George Brown, began to explore prospects for constitutional reform. The committee's report, released in June 1864, recommended that a federal union encompassing Canada East and Canada West, and perhaps the other British North American colonies, be pursued. A group of Reformers from Canada West, led by Brown, joined with Étienne P. Taché and John A. Macdonald in a coalition government for the purpose of engaging in constitutional reform along the lines of the federal model proposed by the committee's report.
36 An opening to pursue federal union soon arose. The leaders of the maritime colonies had planned to meet at Charlottetown in the fall to discuss the perennial topic of maritime union. The Province of Canada secured invitations to send a Canadian delegation. On September 1, 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union.
37 The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government cannot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained.
38 Several matters remained to be resolved, and so the Charlottetown delegates agreed to meet again at Quebec in October, and to invite Newfoundland to send a delegation to join them. The Quebec Conference began on October 10, 1864. Thirty-three delegates (two from Newfoundland, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward Island, and twelve from the Province of Canada) met over a two and a half week period. Precise consideration of each aspect of the federal structure preoccupied the political agenda. The delegates approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and culture, both directly (by making French an official language in Quebec and Canada as a whole) and indirectly (by allocating jurisdiction over education and "Property and Civil Rights in the Province" to the provinces). The protection of minorities was thus reaffirmed.
39 Legally, there remained only the requirement to have the Quebec Resolutions put into proper form and passed by the Imperial Parliament in London. However, politically, it was thought that more was required. Indeed, Resolution 70 provided that "The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference." (Cited in J. Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895), at p. 52 (emphasis added).)
40 Confirmation of the Quebec Resolutions was achieved more smoothly in central Canada than in the Maritimes. In February and March 1865, the Quebec Resolutions were the subject of almost six weeks of sustained debate in both houses of the Canadian legislature. The Canadian Legislative Assembly approved the Quebec Resolutions in March 1865 with the support of a majority of members from both Canada East and Canada West. The governments of both Prince Edward Island and Newfoundland chose, in accordance with popular sentiment in both colonies, not to accede to the Quebec Resolutions. In New Brunswick, a general election was required before Premier Tilley's pro-Confederation party prevailed. In Nova Scotia, Premier Tupper ultimately obtained a resolution from the House of Assembly favouring Confederation.
41 Sixteen delegates (five from New Brunswick, five from Nova Scotia, and six from the Province of Canada) met in London in December 1866 to finalize the plan for Confederation. To this end, they agreed to some slight modifications and additions to the Quebec Resolutions. Minor changes were made to the distribution of powers, provision was made for the appointment of extra senators in the event of a deadlock between the House of Commons and the Senate, and certain religious minorities were given the right to appeal to the federal government where their denominational school rights were adversely affected by provincial legislation. The British North America Bill was drafted after the London Conference with the assistance of the Colonial Office, and was introduced into the House of Lords in February 1867. The Act passed third reading in the House of Commons on March 8, received royal assent on March 29, and was proclaimed on July 1, 1867. The Dominion of Canada thus became a reality.
42 There was an early attempt at secession. In the first Dominion election in September 1867, Premier Tupper's forces were decimated: members opposed to Confederation won 18 of Nova Scotia's 19 federal seats, and in the simultaneous provincial election, 36 of the 38 seats in the provincial legislature. Newly-elected Premier Joseph Howe led a delegation to the Imperial Parliament in London in an effort to undo the new constitutional arrangements, but it was too late. The Colonial Office rejected Premier Howe's plea to permit Nova Scotia to withdraw from Confederation. As the Colonial Secretary wrote in 1868:
43 Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. It is pertinent, in the context of the present Reference, to mention the words of George-Étienne Cartier (cited in the Parliamentary Debates on the subject of the Confederation (1865), at p. 60):
44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada.
45 After 1867, the Canadian federation continued to evolve both territorially and politically. New territories were admitted to the union and new provinces were formed. In 1870, Rupert's Land and the Northwest Territories were admitted and Manitoba was formed as a province. British Columbia was admitted in 1871, Prince Edward Island in 1873, and the Arctic Islands were added in 1880. In 1898, the Yukon Territory and in 1905, the provinces of Alberta and Saskatchewan were formed from the Northwest Territories. Newfoundland was admitted in 1949 by an amendment to the Constitution Act, 1867. The new territory of Nunavut was carved out of the Northwest Territories in 1993 with the partition to become effective in April 1999.
46 Canada's evolution from colony to fully independent state was gradual. The Imperial Parliament's passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4, confirmed in law what had earlier been confirmed in fact by the Balfour Declaration of 1926, namely, that Canada was an independent country. Thereafter, Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. Canada's independence from Britain was achieved through legal and political evolution with an adherence to the rule of law and stability. The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution and re-affirmed Canada's commitment to the protection of its minority, aboriginal, equality, legal and language rights, and fundamental freedoms as set out in the Canadian Charter of Rights and Freedoms.
47 Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy as distinguished from the formal legality of the amendments derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled was in accordance with our Constitution. It should be noted, parenthetically, that the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation. It did, however, have the important effect that, despite the refusal of the government of Quebec to join in its adoption, Quebec has become bound to the terms of a Constitution that is different from that which prevailed previously, particularly as regards provisions governing its amendment, and the Canadian Charter of Rights and Freedoms. As to the latter, to the extent that the scope of legislative powers was thereafter to be constrained by the Charter, the constraint operated as much against federal legislative powers as against provincial legislative powers. Moreover, it is to be remembered that s. 33, the "notwithstanding clause", gives Parliament and the provincial legislatures authority to legislate on matters within their jurisdiction in derogation of the fundamental freedoms (s. 2), legal rights (ss. 7 to 14) and equality rights (s. 15) provisions of the Charter.
48 We think it apparent from even this brief historical review that the evolution of our constitutional arrangements has been characterized by adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability. We now turn to a discussion of the general constitutional principles that bear on the present Reference.
(3) Analysis of the Constitutional Principles
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.
51 Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.
52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.
53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".
54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". It is to a discussion of those underlying constitutional principles that we now turn.
56 In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. See, e.g., Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437 (P.C.), at pp. 441-42. It is up to the courts "to control the limits of the respective sovereignties": Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733, at p. 741. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided.
57 This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. Indeed, Martland and Ritchie JJ., dissenting in the Patriation Reference, at p. 821, considered federalism to be "the dominant principle of Canadian constitutional law". With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitution. Less obviously, perhaps, but certainly of equal importance, federalism is a political and legal response to underlying social and political realities.
58 The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The scheme of the Constitution Act, 1867, it was said in Re the Initiative and Referendum Act, [1919] A.C. 935 (P.C.), at p. 942, was
59 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3-4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.
60 Federalism was also welcomed by Nova Scotia and New Brunswick, both of which also affirmed their will to protect their individual cultures and their autonomy over local matters. All new provinces joining the federation sought to achieve similar objectives, which are no less vigorously pursued by the provinces and territories as we approach the new millennium.
62 The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that "the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels". As is apparent from an earlier line of decisions emanating from this Court, including Switzman v. Elbling, [1957] S.C.R. 285, Saumur v. City of Quebec, [1953] 2 S.C.R. 299, Boucher v. The King, [1951] S.C.R. 265, and Reference re Alberta Statutes, [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers. As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that our Constitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlying constitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of our political institutions was simply assumed.
63 Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means. The evolution of our democratic tradition can be traced back to the Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itself in 1867. "[T]he Canadian tradition", the majority of this Court held in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 186, is "one of evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation". Since Confederation, efforts to extend the franchise to those unjustly excluded from participation in our political system - such as women, minorities, and aboriginal peoples - have continued, with some success, to the present day.
64 Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188. Put another way, a sovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion of democracy (at p. 136):
66 It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.
67 The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values.
68 Finally, we highlight that a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, "resting ultimately on public opinion reached by discussion and the interplay of ideas" (Saumur v. City of Quebec, supra, at p. 330). At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live.
69 The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.
71 In the Manitoba Language Rights Reference, supra, at pp. 747-52, this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". It was this second aspect of the rule of law that was primarily at issue in the Manitoba Language Rights Reference itself. A third aspect of the rule of law is, as recently confirmed in the Provincial Judges Reference, supra, at para. 10, that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance.
72 The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the 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 the 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 must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.
73 An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons.
74 First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. And third, a constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally.
75 The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a province-wide referendum is superficially persuasive, in large measure because it seems to appeal to some of the same principles that underlie the legitimacy of the Constitution itself, namely, democracy and self-government. In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit "the people" in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy.
76 Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer. Constitutional government is necessarily predicated on the idea that the political representatives of the people of a province have the capacity and the power to commit the province to be bound into the future by the constitutional rules being adopted. These rules are "binding" not in the sense of frustrating the will of a majority of a province, but as defining the majority which must be consulted in order to alter the fundamental balances of political power (including the spheres of autonomy guaranteed by the principle of federalism), individual rights, and minority rights in our society. Of course, those constitutional rules are themselves amenable to amendment, but only through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled.
77 In this way, our belief in democracy may be harmonized with our belief in constitutionalism. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an "enhanced majority" to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.
78 It might be objected, then, that constitutionalism is therefore incompatible with democratic government. This would be an erroneous view. Constitutionalism facilitates - indeed, makes possible - a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.
80 However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. See, e.g., Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342.
81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.
82 Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples. The "promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.
_______________________Singh v Canada (Attorney General) [2000] ________________
Facts:This is an appeal from a decision of McKeown J. [[1999] 4 F.C. 583 (T.D.)] in which he dismissed the appellants' action for a declaration that section 39 of the Canada Evidence Act is unconstitutional.
In November 1997 an Asian Pacific Economic Cooperation Conference (APEC Conference) was held in Vancouver, attended by heads of government of Pacific rim countries. The appellants, among others, were involved in demonstrations on the occasion of travel around Vancouver by the respective heads of government. Subsequently approximately 52 complainants, including the appellants, filed complaints with the Royal Canadian Mounted Police Public Complaints Commission (the Commission) alleging various forms of misconduct by personnel of the Royal Canadian Mounted Police (the RCMP).
The Commission is established under the Royal Canadian Mounted Police Act
Issues: (1) whether section 39 is ultra vires Parliament because of the fundamental, unwritten principles of the Canadian Constitution, namely the independence of the judiciary, the rule of law and the separation of powers; and (2) whether section 39 should be read down or otherwise rendered inapplicable in the circumstances.
Held: the appeal should be dismissed.
(1) (i) The appellants' arguments were largely based on the premise that parliamentary sovereignty was not one of the principles of the Constitution, or at least ceased to be in 1982 when the Charter was adopted and section 52 of the Constitution Act, 1982 was enacted. (Section 52 provides that the Constitution is the supreme law of Canada.) The supremacy of the Constitution was established even before Confederation in 1867. Section 52 was necessary to avoid any uncertainty as to the continuing supremacy of the Constitution. Both before and after 1982 our system was, and is, one of parliamentary sovereignty exercisable within the limits of a written constitution, as evidenced by courts striking down laws for inconsistency with the division of powers set out in British North America Act, 1867, sections 91 and 92. These were solely quantitative limits on the exercise of legislative power prior to 1982. The adoption of the Charter in 1982 added a multitude of qualitative limitations on the exercise of power, but the Constitution of Canada was and is supreme over ordinary laws. Just as before 1982, the specific requirements of the Constitution must be examined to determine whether in a given case Parliament has infringed a constitutional limit (express or implied) on its power.
The appellants argued that section 39 was contrary to the common law and therefore implicitly unconstitutional. Under current common law a judge can examine a document to see if the claim that it was a Cabinet confidence was well-founded and if so, whether the public interest in its disclosure would outweigh the public interest in its continuing secrecy. Legislation cannot, however, be presumed unconstitutional simply because it alters the common law. The rationale for such legislation is to give an absolute assurance to members of Cabinet and their advisors that the classes of documents specified in section 39 will not even be subject to review by a judge for confidentiality, and therefore the continued secrecy of the document is assured. The common law was even more restrictive of disclosure until 1968 when, in Conway v. Rimmer, the House of Lords held that the Court could examine documents which were the subject of a minister's claim for immunity, although a majority were of the view that Cabinet documents as a class should not be disclosed. At about this time, when the predecessor to section 39 was first enacted in Canada, it applied the principles of Conway v. Rimmer to most documents, but provided absolute immunity without examination by the Court for documents whose disclosure was claimed to be injurious to international relations, national defence or security, or to federal-provincial relations or as constituting a confidence of the Queen's Privy Council. In 1982 the absolute claim for non-disclosure without examination by the Court was limited to confidences of the Queen's Privy Council, which was defined for the first time and a time limit was placed on the continuation of that status. Prima facie, section 39 appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-established and well-accepted principles of Cabinet secrecy. In the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective.
(ii) The appellants argued that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive. They characterized the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial because it involves a determination of whether a court should have access to certain evidence. The appellants relied upon statements by the Supreme Court of Canada in the Judges Reference case that judicial independence flowed from the separation of powers, a doctrine which came from the preamble to the Constitution, which provides for a "constitution similar in Principle to that of the United Kingdom". First, these comments were obiter dicta as that case was decided on the basis of Charter, paragraph 11(d). Secondly, the reference to a "constitution similar in Principle to that of the United Kingdom" was understood in 1867 to be a reference to an entrenchment of responsible government, i.e. where the Executive is responsible to the legislature. The very concept was the antithesis of separation of powers.
The certification of a fact which is binding on the courts because of the nature of the subject-matter is consistent with the traditional bounds of mutual respect owed by each "branch" of government to the others. There are fundamental policy reasons of a quasi-constitutional nature as to why the Executive (with the guidance of an Act of Parliament) should be able to identify those documents generated in its internal decision-making process which should not, to maintain the integrity of the system of Cabinet secrecy, be disclosed. If our system of government must conform to some concept of separation of powers, it should embrace this form of mutual respect among the various "branches" so as to reflect and enhance their respective roles.
(iii) The appellants maintained that government must not only be conducted in accordance with law, but that such law must never exclude the courts from the decision-making process of government. The elements of the rule of law are: that the law is supreme over the acts of both government and private persons ("one law for all"); that an actual order of positive laws be created and maintained to preserve "normative order"; and that "the exercise of all public power must find its ultimate source in the legal rule". In other words, the "relationship between the state and the individual must be regulated by law". Where section 39 is applied to preserve the immunity from disclosure of Cabinet documents, the situation is clearly regulated by law, namely section 39, being an Act of Parliament operating in its field of legislative authority. The rule of law is not a guarantee of the paramountcy of the common law. In fact the "actual order of positive laws" makes valid legislation paramount over the common law. The government is bound by the law, just as are private citizens. This does not mean that the law must produce the same results in respect of every citizen or institution in the country. The rule of law does not invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents, which for long-standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit. The rule of law is not, therefore, a basis for ignoring the provisions of section 39 of the Canada Evidence Act.
(iv) As to the independence of the judiciary, the appellants argued that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary. Section 39 does not interfere with the security of tenure, the financial security, or the administrative independence of judges. It is a public law applicable in a variety of circumstances, not for the purpose of interfering in a particular case before the Court. The invocation of section 39 does not put improper pressure on a judge as to the outcome of a given case: he or she is simply barred by Act of Parliament from making certain determinations. In fact, such a section is really another form of privative clause. Constitution Act, 1867, section 96 and Charter, paragraph 11(d) are the essential constitutional limitations on the assignment of certain functions to non-courts such as the Clerk of the Privy Council, thus withdrawing them from the courts. The issuance of such certificates are not a traditional and necessary function of a superior court of a kind contemplated in 1867 and thus within section 96. Nor is it integral to the conduct of a trial within the contemplation of paragraph 11(d): the proceeding before the Commission is not a trial of anyone's guilt and if it were so considered then the Commission would not be constitutionally allowed to conduct it.
(2) The appellants argued that if section 39 is constitutionally valid, it should not apply because Parliament cannot authorize the Executive to shield its own conduct from constitutional scrutiny by employing section 39. But the statement of claim did not allege misconduct on the part of the Executive. Even if the Commission is a forum where unlawful conduct by the Executive may be relevant to the making of recommendations, the inquiry is concerned with the conduct of RCMP officers and not of the Executive. Any findings which might be made about the conduct of the Prime Minister's Office or other members of the Executive will presumably be incidental to findings concerning conduct of the RCMP and cannot be legally determinative of whether such persons have done something constitutionally unlawful. Therefore the withholding of documents containing confidences pursuant to section 39 cannot prevent any definitive determination of constitutionally unlawful behaviour, which would have to be made by a court in an action brought for the purpose of obtaining redress for such behaviour, against those alleged to be guilty of it i.e. by way of judicial review of the Clerk's certificate.
The consequences of accepting the appellants' arguments would be that section 39 would not apply where there was the merest allegation that Cabinet documents might reveal policy or operating decisions arguably inconsistent with the rights of certain individuals. This would severely attenuate the absolute protection of Cabinet communications from disclosure which section 39 now affords. There is no basis upon which section 39 should be held to be inapplicable to the circumstances.
_Reference re Remuneration of Judges of the 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)
-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.
..............
-In this case, 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.
La Forest (dissent) –
La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new principles, especially when some protection of judges can already be found elsewhere in the text of the Constitution, namely section 11(d), which was the subject of this case. The counsel had primarily relied on section 11(d) and only briefly spoke of unwritten rules. La Forest also suggested that section 11(d) granting independence only to inferior criminal law judges, and not inferior civil law judges, was deliberate, because "Being accused of a crime is one of the most momentous encounters an individual can have with the power of the state."
La Forest went on to caution that "judicial power" is limited so that a court "does not initiate matters and has no agenda of its own." This made him worried about the majority launching into an extensive, unneeded discussion on unwritten principles. He accepted unwritten principles exist, but disputed that limits on government decisions can be found in the preamble. There was no tradition guarding judicial independence against Parliament. Parliamentary supremacy remained important in Britain even after the Act of Settlement; thus British courts cannot invalidate a law, even if the law is generally thought to be wrong. La Forest acknowledged this could be seen as a "technical quibble" since courts in Canada can invalidate laws, but he went on to point out that the Act of Settlement only covered superior judges, and not inferior judges. He also said courts should have clearer grounds for limiting legislative actions, casting previous decisions such as Switzman v. Elbling (1957), which relied on the Implied Bill of Rights, into doubt. He pointed to Attorney General for Canada and Dupond v. Montreal (1978) as a prior Supreme Court decision questioning the Implied Bill of Rights. If an implied bill of rights existed, it should be found in the creation of Parliament, in section 17 of the Constitution Act, 1867, and should allow for Parliamentary supremacy instead of limiting it.
In this case, La Forest pointed to Valente and R. v. Lippé to show section 11(d) does not guarantee a type of independence that is most favourable to judges. The conclusion in Valente that judicial compensation committees were not needed was therefore valid; section 11(d) left room for determining what methods can be used to achieve independence. In this case, judges salaries were lowered along with those of other government employees, and this did not seem to raise reasonable concerns about judicial independence. As a judicial compensation commission likely should not have a problem with this, as acknowledged by Lamer, La Forest found the requirement that the commission look into the matter to be "a triumph of form over substance."
La Forest also felt requiring such commissions was also "tantamount to enacting a new constitutional provision to extend the protection provided by s. 11(d)" by forcing the creation of "what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary." Judges simply asking whether government decisions seem reasonable would be enough.
ADDITIONAL CASES FOR ALL OF SECTION 4:
Dunsmuir v New Brunswick (2008)
Facts: Appeal by a former employee with respect to his dismissal from his employment at the Department of Justice of the respondent Province of New Brunswick. During the course of his employment, the appellant was reprimanded on three separate occasions. He also received letters that included warnings that his failure to improve his work performance would result in further disciplinary action up to and including dismissal. The Regional Director and the Assistant Deputy Minister then came to the conclusion that the appellant was not right for the job, and a termination notice was sent to the appellant. Cause for termination was not alleged, and he was given four months' pay in lieu of notice. When the appellant's grievance was denied, he then referred the grievance to adjudication. During a preliminary ruling, the adjudicator found that he was authorized to assess the reasons underlying the respondent's decision to terminate pursuant to the Public Service Labour Relations Act. He then heard and decided the merits of the grievance, found that the appellant was dismissed without procedural fairness, and declared the termination void ab initio and ordered the appellant reinstated. On judicial review, the reviewing judge concluded that the correctness standard of review applied, that the adjudicator had exceeded his jurisdiction, and that his authority was limited to determining whether the notice period was reasonable. The reviewing judge quashed the reinstatement order. In dismissing the former employee's appeal, the Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator's authority under the Act was reasonableness simpliciter. On the issue of procedural fairness, it found that the appellant exercised his right to grieve, and thus a finding that the duty of fairness had been breached was without legal foundation.
HELD: Appeal dismissed. There were two standards of review: correctness and reasonableness. With respect to the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, a review of the cases revealed that any actual difference between them in terms of their operation was illusory. In this case, the standard of reasonableness applied, such that the decision maker should be given deference. Factors taken into consideration in favouring the reasonableness standard included: the Act contained a full privative clause, there existed a regime in which the decision maker had special expertise, and the nature of the legal question at issue was not one of central importance to the legal system or outside the specialized expertise of the adjudicator. However, while deference was to be given to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, it did not reach the standard of reasonableness. The adjudicator's reasoning process relied on a construction of the Act that fell outside the range of admissible statutory interpretations. The employment relationship between the parties in this case was governed by private law. Where a public employee was employed under a contract of employment, regardless of the employee's status as a public office holder, the applicable law governing dismissal was the law of contract, not general principles arising out of public law. A reasonable interpretation of the Act could not remove the respondent's right under contract law to discharge the appellant with reasonable notice or pay in lieu of notice. The decision to dismiss the appellant was properly within the respondent's powers and was taken pursuant to a contract of employment. In these circumstances, it was unnecessary to consider any public law duty of procedural fairness.
_______________________Hill v Church of Scientology (1995)______________________
PRINCIPLE: Charter does not apply if (1) the dispute is between two private parties, and (2) it is based on the common law.
Facts: A Crown attorney brought an action for defamation against the Church of Scientology and its lawyer.
Church’s argument: the attorney was employed as an agent of the Crown and that the defamatory statements related to his official duties, thus the Charter should apply (this way they could argue freedom of expression).
SCC Held: In the context of a defamation action, the attorney was a private party, because the action was brought, not as part of his governmental duties, but to vindicate his personal reputation. Since it was the common law that governed the cause of action, it followed that the Charter did not apply.
o The rule of common law that should be developed into conformity with “Charter values” means that:
Although the Charter does not apply directly to the common law, it DOES apply indirectly.
o Despite some differences in the way s.1 justification is assessed, the indirect application has the same effects as the direct application.
o Charter values are relevant to statutory interpretation only where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity.
o The SCC refused to alter the common law of defamation to protect criticism of public officials:
Hill v Church of Scientology [1995]
o Facts: Hill was a crown attorney employed by the A.G in Ontario, who was accused by Church of Scientology of having violated court orders sealing certain documents belonging to the Church that had been seized under search warrant.
o Issue: the CofS held a press conference at which the lawyer described the allegations and announced that contempt proceedings were being brought against Hill. After the proceeding against Hill, Hill sued CofS and its lawyer for defamation.
o SCC Held: upheld Hill’s reward. The Charter did not directly apply to the proceedings (despite Hill’s public position), but that the common law should be reviewed, and modified if necessary, to make it consistent with “Charter values”.
o Therefore, held that the common law of defamation was consistent with Charter values, and did not need to be modified
The court made one change in the law to defamation to bring it into line with the “Charter value” of freedom of expression: by expanding the defence of qualified privilege that exists in the common law of defamation for reports of judicial proceedings in open courts
____________Societe de l’assurance automobile du Quebec v Cyr [2008]_______________
Facts: Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ) entered into a contract with the Centre de vérification mécanique de Montréal (CVMM) to carry out the mechanical inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, was designated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program. However, following notices of breach for failure to apply the appropriate standards during certain inspections, Cyr's accreditation was revoked. Cyr and CVMM filed a motion for judicial review of the decision to revoke the accreditation, claiming that it had not been rendered in a manner consistent with the Act respecting administrative justice (AAJ). The Superior Court concluded that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights and dismissed the application. The majority of the Court of Appeal set aside the decision, holding that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid the obligations codified by s. 5 of the AAJ.
HELD: Appeal dismissed with dissent. Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considered a party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was granting him the authorization to act on its behalf. Moreover, the authorization in the present case is specifically provided for in s. 520 of the HSC. The legislative origin of the authorization further confirms its administrative nature. Consequently, section 5 of the AAJ and its procedural requirements are applicable to the present matter because (1) the revocation of Cyr's designation is a "decision concerning a permit or licence or other authorization of like nature", and (2) Cyr is a "citizen" as contemplated by the AAJ. Not all acts of the SAAQ are subject to public law, but the act of authorization has specifically been deemed worthy of procedural fairness protection by the legislature.
ADDITIONAL CASES FOR SECTION 2:
_________________St-Hilaire v Canada (Attorney General) [2001]___________________
Facts: Appeal by the Attorney General of Canada and the Treasury Board of Canada from a decision allowing St-Hilaire's application for surviving spouse benefits. St-Hilaire was charged with second degree murder for stabbing her husband with a knife during a domestic quarrel. She pleaded guilty to a charge of manslaughter. The husband had been a member of the Public Service of Canada and for many years had contributed to a superannuation account. St-Hilaire, in her capacity both as surviving spouse and as heir of her husband's succession, asked the Treasury Board to pay her the allowances prescribed by the Public Service Superannuation Act. The Treasury Board refused on the public policy ground that she was not entitled to profit from her crime. St-Hilaire applied to a judge for a declaration to recognize her right to benefits. The judge applied the Civil Code of Quebec, which provided that a person making an attempt on the life of the deceased was not unworthy of inheriting by operation of law. The Code also provided that a beneficiary of insurance coverage forfeited coverage by making an attempt on the life of a contributor. The judge held that the offence of manslaughter did not result in unworthiness to inherit, as there was no intention to commit the alleged crime. Therefore, St-Hilaire was entitled to inherit and to be paid a surviving spouse's annuity. On appeal, the appellants argued that the subject matter of the litigation was to be determined by common law.
This was an appeal from a Trial Division decision allowing the respondent's application for a declaratory judgment that would recognize her right to the benefits provided by the Public Service Superannuation Act, and ordering the Treasury Board to pay her the sums she claimed. In February 1995, the respondent killed her husband during a violent domestic quarrel. Charged with second degree murder, she pleaded guilty to a reduced charge of manslaughter. The husband was a public servant who had worked for the Canadian Coast Guard for 25 years and had been contributing to the Superannuation Account under section 4 of the Act and the Public Service death benefit account opened under section 56. The respondent asked the Treasury Board to pay her, in her capacity as a surviving spouse and as heir of her husband's succession, the allowances prescribed in the Act. The Treasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. The respondent then applied to the Federal Court, Trial Division for a declaratory judgment that would recognize her right to the benefits provided by the Act. Allowing the application, Blais J. ruled that the applicable law was the law of successions defined in the Civil Code of Québec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. The main issue on appeal was whether the civil law of Quebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Quebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under subsection 620(1) of the Civil Code of Québec.
HELD: Appeal allowed. The civil law of Quebec applied. The wording of the Civil Code did not exclude from its purview all cases of manslaughter. The fact that St-Hilaire pleaded guilty to a reduced charge of manslaughter did not alter the nature of her act, which was an unlawful act consisting of aggravated assaults likely to cause death, with knowledge that death may result. She consciously and deliberately made an attempt on the life of the deceased and was unworthy of inheriting by operation of law. The attempt on the husband's life also resulted in the forfeiture of superannuation benefits.
Per Létourneau J.A.-
The Federal Court of Appeal has on many occasions recognized the complementarity of the Quebec civil law with federal law where the latter is silent. It has also endeavoured to harmonize the effects of federal statutes in order to avoid possible inequities as a result of disparities while acknowledging a right to be different where harmonization proves impossible. The unworthiness to inherit under subsection 620(1) of the Civil Code of Québec attaches to the person convicted of making an attempt on the life of the deceased. The wording of this article creates serious difficulties since there is no offence in Canadian criminal law of making an attempt on the life of the deceased. In our criminal law, manslaughter is a residual category which encompasses whatever is not otherwise assigned to murder and infanticide. The three categories of [page291] offences in the Criminal Code (murder, manslaughter and infanticide) are far from being mutually watertight and it would be an error to hide behind the label "manslaughter" and conclude that each and every attack on life that falls within that category cannot be a source of unworthiness to inherit by operation of law. Moreover, one could not infer from the presence of the word "involontaire" in the concept of "homicide involontaire coupable" (manslaughter) a lack of intention to kill or to produce the death. Subsection 620(1) of the Civil Code of Québec does not exclude from its purview all cases of manslaughter. Where, as here, a person commits aggravated assault or inflicts serious bodily harm likely to cause death, knowing that death may result but being indifferent as to whether or not it results, that person is by operation of law unworthy of inheriting from his victim. This act fulfills all the conditions of murder prescribed in subparagraph 229(a)(ii) of the Criminal Code and constitutes a murder. The respondent wanted, if not to kill her husband, to at least cause serious bodily harm to him likely to cause his death. She consciously and deliberately made an attempt on the life of the deceased within the meaning of subsection 620(1) of the Civil Code of Québec. Therefore, she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse annuity.
Per Desjardins J.A.-
To determine the meaning of the words "surviving spouse" and "succession" when the federal statute in question, the Public Service Superannuation Act, is silent, it is necessary to refer to the Civil Code of Québec and not the common law. The Civil Code of Québec is the foundation not only of all other Quebec laws, but also of the relevant provisions of the Act in question. The first paragraph of article 620 of the Code, which states that "a person convicted of making an attempt on the life of the deceased" is unworthy of inheriting by operation of law, does not rule out the applicability thereto of some cases of manslaugther, let alone the manslaughter committed by the respondent. If the Quebec legislature had actually intended to exclude any recourse to the courts of civil procedure in article 620 of the Civil Code of Québec, it could have borrowed the terminology peculiar to the criminal law in drafting the first paragraph of article 620, but refrained from doing so. Since the respondent was "convicted of making an attempt on the life of the deceased", she was unworthy by operation of law of inheriting from her husband under that provision and could not receive the surviving spouse's annuity.
Per Décary J.A. (dissenting in part) –
The benefit in the form of a monthly allowance contemplated in subsection 13(3) of the Act is payable to the "surviving spouse" and the "children". There was no child herein and the respondent was the "surviving spouse". The parties erred in assuming that the respondent and her husband's "succession" were one and the same. The Criminal Code of Canada recognizes three kinds of culpable homicide: murder, manslaughter and [page292] infanticide. In the case at bar, the respondent, in criminal law terms, intentionally caused serious bodily harm that resulted in the death of her husband. At the relevant time the Public Service Superannuation Act did not contain any provision concerning the disqualification of a beneficiary for attempting to take the contributor's life. In Quebec the "ordinary law" of the province is constituted by the Civil Code of Québec and the Code of Civil Procedure, although these are statutory documents. A judge who must interpret and apply a federal enactment that is silent in a dispute concerning civil rights in Quebec must know that, as a general rule, the suppletive law is the civil law. The Attorney General's submission that the eligibility for benefits of federal government employees is a question of administrative law governed by the rules peculiar to public law, and therefore by the common law, had two flaws. First, the Public Service Superannuation Act is not a statute that is exclusively administrative in nature. Second, the common law rule that a person may not profit from his crime is not a rule of public law but a rule of private law. What should determine whether it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. When the latter are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. The civil law applies in Quebec to any federal legislation that does not exclude it. A federal statute, albeit one characterized as public law, that refers to a private law concept such as succession without defining it, should be interpreted in Quebec in terms of civil law. Since it is the civil rights of the surviving spouse and the heirs that are in dispute, Parliament's silence should be interpreted as an acquiescence in the application of the principle of legal asymmetry that characterizes Canadian federal law.
The Civil Code of Québec recognizes the principle that no one should profit from his crime. Article 620 of the Civil Code of Québec, which states that a person convicted of making an attempt on the life of the deceased is unworthy of inheriting by operation of law, has not substantially altered the previous law, at least within the context of the legal succession. The solution that appears to be the most restrictive, the most objective, the most certain and the only one that can entail automatic exclusion should be adopted. This solution is likewise the one adopted in France by the majority of judges and legal scholars. Under the current Quebec law of succession, the respondent, in her capacity as heir, was not unworthy by operation of law. Since she has not been judged unworthy by judicial declaration and the limitation period within which successors may seek a judicial declaration of unworthiness has expired, the respondent [page293] was entitled to claim from the Treasury Board, as the heir of her husband's succession, the sum of $81,750 payable under subsection 55(1) of the Act as the supplementary death benefit. However, under article 2443 of the Civil Code of Québec which governs the present situation, an attempt on the life of the contributor by the beneficiary entails the forfeiture of this beneficiary. The circumstances of the crime in the case at bar lead to the disqualification of the respondent. The description of the events revealed a clearly settled intention to take advantage of the opportunity that was presented to "stick it to" the victim once and for all. This was an attempt on the life of the victim within the meaning of the law of insurance and the respondent would profit from her crime if she were allowed to receive the benefits payable to a surviving spouse. The respondent was forfeited from her entitlement to the benefits payable to a surviving spouse under subsection 13(3) of the Act, but she was entitled in her capacity as heir, to the minimum amount of $75,202.50 payable under subsection 27(2) of Part I of the Act and to the supplementary death benefit of about $81,750.
______________Re: Resolution to amend the Constitution [1981]_____________________
Facts:
Baker v Canada (Minister of Citizenship and Immigration) (1999) 2 SCR 817 (Can.)
Facts: Mavis Baker, Jamaican who entered Canada as a visitor in 1981 and has remained since. She never received permanent resident status, but supported herself illegally as a domestic worker for 11 years. She has 4 children in Canada and 4 in Jamaica. She was ordered to be deported in 1992. In 1993 she applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate (H & C) considerations, pursuant to s.114(2) of the Immigration Act. In 1994 she was denied stating in the letter that there were insufficient H & C grounds. This letter contained no reasons for the decision.
Held: the appropriate standard of review is reasonableness simpliciter. 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 humanitarian and compassionate (H&C) discretion was unreasonable. The matter was returned to the Minister for redetermination by a different immigration officer.
Issues (raised by this appeal):
(1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children?
NOTE: In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration
Analysis:
B. The Statutory Scheme and the Nature of the Decision
-Immigration officers who make H&C decisions are provided with a set of guidelines, contained in Chapter 9 of the Immigration Manual. The Guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them.
-Officers have a duty to ask themselves what a reasonable person would do in such a situation (Guideline 9.05)
-Officers also have a duty to assure themselves, first, whether a public policy consideration is present, and if there is none, ask whether humanitarian and compassionate circumstances exist.
-Humanitarian and compassionate grounds will exist if unusual, underserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada (Guideline 9.07).
-The Guidelines also address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident.
-Also to be considered is the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country.
C. Procedural Fairness
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.
(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.
D. Review of the Exercise of the Minister’s Discretion
-Although the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does NOT address the issues contained in the “serious question of general importance” which relates to the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and Regulations.
(a) The Approach to Review of Discretionary Decision-Making
-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.
-In my opinion, these doctrines incorporate two central ideas:
(i) That discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but
(ii) 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 the general principles of administrative law governing the exercise of discretion, and consistent with the Charter (Slaight Communications Inc. V Davidson [1989]) .
-Therefore, although discretionary decisions will generally be given considerable respect, that discretion MUST BE exercised in accordance with the boundaries imposed by:
àthe statute,
àthe principles of the rule of law,
àthe principles of administrative law,
àthe fundamental values of Canadian society, and
àthe principles of the Charter.
(2) The Standard of Review in Baker
-The "pragmatic and functional" approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less deference.
-3 standards of review have been defined: patent unreasonableness,
reasonableness simpliciter, and
correctness:
-Applying the Pragmatic and Functional approach in Baker v Canada to determine the appropriate standard of review for decisions under s.114(2) of the Immigration Act and Regulation 2.1 of the Immigration Regulations, and the factors affecting the determination of that standard outlines in ...it has held that the decision, which related to the determination of a question of law was subject to a standard of review of correctness.
-However, this types of decision at issue was very different, as was the decision-maker.
-Thus, the appropriate standard of review must, therefore, be considered separately in Baker:
First factor – the presence or absence of a privative clause, and in appropriate cases, the wording of that clause.
· There is no privative clause contained in the Immigration Act.
Second factor – the expertise of the decision-maker.
· The fact that the formal decision-maker is the Minister is a factor militating in favour of deference.
· The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.
Third factor – the purpose of the provision in particular, and of the Act as a whole.
· This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively "open-textured" legal principles, a factor militating in favour of greater deference (Pushpanathan).
· The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister.
Fourth factor – considers the nature of the problem in question, especially whether it relates to the determination of law or facts.
· The decision about whether to grant an H&C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
Answer – Baker v Canada
-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.
NOTE: The four above factors aid in determining what standard of review is required. Once determined, it must then be decided whether that standard was upheld.
(3) Was This Decision Unreasonable?
-Next, I will examine whether the decision in Baker, and the immigration officer’s interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in Southam: “An unreasonable decision is one that, is not supported by any reasons that can stand up to a somewhat probing examination”.
Answer - Baker v Canada
-The approach taken to the children’s interests shows that this decision was unreasonable in the sense contemplated in Southam.
-The officer was completely dismissive of the interests of Ms. Baker’s children. ...
-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. ...
-In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children.
NOTE: The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations". These words and their meaning must be central in determining whether an individual H&C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person's admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner.
-Thus, Baker has found that it is necessary for the Minister to consider an H&C request when an application is made. AND the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.
-Children’s rights, and attention to their interest, are central H&C 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 in the purposes of the Act, in international instruments, and in the guidelines for making H&C decisions by the Minister herself.
a. The Objectives of the Act:
-s.3(c)
-In my opinion, it is consistent to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada.
b. International law:
-Francis v The Queen (1956)– International treaties and conventions are not part of Canadian law unless they have been implemented by statute.
Answer – Baker v Canada
-I agree with the respondent and the CA that the Convention has not been implemented by Parliament.
- Its provisions therefore have no direct application within Canadian law (Francis and Capital Cities).
-Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
-Iacobucci (dissent): ... I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.
c. The Ministerial Guidelines:
Baker v Canada
Held: Immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. ...
I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children ... it was an unreasonable exercise of the power conferred by the legislation and must be overturned.
E. Conclusions and Disposition
-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.
________De Guzman v Canada (Minister of Citizenship and Immigration) [2005] _______
Facts: Appeal by De Guzman from the decision of the Federal Court trial judge dismissing her application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board dismissing her appeal from the decision of the visa officer refusing to issue visas to her two sons as members of the family class. De Guzman was a citizen of the Philippines. In 1993, she applied for permanent residence status on the basis that she was single and had no dependants other than her daughter, who was travelling with her. She was being sponsored as the unmarried daughter of her mother. De Guzman actually had two other children who were left in the Philippines with their father. Eight years later, she applied to sponsor their admission to Canada. At the time, the sons were 17 and 16 years old. The visa officer refused de Guzman's sponsorship application on the basis that the sons had not been examined when de Guzman applied for permanent residence. The Board held that the sons were not members of the family class and therefore could not be sponsored by de Guzman. De Guzman argued that section 117(9)(d) of the Immigration and Refugee Protection Regulations was invalid on the basis that it was not authorized by the enabling section of the Immigration and Refugee Protection Act and it infringed her rights under section 7 of the Charter by preventing the reunification of parent and child. She argued that a person removed for misrepresentation was only inadmissible for two years, which made it unreasonable to hold that Parliament implicitly made a lifetime ban on sponsorship for the same conduct.
HELD: Appeal dismissed. The right to sponsor members of the family class created by section 13(1) of the Act was expressly made subject to the regulations. Section 117(9)(d) was within the powers delegated by Parliament to the Governor in Council. De Guzman provided no evidence of any special hardship or psychological stress that she was suffering as a result of the separation. She was not a refugee or a person in need of protection. She could reunite with her sons in the Philippines if she wished to. In addition, any stress was not state-imposed. Section 3(3)(f) of the Act was to be interpreted and applied in a manner that complied with the relevant international instruments to which Canada was a signatory. De Guzman's sons could be admitted under other provisions of the Act. The fact that they had to initiate these applications rather than de Guzman was insufficient to conclude that paragraph 117(9)(d) rendered the Act in breach of any of the human rights instruments. When considered with other provisions in the Act, paragraph 117(9)(d) did not make the Act non-compliant with any international human rights instrument to which Canada was a signatory. Removal of an individual for misrepresentation was a more serious sanction than an inability to sponsor a person as a member of the family class.
ADDITIONAL CASES FOR SECTION 3:
-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 Secession of Quebec [1998] ____________________
Federalism:
-para [55-60]
Reference re Secession of Quebec (1998) – SCC invoked unwritten principles of:
(1) democracy,
(2) federalism,
(3) constitutionalism and
(4) the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish session.
35 Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat. In March 1864, a select committee of the Legislative Assembly of the Province of Canada, chaired by George Brown, began to explore prospects for constitutional reform. The committee's report, released in June 1864, recommended that a federal union encompassing Canada East and Canada West, and perhaps the other British North American colonies, be pursued. A group of Reformers from Canada West, led by Brown, joined with Étienne P. Taché and John A. Macdonald in a coalition government for the purpose of engaging in constitutional reform along the lines of the federal model proposed by the committee's report.
36 An opening to pursue federal union soon arose. The leaders of the maritime colonies had planned to meet at Charlottetown in the fall to discuss the perennial topic of maritime union. The Province of Canada secured invitations to send a Canadian delegation. On September 1, 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union.
37 The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government cannot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained.
38 Several matters remained to be resolved, and so the Charlottetown delegates agreed to meet again at Quebec in October, and to invite Newfoundland to send a delegation to join them. The Quebec Conference began on October 10, 1864. Thirty-three delegates (two from Newfoundland, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward Island, and twelve from the Province of Canada) met over a two and a half week period. Precise consideration of each aspect of the federal structure preoccupied the political agenda. The delegates approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and culture, both directly (by making French an official language in Quebec and Canada as a whole) and indirectly (by allocating jurisdiction over education and "Property and Civil Rights in the Province" to the provinces). The protection of minorities was thus reaffirmed.
39 Legally, there remained only the requirement to have the Quebec Resolutions put into proper form and passed by the Imperial Parliament in London. However, politically, it was thought that more was required. Indeed, Resolution 70 provided that "The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference." (Cited in J. Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895), at p. 52 (emphasis added).)
40 Confirmation of the Quebec Resolutions was achieved more smoothly in central Canada than in the Maritimes. In February and March 1865, the Quebec Resolutions were the subject of almost six weeks of sustained debate in both houses of the Canadian legislature. The Canadian Legislative Assembly approved the Quebec Resolutions in March 1865 with the support of a majority of members from both Canada East and Canada West. The governments of both Prince Edward Island and Newfoundland chose, in accordance with popular sentiment in both colonies, not to accede to the Quebec Resolutions. In New Brunswick, a general election was required before Premier Tilley's pro-Confederation party prevailed. In Nova Scotia, Premier Tupper ultimately obtained a resolution from the House of Assembly favouring Confederation.
41 Sixteen delegates (five from New Brunswick, five from Nova Scotia, and six from the Province of Canada) met in London in December 1866 to finalize the plan for Confederation. To this end, they agreed to some slight modifications and additions to the Quebec Resolutions. Minor changes were made to the distribution of powers, provision was made for the appointment of extra senators in the event of a deadlock between the House of Commons and the Senate, and certain religious minorities were given the right to appeal to the federal government where their denominational school rights were adversely affected by provincial legislation. The British North America Bill was drafted after the London Conference with the assistance of the Colonial Office, and was introduced into the House of Lords in February 1867. The Act passed third reading in the House of Commons on March 8, received royal assent on March 29, and was proclaimed on July 1, 1867. The Dominion of Canada thus became a reality.
42 There was an early attempt at secession. In the first Dominion election in September 1867, Premier Tupper's forces were decimated: members opposed to Confederation won 18 of Nova Scotia's 19 federal seats, and in the simultaneous provincial election, 36 of the 38 seats in the provincial legislature. Newly-elected Premier Joseph Howe led a delegation to the Imperial Parliament in London in an effort to undo the new constitutional arrangements, but it was too late. The Colonial Office rejected Premier Howe's plea to permit Nova Scotia to withdraw from Confederation. As the Colonial Secretary wrote in 1868:
- The neighbouring province of New Brunswick has entered into the union in reliance on having with it the sister province of Nova Scotia; and vast obligations, political and commercial, have already been contracted on the faith of a measure so long discussed and so solemnly adopted. . . . I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen's government feel that they would not be warranted in advising the reversal of a great measure of state, attended by so many extensive consequences already in operation. . . .
- (Quoted in H. Wade MacLauchlan, "Accounting for Democracy and the Rule of Law in the Quebec Secession Reference" (1997), 76 Can. Bar Rev. 155, at p. 168.)
43 Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. It is pertinent, in the context of the present Reference, to mention the words of George-Étienne Cartier (cited in the Parliamentary Debates on the subject of the Confederation (1865), at p. 60):
- Now, when we [are] united together, if union [is] attained, we [shall] form a political nationality with which neither the national origin, nor the religion of any individual, [will] interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races [is] utopian -- it [is] impossible. Distinctions of this kind [will] always exist. Dissimilarity, in fact, appear[s] to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation [can]not be formed because Lower Canada [is] in great part French and Catholic, and Upper Canada [is] British and Protestant, and the Lower Provinces [are] mixed, it [is] futile and worthless in the extreme. . . . In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy. . . . [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.
44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada.
45 After 1867, the Canadian federation continued to evolve both territorially and politically. New territories were admitted to the union and new provinces were formed. In 1870, Rupert's Land and the Northwest Territories were admitted and Manitoba was formed as a province. British Columbia was admitted in 1871, Prince Edward Island in 1873, and the Arctic Islands were added in 1880. In 1898, the Yukon Territory and in 1905, the provinces of Alberta and Saskatchewan were formed from the Northwest Territories. Newfoundland was admitted in 1949 by an amendment to the Constitution Act, 1867. The new territory of Nunavut was carved out of the Northwest Territories in 1993 with the partition to become effective in April 1999.
46 Canada's evolution from colony to fully independent state was gradual. The Imperial Parliament's passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4, confirmed in law what had earlier been confirmed in fact by the Balfour Declaration of 1926, namely, that Canada was an independent country. Thereafter, Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. Canada's independence from Britain was achieved through legal and political evolution with an adherence to the rule of law and stability. The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution and re-affirmed Canada's commitment to the protection of its minority, aboriginal, equality, legal and language rights, and fundamental freedoms as set out in the Canadian Charter of Rights and Freedoms.
47 Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy as distinguished from the formal legality of the amendments derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled was in accordance with our Constitution. It should be noted, parenthetically, that the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation. It did, however, have the important effect that, despite the refusal of the government of Quebec to join in its adoption, Quebec has become bound to the terms of a Constitution that is different from that which prevailed previously, particularly as regards provisions governing its amendment, and the Canadian Charter of Rights and Freedoms. As to the latter, to the extent that the scope of legislative powers was thereafter to be constrained by the Charter, the constraint operated as much against federal legislative powers as against provincial legislative powers. Moreover, it is to be remembered that s. 33, the "notwithstanding clause", gives Parliament and the provincial legislatures authority to legislate on matters within their jurisdiction in derogation of the fundamental freedoms (s. 2), legal rights (ss. 7 to 14) and equality rights (s. 15) provisions of the Charter.
48 We think it apparent from even this brief historical review that the evolution of our constitutional arrangements has been characterized by adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability. We now turn to a discussion of the general constitutional principles that bear on the present Reference.
(3) Analysis of the Constitutional Principles
- (a) Nature of the Principles
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.
51 Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.
52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.
53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".
54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". It is to a discussion of those underlying constitutional principles that we now turn.
- (b) Federalism
56 In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. See, e.g., Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437 (P.C.), at pp. 441-42. It is up to the courts "to control the limits of the respective sovereignties": Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733, at p. 741. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided.
57 This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. Indeed, Martland and Ritchie JJ., dissenting in the Patriation Reference, at p. 821, considered federalism to be "the dominant principle of Canadian constitutional law". With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitution. Less obviously, perhaps, but certainly of equal importance, federalism is a political and legal response to underlying social and political realities.
58 The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The scheme of the Constitution Act, 1867, it was said in Re the Initiative and Referendum Act, [1919] A.C. 935 (P.C.), at p. 942, was
- not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.
59 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3-4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.
60 Federalism was also welcomed by Nova Scotia and New Brunswick, both of which also affirmed their will to protect their individual cultures and their autonomy over local matters. All new provinces joining the federation sought to achieve similar objectives, which are no less vigorously pursued by the provinces and territories as we approach the new millennium.
- (c) Democracy
62 The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that "the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels". As is apparent from an earlier line of decisions emanating from this Court, including Switzman v. Elbling, [1957] S.C.R. 285, Saumur v. City of Quebec, [1953] 2 S.C.R. 299, Boucher v. The King, [1951] S.C.R. 265, and Reference re Alberta Statutes, [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers. As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that our Constitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlying constitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of our political institutions was simply assumed.
63 Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means. The evolution of our democratic tradition can be traced back to the Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itself in 1867. "[T]he Canadian tradition", the majority of this Court held in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 186, is "one of evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation". Since Confederation, efforts to extend the franchise to those unjustly excluded from participation in our political system - such as women, minorities, and aboriginal peoples - have continued, with some success, to the present day.
64 Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188. Put another way, a sovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion of democracy (at p. 136):
- The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
66 It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.
67 The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values.
68 Finally, we highlight that a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, "resting ultimately on public opinion reached by discussion and the interplay of ideas" (Saumur v. City of Quebec, supra, at p. 330). At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live.
69 The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.
- (d) Constitutionalism and the Rule of Law
71 In the Manitoba Language Rights Reference, supra, at pp. 747-52, this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". It was this second aspect of the rule of law that was primarily at issue in the Manitoba Language Rights Reference itself. A third aspect of the rule of law is, as recently confirmed in the Provincial Judges Reference, supra, at para. 10, that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance.
72 The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the 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 the 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 must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.
73 An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons.
74 First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. And third, a constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally.
75 The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a province-wide referendum is superficially persuasive, in large measure because it seems to appeal to some of the same principles that underlie the legitimacy of the Constitution itself, namely, democracy and self-government. In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit "the people" in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy.
76 Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer. Constitutional government is necessarily predicated on the idea that the political representatives of the people of a province have the capacity and the power to commit the province to be bound into the future by the constitutional rules being adopted. These rules are "binding" not in the sense of frustrating the will of a majority of a province, but as defining the majority which must be consulted in order to alter the fundamental balances of political power (including the spheres of autonomy guaranteed by the principle of federalism), individual rights, and minority rights in our society. Of course, those constitutional rules are themselves amenable to amendment, but only through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled.
77 In this way, our belief in democracy may be harmonized with our belief in constitutionalism. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an "enhanced majority" to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.
78 It might be objected, then, that constitutionalism is therefore incompatible with democratic government. This would be an erroneous view. Constitutionalism facilitates - indeed, makes possible - a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.
- (e) Protection of Minorities
80 However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. See, e.g., Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342.
81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.
82 Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples. The "promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.
_______________________Singh v Canada (Attorney General) [2000] ________________
Facts:This is an appeal from a decision of McKeown J. [[1999] 4 F.C. 583 (T.D.)] in which he dismissed the appellants' action for a declaration that section 39 of the Canada Evidence Act is unconstitutional.
In November 1997 an Asian Pacific Economic Cooperation Conference (APEC Conference) was held in Vancouver, attended by heads of government of Pacific rim countries. The appellants, among others, were involved in demonstrations on the occasion of travel around Vancouver by the respective heads of government. Subsequently approximately 52 complainants, including the appellants, filed complaints with the Royal Canadian Mounted Police Public Complaints Commission (the Commission) alleging various forms of misconduct by personnel of the Royal Canadian Mounted Police (the RCMP).
The Commission is established under the Royal Canadian Mounted Police Act
Issues: (1) whether section 39 is ultra vires Parliament because of the fundamental, unwritten principles of the Canadian Constitution, namely the independence of the judiciary, the rule of law and the separation of powers; and (2) whether section 39 should be read down or otherwise rendered inapplicable in the circumstances.
Held: the appeal should be dismissed.
(1) (i) The appellants' arguments were largely based on the premise that parliamentary sovereignty was not one of the principles of the Constitution, or at least ceased to be in 1982 when the Charter was adopted and section 52 of the Constitution Act, 1982 was enacted. (Section 52 provides that the Constitution is the supreme law of Canada.) The supremacy of the Constitution was established even before Confederation in 1867. Section 52 was necessary to avoid any uncertainty as to the continuing supremacy of the Constitution. Both before and after 1982 our system was, and is, one of parliamentary sovereignty exercisable within the limits of a written constitution, as evidenced by courts striking down laws for inconsistency with the division of powers set out in British North America Act, 1867, sections 91 and 92. These were solely quantitative limits on the exercise of legislative power prior to 1982. The adoption of the Charter in 1982 added a multitude of qualitative limitations on the exercise of power, but the Constitution of Canada was and is supreme over ordinary laws. Just as before 1982, the specific requirements of the Constitution must be examined to determine whether in a given case Parliament has infringed a constitutional limit (express or implied) on its power.
The appellants argued that section 39 was contrary to the common law and therefore implicitly unconstitutional. Under current common law a judge can examine a document to see if the claim that it was a Cabinet confidence was well-founded and if so, whether the public interest in its disclosure would outweigh the public interest in its continuing secrecy. Legislation cannot, however, be presumed unconstitutional simply because it alters the common law. The rationale for such legislation is to give an absolute assurance to members of Cabinet and their advisors that the classes of documents specified in section 39 will not even be subject to review by a judge for confidentiality, and therefore the continued secrecy of the document is assured. The common law was even more restrictive of disclosure until 1968 when, in Conway v. Rimmer, the House of Lords held that the Court could examine documents which were the subject of a minister's claim for immunity, although a majority were of the view that Cabinet documents as a class should not be disclosed. At about this time, when the predecessor to section 39 was first enacted in Canada, it applied the principles of Conway v. Rimmer to most documents, but provided absolute immunity without examination by the Court for documents whose disclosure was claimed to be injurious to international relations, national defence or security, or to federal-provincial relations or as constituting a confidence of the Queen's Privy Council. In 1982 the absolute claim for non-disclosure without examination by the Court was limited to confidences of the Queen's Privy Council, which was defined for the first time and a time limit was placed on the continuation of that status. Prima facie, section 39 appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-established and well-accepted principles of Cabinet secrecy. In the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective.
(ii) The appellants argued that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive. They characterized the issuance of a section 39 certificate by the Clerk of the Privy Council as judicial because it involves a determination of whether a court should have access to certain evidence. The appellants relied upon statements by the Supreme Court of Canada in the Judges Reference case that judicial independence flowed from the separation of powers, a doctrine which came from the preamble to the Constitution, which provides for a "constitution similar in Principle to that of the United Kingdom". First, these comments were obiter dicta as that case was decided on the basis of Charter, paragraph 11(d). Secondly, the reference to a "constitution similar in Principle to that of the United Kingdom" was understood in 1867 to be a reference to an entrenchment of responsible government, i.e. where the Executive is responsible to the legislature. The very concept was the antithesis of separation of powers.
The certification of a fact which is binding on the courts because of the nature of the subject-matter is consistent with the traditional bounds of mutual respect owed by each "branch" of government to the others. There are fundamental policy reasons of a quasi-constitutional nature as to why the Executive (with the guidance of an Act of Parliament) should be able to identify those documents generated in its internal decision-making process which should not, to maintain the integrity of the system of Cabinet secrecy, be disclosed. If our system of government must conform to some concept of separation of powers, it should embrace this form of mutual respect among the various "branches" so as to reflect and enhance their respective roles.
(iii) The appellants maintained that government must not only be conducted in accordance with law, but that such law must never exclude the courts from the decision-making process of government. The elements of the rule of law are: that the law is supreme over the acts of both government and private persons ("one law for all"); that an actual order of positive laws be created and maintained to preserve "normative order"; and that "the exercise of all public power must find its ultimate source in the legal rule". In other words, the "relationship between the state and the individual must be regulated by law". Where section 39 is applied to preserve the immunity from disclosure of Cabinet documents, the situation is clearly regulated by law, namely section 39, being an Act of Parliament operating in its field of legislative authority. The rule of law is not a guarantee of the paramountcy of the common law. In fact the "actual order of positive laws" makes valid legislation paramount over the common law. The government is bound by the law, just as are private citizens. This does not mean that the law must produce the same results in respect of every citizen or institution in the country. The rule of law does not invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents, which for long-standing reasons based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit. The rule of law is not, therefore, a basis for ignoring the provisions of section 39 of the Canada Evidence Act.
(iv) As to the independence of the judiciary, the appellants argued that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary. Section 39 does not interfere with the security of tenure, the financial security, or the administrative independence of judges. It is a public law applicable in a variety of circumstances, not for the purpose of interfering in a particular case before the Court. The invocation of section 39 does not put improper pressure on a judge as to the outcome of a given case: he or she is simply barred by Act of Parliament from making certain determinations. In fact, such a section is really another form of privative clause. Constitution Act, 1867, section 96 and Charter, paragraph 11(d) are the essential constitutional limitations on the assignment of certain functions to non-courts such as the Clerk of the Privy Council, thus withdrawing them from the courts. The issuance of such certificates are not a traditional and necessary function of a superior court of a kind contemplated in 1867 and thus within section 96. Nor is it integral to the conduct of a trial within the contemplation of paragraph 11(d): the proceeding before the Commission is not a trial of anyone's guilt and if it were so considered then the Commission would not be constitutionally allowed to conduct it.
(2) The appellants argued that if section 39 is constitutionally valid, it should not apply because Parliament cannot authorize the Executive to shield its own conduct from constitutional scrutiny by employing section 39. But the statement of claim did not allege misconduct on the part of the Executive. Even if the Commission is a forum where unlawful conduct by the Executive may be relevant to the making of recommendations, the inquiry is concerned with the conduct of RCMP officers and not of the Executive. Any findings which might be made about the conduct of the Prime Minister's Office or other members of the Executive will presumably be incidental to findings concerning conduct of the RCMP and cannot be legally determinative of whether such persons have done something constitutionally unlawful. Therefore the withholding of documents containing confidences pursuant to section 39 cannot prevent any definitive determination of constitutionally unlawful behaviour, which would have to be made by a court in an action brought for the purpose of obtaining redress for such behaviour, against those alleged to be guilty of it i.e. by way of judicial review of the Clerk's certificate.
The consequences of accepting the appellants' arguments would be that section 39 would not apply where there was the merest allegation that Cabinet documents might reveal policy or operating decisions arguably inconsistent with the rights of certain individuals. This would severely attenuate the absolute protection of Cabinet communications from disclosure which section 39 now affords. There is no basis upon which section 39 should be held to be inapplicable to the circumstances.
_Reference re Remuneration of Judges of the 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)
-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.
..............
-In this case, 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.
La Forest (dissent) –
La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new principles, especially when some protection of judges can already be found elsewhere in the text of the Constitution, namely section 11(d), which was the subject of this case. The counsel had primarily relied on section 11(d) and only briefly spoke of unwritten rules. La Forest also suggested that section 11(d) granting independence only to inferior criminal law judges, and not inferior civil law judges, was deliberate, because "Being accused of a crime is one of the most momentous encounters an individual can have with the power of the state."
La Forest went on to caution that "judicial power" is limited so that a court "does not initiate matters and has no agenda of its own." This made him worried about the majority launching into an extensive, unneeded discussion on unwritten principles. He accepted unwritten principles exist, but disputed that limits on government decisions can be found in the preamble. There was no tradition guarding judicial independence against Parliament. Parliamentary supremacy remained important in Britain even after the Act of Settlement; thus British courts cannot invalidate a law, even if the law is generally thought to be wrong. La Forest acknowledged this could be seen as a "technical quibble" since courts in Canada can invalidate laws, but he went on to point out that the Act of Settlement only covered superior judges, and not inferior judges. He also said courts should have clearer grounds for limiting legislative actions, casting previous decisions such as Switzman v. Elbling (1957), which relied on the Implied Bill of Rights, into doubt. He pointed to Attorney General for Canada and Dupond v. Montreal (1978) as a prior Supreme Court decision questioning the Implied Bill of Rights. If an implied bill of rights existed, it should be found in the creation of Parliament, in section 17 of the Constitution Act, 1867, and should allow for Parliamentary supremacy instead of limiting it.
In this case, La Forest pointed to Valente and R. v. Lippé to show section 11(d) does not guarantee a type of independence that is most favourable to judges. The conclusion in Valente that judicial compensation committees were not needed was therefore valid; section 11(d) left room for determining what methods can be used to achieve independence. In this case, judges salaries were lowered along with those of other government employees, and this did not seem to raise reasonable concerns about judicial independence. As a judicial compensation commission likely should not have a problem with this, as acknowledged by Lamer, La Forest found the requirement that the commission look into the matter to be "a triumph of form over substance."
La Forest also felt requiring such commissions was also "tantamount to enacting a new constitutional provision to extend the protection provided by s. 11(d)" by forcing the creation of "what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary." Judges simply asking whether government decisions seem reasonable would be enough.
ADDITIONAL CASES FOR ALL OF SECTION 4:
Dunsmuir v New Brunswick (2008)
Facts: Appeal by a former employee with respect to his dismissal from his employment at the Department of Justice of the respondent Province of New Brunswick. During the course of his employment, the appellant was reprimanded on three separate occasions. He also received letters that included warnings that his failure to improve his work performance would result in further disciplinary action up to and including dismissal. The Regional Director and the Assistant Deputy Minister then came to the conclusion that the appellant was not right for the job, and a termination notice was sent to the appellant. Cause for termination was not alleged, and he was given four months' pay in lieu of notice. When the appellant's grievance was denied, he then referred the grievance to adjudication. During a preliminary ruling, the adjudicator found that he was authorized to assess the reasons underlying the respondent's decision to terminate pursuant to the Public Service Labour Relations Act. He then heard and decided the merits of the grievance, found that the appellant was dismissed without procedural fairness, and declared the termination void ab initio and ordered the appellant reinstated. On judicial review, the reviewing judge concluded that the correctness standard of review applied, that the adjudicator had exceeded his jurisdiction, and that his authority was limited to determining whether the notice period was reasonable. The reviewing judge quashed the reinstatement order. In dismissing the former employee's appeal, the Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator's authority under the Act was reasonableness simpliciter. On the issue of procedural fairness, it found that the appellant exercised his right to grieve, and thus a finding that the duty of fairness had been breached was without legal foundation.
HELD: Appeal dismissed. There were two standards of review: correctness and reasonableness. With respect to the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, a review of the cases revealed that any actual difference between them in terms of their operation was illusory. In this case, the standard of reasonableness applied, such that the decision maker should be given deference. Factors taken into consideration in favouring the reasonableness standard included: the Act contained a full privative clause, there existed a regime in which the decision maker had special expertise, and the nature of the legal question at issue was not one of central importance to the legal system or outside the specialized expertise of the adjudicator. However, while deference was to be given to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, it did not reach the standard of reasonableness. The adjudicator's reasoning process relied on a construction of the Act that fell outside the range of admissible statutory interpretations. The employment relationship between the parties in this case was governed by private law. Where a public employee was employed under a contract of employment, regardless of the employee's status as a public office holder, the applicable law governing dismissal was the law of contract, not general principles arising out of public law. A reasonable interpretation of the Act could not remove the respondent's right under contract law to discharge the appellant with reasonable notice or pay in lieu of notice. The decision to dismiss the appellant was properly within the respondent's powers and was taken pursuant to a contract of employment. In these circumstances, it was unnecessary to consider any public law duty of procedural fairness.