Foundations of canadian law

Table of Contents

CHAPTER PAGE
CHAPTER ONE – LEGAL THEORIES 2
CHAPTER TWO – ABOROGINALS 10
CHAPTER THREE – BIJURALISM & 40
INTERNATIONAL LAW
CHAPTER FOUR – RULE OF LAW, 57
PARLIAMENTARY PRIVILEGE &
CONSTITUTIONAL SUPREMACY
CHAPTER FIVE – PARLIAMENT & ITS 68
COMPONENTS
CHAPTER SIX – FUNCTIONS OF PARLIAMENT 71
CHAPTER SEVEN – THE EXECUTIVES AND ITS 72
FUNCTIONS
CHAPTER EIGHT – HIERARCHYY OF COURTS 81
CHAPTER NINE – STATUTORY 87
INTERPRETATION
CHAPTER TEN – JUDICIAL REVIEW & ITS 100
LIMITATION IN DEMOCRATIC SOCIETY
 CHAPTER ONE

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

(a) Legal Positivism What the law is

Re Noble and Wolf
Facts:
Individual cottage lots contained
Restrictive covenant held valid.
similar covenants relating to
Judge said that he would rather stick to
coloured and jews. Tried to rely on
law, written statues, unwritten or
the above case to invalidate.
common law decisions, or text etc.; not
Held- Disagrees with Drummond
speculations Leave the public policy to
Case. The judge said that leave
the politicians. Judge job is to interpret
the concept of public policy for
the law and not to create the law based
the politicians. Re Drummond
on individual belief of what the law ought
case was based on shelter,
to be.
whereas in this case it was for
creation purposes rather than
shelter.
Natural Law; Natural law theory:
• Laws are those that adhere to certain moral truths, most often of a
universal and immutable nature; i.e. law’s legal authority depends upon an
external moral standard that holds across all societies.
• It views law as existing independently of positive law and constituted by
immutable moral truths.

What laws are? (but with reference

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

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Inclusive positivists advocate that it is conceptually plausible, but not
mandatory, that the legal validity or truth of a norm should be dependent on
its consistency with moral values or principles.
Exclusive positivists hold the opposite. They believe that it is not possible
for the legal validity of a norm to even be a function of its consistency with
moral values or principles.
Critical Legal Theory:
• Realists maintained that all legal rules were indeterminate in the sense
that any articulation of a rule was subject to multiple interpretations.... the
result would reflect the unstated public policy preferences of the judge.
There could reasonable apprehension bias. CLS poses a deep challenge
to the liberal belief that law should be certain and neutral
R v R.D.S: Cory J implicitly affirms the insights of CLS scholarship to find that
a judge who considered social context in making a decision was not violating
the requirement for neutrality. Judge made statement saying that Police
have been known to mislead the courts. Crown said this raised reasonable
apprehension of bias. Crown appealed to Appeal Court, new trial ordered b/c
agreed reasonable apprehension bias
The majority in the Supreme Court allow the appeal and reinstate the
original acquittal. They employ the same test, and although they conclude
that Sparks was "close to the line", they do not find a reasonable
apprehension of bias. The majority states that it was entirely legitimate for
the Judge to use her personal experiences and understanding of the justice
system in her decision, and that she did not do so in an unfair way.

Law and Economic Theory:

• Law and economics theories look at law differently, less grounded in moral
theory and more in ideas about efficiency (as opposed to feminism, which
deals with producing equality);
• Efficiency tends to be defined in terms of an ideal where the welfare of
each of the relevant parties can no longer be maximized except at the
expense of other parties, referred to as a state of “Pareto optimality.”
• This form of analysis was first applied on common law rules developed in
private law areas such as torts and contracts.
Feminist Theory:
• Feminist legal theory, also known as feminist jurisprudence, is based on
the belief that the law has been fundamental in women's historical
subordination. The project of feminist legal theory is twofold. First, feminist
jurisprudence seeks to explain ways in which the law played a role in
women's former subordinate status. Second, feminist legal theory is
dedicated to changing women's status through a rework of the law and its
approach to gender
(i) Early formalist feminism – the “Persons” case
Early feminism – concerned with seeking women’s formal equality to men.
ii) Contemporary Feminism

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In 1988 the landmark Canadian Supreme Court Case, R. v. Morgentaler, held
that the provision in the Canadian Criminal Code which made abortion
criminal was unconstitutional because it violated a woman’s right to security
of person under Section 7 of the Canadian Charter of Rights and Freedoms.
. Before this ruling, abortions not approved by a special committee were
deemed illegal. The R. v. Morgentaler decision was a significant moment in
Canadian history because it marked the codification of the most recent
abortion law in Canada, decriminalized abortion throughout Canada, and set
a legal precedent that remains unchanged.

Edwards v. AG Canada [1930] AC 124, 1 DLR 98 (PC) LORD SANKEY LC:

Question: whether the words “qualified persons” in that section include a
woman, and consequently whether or women are eligible to be summoned to
and become members of the Senate of Canada.

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

Required Readings:
R. v. Morris, 2021
In 2014, Kevin Morris had been in a parking lot with three other Black men
when police were investigating a home invasion. Morris ran from police and
discarded his jacket, which happened to have a loaded gun in the pocket.
In the process, he was struck by a police vehicle and then arrested and
charged with firearm offences. He had no prior criminal record.
At his sentencing hearing, the Crown requested Mr. Morris to be jailed for 4
to 4.5 years. Upon considering the systemic anti-Black racism that applied
generally and personally to Mr. Morris, Justice Nakatsuru sentenced Mr.
Morris to 15 months. Justice Nakatsuru held that these circumstances were
mitigating factors, since they had significant bearing on Mr. Morris’ personal
circumstances as per s 718.2(e) of the Criminal Code. For Indigenous
offenders, alternative sanctions are evaluated through
the approach as established by R v Gladue. However, Justice Nakatsuru
noted that the reports admitted as evidence should be applied in a similar
way to Morris in order to mitigate the disproportionate incarceration of Black
offenders and recognize its connections to intergenerational colonialism,
slavery, trauma, and systemic racism. The sentence was then reduced to 1

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year after accounting for the police officers’ infringement on the Charter of
Rights and Freedoms. Superior Court Justice Shaun Nakatsuru had taken into
account the disadvantages and systemic anti-Black racism Morris had faced
growing up in Toronto.

In their appeal factum to the ONCA, the Crown argues that Justice
Nakatsuru’s sentence is lenient, and that systemic factors should not be
taken into account because there is no causal link between systemic racism
and Mr. Morris’s offence.

While the Crown agreed that courts must acknowledge the reality of anti-
Black racism and take it into account in sentencing considerations, they
maintained that these considerations must not overwhelm the
proportionality analysis in sentencing. Ontario's top court says anti-Black
racism must be confronted, mitigated and erased, but it has declined to set
out a framework for taking it into account in sentencing. The Appeal Court
says in its decision today that courts should give a "generous gateway" for
admitting evidence about the effect of anti-Black racism on an offender, but
the specific sentencing framework for Indigenous offenders does not apply to
Black offenders.

The court increased Morris' sentence to two years less a day, but stayed the
sentence, meaning he won't have to serve more time in jail.

Case 2 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc
In 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021
ONCA 371, the Ontario Court of Appeal affirmed an application judge’s
decision which stopped a commercial landlord from terminating a tenancy
due to the tenant’s alleged failure to give timely written notice of its
intention to exercise an option to renew the lease. The application judge’s
decision was based in part on judicial notice of the existence of anti-black
racism in Canada, and racial stereotypes contained in the landlord’s
evidence filed for the application.
The tenant was a restaurant operated by a husband and wife as a “family
business,” serving African and Caribbean food in Toronto. They occupied the
premises in question pursuant to a lease with a five-year term. There were
two options to renew for additional five-year periods. The lease provided that
written notice of the exercise of the option was to be made by registered
mail at least six months prior to the expiry of the lease.
The tenant failed to provide written notice of its exercise of the option prior
to the date set out in the lease. The landlord kept the tenant as an
overholding tenant from August 2017 to May 28, 2020, at which point the
landlord terminated the lease.
At a hearing in 2020, the tenant sought relief from forfeiture pursuant to
section 98 of

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the Ontario Courts of Justice Act. The tenant argued that it had attempted to
provide notice to the landlord but that the landlord had ignored its requests.
According to the landlord’s own evidence, it wished to replace the tenant
with a more “suitable” business. The landlord argued that the tenant was
“unattractive”, and the tenant’s business did not attract “family-oriented
customers”.
The application judge found that the tenant had initiated the lease renewal
process by attempting to contact the landlord and its property manager
before and after the deadline to exercise the renewal option. There was
evidence that the tenant’s calls were not returned and were “studiously
avoided” because the landlord and its property manager did not want the
tenant to continue to occupy the premises.

The application judge found that the affidavits filed by the landlord were
“almost a caricature of racially derogatory themes”. The landlord’s economic
justification for seeking a new tenant, combined with the landlord’s
statements about the nature of the tenant’s clientele, suggested that the
landlord’s desire to replace the Tenant was motivated by racism, rather than
the prospect of higher rent. While the landlord’s position may not have been
consciously racially motivated, the understanding of these
facts was nevertheless relevant to weighing the prejudice to the tenant.
In June 2021, the Court of Appeal dismissed the landlord’s appeal. The
appeal panel determined that there was evidence to support the application
judge’s conclusions that the tenant had made diligent and timely efforts to
exercise its option to renew, and that the landlord had avoided the tenant’s
calls.

The Court of Appeal affirmed that the application judge was entitled to take
judicial notice of anti- Black racism in Canada.There was language in the
landlord’s affidavit evidence that suggested its concern to find a tenant that
would attract “like minded family-oriented customers” as opposed to a
“liquor bar” was stereotypical labelling.

Based on all the evidence, including the Tenant’s evidence and the evidence
of the Landlord’s own witnesses, the application judge was entitled to
conclude that anti-Black racism was relevant to the Landlord’s refusal to
negotiate a renewal of the lease, regardless of whether the Landlord’s
actions were consciously motivated by racism.
In the result, the Court of Appeal found no error in the application judge’s
decision to grant relief from forfeiture.

R. v. Gladue

One reason why the Criminal Code treats Aboriginal people uniquely is
because Aboriginal people are overrepresented in Canadian prisons. To deal

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with the overrepresentation of Aboriginal people in prison, s. 718.2(e) directs
judges to undertake the sentencing of Aboriginal offenders differently. First,
the sentencing judge should consider "the unique systemic or background
factors which may have played a part in bringing the particular aboriginal
offender before the courts”.
Some of these background factors include the low incomes, high
unemployment, lack of opportunities, lack or irrelevance of education,
substance abuse, loneliness, and community fragmentation that lead
Aboriginals to have a higher incidence of crime and incarceration.
Systemic factors include the widespread discrimination that Aboriginals
experience both in, and outside, penal institutions.
The Gladue case is a landmark Supreme Court of Canada decision, handed
down on 23 April 1999, which advises that lower courts should consider an
Indigenous offender’s background and make sentencing decisions
accordingly, based on section 718.2 (e) of the Criminal Code.
In 1995, Jamie Tanis Gladue, a 19-year-old Cree woman, stabbed and killed
her common-law husband, Reuben Beaver, in Nanaimo, British Columbia.
Gladue was intoxicated — her blood-alcohol level was approximately double
the legal limit for operating a motor vehicle in the province — and had
suspected her husband of infidelity at a party earlier in the evening. Beaver
confirmed his infidelity and insulted Gladue during an argument upon
returning to their townhouse. Gladue fatally stabbed Beaver in the chest
after chasing him from the home with a knife.
Gladue was charged with second-degree murder but pleaded guilty to
manslaughter.

Since she was not living on a reserve at the time of the murder, the judge
ruled that section 718.2 (e) of the Criminal Code did not apply in her case.
This section states that a court must consider
All available sanctions other than imprisonment that are reasonable in the
circumstances should be considered for all offenders, with particular
attention to the circumstances of Aboriginal offenders.
The judge sentenced Gladue to three years in prison.
She appealed on sentence unsuccessfully to the Court of Appeal and
continued her appeal to the Supreme Court.
Gladue claimed that s.718.2(e) of the Code had not been considered in
deciding the sentence. Gladue did not come from an Aboriginal community;
however, she still claims that this provision applies to her Supreme court
decided that restorative justice must be given particular consideration when
dealing with Aboriginal offenders; however it is not the only thing to be
considered in these cases, as the traditional punitive measures must also be
weighed with the facts of the case and that some crimes are serious enough
to deserve traditional punishment.
Supreme court also said that Section 718.2(e) of the Code applies to
Aboriginals in general, not just those who live in aboriginal communities.

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When sentencing an Aboriginal offender, the court must consider:
• the unique systemic or background factors which have played a part in
bringing the
offender before the court; and
• the types of sentencing procedures and sanctions which may be
appropriate in the
circumstances for the offender because of his or her particular Aboriginal
heritage or connection.

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

THE RACIALIZATION OF CRIME

• The imposition of forcing Indigenous persons onto reserves, residential
schools, confining Indigenous populations onto tiny portions of land and
attempting to destroy political sovereignty and traditional relationships to
land, to clear the way for settler societies and resource extraction.
Indigenous persons now make up a substantial proportion of those held
captive in Canada’s jails and prisons: while representing around 5 percent of
Canadian society, they make up almost one-quarter of the current total
inmate population Canada-wide (Sapers 2015).
• In1990s Ontario, popular associations between Black migrants and crime
were
commonly made by politicians and the police (Henry 1994). Former mayorof
Toronto June Rowlands stated in numerous campaign speeches that
Blackyouth are responsible for the crime rates and commit more crimes than
whites.
• A senior police officer Chief McCormack, who stated, “there is a real
problem in the Black community” (Henry 1994: 220).
• Policing is presented as a race-neutral practice. However, racial profiling
has played an important role in creating criminals. The enormous discretion
granted to law enforcement in where to seek out crime and to determine
who seems suspicious plays a significant role in who becomes a criminal
offender
• “Profiling is a self-fulfilling prophecy. The more that a group is
targeted, the greater the likelihood that criminality will be
discovered particularly for those offences that are prevalent in
society” (Tanovich 2004: 916). Black youth experienced far more

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surveillance by police and security guards than white youth, and this over-
surveillance may have accounted for almost 60 percent of their over-
representation in the criminal justice system. Over-surveillance, not Black
proclivity for crime, is the leading factor in the disproportionate arrest of
Black youth. Black people are not “more criminal”; they are placed behind
bars for crimes that, had they been white, would have been far more likely to
have gone unseen and unpunished.

NO FREEDOM TO CIRCULATE: POLICE PROFILING AND THE

RESTRICTION OF BLACK MOVEMENT

• Profiling is itself a form of violence, because it infringes on Black

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

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

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

FROM THE STREET TO THE COURTHOUSE

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

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THE VIOLENCE OF CAPTIVITY: BLACK LIFE BEHIND BARS
• Besides murder by police -the destruction of the body and the ending of life
-it is the ultimate deprivation of liberty that can be inflicted by the state.
• Jails and prisons are increasingly populated with those who have been
deemed disposable: Black and Indigenous communities. While Black people
make up 3 percent of the population, they are over 9 percent of prisoners in
federal corrections facilities. Black people made up 3.9 percent of Ontario’s
population, yet they made up 17.7 percent of Ontario’s correctional facilities.
Prisons create isolation $ parents are separated from their children. Prisons
are permeated with the same anti-Black racism that operates in the so-called
“free” world outside.
• Black prisoners have reported experiencing racial discrimination in
accessing health services and prison employment” (Sapers 2013).
• Black prisoners also continue to experience high rates of violence at the
hands of prison staff. Black (and Indigenous) prisoners face particularly high
rates of solitary confinement (Sapers 2013).
• Subjecting Black and Indigenous people, as well as people with mental
health issues to solitary confinement makes it clear that prison is a site of
violence, not one of healing.

AGAINST PRISONS
Caging “undesirables” does not actually create a safer or more peaceful
society. Prison abolition advocates aim toward societal transformations that
would radically address the roots of social ills, including racial, gender and
economic inequalities. In a world defined by rampant, growing economic and
racial inequality and increasing incarceration rates, we may begin to imagine
a society in which Black communities do not rot away inside juvenile
detention centres,
jails and prison cells.
CONCLUSION
The longstanding conflation of Blackness with criminality has not only helped
the state devalues Black lives, it has even justified the often-violent deaths
of Black community members. Racial profiling and Black incarceration help
keep in place a racial hierarchy that has dominated the Canadian landscape
for centuries. Despite inspirational and important successes, the climate of
anti-Blackness across society and state institutions has remained nearly
absolute.

CHAPTER TWO
ABORIGINAL RIGHTS AND TITLE
ISSUE:
Did the defendant have an aboriginal right to?

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 Whether the province had the power to extinguish the aboriginal right?
Whether aboriginal’s right is established under S 35.
Whether or not restriction is inconsistent with S35(1).
1) Talk little about History of Aboriginals:
- 91(24) of the Constitution Act, 1867, “Parliament with exclusive legislative
authority over “Indians, and lands reserved for the Indians.”
- 35(1) of the Constitution Act, 1982 came into force, recognizing and
affirming the existing aboriginal and treaty rights of Aboriginal peoples in
Canada.
2) Fiduciary duty – 1763, 1867, Guerin, Sparrow, Rio Tinto– In Fiduciary
duty, the beneficiary reposes trust and confidence in honesty, integrity to
the fiduciary, protects those who place interest in others from having that
trust abused. R v Guerin [1984] established that Aboriginal title was a sui
generis right and the Crown had a fiduciary duty to protect it for Aboriginal
peoples. As R v Sparrow and Guerin case confirmed, the fiduciary duty arises
is 1) an undertaking by alleged fiduciary to act in best interest of beneficiary
2) Defined groups (beneficiaries) are in control of fiduciary control 3) legal or
substantial interest of beneficiary stands to be adversely affected.
3) Honour of crown- Canada's Aboriginal peoples were here when Europeans
came, and were never conquered. The potential rights embedded in these
claims are protected by s. 35 of the Constitution Act, 1982. The honour of the
Crown requires that these rights be determined, recognized and respected. It
governs treaty making, negotiate reasonably and avoid sharp dealing. While
this process continues, the honour of the Crown may require it to consult
and, where indicated, accommodate Aboriginal interests. The Haida Nation
v. British Columbia decision further emphasize the importance of the Crown’s
obligation to act honourably when dealing with Indigenous rights and/or title.
In Manitoba Metis Federation(MMF), the court went to explain that honour of
the crown is not totally distinct from a breach of fiduciary duty. It is a broad
obligation that in some circumstances leads to fiduciary duty, and
sometimes to other obligations. MMF added an obligation from the honour of
the crown to diligently fulfil a treaty.
• Difference between Fiduciary and Honour of Crown (only talk about it they
ask about difference between the two) – In MMF case, in order for a fiduciary
duty to apply in case of aboriginal people, the specific interest over which
the crown takes discretionary control must be uniquely aboriginal. In the
Manitoba Act and MMF case, the court held because Metis held land
individually, not collectively, the Metis could not have proven Aboriginal title
to lands, therefore the Metis could not show a specific interest that was
uniquely Aboriginal in nature for fiduciary duty. Hence the Supreme court
didn’t find the basis of fiduciary duty but did find a breach of Honor of the
Crow dude for lack of diligence and attention in fulfilling the promise of lands
through Manitoba Act, and declared the result in favor of Metis.
• Duty to consult even when Right is a claim. No need for it to be
established. (Rio Tinto Alcan

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Inc. v. Carrier Sekani Tribal) When there is just a claim (even though without
it becoming a right/title), there is still duty to consult. The duty to consult
arises when:
1. the Crown has knowledge, actual or constructive, of a potential aboriginal
claim or right;
2. the Crown must be contemplating conduct which engages a potential
aboriginal right; and
3. there must be the potential that the contemplated conduct may adversely
affect an aboriginal claim. 4) Establish a right? Whether it exists or Not?

35 of the Constitution Act 1982: Van Der Peet.

1. Characterization of the right: In this case, the relevant practice for the
purposes of the Van Der Peet test is harvesting/fishing/hunting. The record
shows that wood was used to full aboriginal community needs for
shelter/food/tools/fuel/clothes. Here the right being claimed can therefore be
characterized as the right to hunt/fish/harvest
2. Integral Test: in order to be an aboriginal right, an activity must be an
element of a practice, custom or tradition, integral (ie sufficiently central)
to the distinctive culture of the aboriginal group asserting the right
a. Here: Application
3. Continuity: The practice must have developed before “contact”, ie
before the arrival of Europeans in North America. The practices, customs and
traditions have continuity with those that existing prior to contact. A practice
existing prior to contact can be resumed after an interruption.
Here: Application
For Metis people
(Only talk about this if there is a discussion about Metis people): R v Powley
case. Even though Metis community doesn’t meet the precontact test as
they are a community that arose after post-date European contact. We
modify certain elements of pre-contact test to reflect the Metis and how its
different from Indian claims. Court sets out the rules to determine if an
individual meets requirements of Metis people. Also, as per Daniel vs
Canada, Metis were granted equal rights as Indian.
● Self-identification
● Ancestral Connection
● Community Acceptance
4. Modernisation (Only talk about this if there is modernisation) The practice
could evolve over the years as the result of contact, but a practice that has
evolved into modern forms must trace its origins back to the pre- contact
period (i.e., bow and arrow by the gun).
Now through the Van Der Peet Test, we have established that community
has existing aboriginal right to ... in the relevant ara.
5) Rights not ABSOLUTE: Now that the right has been established, crown has
a fiduciary relationship with respect aboriginals (R v Guerin and Sparrow).
Aboriginals acknowledged the sovereignty of British Parliament via
acceptance to treaties, and the UK acknowledged the existence of

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Aboriginals and their cultures, laws, societies. Even though, Aboriginal rights
exist, these rights are not absolute, and can be regulated and interfered.
Provided, legislative objectives are justified. S35 is outside of the Charter.
Thus, Protections under s 35 are not subject to justification under s 1 of
the Charter
6) Was the right in question “existing” at the time of the enactment
of s.35(1) of the Constitution Act, 1982?
A right can only be extinguished or no longer existing based on Mitchell o
Incompatible with crown sovereignty
o Surrendered Involuntary
o Extinguished prior Sec 35
7) Whether the legislation in question has the effect of interfering
meaningful diminution with an existing aboriginal right.
a “meaningful diminution” of an Aboriginal right has occurred as the result of
any legislation:
(1) whether the limitation imposed by the law is unreasonable.
(2) (2) whether the law imposes undue hardship on the Aboriginal group;
and
(3) whether the law denies the Aboriginal group of their preferred means of
exercising the Aboriginal
right.
HERE: Application
If Prima Facie interference is found, the analysis moves to the issue of
JUSTIFICATION.
8. Whether Legislation affecting exercise of aboriginal rights is
JUSTIFIED? (SPARROW: Test for JUSTIFICATION)
Whether Legislation affecting/infringing exercises of aboriginal right/title is
justified?
The test involves two steps:
• STEP 1: Is there a valid legislation objective? (If found, analysis moves to
2nd step)
• STEP 2: Whether the crown has fulfilled its fiduciary duty (Special trust
relationship and responsibility of the govt.) in dealing with aboriginal people.
According to Mary Hurley (Crows Fiduciary), the special relationship and
responsibility of the government must be the first consideration in
determining whether the government is able to infringe an Aboriginal right
via action or legislation
• Other Questions that can be asked here:
Whether there has been little infringement as possible in order to affect the
desired result?
Whether in a situation of expropriation, fair compensation is available?
Whether the aboriginal group in Question has been consulted
a. In this case, if they can justify abridging a right, they are under a duty to
consult based on the fiduciary relationship: Haida Nation held that the duty
to consult and accommodate arises when the “crown has real or constructive

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knowledge of the existence of an aboriginal or treaty right or a potential
aboriginal or treaty right and they contemplate conduct that could adversely
impact that right”
● Knowledge of a credible but unproven claim suffices to trigger a
duty to consult and accommodate. (Rio Tinto Alcan)
● Even if a project already got duty to consult, if there is
modification/expansion/change on that project, it results in another duty to
consult (Chippewas of the Thames First Nation v Enbridge Pipelines)
● There is no duty to agree; rather, the commitment is to a meaningful
process of consultation
● where the claim to title is weak, the Aboriginal right limited, or the
potential for infringement minor.
Insuchcases,theonlydutyontheCrownmaybetogivenotice,discloseinformation,
anddiscuss any issues raised in response to the notice.
● When the consultation process suggests amendment of Crown policy, we
arrive at the stage of accommodation
Extinguishment of Aboriginal Rights
o Aboriginal rights (including aboriginal title) can be extinguished in 2
ways:
o (1) by surrender and (2) by constitutional amendment
CONCLUSION as such, an aboriginal right to can/ cannot be established

A. Required Readings
Article 2
John Borrows Commentary: Use this article whenever there is an
implementation of law about Aboriginals
• Canada is a legally pluralistic state: civil, common and indigenous law each
define ways of resolving disputes and organizing society.”
Treaties should be interpreted in ways which recognize indigenous traditions
alongside European ones.
Burrows says that Canada should learn from their culture, and think about
them and their laws while making any laws
• Pre and Post distinction must be removed which laid down as a main
requirement to establish the rights of Abr. people
Article 2 Don Couturier, “Judicial Reasoning Across Legal Orders:
Lessons from Nunavut” (2020) 45:2 Queen's Law Journal 319
In this article, the author explores the criminal justice relationship between
Canadian courts and Indigenous laws.
More specifically, by examining two recent criminal law judgments from
Nunavut that rely on Inuit customary law in their reasons, R v Itturiligaq and
R v Ippak, the author queries and seeks to answer whether Canadian courts
ought to engage with Indigenous laws, and if so, what appropriate
engagement might look like.
Through identifying both the promising and cautionary elements of these
judgments,
The author proposes guidelines for engagement that involve establishing

13
ethical space with Indigenous legal orders at the outset of judicial analysis to
determine commensurability, followed by concurrent application where
principles are mutually reinforcing or deference to Indigenous laws where
principles conflict. The author concedes that judicial use of Indigenous laws
is no panacea; rather, its use represents an important way in which the
Canadian legal system can coexist alongside revitalized.
The article is divided into four parts.

In Part I, the author introduces the Nunavut court system and analyzes
Itturiligaq and its application of Inuit Qaujimajatuqangit in light of the
pluralist promise of R v Ipeelee, concluding that its reasoning instills both
optimism and caution.
R v Ipeelee - The 37 year old aboriginal accused (Ipeelee) was sentenced to
six years' imprisonment followed by a long-term supervision order after
being designated a long-term offender. Ipeelee was an alcoholic with a
history of offending violently when intoxicated. Alcohol was a major factor in
the risk of him re-offending. He was released after serving the full six years.
Seventeen months later, Ipeelee committed an offence while severely
intoxicated, contrary to the alcohol abstention condition of his supervision
order. Ipeelee appealed his sentence, submitting that, inter alia, the
sentence was demonstrably unfit, enhanced credit was not given for pre-trial
custody, and the sentencing judge failed outcomes, but that great care and
caution must accompany these efforts the author argues that Canadian
courts should actively engage with Indigenous laws to achieve more
responsive legal

Indigenous legal systems and their institutions. to adequately consider his

aboriginal status.
In Ontario Court of Justice, Justice Megginson of the Ontario Court of
Justice sentenced Mr. Ipeelee to three years imprisonment, less six
months of pre-sentence custody.
In Ontario Court of Appeal,
Mr. Ipeelee’s sentence was not demonstrably unfit, and despite the
sentencing judge’s comments, Mr. Ipeelee’s Indigenous status had
not factored into the sentencing decision. The Court of Appeal
concluded these considerations should not affect the sentence he
ultimately received
Supreme Court of Canada
The Supreme Court of Canada further strengthened the ruling of R v
Gladue when it released its decision on R v Ipeelee. The majority
decision of the Supreme Court of Canada was written by Justice
Louis LeBel, who allowed Mr. Ipeelee’s appeal and reiterated the
highest court’s insistence that sentencing judges are under a
positive duty to take all of the circumstances of Indigenous

14
offenders into account when imposing any sentence. Justice LeBel
noted
the Gladue decision and section 718.2(e) of the Criminal Code has
not had the anticipated impact, specifically with respect to the rates
of over-incarceration of Indigenous People. R v Ipeelee reaffirmed a
sentencing judge’s statutory duty to take into account an Aboriginal
offender’s circumstances, no matter what offence was committed.
Importantly, the court held:
The sentencing judge has a statutory duty, imposed by section
718.2(e) of the Criminal Code, to consider the unique circumstances
of Aboriginal offenders. Failure to apply Gladue in any case
involving an Aboriginal offender runs afoul of this statutory
obligation
The two issues before the Supreme Court of Canada were as follows:
1. What are the principles governing the sentencing of Aboriginal offenders,
including the proper interpretation and application of the decision in R v
Gladue, and the application of those principles to the breach of Mr. Ipeelee’s
Long-Term Supervision Order? and
2. Given the principles of sentencing, was Mr. Ipeelee’s sentence an error in
principle or did it impose an unfit sentence that warrants appellant
intervention?

Issue 1 – Principles of Sentencing

The majority of the Supreme Court of Canada reiterates the two-
pronged analysis as previously directed in R v Gladue: the court
must consider the unique systemic and background factors which
might have played a role in bringing the Indigenous person before
the court, and the types of sanctions which may be appropriate in
the circumstances due to their particular Indigenous heritage or
connection
Issue 2 – Sentencing Error
The majority of the Supreme Court of Canada found the courts
below made several errors, including the conclusion that protection
of the public is the paramount objective when sentencing an
individual for the breach of a long-term supervision order. A further
error was committed when the court considered that rehabilitation
only plays a small role. However, the legislative purpose of a long-
term supervision order is to rehabilitate offenders and assist them
to reintegrate back into society. As a result, the lower courts did not
give proper attention to Mr. Ipeelee’s background factors as an
Indigenous person, especially considering the Court of Appeal’s
finding that the features of sentencing an Indigenous person will
play little to no role when sentencing long-term offenders. The
Supreme Court found this to be in error

Itturiligaq

15
 Mandatory Minimum Penalty (MMP) - The legislature may choose to
prescribe a mandatory minimum for certain offences. If an accused is found
guilty (or pleads guilty) of such an offence, the judge is bound by law to
sentence the accused to the specified mandatory minimum term of
imprisonment. While judges generally enjoy wide discretion in sentencing,
criminal offences with mandatory minimums constrain their discretion and
remove their ability to reduce a sentence beyond a certain threshold.
Inuit Qaujimajatuqangit (IQ): Inuit law and social governance. IQ
includes the values of Inuuqatigiitsiarniq (respecting others, relationships
and caring for others), Aajiiqatigiinniq (consensus- based decision-making),
and Piliriqatigiinniq or Ikajuqtigiinniq (working together).

Itturiligaq went to a house where his partner was with her friends.
He asked his partner to come back home with him, which she
refused. He returned home and came back to the house with a rifle.
He fired at the roof of the house. When arrested, he confessed and
pleaded guilty to intentionally discharging a firearm at a place
pursuant to s. 244.2(3)(b) of the Criminal Code. The offence came
with a mandatory four-year minimum sentence. The accused
challenged the constitutionality of this mandatory minimum,
arguing it amounted to cruel and unusual punishment under section
12 of the Charter. At issue was whether Charter and Gladue
principles could be reconciled with the mandatory minimum
The trial judge, Bychok J, ruled that the mandatory minimum was
unconstitutional and, therefore, of no force and effect. This is
because the sentence would be grossly disproportionate to the
crime, and constituted cruel and unusual punishment. The trial
judge relied heavily on the principles of IQ in his assessment of
whether or not Itturiligaq would be accepted back into his home
community, or by his partner. While no formal Gladue report was
filed, the trial judge noted that the principles of IQ would inform his
a He accordingly sentenced Itturiligaq to judgement reduced
sentence that could be served in Iqaluit (as opposed to the offender
being sent to a penitentiary in the south, away from his partner and
daughter). He also did not call specific evidence on the principles of
IQ in the community where the offence took place. He nonetheless
concluded that while the accused had violated several values of
Inuit law, sending him to a southern penitentiary for four years
would “outrage Nunavummiut’s collective and traditional sense of
decency and justice.”

The Court of Appeal held that the four-year sentence was not grossly
disproportionate given that the charged offence was a double mens rea
offence. Moreeover, the Gladue factors present in the case, while

16
emphasized by the trial judge, did not diminish the high level of moral
blameworthiness present in the case.
Part II explores the philosophical and normative questions of whether
Canadian and Indigenous laws are commensurate and whether non-
Indigenous judges ought to engage with Indigenous laws in their judgments.

A. Commensurability: Are Canadian and Indigenous Laws Cognizable to One

Another?
Alan Hanna explores how the Canadian legal system is positioned with
respect to Indigenous legal traditions. He finds there is little room within the
present Canadian legal landscape for full, respectful engagement with
Indigenous legal orders.Instead, he argues Canadian governments “must
reform the legal system to make room for Indigenous legal orders to take
their rightful place in the substance of Canadian law.” Hanna does, however,
observe some opportunity “for inherent jurisdiction to flow”.The example
offered is subsection 2(1) of the Indian Act, which allows for the “custom”
election of a band council. Custom election codes allow First Nations to
develop bespoke election rules and procedures on their own term.

Custom election codes were judicially considered to give expression to

Indigenous perspectives in Joe Pastion v Dene Tha’ First Nation. Justice
Grammond observed that custom “must be understood in a broad sense and
refers to what is more properly Indigenous law. He further noted that the
Federal Court has developed expertise in adjudicating First Nations
governance disputes and offers mediation services that allow Indigenous
laws and principles to permeate dispute resolution.

The Court of Appeal, therefore, is calling for IQ to be brought in through a

specific evidentiary inquiry in the affected community. In contrast, the trial
judge generally referred to principles of IQ when sentencing the accused.
The Federal Court defers to Indigenous decision-making processes as they
“are obviously in a better position than non- Indigenous courts to understand
Indigenous legal traditions. Notably, while the Federal Court has not
developed its own method of interpreting Indigenous laws, it adapts the
judicial process itself to integrate Indigenous laws in conflict resolution. As
Pastion shows, courts can develop procedures that go a long way toward
preserving Indigenous legal contexts.

B. Normatively: Should Courts Work with Indigenous Legal Traditions at All?

Academic narratives divide on this issue: there is a right way and there is no
right way for non- Indigenous scholars, lawyers, and judges to work with
Indigenous legal traditions. For Hanna, the Canadian judiciary is an
inappropriate venue to adjudicate Indigenous laws because it lacks the
competence to do so and adopts a hierarchical nature in its work, contrary to

17
the ethos of many Indigenous legal orders
But Bychok J also draws parallels between Inuit justice and the Court’s goals
of forgiveness, reconciliation, reintegration, and restitution,106 resulting in a
sentence that better reflects community values, and echoing Napoleon and
Friedland’s point that exploring productive similarities is ultimately
beneficial.

In Part III, the author argues that Ippak best exemplifies judicial reasoning
across legal orders that appropriately upholds both Indigenous and Canadian
legal systems while respecting their incommensurabilities. Drawing on the
lessons learned from Itturiligaq and Ippak, the author then develops his
proposal for responsible engagement.

Ippak
The small hamlet of Sanikiluaq in Nunavut is a dry community. The police are
particularly vigilant investigating trafficking and routinely search and detain
people at the airport. In the present case, the RCMP received an anonymous
tip that Mr. Ippak, who was flying from Montreal to Sanikiluaq, was carrying
alcohol. In questioning him at the airport, Mr. Ippak denied he was carrying
liquor and welcomed a search of his suitcase. Mr. Ippak was presented with
and signed a “consent to search form”. Although he was warned he didn’t
need to say anything, police did not advise him of his right to counsel. Police
proceeded to search his bag and found 3.7 pounds of cannabis.

The appeal court judges concluded that, because evidence collected by

police had to be excluded from the case against Ippak, his conviction would
also be quashed.
That overturned an earlier decision by Justice Bonnie Tulloch. In 2015,
she acknowledged Ippak was arbitrarily detained, but concluded the gravity
of the evidence overrode this issue.
Tulloch sentenced Ippak to an 18-month conditional sentence that he
served at home. She wrote that the court has a responsibility to "keep drug
dealers and their couriers off the streets of Nunavut."
In the appeal case, Berger argued the Nunavut Court of Justice should
have turned to Inuit law, which aims to preserve the well-being of the
community, even if Inuit traditions can be at odds with the individualistic
nature of charter rights.
The Nunavut Land Claims Agreement gave Inuit treaty rights, while the
Nunavut Act and territorial liquor laws give the government rights to restrict
access to alcohol, and set out ways in which communities can collectively
agree to allow liquor sales, unlike other parts of Canada.

Since the decision to keep Sanikiluaq dry was made by Inuit in the
community,

18
Nunavut and Sanikiluaq are not charter-free zones," Berger wrote in his
reasons for the judgement. "The protections that are afforded to all Canadian
citizens apply with full force and effect throughout the country."
In his reasoning, he suggested that turning to the local justice
committee could have provided an alternative to prosecution under
Canadian law, which led to a sentence of house arrest.

Lastly, in Part IV, the author offers suggestions for institutional and
legislative reform that must accompany judicial engagement with Indigenous
laws. As the author indicates, the success of Indigenous-Canadian pluralism
requires re-balancing sentencing objectives away from the rigid Canadian
application of deterrence and denunciation and towards a system more
focused on rehabilitation.

The lessons from Itturiligaq and Ippak reveal a pattern of analytical

groundwork that must occur at the outset of judicial analysis. The first step,
establishing ethical space, dictates whether the next step, harmonization,
results in principled synthesis or deference. Itturiligaq saw Bychok J call upon
IQ without attribution and with a dubious conflation between incarceration
and banishment. Conversely, Ippak saw Berger JA identify these tensions to
justify his deference to Indigenous protocols.
This presents a problem: either courts apply Canadian law and disregard
Indigenous laws, or they cannot apply Canadian law, something stare decisis
typically cautions against.
pluralism between Indigenous laws and Canadian law deserves our attention
because, if done right, it facilitates parallel rather than oppressive justice
systems. Even when imperfect, judicial reasoning across legal orders can
result in more satisfactory inter-societal outcomes

Conclusion
This paper has argued that judges can reason across legal orders to achieve
outcomes better reflecting Indigenous responses to crime. In doing so,
opportunities arise for judges to apply Canadian and Indigenous laws
concurrently in mutually reinforcing ways. The author also responded to
concerns throughout this paper relating to fundamental tensions between
sentencing and Indigenous responses to wrongful behaviour, the
competence of judges in navigating cross-cultural intellectual inquiries, and
the difficulties in realizing the institutional and legislative reforms

Article 3
Summary of Final Report Reconciliation Commission of Canada,
Honoring the Truth, Reconciling for the Future:
Inuit values when applying the law, Berger wrote, and find a common ground
with the freedoms judges have to consider protected under the charter.
● Acknowledge Past and then you can move towards Reconciliation.

19
● Govts committing cultural genocide seek to destroy political and social
institutions, seize land, forcibly transfer populations and restrict their
movement, languages are banned, spiritual leaders are persecuted, spiritual
practices are forbidden, and objects of spiritual value or seized and
destroyed, and most important, families are disrupted from passing on their
cultural values from one generation to the next.
● Reconciliation has different meanings
• With respect to the residential schools, it means coming to terms with the
events of the past in a manner that overcomes conflict and establishes a
respectful and healthy relationship among people, going forward
• To the commission it means establishing and maintaining a mutually
respectful relationship b/t Aboriginal and non-Aboriginal peoples in this
country
• To do that we need to be aware of the past, acknowledge the harm, atone
for the causes, and change behaviour
Reconciliation is about establishing and maintaining a mutually respectful
relationship between Aboriginal and non-Aboriginal peoples in this country.
In order for that to happen, there has to be awareness of the past,
acknowledgement of the harm that has been incited, atonement for the
causes, and action to change behaviour

Case First Nations Child and Family Caring Society of Canada v. Attorney
General of

Canada 2018 CHRT 4, paras 1-2, 114-195 and 451-53

the Federal Court upheld a ruling of the Canadian Human Rights Tribunal
(the “CHRT”),
which awarded compensation to an estimated 54,000 First Nations children,
parents and
grandparents. The CHRT found that the federal government discriminated
against First
Nations children by (1) significantly underfunding child welfare programs for
First Nations
children, as well as unnecessarily removing thousands of First Nations
children from their
homes; and (2) failing to implement Jordan’s Principle, which requires the
government to
provide services to First Nations children, regardless of disputes between
levels of
government over jurisdiction and financial liability.

The Federal Court's decision came as the result of over fourteen years of
hard-fought litigation. The CHRT’s award is historic both in terms of the

20
overall amount, and in terms of the number of people who will receive
compensation. This decision may result in billions of dollars being paid to the
thousands of First Nations children and their families who were discriminated
against by the federal government.
Reconciliation is about establishing and maintaining a mutually respectful
relationship between Aboriginal and non-Aboriginal peoples in this country.
In order for that to happen, there has to be awareness of the past,
acknowledgement of the harm that has been incited, atonement for the
causes, and action to change behaviour.
In this decision, the Tribunal acknowledged the past and detailed the specific
harms of the government’s behaviour. It attempted, to the best of its ability
given the authority it had as set out by statute, to ensure atonement for the
harms caused, through public renouncement and financial compensation.
This decision also provides an impetus for the federal government to change
its behaviour, as a financial cost is now associated with every subsequent act
the government undertakes that neglects the needs of a First Nation child.
In short, it is a significant step towards reconciliation.

Article An Act respecting the United Nations Declaration on the Rights of

Indigenous Peoples https://parl.ca/DocumentViewer/en/43-2/bill/C-15/royal-
assent

Bill C-15 purports to harmonize Canadian law with the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP), which the global
body adopted in 2007.
On June 16, 2021 – after decades of advocacy by First Nations – the
Parliament of Canada passed The United Nations Declaration on the Rights of
Indigenous Peoples Act (formerly Bill C-15). The Act received Royal Assent
June 21, 2021.
On June 21, 2021, the United Nations Declaration on the Rights of
Indigenous Peoples Act received Royal Assent and immediately came into
force. This legislation advances the implementation of the Declaration as a
key step in renewing the Government of Canada’s relationship with
Indigenous peoples.
The purpose of this Act is to affirm the Declaration as an international
human rights instrument that can help interpret and apply Canadian law. It
also provides a framework to advance implementation of the Declaration at
the federal level.
This Act requires the Government of Canada, in consultation and cooperation
with Indigenous peoples, to: take all measures necessary to ensure the laws
of Canada are consistent with the Declaration prepare and implement an
action plan to achieve the Declaration’s objectives table an annual report on
progress to align the laws of Canada and on the action plan
This Act requires that the action plan include measures:
• to address injustices, combat prejudice and eliminate all forms of violence,
racism and discrimination against Indigenous peoples, including elders,

21
youth, children, persons with disabilities, women, men and gender-diverse
and two-spirit persons
• to promote mutual respect and understanding, as well as good relations,
including through human rights education
• related to the monitoring, oversight, follow up, recourse or remedy or other
accountability with respect to the implementation of the Declaration

B. Required Reading- Re: Aboriginal Rights:

Case: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal
• The moment they come to know/understand that there is a potential of an
infringement of claim/ right/title, there is duty to consult. When there is just a
claim (even though without it becoming a right/title), there is still a duty to
consult?
• However, after claim is established as a title/right, there is a fiduciary duty
to right to consult. When a claim is in the pipeline, there is still a duty to
consult.
Chippewas of the Thames First Nation v Enbridge Pipelines
• The National Energy Board (NEB), a federal administrative tribunal and
regulatory agency, was the final decision maker on an application by
Enbridge Pipelines Inc.
• for a modification to a pipeline that would reverse the flow of part of the
pipeline, increase its capacity, and enable it to carry heavy crude.
• The NEB issued notice to Indigenous groups, including the Chippewas of
the Thames First Nation (Chippewas), informing them of the project, the
NEB’s role, and the NEB’s upcoming hearing process.
• The Chippewas were granted funding to participate in the process, and
they filed evidence and delivered oral arguments delineating their concerns
that the project would increase the risk of pipeline ruptures and spills, which
could adversely impact their use of the land.
• The NEB approved the project and was satisfied that potentially affected
Indigenous groups had received adequate information and had the
opportunity to share their views.
• The NEB also found that potential project impacts on the rights and
interests of Aboriginal groups would likely be minimal and would be
appropriately mitigated. A majority of the Federal Court of Appeal dismissed
the Chippewas’ appeal.
• The Crown may rely on steps taken by an administrative body to
fulfill its duty to consult so long as the agency possesses the
statutory powers to do what the duty to consult requires in the
particular circumstances, and so long as it is made clear to the
affected Indigenous group that the Crown is so relying.
• However, if the agency’s statutory powers are insufficient in the
circumstances or if the agency does not provide adequate consultation and
accommodation, the Crown must provide further avenues for meaningful
consultation and accommodation prior to project approval.

22
• Otherwise, a regulatory decision made on the basis of inadequate
consultation will not satisfy constitutional standards and should be quashed.
• Even taking the strength of the Chippewas’ claim and the seriousness of
the potential impact on the claimed rights at their highest, the consultation
undertaken in this case was manifestly adequate.
• Potentially affected Indigenous groups were given early notice of
the NEB’s hearing and were invited to participate in the process.
The Chippewas accepted the invitation and appeared before the
NEB.
• They were aware that the NEB was the final decision maker.
Moreover, they understood that no other Crown entity was involved
in the process ecfor the purposes of carrying out consultation. The
circumstances of this case made it sufficiently clear to the
Chippewas that the NEB process was intended to constitute Crown
consultation and accommodation.
• Notwithstanding the Crown’s failure to provide timely notice that it
intended to rely on the NEB’s process to fulfill its duty to consult, its
consultation obligation was met.

CLYDE RIVER (HAMLET) V. PETROLEUM GEO-

SERVICES INC.
In 1993,
the Inuit and Canada entered into the Nunavut Land Claims Agreement
(“Agreement”). The Agreement protects Inuit rights to hunt, fish and trap,
including the right to harvest marine mammals. In 2011, three companies
applied to the NEB for authorization under s. 5(b) of the Canada Oil and Gas
Operations Act (“COGOA”) to conduct offshore seismic testing for oil and gas
resources. The Inuit of Clyde River (“Clyde River”) opposed this proposed
testing and raised questions regarding its effects on marine mammals in the
area, and concerns regarding impacts to their harvesting rights. The NEB
issued an environmental assessment (“EA”) report that concluded that the
proponents made sufficient efforts to consult with potentially-impacted
Aboriginal groups and to address their concerns. The NEB’s EA report also
concluded that Aboriginal groups had an adequate opportunity to participate
in the NEB’s process. The NEB issued the authorization. Clyde River applied
for a judicial review of the NEB’s decision to issue the authorization alleging
that the Crown had failed to meet its duty to consult.
One of the issues raised in the appeal before the SCC was whether the
NEB’s approval process could trigger the duty to consult. The SCC reasoned
that the NEB acted on behalf of the Crown when it made final decisions on a
project application and these decisions triggered the duty to consult Here,
the SCC saw the NEB as the “vehicle through which the Crown acts” and it
did not matter whether the final decision maker was Cabinet or the NEB, in
either case the decision constitutes Crown action that may trigger the duty
to consult.

23
 The SCC also ruled that while the Crown can rely on steps undertaken
by a regulatory agency, such as the NEB, to fulfill its duty to consult, the
Crown holds ultimate responsibility for ensuring consultation is adequate.
The SCC went on to say that if the Crown is going to rely on a
regulatory process to fulfill its duty to consult, this should be made clear to
Indigenous groups. When a regulatory process has not met the duty to
consult, the Crown will be responsible to fill in the gaps.
Because the duty to consult is a constitutional duty and the NEB as a
body with the power to decide questions of law must comply with the
Constitution, the NEB cannot issue an authorization if the duty to consult has
not been met
However, the consultation that took place fell short in several respects:
• the Crown failed to notify Clyde River that it was relying upon the NEB
process to fulfill its duty to consult;
• the NEB failed to inquire into Clyde River’s rights and specific impacts on
their rights (focussing instead on possible environmental effects); and
• no oral hearing was provided and no participant funding was offered.
Given this, the SCC found that the quality of consultation was impaired. The
SCC noted that the proponent never clearly or succinctly answered Clyde
River’s questions about the impact of the testing on marine mammals.

As a result, the SCC quashed the NEB’s decision. The SCC was clear that
project approvals that do not conform with the duty to consult should be
quashed.

Implications of Clyde River (Hamlet) v. Petroleum and Chippewas of the

Thames First Nation
Through these decisions, the SCC has brought some much needed clarity
regarding the Crown’s duty to consult when regulatory bodies are
empowered to review and make decisions regarding projects that impact the
title and rights of Indigenous Nations. Decisions by quasi-judicial regulatory
bodies are not shielded from the constitutional requirements of the duty to
consult and accommodate. In addition, provided these regulatory bodies
have power to decide questions of law, they must assess whether
consultation and accommodations have been adequate before they make a
decision that impacts concerned First Nations. Moreover, while regulatory
processes can be used to carry out the duty to consult, the Crown must
make its reliance on these processes clear and cannot hide behind the
limitations of regulatory processes should such consultations prove
inadequate.

Mikisew Cree First Nation. v. Canada (Governor General in Council)

- In a legislation process, there is no more duty to consult and
accommodate.
- This is the only limitation of duty of consultation inside the legislation
process. This case shows Parliament Supremacy.

24
• This is the main issue with Bill 262. Aboriginals have no right or duty to
consult in the legislative process.
• Importing the duty to consult to the legislative process offends the
separation of powers doctrine and the principle of parliamentary privilege

The Queen v Richard lee Desautel, 2019 BCCA 151

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

Article 7
Scott Carrière, “Whose Sovereignty is it Anyway? The Borders of Aboriginal
Rights along the Sovereign Borders of Canada” (January 20, 2020):
https://ablawg.ca/wp-content/uploads/2020/01/Blog_SC_Desautel.pdf
• In Desautel, the Court of Appeal upheld the acquittal of Richard Desautel
for hunting without a licence contrary to the Wildlife Act, RSBC 1996, c 488.
It did so by affirming his section 35 Aboriginal right to hunt in an area in
southeastern British Columbia, having satisfied the test for such
rights set down by the Supreme Court of Canada in R v Van der Peet
• Desautel, however, is an American; he has never lived in British Columbia,
nor is he a Canadian citizen.
• He is a member of the Lakes Tribe of the Colville Confederated Tribes
(CCT) living on the Colville Indian Reserve in Washington.The basis for the
rights claim was CCT’s status as successor to the Sinixt, a people
whose traditional territory straddled the Canada-US border and who
crossed the border frequently even into the 20th century.
• The case therefore turned on whether section 35 could apply to non-
Canadians and how to reconcile the assertion of sovereignty in the
context of modern borders
• This article will examine the British Columbia Court of Appeal’s analysis of
the interplay of Canadian sovereignty and Aboriginal rights that arose in
Desautel.

25
• It will not attempt to predict how the Supreme Court of Canada may
approach the Crown’s appeal, but will reflect on ambiguities not addressed
by British Columbia’s top court and how they might play out in Alberta and
elsewhere in Canada.
• With Sinixt still living outside Canada, however, could their rights over such
traditional territory and its use be similarly “extinct”?
• The Provincial Court of British Columbia acquitted Desautel at trial,
accepting that he had established an Aboriginal right under the test
from Van der Peet that was unjustifiably infringed by the application
of the Wildlife Act (Desautel at paras 9 – 11 & 17). In so doing, the
Provincial Court rejected the notion that a Sinixt right to hunt in the area was
extinguished by any of: the 1846 Oregon Treaty
• The Supreme Court of British Columbia, however, found the proper
interpretation of Aboriginal peoples of Canada was Aboriginal
peoples who had occupied what became Canada prior to contact.
• The court specifically noted that “it is the pre-contact occupation of the
land that gives rise to the rights protected by s. 35

Canadian Sovereignty and the Application of Section 35

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

Incidental Mobility Rights and the Doctrine of Sovereign

Incompatibility
• The Crown also submitted that in order to determine whether a non-
resident has an Aboriginal right within Canada, courts must consider an
incidental mobility right or right of access. In particular, the Crown argued
that Desautel’s claimed right necessarily implied a right to cross the
international border, which is incompatible with Canadian sovereignty

26
• The Court of Appeal, however, declined to take up this argument in a
substantive way. The court emphasized that Desautel’s entry into Canada
was lawful, and that incidental rights had only been taken up by courts when
they were implicated by regulation.
• Justice Beverly McLachlin's view was that excluding aspects of an
Aboriginal right on this basis placed on its artificial limitations, contrary to
the right’s exercise.
• The doctrine of continuity confirms that European settlement did not
terminate Aboriginal interests arising from historical occupation and use of
the land. Aboriginal interests and customary laws are therefore presumed to
survive the assertion of sovereignty, absorbed into the common law as rights
unless incompatible with the Crown’s assertion of sovereignty, surrendered
voluntarily by treaty, or extinguished.

Desautel and Outstanding Issues in Cross-Border Aboriginal Rights

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

Article 36:
1. Indigenous peoples, in particular those divided by international borders,
have the right to maintain and develop contacts, relations and cooperation,
including activities for spiritual, cultural, political, economic and social
purposes, with their own members as well as other peoples across borders.
2. States, in consultation and cooperation with indigenous peoples, shall take
effective measures to facilitate the exercise and ensure the implementation
of this right. Another factor in in cross-border calculations is the potential
impact of adoption of the United Nations Declaration on the Rights of
Indigenous Peoples by Canada into law.

Potential Application: The Buffalo Treaty

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

27
Conclusions
• The Supreme Court of Canada may be called upon to answer more
fundamental questions about the application of the Constitution in Desautel
than simply an Aboriginal rights claim.
• British Columbia Court of Appeal’s decision applied the present doctrinal
framework to answer the underlying question of Desautel’s right to hunt but
may have sidestepped the opportunity to clarify elements of Canadian
sovereignty that Desautel implicates.
• Clarity on sovereignty with respect to Canada’s borders is fundamental to
all Canadians, but also represents an opportunity to enhance reconciliation
of sovereignty with the integrity of the interests of all Aboriginal peoples of
Canada.
• British Columbia Court of Appeal’s decision applied the present doctrinal
framework to answer the underlying question of Desautel’s right to hunt but
may have sidestepped the opportunity to clarify elements of Canadian
sovereignty that Desautel implicates.
• Clarity on sovereignty with respect to Canada’s borders is fundamental to
all Canadians, but also represents an opportunity to enhance reconciliation
of sovereignty with the integrity of the interests of all Aboriginal peoples of
Canada.

C. Required Readings Re: Aboriginal Title:

Newfoundland and Labrador (Attorney General) v. Uashaunnuat
(Innu of Uashat and of Mani- Utenam)
• The Innu are First Nations. They have lived in what is now Quebec and
Newfoundland and Labrador since long before Europeans arrived. Around
1950, a large mining project started. It spanned both provinces.
• The Innu said it was on their traditional territory. They said the mining
companies didn’t ask permission to mine there. In 2013, the Innu sued the
companies. They said the project prevented them from enjoying and moving
around their territory.
- The Innu asked for three things.
- They asked for the companies to stop work on the project.
- They asked the companies to pay them for damages.
- And they asked the court to declare they had aboriginal title and other
aboriginal rights over their traditional territory.
• The Innu sued in Quebec. But they were asking Quebec courts to make a
declaration about aboriginal title and rights over their whole traditional
territory. Part of it is in Newfoundland and Labrador.
• The Government of Newfoundland and Labrador said Quebec courts
weren’t allowed to make a declaration affecting Newfoundland and Labrador.

• The lower courts said Quebec courts could decide all the issues.

28
• The majority of judges at the Supreme Court agreed with the lower courts.
• Courts in a province generally can decide cases within their borders. But
they have rules to deal with issues that cross provincial borders. Quebec
courts have the power to decide cases where the person being sued (the
defendant) lives in Quebec. This is true even if the lawsuit is related to
something that happened outside Quebec.
• The rules are different if the lawsuit is about property outside Quebec,
though. In this case, both mining companies were based in Montreal. This
meant the Innu could ask Quebec courts to make them pay damages and to
stop mining work
• Section 35 of the Constitution specifically recognizes aboriginal and treaty
rights. It acknowledges that Indigenous peoples lived in what we now call
Canada before Europeans arrived.
• Since aboriginal rights existed before Crown sovereignty, the majority said
provincial borders shouldn’t affect those rights. That means groups like the
Innu shouldn’t have to fight the same legal battle in courts in different
provinces applying the same law. This would lead to more cost and
confusion.
Decisions of Québec’s Superior Court and Court of Appeal
• According to these courts, the Québec courts have jurisdiction to hear the
matter. Specifically, they declined to characterize the action as a “real
action” and recognized the sui generis nature of the rights guaranteed under
section 35 of the Constitution Act, 1982 to ground the jurisdiction of the
Québec courts in accordance with the rules governing private international
law in Québec.
Decision of the Supreme Court of Canada
• the Supreme Court of Canada found that the Superior Court of Québec had
jurisdiction to hear the Innu claims, even those related to land in
Newfoundland and Labrador, and, therefore, dismissed the appeal.
• The majority then pointed out two fundamental underlying principle
Access to justice
• s. 35 rules be interpreted flexibly so as not to prevent Aboriginal peoples
from asserting their rights

Honour of the Crown

• Moreover, the honour of the Crown requires increased attention to
minimizing costs and complexity when litigating s. 35 matters and courts
should approach proceedings involving the Crown practically and
pragmatically in order to effectively resolve these disputes.
• The Crown has an obligation to act honourably within this relationship. This
is called “the honour of the Crown.” The majority said the honour of the
Crown must always be interpreted in a way that brings us closer to
reconciliation
Title
1) Talk little about History:
- 91(24) of the Constitution Act, 1867, “Parliament with exclusive legislative

29
authority over “Indians, and lands reserved for the Indians.”
- 35(1) of the Constitution Act, 1982 came into force, recognizing and
affirming the aboriginal and treaty rights and title of Aboriginal peoples in
Canada.
2)History of Titles
• The SCC in Calder and Guerin recognized that at common law, aboriginal
title survived European settlement and assumption of sovereignty by British
Crown, unless surrendered or lawfully extinguished Calder v. British
Columbia (Attorney General) [1973] was a landmark case.
• Although the court was evenly split on whether or not Aboriginal title
continued to exist, it was unanimously agreed that Nisga’a title had existed.
This significant agreement would pave the way for addressing Aboriginal title
in Canada.
• Aboriginal title was recognized by the Royal Proclamation of 1763,
which governed British imperial policy for the settlement of British North
America
Since 1982, Aboriginal title is protected by s 35, Constitution Act 1982
Aboriginal title encompasses the right to exclusive use & occupation of land
held pursuant to title for a variety of purposes, which must not be
irreconcilable w/ the nature of the group’s attachment to the land.
3) Talk about Honour of Crown and Fiduciary Duty.
4) Limits with Titles- ( don’t have to talk about this in exam but a cheat
sheet to confirm if it’s a
title or not)

Delgamuukw, and R vMarshal decision sets limits on aboriginal title.

▪ Unique dimensions of aboriginal title: Aboriginal title is a sui generis
interest in land.
▪ Inherent Limit: Lands Held Pursuant to Aboriginal Title Cannot Be Used in
a Manner that Is Irreconcilable with the Nature of the Attachment to the Land
Which Forms the Basis of the Group’s Claim to Aboriginal Title.
▪ One dimension is INALIENABILITY (lands can’t be transferred sold or
surrendered to anyone other than Crown).
▪ Another dimension of aboriginal title is its SOURCE (possession before the
assertion of British sovereignty)
▪ A further dimension of aboriginal title is the fact that it is held
COMMUNALLY (aboriginal title cannot be held by individual aboriginal
persons)
5) Duty to Consult even when Title is in a claim. As the Supreme Court
warned in Tsilhqot’in, “if the Crown begins a project without consent prior to
Aboriginal title being established, it may be required to cancel the project
upon establishment of the title if continuation of the project would be
unjustifiably infringing.” Duty to consult even when Right is a claim. No need
for it to be established. (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal) When is
there is just a claim (even though without it being becoming a right/title),
there is still duty to consult.

30
The duty to consult arises when:
1. the Crown has knowledge, actual or constructive, of a potential aboriginal
claim or right;
2. the Crown must be contemplating conduct which engages a potential
aboriginal right; and
3. there must be the potential that the contemplated conduct may adversely
affect an aboriginal claim
6) Establish a Title (Delgamuukw v BC and Tsilhqot’in Nation v. British
Columbia and Tsilhqot’in Nation v. British Columbia,)

Tsilhqot’in Nation v. British Columbia,

• The case clarified the test for proving aboriginal title to land
• It clarified the rights associated with title
• And it discussed how fed and provincial law apply in situations of proven
and claimed aboriginal title

Proof of Aboriginal Title

a. Physical Occupancy
6.a.i.Land must have been occupied prior to British assertion of sovereignty
in 1763.
b. Continuity
6.b.i.If present occupation relied on as proof of pre-sovereignty occupation, it
must be sufficiently continuous.
c. Exclusive Occupancy
6.c.i.At sovereignty, occupation must have been exclusive (intention and
capacity to assert control – i.e., did
other groups ask permission to use the land?)
Now through Delgamuukw v BC, we have established that ..... community
has existing aboriginal right to ... in the relevant area.
7) Titles not ABSOLUTE: Now that the title has been established, crown
has a fiduciary relationship with respect aboriginals (R v Guerin and
Sparrow). Aboriginals acknowledged the sovereignty of British Parliament
via acceptance to treaties, and the UK acknowledged the existence of
Aboriginals and their cultures, laws, societies. Even though, Aboriginal rights
and titles exist, these rights and titles are not absolute, and can be regulated
and interfered. Provided, legislative objectives are justified. S35 is outside of
the Charter. Thus, Protections under s 35 are not subject to justification
under s 1 of the Charter
8) Whether the legislation in question has the effect of interfering
meaningful diminution with an existing aboriginal right.
a “meaningful diminution” of an Aboriginal right has occurred as the result of
any legislation:
(1) whether the limitation imposed by the law is unreasonable.
(2) whether the law imposes undue hardship on the Aboriginal group; and

31
(3) whether the law denies the Aboriginal group of their preferred means of
exercising the Aboriginal
right.
HERE: Application
If Prima Facie interference is found, the analysis moves to the issue of
JUSTIFICATION.
9) Infringement of aboriginal title: the test of justification (SPARROW Test
and Tsilhqot’in Nation) Crown can override Aboriginal title in the public
interest:
1. Crown must have carried out consultation and accommodation.
2. Crown's actions must have been supported by a compelling and
substantial objective; and
3. Crown's action must have been consistent with its fiduciary obligation to
the Aboriginal body in question;
● Knowledge of a credible but unproven claim suffices to trigger a
duty to consult and accommodate. (Rio Tinto Alcan)
● Even if a project already got duty to consult, if there is
modification/expansion/change on that project, it results in another duty to
consult (Chippewas of the Thames First Nation v Enbridge Pipelines)
● There is no duty to agree; rather, the commitment is to a
meaningful process of consultation
● where the claim to title is weak, the Aboriginal right limited, or the
potential for infringement minor.
Insuchcases,theonlydutyontheCrownmaybetogivenotice,discloseinformation,
anddiscuss any issues raised in response to the notice.
● When the consultation process suggests amendment of Crown policy, we
arrive at the stage of accommodation
MODERN TREATY MAKING PROCESS
- Modern land claims agreements.
- It talks about self-governing rights to have their own self-governance.
- Example is Nisga Final Agreement and Labrador and Inuit land claim
agreement.
- Happens on a nation-to-nation basis
- Right to self-govern and right to create law and collect taxes
- Calder was a landmark case for proving titles before 1982
- Honour of Crown and Fiduciary duty exists.
C: Required Readings Re: Aboriginal Title:

Article
8 Kent McNeil, “The Factual Basis for Indigenous Land Rights”
Monash University Law Review, forthcoming
• Looking back at earlier Indigenous rights decisions, it is apparent that they
were not based on facts, but on prejudicial and erroneous assumptions about
Indigenous peoples
• In Cooper v Stuart (1889), Lord Watson wrongly described New South
Wales as a “territory practically unoccupied, without settled inhabitants or

32
settled law,” at the time it became a British colony. • This article
demonstrates that what was missing in the 1880s was not law supporting
Indigenous land rights, but rather evidence that should have led to the
application of existing law. Erroneous factual assumptions resulted in legal
precedents that led to the denial of Indigenous rights for around a century. •
In Canada, although the Supreme Court had acknowledged the existence of
Indigenous land rights earlier, those rights were first defined by the Court in
1997 in Delgamuukw v British Columbia and the first declaration of
Aboriginal title occurred as recently as 2014 in Tsilhqot’in Nation v British
Columbia. This article examines Lord Watson’s decisions in these two cases
from the 1880s in order to understand the Privy Council’s reasons for
denying common law land rights to the Indigenous peoples of Canada and
Australia.

The St. Catherine’s Case

The St. Catherine’s case arose from a constitutional property dispute
between the Province of Ontario and the Dominion of Canada over which
government benefitted from the surrender of Indigenous land rights to the
Crown by treaty. No Indigenous people were involved in the case.
The Judicial Committee of the Privy Council, affirming a ruling by the
Supreme Court of Canada, held that Aboriginal title over land was allowed
only at the Crown's pleasure, and could be taken away at any time. The
Saulteaux tribe of the Ojibwe (Anishinaabe) people, who had entered into
Treaty 3 in 1873, were no doubt unaware even that the case was been
litigated. By the treaty’s written terms, they had agreed to give up their land
rights in return for reserves and other benefits, while retaining hunting and
fishing rights over the surrendered territory.The lands in question in the case
are in northwestern Ontario between Lake Superior and the Lake of the
Woods, within the geographical limits of the treaty.
The case was triggered by a grant in 1883 by the Crown in right of
Canada to the St. Catherine’s Milling and Lumber Company of timber
harvesting rights near Wabigoon Lake. Ontario commenced legal action
against the company by way of an information of intrusion (a prerogative
action equivalent to an action for trespass), alleging that the timber licence
was void because the land, and therefore the standing timber, belonged to
the Crown in right of the province, not the federal Crown
Lord Watson described the Crown’s underlying title prior to the treaty as “a
present proprietary estate in the land” that was “substantial and
paramount.”
He said the Indians on reserves were “regarded no longer as in a wild and
primitive state, but as in a condition of transition from barbarism to
civilization.”
So Chancellor Boyd’s perception of the Saulteaux as “wild”, “primitive”, and
“degraded” must have been based on assumptions rather than facts –
assumptions derived from social evolution theory and the racist Eurocentric
prejudices of the time. Those assumptions did not correspond with the reality

33
of Saulteaux life, which was governed by laws and involved intensive use of
and complex relationships with the land and the natural resources in
Saulteaux territory
In St. Catherine’s, Lord Watson’s conclusion that the Saulteaux’s possession
could only be attributed to the Royal Proclamation of 1763 amounted to a
denial of common law rights based on possession of land and of rights based
on Indigenous law. Chancellor Boyd’s remarks about the “primitive” nature
of Saulteaux society and their lack of attachment to the land would have
provided the Privy Council with a false factual basis for reaching these
conclusions. The problem here, as we have seen, is that no evidence was
presented in the case to support Boyd C’s negative assessment of Saulteaux
society and land use. Instead, his views must have been based on erroneous
assumptions about Indigenous societies in North America that were widely
accepted in Euro-Canadian circles at the time
Lord Watson’s decision on the source and nature of Aboriginal title in
Canada, like his judgment with regard to the Indigenous peoples of Australia
a few months later in Cooper v Stuart, became the legal precedent on these
matters for almost a hundred years until his views began to be questioned in
the modern case law.
Cooper v Stuart
t involved the validity of a reservation in an 1823 Crown grant of 1400 acres
of land in the district of Sydney of “any quantity of land, not exceeding ten
acres, in any part of the said grant, as may be required for public
purposes.”In 1882 the Crown by proclamation resumed and fenced off ten
acres of this land for a public park. The plaintiff, who was the successor in
title of the original grantee, brought an action for an injunction to restrain
the Crown from continuing in possession and for damages. He challenged the
validity of the reservation on three main grounds: (1) uncertainty, because
the ten acres were not described; (2) repugnancy, because the ten acre
exception was inconsistent with the grant of 1400 acres; and (3) violation of
the common law rule against perpetuities, by which a property interest, to be
valid, must not be capable of vesting beyond the perpetuity period of
relevant lives in being at the time the interest is created plus 21 years. The
Privy Council agreed with the decisions of the Primary Judge in Equity and
the Supreme Court of New South Wales on appeal in favour of the Crown
In this way, Lord Watson was able to conclude that New South Wales, and by
implication the rest of Australia as well (New South Wales initially included all
of the eastern half of Australia from the Pacific coast inland to the 135th
meridian), was a settled colony in which English law applied automatically
from the outset.
Cooper v Stuart became the leading authority on the status of Australia as
settled and on the absence of Indigenous law
The Modern Case Law
Milirrpum v Nabalco Pt (Australia)
The action was brought by members of the Rirratjingu, Gumatj, and Djapu
clans, for themselves and the other members thereof, to prevent the

34
defendant company from mining bauxite on lands on the Gove Peninsula in
the Northern Territory to which the plaintiffs claimed exclusive rights.
Since the plaintiffs were unable to convince Justice Blackburn that their
relationship with the land was proprietary or that the common law contains a
doctrine of communal native title, they lost their case despite the evidence
in their favour. The Milirrpum decision was not appealed, and another 20
years would pass before the issue of the existence of Indigenous land rights
reached the High Court of Australia in Mabo v Queensland
Mabo No 2 (Australia)
The islands in the Torres Strait had been annexed to the Colony of
Queensland in 1879 pursuant to Letters Patent issued by Queen Victoria. The
plaintiffs alleged that acquisition of sovereignty by the Crown, which they did
not challenge, did not impair the pre-existing land rights of the Murray
Islanders based on their traditional laws and customs.
Evidence of pre-existing laws was therefore required, but it was not
presented in Cooper v Stuart because the case involved the application of
the rule against perpetuities to a Crown grant, not Indigenous land rights. By
way of contrast, in Mabo No 2 extensive evidence of the laws and customs of
the Murray Islanders was received by Justice Moynihan and transmitted to
the High Court, revealing that they had pre-existing land rights under their
own laws at the time the Crown asserted sovereignty in 1879

Canada
Calder v Attorney-General of British Columbia
In Calder, the Nisga’a Nation (spelled Nishga in the judgments) sought a
declaration that their Aboriginal title to lands in north-western British
Columbia had never been lawfully extinguished. Although the majority of the
Supreme Court dismissed the action on a technical procedural point,six of
the seven judges decided that Aboriginal title existed as a legal right in
British Columbia, though three thought it had been legislatively extinguished
prior to the entry of the province into Canada in 1871
Delgamuukw v British Columbia
In Delgamuukw, as in Calder, what allowed the Court to distinguish the St.
Catherine’s decision, on both the source and the content of Aboriginal title,
was evidence of Indigenous law and occupation of land. In Delgamuukw, this
evidence was extensive

Tsilhqot’in Nation v British Columbia

On the basis of this evidence, Chief Justice McLachlin, for a unanimous
Supreme Court, was of the opinion that, as found by Vickers J, Aboriginal title
to approximately half the claim area had been established.No reference to
the St. Catherine’s case was made in her judgment, revealing how far the
Court had moved from that precedent. She relied instead on Delgamuukw
Summing up the modern Canadian case law, in light of extensive evidence of
Indigenous land use and law, Supreme Court decisions starting with Calder in
1973 have rejected Lord Watson’s opinion that the Royal Proclamation of

35
1763 is the source Aboriginal title. Instead, it is based on the common law
rule that ownership can be derived from possession and the doctrine that
pre-existing land rights continue after Crown acquisition of sovereignty.
The existence of Aboriginal title is thus a matter of fact that depends on
evidence of exclusive occupation, which can be established by proof of
physical presence on and use of the land and by Indigenous law.
Conclusion
Our examination of the modern case law has revealed just how far the
highest courts in Australia and Canada have moved from the early
precedents of Cooper v Stuart and St. Catherine’s on the existence, sources,
and content of Indigenous land rights
By way of contrast, in the modern cases in both countries extensive evidence
of the cultures and laws of the Indigenous peoples concerned and of their
relationships with the land has been presented.
These common law doctrines have provided the courts with two potential
sources of Indigenous land rights, namely occupation of land and Indigenous
law. Depending on which source is applied, the content of the land rights is
then determined by common law principles in relation to possession,
Indigenous laws, or a combination of the two. In Australia, the High Court has
adopted the Indigenous law approach, whereas in Canada the Supreme
Court has applied the common law to determine the
content of Aboriginal title externally, leaving space for the application of
Indigenous law internally.
Tsilhqot’in Nation v. British Columbia,
• Tsilqot nation people were nomadic people and used certain lands
seasonally, and went away the rest of the year, and gave permission to other
tribes to use their land in off season. Tsilqot wanted a claim, however BC
didn’t want to give them.
• They can claim title as long as they can grant permission to other tribes
and that shows they have control.
They can’t sell their lands to anyone other than the crown.
The case clarified the test for proving aboriginal title to land
It clarified the rights associated with the title.
And it discussed how fed and prov law apply in situations of proven and
claimed aboriginal title
Daniel vs Canada
Are you aboriginal?
Are you in occupation of that land?
Do you have the right/title?
This case talks about if you are not aboriginal, then you can’t have
rights/title. In this case, Metis were granted equal rights as Indian.
On 14 April 2016, the Supreme Court of Canada ruled in Daniels v. Canada
that the federal government, rather than provincial governments, holds the
legal responsibility to legislate on issues related to Métis and Non-Status
Indians. In a unanimous decision, the court found that Métis and Non-Status
peoples are considered Indians under section 91(24) of the Constitution Act,

36
1867 — a section that concerns the federal government’s exclusive
legislative powers. Recognition as Indians under this section of law is not the
same as Indian Status, which is defined by the Indian Act. Therefore, the
Daniels decision does not grant Indian Status to Métis or Non-Status peoples.
The Supreme Court reinstated the Federal Court’s original decision on 14
April 2016. It ruled unanimously that under the Constitution Act, 1867, the
federal government is responsible for all Indigenous peoples, including
nearly 600,000 Métis and Non-Status peoples.
Brown v. Canada –
• Use this case for aboriginal and school children genocide
1965-1984, thousands (estimated 16,000 in Ontario) of aboriginal children
living on reserves were apprehended and removed from their families by
prov welfare authorities and placed in non-aboriginal foster homes or were
adopted by non-aboriginal families.
• the scooped children lost contact with their families, their language, culture
and identity
Yes, it is development towards aboriginal children by providing them
education, but it also has an obligation on the crown to preserve their
culture, their ties so they don’t lose their history and heritage. Canada is
obliged under s2(2) of the 1965 Agreement to consult each Indian Band
before any prov welfare program was extended to a reserve in.
PASTON' Case
• A recent judicial review of election results under the Dene Tha’ First Nation
custom election code finds that courts should give deference to Indigenous
laws and decision-makers when reviewing Indigenous laws enacted as part of
the power of self-governance.
• InPastion v. Dene Tha’ First Nation, 2018 FC 648, Justice Grammond of the
Federal Court, citing Woodward’s own Alan Hanna, found that the Canadian
courts have an overall tendency to deny and suppress Indigenous law,
especially in the area of community governance
• The Pastion decision provides important guidance to courts and other
decision-makers about the high level of deference that should be given to
Indigenous laws when reviewing the valid exercise of Indigenous legal
traditions.
• Pastion was an appeal of a recent Dene Tha’ First Nation custom election
for Chief. After the votes had been tallied, the incumbent Chief Joe Pastion
disputed the results on the basis that the third- place candidate was
ineligible and his inclusion on the ballot had detrimentally affected the result.
The first-place candidate had unseated Mr. Pastion by 29 votes. The third-
place candidate, Mr. Didzena, who was not ordinarily resident on a Dene Tha’
reserve, received 44 votes
• At the Federal Court, Grammond J upheld the Board’s decision and
endorsed deference to Indigenous decisionmakers applying Indigenous laws.
Because Indigenous decision makers are sensitive to Indigenous experience
generally and to the conditions of the particular nation or community
involved in a decision.

37
• Justice Grammond upheld the Board’s decision on a standard of
reasonableness and reinforced the need to defer to Indigenous
decisionmakers, especially Elders, as they are “obviously in a better position
than non-Indigenous courts to understand Indigenous legal traditions.”
• Canada is obliged under s2(2) of the 1965 Agreement to consult w/ each
Indian Band before any prov welfare program was extended to a reserve in.
D. Required Readings - Re: Aboriginal Treaties:
• Treaties are an agreement between aboriginal and crown.

Case Restoule v Canada

In 1850, the Anishinaabe of the upper Great Lakes agreed to share
their vast territory in exchange for hunting and fishing rights, as well as an
annual payment (“annuity”) from the Crown. The Crown promised that the
annuities could increase over time so long as resource development in the
area proved profitable. Mining and forestry eventually did flourish, but the
annuities increased just once, almost 150 years ago. To this day, the
Anishinaabe receive a couple of toonies every year for each of its
members as billions of dollars’ worth of precious metals, lumber, and other
goods are taken from their lands.
The Ontario Court of Appeal (“the Court”) unanimously held that the
Crown has neglected its treaty promises for far too long. This case comment
reviews the Court’s reasons and discusses why the standard of review for
treaty interpretation could be the central issue before the Supreme Court of
Canada in a subsequent appeal.
The Crown's honour requires the Crown to accomplish the Treaties’
intended purposes. The Crown must reconcile the pre-existing sovereignty of
Indigenous peoples with the Crown's assumed sovereignty. The Crown has
an ad hoc fiduciary duty as “the Crown undertook to act exclusively in the
best interest of the Treaties’ beneficiaries in their promise to engage in a
process to determine if the economic circumstances warrant an increase to
the annuities.”Both parties took risks, the Anishinaabe, if insufficient
revenues to increase the annuities and the crown if required to make
substantial increases. The promise is mandatory, but the Crown has
discretion, subject to the duty of loyalty, good faith, and disclosure.There is
also a duty to consult.
Stage One had also concluded with a favourable judgement for the
plaintiffs: The Court recognized Crown obligations and duties to increase
Treaty annuity payments in line with the promise of the Treaties’
augmentation clauses, which tie the value of annuity payments to the
resource wealth generated from Treaty lands (See Restoule v. Canada, 2018
ONSC 7701).
In its Stage Two decision, Justice Hennessy found that Ontario cannot rely on
limitations or Crown immunity defenses to escape liability for any breaches
of its obligations or duties under the Treaties.

38
 Article Darcy Lindberg, “Historical Lawsuit Affirms Indigenous Laws
on Par with Canada’s”, The Conversation (16 January 2019):
https://theconversation.com/historical-lawsuitaffirms-indigenous-
laws-on-par-with-canadas-109711
The Restoule v. Canada decision, delivered by Justice Patricia
Hennessey, ruled that the provincial and federal governments are obligated
to increase the annuity as outlined in the original Robinson-Huron Treaty
signed in 1850.
The recent decision from the Superior Court of Ontario in Restoule v. Canada
provides considerably more relief for Indigenous peoples.
The Crown left to its unfettered discretion in interpreting the treaty, has paid
four dollars per year to treaty signatories for the past 143 years. This is the
case despite an augmentation clause in the treaty that agrees to increase
the annuity should government revenues increase.

Ruling considers Anishinaabe principles of respect and

renewal The ruling
specifically relies upon Anishinaabe principles of respect, responsibility,
reciprocity and renewal to understand the intention of the signatories at the
time of signing. The decision considers the Anishinaabe legal perspective of
renewal, and holds that the maintenance of the treaty relationship is an
ongoing obligation for all parties, as the written treaty was “not meant as a
last word on the relationship” between the Anishinaabe and the Crown.
The recent decision is a present-day reconciliation of past nation-to-
nation practices. As Anishinaabe legal scholar John Borrows says, it works “to
relinquishes those interpretations of law that are discriminatory” within
Canada.
In considering Anishinaabe legal and governing processes in practical terms,
the court relies upon a wealth of expert testimony from elders and
community leaders and the historical record and supplements this
knowledge with other expert witnesses. This collection of Anishinaabe legal
knowledge that was used to remind the Crown of the intent of the original
agreement withstood the rigours of litigation during the trial.

A pathway to
reconciliation
This recent decision can also create a pathway to significant
corrections in the “reconciliation era” within Canada. The Restoule v. Canada
decision can be nourishment to the national reconciliation endeavour. The
court, in a forward-thinking way, has moved to provide full digital record of
the trial, to be preserved for “the benefit of scholars, Treaty First Nations,
and other interested persons.”
While the decision may recast material wealth in the treaty territory (and set
some five-dollar jokes aside), it also leaves clues to a broader understanding
of wealth in Canada. The decision suggests that Indigenous legal traditions

39
can point us in the right direction, towards this wealth of gratitude, justice
and a good life.
R v Marshall; R v Bernard Aboriginal treaty right: the test
- Modern peoples do traditional things in modern ways.
- Activity should not be abusive so that the future generation won’t benefit
from the same activity.

Marshall and Bernard's decision sets limits on aboriginal titles.

- The Court adopted strict proof of aboriginal title.
- The Court further stated that aboriginal title would require evidence of
exclusive and regular use of land for hunting, fishing or resource
exploitation. Seasonal hunting and fishing in a particular area amounted to
hunting or fishing rights only, not aboriginal title.
RvMarshal;Rv Bernard
• Whether the Mi’kmak people in NS and NB have the right to log on Crown
lands for commercial purposes pursuant to treaty. The central issues were
whether the Mi’kmaq had satisfied the Delgamuukw tests of exclusive
occupation.
• The trial courts in each case concluded that exclusive occupation required
proof of intensive, regular use of the specific cutting sites and that this had
not been established in evidence.
• On appeal, the Nova Scotia and the New Brunswick courts of appeal both
ruled that these standards were too strict and that there was no need for the
appellants to prove regular use of the cutting sites to establish Aboriginal
title.
• The appeal courts applied what has been described as a “territorial
approach” to proof of Aboriginal title. The Appellate Court in Bernard
similarly regarded the Aboriginal title claim of the Mi’kmaq as a claim.
• To territory rather than as a claim to specific sites. It was only necessary to
show that the Mi’kmaq had occupied an area near the cutting site.
• Chief Justice McLachlin, on behalf of the majority, interpreted a stricter
standard of occupancy confined to a level equal to that at common law.The
Supreme Court said there was no evidence to support a finding of Aboriginal
title.
If the claim related to Aboriginal title — conferring a right to exclusive use
and occupation of land — then it was essential that the pre-sovereignty
practice demonstrate some correlation with that right. The Supreme court
judge said there was no need to produce evidence of overt acts of exclusion,
but that there was a need to show “effective control of the land by the
group, from which a reasonable inference can be drawn that it could have
excluded others had it chosen to do so.
She expressly endorsed the following tests as accurately reflecting the
jurisprudence in respect of the burden of proof that must be satisfied to
establish Aboriginal title:
➣ in Marshall, the provincial court found that “the line separating sufficient

40
and insufficient occupancy for title is between irregular use of undefined
lands on the one hand and the regular use of defined lands on the other”;
and
➣ in Bernard, the provincial court judge found that “occasional visits to an
area did not establish title; [rather,] there must be evidence of capacity to
retain exclusive control”
• Based on these propositions, Chief Justice McLachlin concluded that both
trial decisions had correctly ruled that “[i]n each case, they required proof of
sufficiently regular and exclusive use of the cutting sites by Mi’kmaq people
at the time of assertion of sovereignty.”
• As a result, Chief Justice McLachlin adopted the postage stamp approach of
the trial court judge. Exclusive occupation required proof of intensive,
regular use of the cutting sites and this had not been established in
evidence.
• In Tsilhqot’in, Chief Justice McLachlin stressed that she had always applied
a dual perspective to the question of occupation and exclusivity. As she
noted: “In fact, this Court in Marshall; Bernard did not reject a territorial
approach but held only...that there must be ‘proof of sufficiently regular and
exclusive use’ of the land in question, a requirement established in
Delgamuukw.
Extinguishment of Aboriginal Rights (Mitchell vs MNR)
o Aboriginal rights (including aboriginal title) can be extinguished in 2
ways: o (1) by surrender and (2) by constitutional amendment
Police and Aboriginals ( if there is question in exam about police
trying to remove Aboriginals from protest)
Kent Roach’s background paper prepared for the Ipperwash Inquiry
emphasizes that the “case for transparent and accountable democratic
control and responsibility over policing may be particularly strong [in the
case of] police relations with Aboriginal people, because they involve the
broader question of whether the government respects Aboriginal rights.”
Roach appears to be suggesting that political intervention in policing may be
warranted in circumstances where “responsible government” requires it. It
should be acknowledged, as noted in Forcese (p. 352), that drawing the line
between protecting against undue political interference with police and
ensuring political accountability for police activities, is challenging..

CHAPTER THREE
BIJURALISM
1) DEFINITION
• As a legacy left by the colonisation of North America by France and Great
Britain, Canadian bijuralism is an expression of the coexistence of the civil
law and common law legal traditions in Canada. • Canada has maintained its
legal duality because, historically, the common law and the civil law have
complemented one another.
• This broad residuary power over property and civil rights in the province is

41
exercised in Quebec in a civil law environment whereas, elsewhere in
Canada, this power is set in a common law environment. Canadian provinces
have legislative jurisdiction in all matters relating to property and civil rights.
• For federal law to apply within a province or a territory, it must often call
on provincial or territorial law, notably in matters relating to property and
civil rights.
• Unless otherwise provided by law or unless the context excludes recourse
to provincial or territorial private law, both the common law and the civil law
coexist as authoritative sources of Canadian federal law.
• The CL applies to all public law in Canada and to private law everywhere in
Canada except Quebec, private law in Quebec is governed by civil law.
• Harmonization of federal legislation with the civil law of Quebec has long
been an issue. Federal legislation and regulations used to be drafted
essentially on the basis of common law.
• In 1978, the federal government began drafting its bills and regulations
using a team of two drafters, generally a Francophone jurist (usually a civil
law drafter) and an Anglophone jurist (usually a common law drafter).
• In this way, co-drafting produces a final product that better reflects
Canada’s two legal systems.
However, the coming into force of the new Civil Code of Quebec on January
1, 1994 resulted in significant changes to the substance and terminology of
the civil law, and thus a significant increase in the harmonization work
already under way.
• The purposes of the harmonization program are: to ensure that the federal
legislative corpus adequately reflects the concepts and institutions specific
to Quebec civil law; and to ensure that federal legislative amendments take
French common law terminology into account.
• The harmonization process includes exploration of fields that include
statutory interpretation, constitutional law, private law in both the civil law
and common law traditions, and comparative law.
2.1 Impact on Legislative - Language:
• The bijural nature of the Canadian legal system, along with the obligations
that derive from bilingualism, has an unquestionable impact on the drafting
of federal legislation.
• In that respect, federal legislation needs to speak to Canadian citizens in a
language that acknowledges, in both English and French, the common law
and civil law legal traditions.
• Questions on CONFLICT BETWEEN ENGLISH AND FRENCH
LANGUAGES
federal legislation must be drafted in the English and French languages and
in a manner which is compatible with two legal systems.
• Federal legislation must not only be bilingual, but also bijural
The rule of equal authenticity also requires the courts, in interpreting
bilingual legislation, to extract the "highest common meaning" from the two
versions that is consistent with the context of the provision. • Where there is
a blatant conflict between the English and French versions, courts

42
must examine the legislative history of the two linguistic versions of the
provision, looking also to the purpose and object of the statute. One must
therefore go further than mere verbal comparisons, looking to the highest
common meaning of the two versions
• Courts are therefore required to interpret bilingual legislation in a manner
that accords with the true spirit, intent and meaning of an enactment and
that best ensures the attainment of its objectives.
2.2 Complimentary Principle (Grimmard vs Canada)
• Both the common law and the civil law are equally authoritative and
recognized sources of the law of property and civil rights in Canada and,
unless otherwise provided by law, if in interpreting an enactment it is
necessary to refer to a province's rules, principles or concepts forming part
of the law of property and civil rights, reference must be made to the rules,
principles and concepts in force in the province at the time the enactment is
being applied.
• As a result, when a federal enactment is applied in Quebec, it is clear that
civil law, not common law, is to complement the federal enactment in
property and civil law matters.
• Similarly, of course, common law is the suppletive law to federal legislation
in the other provinces and territories.
• Where a federal law is silent, the civil law enjoys complimentary and
federal courts endeavour to achieve harmonization. Private and Public law
are complimentary.
• St Hillaire vs Canada was also another case where in Quebec both laws
were supplementing each other and are in harmony with each other. The
case reaffirmed the principles of complimentary or provincial private law in
the interpretation of federal law.
• Civil law is to complement the federal enactment in property and civil law
matters.
INTERNATIONAL LAW IN DOMESTIC? (two cases to be used)
Two main sources:
1) Treaties, i.e., agreements between states; Persuasive in nature
The treaty must undergo a process of “transformation”, whereby the treaty
is implemented, generally by means of legislation in the relevant Canadian
legislature, for it to form part of Canada’s domestic law. 2) international
custom, also known as customary international law, which requires the
existence of a general practice of states that is accompanied by a belief by
states that they are bound by that practice as a legal obligation (known as
opinio juris). customary international law is simply “adopted” as part
of Canadian law and does not require legislative implementation.
Question: Advantages about Canada’s approach re: international
law:
Answer :Democratic participation in the international law-making process
Keeps in check separation of powers (i.e. Prevents executive from “law
making”) Question: How does domestic law interact with
international law?

43
The answer depends on the source of international law: treaty or customary
law? Answer Treaties are not binding- Dualist
Customary Law- Are binding – Monist – Can only be overruled by a statute
International Treaties
• Dualism: Canada has a dualist tradition – an international treaty has no
direct effect in domestic law until domestic legislation passed to transform or
implement the law into Canadian law by an act of Parliament (if a federal
matter) or prov Legislatures (if a prov matter)
• On one level this is a sensible philosophy b/c it provides a check against
the executive who may want to short-circuit parliament by signing a treaty
which would have direct effect if Canada were a monist system
• Therefore, Canada insists that its treaties be transformed into domestic
federal law by an Act of Parliament
• One of the dilemmas with the dualist tradition occurs when parliament and
prov legislature decide not to implement the treaties. this will result in
Canada not complying with its international obligations • Conversely, they
can pass legislation, but they have very little say in those acts. Basically,
they will just be adding a stamp of approval onto a treaty that had been
concluded by the federal executive branch
International Customary Law
• Once a rule becomes recognized as customary law, it is automatically
part of Canadian CL In this regard, Canada is a monist rather than a dualist
jurisdiction But, like the rest of CL, it can always be displaced by statute
• There are issues with incorporating customary international law
1 When legislature passes future laws that displace customary internal law,
then Canada will be in violation of its international obligations
2 o Since customary law becomes part of the CL, its existence is determined
by the courts exclusively – no input by Canadian political branches
3 o The final issue raised is that since customary laws are sometimes
uncertain, courts asked to apply them
• Unclear what SCC’s position is re: customary international law: There is
no unequivocal statement on whether custom is part of Canadian law or not.
The SCC decisions in Spraytech and Suresh leave room to be interpreted as
suggesting that customary law, including even just cogens, is not directly
binding in Canada.
• The two decisions permit the inference that custom merely helps inform a
contextual approach to statutory interpretation, furnishing a potentially
relevant and persuasive source for this power, but nothing more.
Stare Decisis
• Doctrine of stare decisis means that lower courts are bound to apply the
law laid out by higher courts. The doctrine operates both horizontally and
vertically.
• The doctrine requires courts to follow their own previous decisions is known
as “horizontal” precedent, or horizon stare decisis.
• The doctrine that requires courts to follow the decisions of the appellate
courts over them is known as “vertical” precedent.

44
• Vertical Precedence: A court engages in vertical stare decisis when it
applies precedent from a higher court. Any decision made by a higher level
of court in the same jurisdiction of the Supreme court is binding in nature.
• Horizontal stare decisis refers to a court adhering to its own precedent.
Decisions of the same level or lower level of courts are persuasive in nature.
ADVANTAGES AND DISADVANTAGES OF PRECEDENT (Two articles
below) Advantages/benefits: (i) Aids in the stability and coherence of the
law, making it more predictable
(ii) Provides fairness in decision making; (iii)
Promotes efficiency and eliminates sources of error (such as judicial bias);
(iv) Fulfills a symbolic role by recognizing the relationship between courts
and the legislature.
• (v) Provides some certainty (liberty to decide each case as you think right
without any regard to principles laid down in previous cases would result in
uncertainty of law);
• (vi) Possibility of growth (new rules can be established and old rules can be
adapted to meet new circumstances and the changing needs in society) (talk
about how feminists would enjoy this aspect of the doctrine, without which
the laws today relating to female participation in society might be primitive)
Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is binding
even if the decision is thought to be wrong) + Perpetuation of errors; (ii)
Bulk/complexity (so much law, difficult to learn it all; lay people can’t access
it); (iii) Slowness in growth (the system depends on litigation for rules to
emerge); (iv) Easy to distinguish (give case example); (v) Also some
intellectual uncertainty (as the law is in constant evolution)
Carter vs Canada:
Facts:
• Is a case about a couple charged after accompanying the wife’s mother
who suffered from ALS to Switzerland to have a physician-assisted death The
author talks how recent case law has affected stare decisis and the vertical
convention of precedent. Doctrine of stare decisis means that lower courts
are bound to apply the law laid out by higher courts
• Based on Carter vs Canada, Trial courts can reconsider settled rulings
when:
1. New legal issue is raised; and
2. Where there is a change in circumstances that fundamentally
shifts the parameters of the debate
The court Held that both conditions were met in the trial court of Carter
Conclusion - On one hand, we have the Supreme Court of Canada taking a
stricter view that some would like to the vertical convention of precedent,
particularly the precedential value of ‘authoritative obiter’ from that court
EQUITY
• It is an older type of court which uses a combination of Natural Law and
Critical Legal Theories. Equity courts over the years are replaced by the
Common Law Courts. Equity allows you to bend the law (not break the law)

45
to point that it is reasonable. It moulds the strict laws according to the
situation. Cases –
• Royal Brunei Airlines v Tan
Hongkon v Reid
1 Stability, consistency, and protection of reliance interests are all important
institutional values promoted by the doctrine of stare decisis.
GRIMMARD vs Canada
• The taxpayer was a doctor who worked as a medical assessor with the
workers' compensation administrative tribunal eventually known as the
Commission des lésions professionnelles (Que.). The Minister of National
Revenue reassessed the taxpayer on the basis that his relationship with the
Commission constituted a contract of employment rather than a contract for
services.
• As a result, deductions for expenses such as rent, office expenses, travel,
and telephone, computer and stationery costs were disallowed. The taxpayer
appealed.
The Tax Court of Canada dismissed the appeal. The taxpayer appealed.
The Federal Court of Appeal dismissed the appeal
The Tax Court of Canada, applying Quebec Civil Law as a supplement to
federal law, as required under s. 8.1 of the Interpretation Act (Can.), affirmed
that the relationship was a contract of employment.
Key points to be learnt from the case are;
 principle of complementarity of Quebec civil law to federal law
 This allowed for different treatment of Canadian litigants under federal
legislation
 In this case TCC was correct in relying on the Civil Code
 While the two systems take a different approach to characterizing the
nature of the contract of employment and the contract for services,
there is no antinomy b/t the principles of Quebec civil law and the CL
criteria on this question.
Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130
• Lawyer working for the Church, and representatives of the Church of
Scientology held a press conference on the courthouse steps in Toronto read
from and commented upon allegations in a notice of motion by Scientology,
intending to commence criminal contempt proceedings against a Crown
Attorney, Casey Hill.
• The motion alleged Hill had misled a judge and had breached orders
sealing certain documents belonging to Scientology.
The allegations against Hill were found to be completely untrue and without
foundation.
Hill launched a lawsuit for damages against the appellants. Both appellants
were found jointly liable for general damages of 300,000 and Scientology
alone was liable for aggravated damages of C$500,000 and punitive
damages of C$800,000.
• Was the common law of defamation valid in light of the Canadian Charter
of Rights and Freedoms and whether the jury's award of damages could

46
stand?
• There is an important distinction between Charter rights and Charter
values; we cannot extend the Charter past its application set forth in the s.
32 interpretation.
• The respondent's action for damages does not constitute government
action within the meaning of section 32 of Charter. As per section 32 of the
Charter, an action for damages for a breach of Charter rights is a public law
action directed against the state for which the state is primarily liable. Sec
32 doesn’t apply here as this is a private dispute.
• The fact that persons are employed by the government does not mean that
their reputation is automatically divided into two parts, one related to their
personal life and the other to their employment status.
The interests of freedom of expression vs. reputation must be balanced.
Reputation is an integral and fundamentally important aspect of every
individual; it exists for everyone quite apart from employment.
• The appellants impugned the character, competence and integrity of the
respondent himself, and not that of the government. -a private litigant
cannot allege that the common law violates Charter right because
such 'rights' do not exist in the absence of government action; the
most they can do is argue that the common law is inconsistent with
Charter values.
• The party alleging a challenge must prove (1) that there is an
inconsistency between common law and Charter values; and (2) when
balanced, the common law should be modified.
• The Charter does not apply to the common law where it is invoked
in reference to a purely private dispute.

Debra Parks Precedent Unbound? Contemporary Approaches to

Precedent in Canada
 Author talks about
 General principle of Stare decisis
 However, lower courts can move away from stare decisis based on
 Based on Bedford test
 Sec 7 of Prostitution Reference. Judge was permitted to revisit the s. 7
issue given the significant changes in the law and the very different
basis of the section 7 argument in the Prostitution Reference.
 Case of Carter vs Canada and compare that to Rodriquez vs RC
(Assisted suicide in Carter was allowed but not in the times of
Rodriguez)

Carter vs Canada:
Facts:
• The Court found that the common law of defamation obeys the underlying
values of the Charter
and as such, there is no need to change it. The Charter will only be
applicable to the extent that

47
the common law is found to be inconsistent with the Charter
• Carter v Canada (AG) (Carter SCC) is a case about a couple charged after
accompanying the wife’s mother who suffered from ALS to Switzerland to
have a physician-assisted death The author talks how recent case law has
affected stare decisis and the vertical convention of precedent. Doctrine of
stare decisis means that lower courts are bound to apply the law laid out by
higher courts

• Based on Carter vs Canada, Trial courts can reconsider settled rulings

when:
• 1. New legal issue is raised; and
• 2. Where there is a change in circumstances that fundamentally shifts the
parameters of the
debate
Held that both conditions were met in the trial court of Carter

Conclusion - On one hand, we have the Supreme Court of Canada taking a

stricter view that some would like to the vertical convention of precedent,
particularly the precedential value of ‘authoritative obiter’ from that court
Stability, consistency, and protection of reliance interests are all important
institutional values promoted by the doctrine of stare decisis
ARTICLE Cass R. Sunstein, “Analogical Reasoning” (October 7, 2021):
An analogical argument is an explicit representation of a form of analogical
reasoning.
In law, the process of analogical reasoning appears to work in five simple
steps.
(1) Some fact pattern A—the “source” case—has certain characteristics; call
them x, y, and z.
(2) Fact pattern B—the “target” case—has characteristics x, y, and q, or
characteristics x, y, z, and q. (3) A is treated a certain way in law.
(4) Some principle or rule, announced, created, or discovered in the process
of thinking through A, B, and their interrelations, explains why A is treated
the way that it is.
(5) Because of what it shares in common with A, B should be treated the
same way. It is covered by the same principle. It should be clear that the
crucial step, and the most difficult, is (4). Often analogical reasoning works
through the use of incompletely theorized agreements, making (4) tractable.
Some of the disputes about analogical reasoning reflect contests between
Burkean and Benthamite conceptions of law.

Author’s principal topic here is legal reasoning within the court system. It is
here that analogical reasoning finds its natural home. I shall argue that
courts are drawn to analogical reasoning in large part because analogies
allow people to reach incompletely theorized agreements. To say that one

48
case is like another, we need a reason or a principle, but we can often offer a
reason or a principle that operates at a low level of ambition
A particularly interesting feature of analogical reasoning is its persistence
within legal systems committed to the rule of law. In England and America,
the common law places a premium on analogical thinking. In the United
States, most constitutional cases are decided not by reference to
constitutional text or history, but through analogies and thus through
casuistical reasoning. We can therefore use analogical reasoning not only as
a way of getting a better understanding of incompletely theorized
agreements, but also in order to build a conception of the rule of law that
allows a place for particularity as well as generality.

Features of Analogy
Analogies outside of Law
Analogical reasoning is a kind of reasoning that is based on finding a
common relational system between two situations, exemplars, or domains.
When such a common system can be found, then what is known about one
situation can be used to infer new information about the other.

Analogical reasoning helps to inform our judgments about factual issues on

which we are uncertain. I have a Labrador Retriever dog, and I know that she
is gentle with children. When I see another Labrador Retriever dog, I assume
that she too will be gentle with children. I have a Toyota Camry, and I know
that it starts even on cold days in winter. I assume that my friend’s Toyota
Camry will start on cold winter days as well.
There is a simple structure to this kind of thinking. (1) A has some
characteristic X, or characteristics X, Y, and Z. (2) B shares that
characteristic or some or all of those characteristics. (3) A also has some
characteristic Q. (4) Because A and B share some characteristic or
characteristics, we conclude what is not yet known, that B shares
characteristic Q as well.
This is a usual form of reasoning in daily life, but it raises many questions.

Perhaps we should compare the unknown Labrador Retriever not with my

own dog, but with some other Labrador Retriever in the neighborhood, who
is not so gentle with children. Or perhaps we should compare the unknown
Labrador Retriever not with other Labrador Retrievers at all, but with a dog
owned by someone “like” the person who owns that Labrador Retriever. Or
perhaps we should look to another of the innumerable facets of the situation.
In law and elsewhere, there is often a simple, intuitive understanding that
the target case B is analogous to source cases A and C, but not to D and E.
But greater reflection may show mistakes, bias, or inadequate care in the
selection of source cases.
The most disciplined way to proceed would be to identify the probability,
asking: In view of characteristic Z, shared by X and Y, what is the likelihood

49
that because X also has characteristic A, Y will have that characteristic as
well? Sixty percent? Seventy-five percent? Ninety-five percent?

Analogical Thinking in Law: Its Characteristic Form

Some people think that analogical reasoning is really a form of deduction
(Legal outcomes in particular cases are the logical consequence of the
general theory). In deductive Reasoning, They look codes which are
established and apply downwards. For e.g. Civil Law., but this is a mistake.
To be sure, analogical reasoning cannot proceed without identification of a
governing idea—a principle or rule, discovered in (4)—to account for the
results in the source and target cases.
should readily appear that analogical reasoning does not guarantee good
outcomes in law. For analogical reasoning to operate properly, we have to
know that cases A and B are “relevantly” similar, and that there are not
“relevant” differences between them. Even seemingly similar cases are
always different from each other and along innumerable dimensions.

The Features of Analogy (important)

In law, analogical reasoning has four different but overlapping features:
• principled consistency,
• a focus on particulars,
• incompletely theorized judgments, and
• principles operating at a low or intermediate level of abstraction

First, and most obviously, judgments about specific cases must be made
consistent with one another. A requirement of principled consistency is a
hallmark of analogical reasoning (as it is of reasoning of almost all sorts).
Second, analogical reasoning is focused on particulars, and it develops from
concrete controversies. Holmes put the point in this suggestive if somewhat
misleading way:A common law court “decides the case first and determines
the principle afterwards.” If anything, the principle comes first (or ought to).

But Holmes is right to say that ideas are developed with close reference to
the details, rather than imposed on them from above. In this sense,
analogical reasoning, as a species of casuistry, is a form of “bottom-up”
thinking Unlike many kinds of reasoning, it does not operate from the top
down. It is not deduction.
Third, analogical reasoning in law operates without anything like a deep or
comprehensive theory that would account for the particular outcomes it
yields. The judgments that underlie convictions about the relevant case are
incompletely theorized. The supposed moral of the story is that lawyers’
reasoning, even by its most able practitioners, is far inferior to economics,
most of all because it lacks clear criteria or a set of specified governing
values. For e.g. Edward Levi—a great champion of analogical reasoning—
decided to introduce economics into his antitrust course, and he chose to do
so by allowing every fifth class to be taught by the economist Aaron Director,

50
in many ways the father of modern law and economics. As the story goes,
Levi would spend four classes in the lawyer’s fashion, brilliantly rationalizing
the seemingly inconsistent judicial holdings. In the fifth class, Director would
explain, with the economist’s tools, why everything that Levi said was wrong.
Eventually—the story goes— even Levi was converted. A good theory
deserves priority.
Fourth, and finally, analogical reasoning produces principles that operate at
a low or intermediate level of abstraction. If we say that an employer may
not fire an employee for accepting jury duty, we might mean (for example)
that an employer cannot fire an employee for refusing to commit a crime.
This is a standard, perhaps even a rule, and it does involve a degree of
abstraction from the particular case, but it does not entail any high-level
theory about labor markets, or about the appropriate relationship between
employers and employees. If we say that a Nazi march cannot be banned,
we might mean that political speech cannot be stopped without a showing of
clear and immediate danger; but in so saying, we need not invoke any large
theory about the purposes of the free speech guarantee, or about the
relation between the citizen and the state. People can converge on the low-
level principle from various foundations or without well understood
foundations at all.

Precedents as Rules and Analogies

A precedent can serve as either a rule or an analogy. When a precedent is
said to be a rule, it is because it is believed to be so closely analogous to the
case at hand, or because there are so clearly relevant similarities without
relevant differences, that people agree that it “binds,” and no one wants to
suggest that it is “merely” an analogy. In 2015, the Supreme Court struck
down bans on same-sex marriage. If a new case arises in which members of
a same-sex couple are over the age of sixty, or in which there is a big age
spread between them, everyone will agree that the precedent creates a rule
and is binding; the age of the would-be spouses is not relevant.
When a precedent is said to be an analogy and not a rule, it is because there
is at least plausibly a relevant difference between the two cases, and so it is
too simple to say the precedent “covers” the case at hand. Suppose that
three people want to marry each other, and that they claim that they are
protected by the same-sex marriage ruling. It is far from clear that their
claim is convincing.

Analogical Confusion
Analogical reasoning can of course be done poorly. Sometimes the selection
of a particular “source” case is wrong or inadequately justified; sometimes
judges treat some case A as the obvious basis for analogical thinking, even
though cases B and C would be a much better place to begin. The method of
analogy is based on the question: Is case A relevantly similar to case B, or
not? To answer such questions, one needs a theory of relevant similarities
and differences. Everything is similar in innumerable ways to everything

51
else, and different from everything else in the same number of ways. Courts
should always stand ready to explain and justify the claim that one thing is
analogous to another. Analogical reasoning can go wrong not simply because
it is dishonorably formalistic, but also because it rests on an inadequately
defended judgment about relevant similarities and differences.

Analogies and Precedent-Following- ADVANTAGES OF ANALOGICAL

REASONING -Important Why might we think analogically? Would it not be
better to choose the right theory and simply to apply it?
First, the analogizer is committed to consistency and equal treatment. A
litigant in case A may not be treated differently from a litigant in case B
unless there is a relevant difference between them.
Second, analogies can be a source of both principles and policies. A judge
may not know which principles are best unless she investigates an
assortment of apparently similar cases.
Third, the resort to decided cases, as analogies, helps judges to avoid hubris.
A judge who respects what others have done is less likely to overstep, by
invoking theories that are confused, idiosyncratic, highly divisive, or
sectarian.
Fourth, analogical reasoning, if based on precedent, promotes the important
interests in fostering planning, maintaining predictability, and protecting
expectations. If past rulings are entitled to respect, they allow people to
believe that the law is a certain way, and that they may act safely on that
belief. Fifth, and relatedly, analogical thinking saves a great deal of time. If
judges had to start from scratch in each case, the legal system would be
overwhelmed. This might well be so even if the legal system consisted of a
single judge. The project of putting one’s own convictions into genuine order
is (to say the least) time-consuming, and ordinary people often do well to
think of their own past practices as precedents.
Finally—to return to our main theme—precedents and analogies facilitate the
emergence of agreement among people who diverge on most or many
matters. Judges A, B, and C may disagree on a great deal. They may start
from significantly different premises. But to say the least, it is helpful if judge
A can invoke certain fixed points for everyone’s analysis, so that judges B
and C can join the discussion from shared premises.
Analogies in Law: Common, Constitutional, Statutory
The Common Law (page 28)
Common law judges decide particular controversies by exploring how
previous cases have been resolved. They rely on precedents. They look for
relevant similarities and relevant differences. In the end, they will produce a
rule or a standard, or perhaps a series of rules and standards. But many
rules are not given in advance of encounters with particulars; they are
generated through close encounters with the details of cases.
The fact that the common law is developed by analogy does not mean that
the common law is without rules. the common law reflects a complex set of
judgments not uniquely derivable from a unitary value, but embodying

52
instead a wide range of decisions based on mid-level principles, some of
which do not cohere well with one another. This is the kind of outcome more
reasonably to be expected from a heterogeneous group of judges, ill-
equipped to think about first principles, and working in a more or less ad hoc
way from particular situations
The Constitution (page 32)
Analogical reasoning is crucial in constitutional cases. Indeed, American
constitutional law is often constructed from analogies—not from text or
history, not from moral theory, and not from existing social consensus. In
American constitutional law, it is often suggested that the foundations of
decision are text, structure, and history. The suggestion is not exactly wrong,
but it is too simple, even a conceit. Analogical reasoning is admirably
welladapted to some of the institutional characteristics of courts.
Analogy within Statutes and Rules (Page 39)
In interpreting statutes, courts might rely on the literal meaning of the
statutory term or the ordinary meaning of the term in its context—if there is
one—and stick with that meaning even if the particular application is or
seems very odd. Or courts might refer more generally to statutory purpose
or original meaning, without engaging in the analogical process. All I mean to
suggest is that there is an approach to statutory cases—a familiar and in
many ways an attractive one—that involves analogical argument. Analogies
play a prominent role in common law and constitutional cases, but they are
occasionally important in statutory cases too.

Analogy and Incompletely Theorized Agreements

In this section, author defend analogical reasoning against certain
alternatives and complaints. It should be clear that rules have many
advantages over case-by-case judgments unaccompanied by rules. Analogy
and Legal Realism (page 51)
On a view associated with legal realism, reasoning by analogy suffers from a
fatal defect: It is utterly indeterminate in the absence of some kind of
principle. Without agreement on a principle, analogical reasoning cannot
even get started. According to this account, we can reason analogically only
if we already agree on certain fundamental questions.
Realism and Judicial Psychology (page 55)
. If we are really interested in describing legal reasoning, we have to
recognize that judges are often motivated by their own political judgments
about how they want a case to come out. On this view, the picture of analogy
and incompletely theorized agreement is hopelessly sanitized—inconsistent
with the true psychology of judging. Judges may write as if they are
analogizers, but the analogies are often boilerplate disguising a political
judgment, rather than a helpful guide to judicial reasoning. In any event not
all judges are the same; there are many different methods at work in cases.
Thus the picture is not only sanitized but far too uniform.
Analogy and Hercules (page 56)
I have discussed Ronald Dworkin’s use of the Hercules metaphor, and I have

53
tried to show why incompletely theorized agreements have distinctive
advantages. For present purposes, it is important to say that analogies may
have virtues as compared with the search for what Dworkin calls
“integrity”— or most modestly, that analogical thinking can be seen as a way
to undertake that search. Analogical reasoning might therefore be defended
on the ground that the appropriate approaches to certain areas of law call for
principled consistency with respect to individual cases and lowlevel
principles.
Top Down, Bottom Up- Analogy, Bentham, and Burke –(page 57)
A separate challenge, traceable to Jeremy Bentham, is that the method of
analogy is hopelessly unreliable—insufficiently scientific, unduly tied to
existing intuitions, and partly for these reasons static or celebratory of
existing social practice.Analogical reasoning works too modestly from
existing holdings and convictions, to which it is unduly attached. It needs to
be replaced by something like a general theory—in short, by something like
science. Burke can be seen to be arguing that the process of analogical
reasoning, attending to “the infinite variety of human concerns,” has major
advantages over the use of any theory, which would not be founded on
experience, and which would reflect some kind of arrogance.
Analogical reasoning lies at the heart of legal thinking, and for good reasons.
It is admirably well- suited to the particular roles in which lawyers and judges
find themselves—to a system in which heterogeneous people must reach
closure despite their limitations of time and capacity, and despite
their disagreements on fundamental issues. There is nothing static to the
analogical process; it leaves room for flexibility and indeed for an enormous
amount of creativity. And no matter how sophisticated a legal culture
becomes, and no matter how committed it is to the rule of law, it is likely to
make a large space for analogical thinking. The persistence of analogical
thinking in day-to-day life is thus mirrored in law.
TAN VS Canada
• How does immigration status affect a person’s ability to file a complaint
with the Canadian Human Rights Commission?
• Mr. Tan was serving a life sentence in Canada for second degree murder
when he filed a complaint with the Canadian Human Rights Commission,
alleging discrimination on the basis of his religion. The citizen of Malaysia
and former temporary resident of Canada had been brought back to Canada
from Belgium pursuant to the Extradition Act.
• He was also the subject of a deportation order that would be enforced upon
completion of his sentence.
• The appellant challenged the finding by the Canadian Human Rights
Commission that as a person with “no immigration status, he was not
lawfully present in Canada”.] As a result, the Commission had concluded that
it lacked jurisdiction under the Canadian Human Rights Act (CHRA) to
consider Mr. Tan’s complaint.
• The Honourable Mr. Justice Rennie, writing for the majority in Tan, began
his decision by considering Forrest v. Canada (Attorney General),[3] a 2006

54
Federal Court of Appeal case which held that the Commission lacked
jurisdiction to hear complaints from individuals without immigration status. •
Forrest found that it was the role of the Minister of Citizenship and
Immigration to determine a person’s status. In Tan, the majority also
interpreted “lawfully present in Canada” and “status of an individual”, terms
which appear in the CHRA.
• Notably, the majority found that “Forrest FCA was wrongly decided and
ought no longer to be followed”.
• The correct approach, in the majority’s view, is for the Commission to first
attempt to answer the question of whether or not the complainant is lawfully
present on their own.
• Justice Rennie cautions that the advice of the Minister – be it the Minister of
Justice, Minister of Citizenship and Immigration or Minister of Public Safety
and Emergency Preparedness, or anyone else – is only one factor to consider
amongst myriad “other relevant factors”
• Mr. Tan’s entry into Canada was “lawful as it was authorized under the
Extradition Act”, concluded the majority.[8] Furthermore, Mr. Tan was
“lawfully present in Canada” when the alleged discrimination occurred and
so the Commission ought to consider the complaint.
• The majority expressly distinguishes Mr. Tan’s case from that of an
individual on immigration detention, or a person whose refugee claim or pre-
removal risk assessment was rejected.

ARTICLE Henry E Smith, “Equity as Meta-Law” (2021) 130:5 Yale LJ 1050:

https://www.yalelawjournal.org/pdf/Smith_i8qnzgea.pdf
Equity operates on a domain of fraud, accident, and mistake, and employs
triggers such as bad faith and disproportionate hardship to toggle into a
“meta”-mode of more open-ended scrutiny. This Article provides a
theoretical account of how a hybrid law, consisting of relatively simple and
general primary- level law and relatively intense and directed second-order
equity can regulate behavior better through these specialized modes than
would homogeneous law alone. Equity as meta-law sheds light on how the
fusion of law and equity spawned multifactor balancing tests, polarized
interpretation, and led to the confusion of equity with standards, discretion,
purely public law, and “mere” remedies.

This Article reconstructs equity along functional lines. It begins in Part I

with how equity developed as meta-law and where the current state of fusion
leaves us today. It also sets out how equity as meta-law pervades the
interstices between property and contract, and lays out equity’s domain and
structure and how these have functioned and still do function as meta-law.
Part II turns to a theoretical account of the specialization of equity as meta-
law, drawing on notions of specialization and emergence in complex
adaptive systems. This analysis shows that a combination of equity that
specializes in solving complex, uncertain problems and regular law that
focuses on providing relatively simple guidance can be superior to a

55
homogeneous model that tries to do everything in an undifferentiated
fashion. Part III tackles some of the biggest challenges for any account of
equity’s specialness: the maxims of equity, varieties of fraud, equitable
defenses, and remedies. With this positive picture in hand, Part IV turns to
the place of equity in the legal system today. Seeing equity as meta-law
allows us to understand why equity is so misunderstood as being reducible to
standards, discretion, contextualized interpretation, public law, and, perhaps
most commonly, “mere” remedies. All of these misconceptions can be traced
to the misfiring of fusion, giving rise to the polarization and exaggeration of
certain problems and the obscuring of others. The Article concludes after
some thoughts on the prospects for revitalizing equity as meta-law.

BAKER vs Canada
• Mavis Baker is a citizen of Jamaica who entered Canada as a visitor in
August of 1981 and has remained in Canada since then.
• She never received permanent resident status but supported herself
illegally as a live-in domestic worker for 11 years.
• She has had four children (who are all Canadian citizens) while living in
Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in
1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms.
Baker suffered from post-partum psychosis and was diagnosed with paranoid
schizophrenia.
• She applied for welfare at that time. Ms. Baker applied for an exemption
from the requirement to apply for permanent residence outside Canada,
based upon humanitarian and compassionate considerations, pursuant to s.
114(2) of the Immigration Act.
• The response to this request was contained in a letter dated April 18, 1994
and signed by Immigration Officer M. Caden, stating that a decision had been
made that there were insufficient humanitarian and compassionate grounds
to warrant processing Ms.
• Baker’s application for permanent residence within Canada. This letter
contained no reasons for the decision.
• Simpson J. delivered oral reasons dismissing the appellant’s judicial review
application. She held that since there were no reasons given by Officer
Caden for his decision, no affidavit was provided, and no reasons were
required, she would assume, in the absence of evidence to the contrary, that
he acted in good faith and made a decision based on correct principles. She
rejected the appellant’s argument that the statement in Officer Lorenz’s
notes that Ms.Baker would be a strain on the welfare system and was not
supported by the evidence, holding that it was reasonable to conclude from
the reports provided that Ms. Baker would not be able to return to work. She
rejected the appellant’s argument that the Convention on the Rights of the
Child mandated that the appellant’s interests be given priority in s. 114(2)
decisions, holding that the Convention did not apply to this situation, and
was not part of domestic law.

56
• She also held that the evidence showed the children were a significant
factor in the decision- making process.
• International treaties and conventions are not part of Canadian law unless
they have been implemented by statute. As per the judge, they agree with
the respondent and the Court of Appeal that the Convention has not been
implemented by Parliament.
Its provisions therefore have no direct application within Canadian law.
The values and principles of the Convention recognize the importance of
being attentive to the rights and best interests of children when decisions
are made that relate to and affect their future.
• L’Heureux-Dube: International treaties and conventions are not part of
Canadian law unless they have been implemented by statute. The
Convention has not been implemented by Parliament, and therefore its
provisions have no direct effect on Canadian law. Nevertheless, the values
reflected in international human rights law may help inform the contextual
approach to statutory interpretation and judicial review.
• Iacobucci It is a matter of well-settled law that an international convention
ratified by the executive branch of government is of no force or effect within
the Canadian legal system until such time as its provisions have been
incorporated into domestic law by way of implementing legislation.
• In Baker, the Court held that the values reflected in international human
rights law may help inform the contextual approach to statutory
interpretation and judicial review
• After the Baker decision, there appears to be a trend towards
treating all international law, whether custom or treaty, binding on
Canada or not, implemented or unimplemented, in the same manner
– as relevant and persuasive, but not determinative (this comes
implicitly from the decision, not explicitly)

R. v.
Hape
Mr. Hape was being investigated by the RCMP for suspicion of money
laundering. A 1998 investigation led to a “sting” operation in which an
undercover RCMP officer provided large sums of money to Hape for
laundering through an investment company owned by Hape in the Turks and
Caicos Islands. The RCMP wanted to create a paper trail that would confirm
their suspicions about Hape. They sought permission from the Turks and
Caicos police authorities to conduct part of their investigation in the Turks
and Caicos Islands. The RCMP were permitted to carry out covert,
warrantless searches of the premises of Hape’s investment company under
the supervision of one member of the Turks and Caicos police department.
The searches occurred in 1998 and 1999, and many documents were seized
and scanned by the RCMP, culminating in the laying of money laundering
charges against Hape.

57
Before his trial in Canada, Hape applied for exclusion of the seized
documents from the nine justices of the Court were unanimous in judgement
—there had been no violation of Charter rights in this case—

Per McLachlin C.J. and LeBel, Deschamps, Fish and Charron JJ.: The Charter
does not generally apply to searches and seizures in other countries. Rather,
the only reasonable approach is to apply the law of the state in which the
activities occur
Canadian law, including the Charter, cannot be enforced in another state’s
territory without the other state’s consent. According to the Crown, to hold
that s. 8 of the Charter does not apply to foreign evidence because they had
been obtained contrary to the protection against search and seizure under s.
8 of the Charter.searches is not to suggest that there are no controls over
the actions of Canadian law enforcement officers involved in investigations in
other countries. Where the admission of evidence would lead to an unfair
trial, a court has the discretion to exclude evidence under s. 7 of the Charter.

Nevsun Resources Ltd. v. Araya

Three Eritrean workers claim that they were indefinitely conscripted

through Eritrea’s military service into a forced labour regime where they
were required to work at a mine in Eritrea. They claim they were subjected to
violent, cruel, inhuman and degrading treatment. The mine is owned by a
Canadian company, Nevsun Resources Ltd. The Eritrean workers started
proceedings in British Columbia against Nevsun and sought damages for
breaches of customary international law prohibitions against forced
labour, slavery, cruel, inhuman or degrading treatment, and crimes against
humanity. They also sought damages for breaches of domestic torts
including conversion, battery, unlawful confinement, conspiracy and
negligence. Nevsun brought a motion to strike the pleadings on the basis of
the act of state doctrine, which precludes domestic courts from assessing the
sovereign acts of a foreign government. Nevsun also took the position that
the claims based on customary international law should be struck because
they have no reasonable prospect of success. The chambers judge dismissed
Nevsun’s motion to strike, and the Court of Appeal agreed.
Customary international law is the common law of the international legal
system, constantly and incrementally evolving based on changing practice
and acceptance. Canadian courts, like all courts, play an important role in its
ongoing development. There are two requirements for a norm of customary
international law to be recognized as such: general but not necessarily
universal practice, and opinio juris, namely the belief that such practice
amounts to a legal right or obligation.
Within customary international law, there is a subset of norms known
as jus cogens, or peremptory norms, from which no derogation is permitted.
The workers claim breaches not only of norms of customary international
law, but of norms accepted to be of such fundamental importance as to be

58
characterized as jus cogens. Compelling authority confirms that the
prohibitions against slavery, forced labour and cruel, inhuman and degrading
treatment have attained the status of jus cogens. Canada has long followed
the conventional path of automatically incorporating customary international
law into domestic law via the doctrine of adoption, making it part of the law
of Canada. Therefore, customary international law is automatically adopted
into domestic law without any need for legislative action. The fact that
customary international law is part of our common law means that it must be
treated with the same respect as any other law.
It is enough to conclude that the breaches of customary international
law, or jus cogens, relied on by the Eritrean workers may well apply to
Nevsun. Since the customary international law norms raised by the Eritrean
workers form part of the Canadian common law, and since Nevsun is a
company bound by Canadian law, the claims of the Eritrean workers for
breaches of customary international law should be allowed to proceed.
Article 4
Gib Van Ert, "Canada" in Sloss and Jinks (eds.), The Role of Domestic Courts
in Treaty Enforcement: A Comparative Study (Cambridge University Press,
2009)
• If asked whether Canadian courts enforce treaties binding on the state at
international law, most judges and lawyers would say no. However, a proper
and accurate account of treaty enforcement in Canadian courts must
account for rec’d doctrines while also considering the contemporary
practices of Canada’s judicial, legislative and executive branches of govt
• If looked at in this manner, Canadian courts do indeed play an increasingly
important role in enforcing the state’s treaty obligations, though largely
through such indirect means as interpretive presumptions and implementing
legislation

Conclusion:
• As Canadian law currently stands, treaties can only be subject to judicial
interpretation and enforcement incertain circumstances. These
circumstances can be difficult to describe, and one hesitates to generalize at
the risk of suggesting artificial or unnecessary exclusion.It is clear, however,
that Canadian courts are not international courts and will not determine legal
disputes b/t states occurring purely on the international plane
Reference re Supreme Court Act
• Every person, even prime minister of the country, is subject to the
constitution. Because all his power derives from the constitution. Everyone is
equal before the law, even the prime minister of the country.
• Justice Nadon was a current judge of the Federal Court and was not a
current member of the Quebec bar but he had previously been a member of
that bar for over 10 years.
Section 5 describes the eligibility of supreme court judge.
Section 6 describes the eligibility of supreme court judges representing
Quebec (3 of 9 must come from Quebec). In this case, the judge didn’t meet

59
the requirements of section 6 as he was not a current member of the Quebec
bar.
• Parliament passed amendments through section 5.1 and s6.1 to make the
Judge Nadon meet the requirements of the supreme court judge.
• Constitutional Amendments to the composition of the court must be made
through the s41 unanimity amending procedure.
• For this reason, the court held that s5.1 was valid b/c there was no
amendment, it was simply a restatement of the current law, however s6.1
was invalid b/c it amendment the composition of the supreme court.

CHAPTER FOUR, FIVE AND SIX

BENEFITS / DISADVANTAGES OF UNWRITTEN
CONSTITUTIONALPRINCIPLES
List the unwritten principles.
Reference re Secession of Quebec case confirmed that the Constitution
contains unwritten principles
• 1) federalism; 2) democracy; 3) constitutionalism and the rule of law; 4)
protection of minority rights
Positives include:
(1) These are fundamental concepts about which everyone can agree, so it
makes sense that they will affect judicial decision making (even the highest
court of India has recognized almost identical unwritten principles, with the
addition of one more);
(2) Problems or situations may arise which are not expressly dealt with by
the text of the Constitution. In order to endure over time, a constitution must
contain a comprehensive set of rules and principles which are capable of
providing an exhaustive definition for our system of government.
(3) They are only resorted to when the express wording of the Constitution is
insufficient to solve a problem (which is a valuable limit on the doctrine, and
prevents it from being used inappropriately);
(4) We are used to unwritten legal principles (that’s what our common law
system is built on)
Negatives include:
(1) By swaying away from written text, we get into a realm of uncertainty,
ambiguity, can’t find rules as a lawyer.
(2) they are so broad that they can be found to apply to any issue.
(3) To recognize these principles can be seen as an unauthorized judicial
expansion of their power in
the constitutional sphere.
(1) A written constitution promotes certainty and predictability.

Six Principles Underpinning Public Law

A – The Principle of the Rule of Law ((Roncarelli v Duplessis), Imperial
Tobacco, Re Manitoba Language Rights
1 The rule of law must mean two things:

60
1) the law is supreme over officials of the govt as well as private individuals,
and thereby preclusive of the influence of arbitrary power...
2) the rule of law req’s the creation and maintenance of an actual order of
positive laws which preserve and embodies the more general principle of
normative order
• The rule of law, on the other hand requires that all govt action must
comply with the law, including the constitution
• All state officials are subject to legal order and to the same legal
obligations as citizens (Roncarelli v Duplessis)
The rule of law and constitutionalism are similar concepts
Quebec Secession Reference – “the constitutionalism principle req’s that all
govt action comply w/ the Constitution. The rule of law principle req’s that all
govt action m/ comply w/ the law, including the Constitution”
• Therefore, the rule of law is broader than constitutionalism and is a
necessary prerequisite. British Columbia v Imperial Tobacco is a case
example of Rule of Law.
B) The Principle of Constitutional Supremacy (R v Therens and Hunter v
Southam Inc)
R v Therens
• Respondent lost control of his motor vehicle and it collided with a tree. A
police officer demanded the respondent provide samples of his breath for
analysis pursuant to s. 235(1) of the Criminal Code.
• Respondent accompanied the officer to the police station, complied with
the demand, and was subsequently charged with driving a motor vehicle
while having an excessive blood alcohol level contrary to s. 236(1) of the
Code.
• At trial, respondent's counsel objected to the admission of the certificate of
analysis and applied, pursuant to s. 24 of the Charter, (page 614) for its
exclusion on the ground that he had been denied the right, guaranteed by s.
10(b) of the Charter, to be informed, upon arrest or detention, of his right to
retain and instruct counsel without delay.
CONSTITUTION IS SUPREME
Hunter v Southam Inc
• Hunter v Southam Case Acting under the authority of s10 of the Combines
Investigation Act, the director of the Investigation of the Combines Branch
authorized several civil servants to enter the offices of Southam Inc in
Edmonton.
• The company claimed that subsections 1 and 3 of s10 of that Act were
incompatible with s8 of the Canadian Charter of Rights and Freedoms, which
states "Everyone has the right to be secure against unreasonable search or
seizure. the Supreme Court came to the conclusion that subsections 10(1)
and 10(3) of the Combines Investigation Act are "inconsistent with the
Charter and of no force and effect, as much for their failure to specify an
appropriate standard for the issuance of warrants as for their designation of
an improper arbiter to issue them"

61
Any law inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.
The Constitution is the “supreme law of Canada”. As such, this insinuates
there is a hierarchy of law.
With s 52(1) of the Constitution Act, 1982, the Canadian system of govt now
operates under a principle of constitutional supremacy The Act brought
about a transformation of power from Parliamentary supremacy to
constitutional supremacy
Difference between Rule of Law and Constitution Supremac
The essence of constitutionalism in Canada is that all govt action must
comply with the Constitution
• The rule of law principle requires that all govt action must comply w/ the
law, including the Constitution
C) Parliamentary Sovereignty -The parliament is supreme and
independent of the government and cannot be controlled by other branches.
• They are sovereign enough to create any law
AUTHERSON Case- The law was not struct down even though the law seem
to be a bad law because of parliamentary sovereignty
See also, R v Vaid
• Subject to the Constitution, the legislative branch of the state is the holder
of all legitimate public power.
PARLIAMENTARY PRIVILEGE
• The rule that the legislative assembly should have the exclusive right to
control the conditions in which that debate takes place is thus of great
importance, not only for the autonomy of the legislative body, but to ensure
its effective functioning
• Parliament itself can conduct hearings on any issue inside the parliament.
Parliament has sovereignty in a way that anything that happens inside a
parliamentary session is free from judicial interference.
• As is the example of Singh vs Canada. In that case, Mr. Singh, a Sikh
representative, wanted to bring his kirpan (a weapon that has nexant to Sikh
religion) to parliament however he was stopped from taking that kirpan
inside the parliament on the basis of security concern inside the parliament.
Even though Mr Singh had freedom to religion (section 2a), his charter right
infringement was not considered inside the Parliament because of
‘PARLIAMENTARY SOVEREIGNTY’
• Also talk about Rule of Law, that even though everyone is equal before law,
in this case, parliament has exception and they have a privilege
D) Federalism.
• Both provincial and federal governments work together. There is division
and separation of Power between Federal and Provincial through section 91
and 92.
• Quebec Reference Case
E) Separation of Power
• The separation of powers doctrine refers to the division of governmental
functions b/t the legislative, executive and judicial branches of the state

62
• Each branch is defined by its relationship to law: the making of law
(legislature); the
implementing of law (executive) and the interpreting and applying the law
(judiciary)
In Canada, there is no strict separation.
The PM and members of his/her Cabinet, who comprise the executive council
“advising” the head of state, are elected members of the legislature.
• The Constitution empowers the Governor General to appoint Supreme
Court judges. In practice, appointments are made on the advice of the Prime
Minister. To support the Prime Minister in this duty, the Minister of Justice
compiles a shortlist of candidates with input from the provincial law
societies.
Nevertheless, the distinction b/t the legislature, executive and judiciary is
important to Canadian law.
It serves two principal purposes: (1) a functional purpose of identifying the
institutional homes of the three major forms of public power and (2) a
normative purpose of providing general boundaries for the operation of each
institution
Constitutional Amendment
5 Amending Procedures:
1) S38 – general amending formula for all amendments not falling w/in the
other amending procedures – req’s consent of Parliament and the
legislatures of at least 2/3rds of the provinces which contain at least 50% of
the Canadian population
2) S41 – unanimity procedure – req’s Parliament and all prov legislatures
approval
3) S43 – some-but-not-all- req’s the approval of Parliament and just the prov
legislatures affected by the amendment
4) S44 – federal parliament alone – req’s only the federal parliament’s
approval with respect to the Senate, HC and the Executive branch subject to
s41 and s42
5) S45 – prov legislature
CONSTITUTIONAL CONVENTIONS - WHAT ARE THEY? GIVE SOME
EXAMPLES?
a. See book for definition
(1) Selecting a governor general: The Queen follows the Canadian PM’s
recommendations (based on an “instrument of advice”); in turn, the
governor general and lieutenant governors for each province are bound by
constitutional convention to exercise their powers with the advice of the
Cabinet of their respective government
(2) Selecting members for the Senate: the governor general follows
advice of the PM
(3) The governor general calls Parliament into session on the advice of
the PM (i.e., summoning
Parliament)
(4) Parliament can be prorogued through a speech by the governor general

63
in the Senate Chamber on the advice of PM. A prorogation is the prerogative
of the governor general, acting on the advice of the PM. there has been
debate over whether the GG can refuse the PM request to prorogue
parliament
(5) PM to resign his or her government or seek parliamentary dissolution
after a “no confidence” vote by the House
(6) Responsible government (and all of its understood “rules”)
(7) The individual commanding the confidence of the House of Commons
(that is, the majority) is
appointed PM
(8) Only privy councillors who are in the Cabinet are entitled to exercise the
powers of the Privy Council
(9) The PM, leader of the Cabinet/government, possess authority to exercise
so-called personal prerogatives, e.g., he/she may select people to fill
some important appoints that are technically made by the governor general
(10) Formal executive bodies are limited to the governor general and
lieutenant governors, federal and provincial Cabinets, and the system of
governmental
(11) Departments and ministries that are overseen by individual ministers,
including the civil service
Constitutional Appointment (For Senators)
Amendment and the Senate of Canada: The Senate Reform Reference;
• In 2012 the Harper govt sought to reform the senate and introduce term
limits on appointed senators (appointments of a maximum of 9 years rather
than appointment until the age of 75) to the SCC
• Setting term limits for Senators could not be done unilaterally under s44
and abolition of the senate had to be done unanimously under s41
And to introduce senate elections
The govt sought to make those changes via section 44, the fed parliament
alone
After Quebec raised objections and then several other provinces agreed, a
reference was raised

Singh v. Canada (Attorney General), 2000 CanLII 17100 (F.C.A

Section 39 of the Canada Evidence Act deprives judges of the power to
inspect and order the production of Cabinet confidences in litigation. In doing
so, Parliament has effectively removed from the courts the power to inspect
and order the production of Cabinet confidences, making it extremely
difficult to challenge Cabinet immunity claims. Indeed, litigants and judges
do not have access to the information required to determine whether such
claims are made reasonably and in good faith by the executive branch

A number of complaints were made into the conduct of the R.C.M.P. in

relation to events occurring during the APEC Conference in November 1997.
A public inquiry was held to hear the complaints. The Commission sought
disclosure from the government of all documents relevant to the hearing.

64
The government objected to disclosure of all documents containing Cabinet
confidences under s. 39(1) of the Canada Evidence Act. Section 39 conferred
absolute immunity from judicial inspection and court- ordered disclosure for
all "confidences of the Queen's Privy Council for Canada". Section 38(6) of
the Act permitted the government to make ex parte submissions in favour of
non-disclosure of information claimed to be injurious to international
relations or national defence or security. At issue was whether "ss. 38(6) and
39 of the Canada Evidence Act are ultra vires Parliament on the grounds that
they are inconsistent with the Constitution of Canada, including the
preamble to the Constitution Act, 1867 and the fundamental and organizing
principles of the Constitution".
The Federal Court of Canada, Trial Division, in a judgment reported 170
F.T.R. 215, rejected the constitutional challenge. The complainants appealed,
submitting that s. 39 was ultra vires 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. Alternatively, it was
submitted that s. 39 should be read down as not to apply to prevent the
Executive from disclosing evidence of its own unconstitu- tional conduct (i.e.,
directing the R.C.M.P. to infringe the Charter rights of the complainants).
In Singh v. Canada (A.G.), the Federal Court of Appeal dismissed the
claim that section 39 of the CEA violates the rule of law, finding it to be
consistent with the SCC’s three elements: it establishes a legal order for the
protection of Cabinet confidences; it applies equally to the government and
legal subjects; and it allows the government to protect Cabinet confidences
in litigation. Whether section 39 is good or bad policy is irrelevant, the
Federal Court of Appeal said, for “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.

ARTICLE Leonid Sirota, “A Citizen's Guide to the Rule of Law” in Peter L Biro
(ed), Constitutional Democracy under Stress: A Time for Heroic Citizenship
(Mosaic Press, 2020) 104
The author begins in Part II by explaining why we must have law, and why
the law must bind both government and individuals. Author then review
three key themes around which the understanding of the Rule of Law is often
organized. In Part III, author discuss the form that the law, especially
legislation, takes. In Part IV, author turn to the process by which law is made
and enforced by legislatures, the courts, and the public administration. In
Part V, author consider the constraints that the Rule of Law may impose on
the contents of the laws, especially in order to protect fundamental
individual rights. The concluding Part VI explains what links these various
facets of the Rule of Law, and why it ought to be a cherished ideal in a
democratic society
II The Existence of Law

65
Rule of Law requires the existence of a framework of laws that binds the
actions of both government and individuals.
The Need for a Legal Framework
In Manitoba language rights, The Court averted this outcome by the artifice
of suspending its declaration that Manitoba’s unilingual laws were
unconstitutional until the province had the time to re- enact all current
legislation in both languages. To justify this, it invoked the principle of the
Rule of Law, which, whatever else it might mean, mandates at least the
simple existence of laws
Law and Government
Contemporary writing about the Rule of Law generally emphasizes the need
for it to constrain government action. In the Manitoba Language Rights
Reference, the Supreme Court similarly defined the Rule of Law as requiring
“that the law is supreme over officials of the government as well as private
individuals, and thereby preclusive of the influence of arbitrary power
The subjection of power to law helps secure a predictable environment within
which individuals can make and carry out their own plans without
unexpected interference by the government.
Law and Individuals
It is the importance of the Rule of Law in private relations among individuals
or between individuals and firms or other entities. if private actors are able
to interfere with other persons’ property or economic relationships in
violation of these persons’ legal rights, they may well be able to subject
them to their will just as surely as government officials backed by the full
force of the state.
If people are to be provided with a secure framework in which they can go
about planning their lives and carrying out their plans, certain rights must be
guaranteed to them against private, as well as public, interference, and the
Rule of Law means that these rights too must be legally secure and
enforceable.
III. The Form of Law
A law that cannot be known, understood, or acted upon might as well not
exist.
First of all, there must exist standing general rules; authority cannot be
exercised on a purely ad hoc, case-by-case basisThese rules must be
prospective—that is, they must direct what is to be done, or not done, after
they come into effect, instead of attaching to acts done in the past legal
consequences that could not have been anticipated when the acts were
done. They must be public and accessible; they cannot be kept secret.They
must also be clear. The rules must be stable. the rules must be carried out in
accordance with their terms; there can be no discrepancy between “the law
on the books” and “the law in action
IV. The Process of Law
author turn to the process by which law is made and enforced by
legislatures, the courts, and the public administration.
Adjudication parliament and legislatures, which implicitly or explicitly apply

66
constitutional law when legislating. But it is the courts that have the final
responsibility to ensure that these other institutions are indeed acting in
accordance with the law. It is also the courts that are ultimately responsible
to ensure that individuals fulfill their legal obligations towards one another.
Whatever the courts’ shortcomings, however, they are, on the whole, much
more respectful of the Rule of Law requirements than administrative
tribunals. Administrative decision makers are subject to some Rule of Law-
based. However, administrative decision makers are not required to be
independent of the legislature and the executive—indeed, they are part of
the executive branch of government. Nor are they required to be legally
trained
Legislation
Professor Waldron writes that “if the rule of law requires that law be taken
seriously and held in high regard in a society, one would think that particular
emphasis should be given to the legitimacy of the processes by which
legislatures enact statutes.”In no small part, this is a matter of respect for
the principles of democracy and individual rights, rather than the Rule of
Law: legislation is made by representatives elected by citizens, following
debates in which citizens can, in theory, participate.
V. The Substance of Law
author consider the constraints that the Rule of Law may impose on the
contents of the laws, especially in order to protect fundamental individual
rights.
The argument of those who reject substantive views of the Rule of Law is
that it should not be confused with the rule of good law. A legal system may
suffer from serious injustice, may fail to respect the rights of many of its
subjects, yet still be a legal system despite these failings. It should, of
course, be subject to criticism and perhaps even disobedience, but to deny
its legality is simply to confuse the Rule of Law with other—no less important
—values.
The Charter guarantees “the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice” and prohibits “any cruel and unusual
treatment or punishment. The Charter also guarantees the “fundamental
freedoms” of “conscience and religion,” “thought, belief, opinion and
expression,” “peaceful assembly,” and “association,” and a range of rights
that serve to assure the fairness of criminal trials.Of course, the Supreme
Court has decided numerous cases in which it upheld limitations on these
various rights as “demonstrably justified in a free and democratic
society,”but demarcation and limitation of rights are possible under any
constitutional system, and cannot, without more, be said to compromise the
Rule of Law.
Hence there is a possibility that the Rule of Law has a substantive
component, and, in particular, requires the protection of at least some
fundamental rights against interference by the government, or at least
interference without very clear authority.

67
VI. Why this Matters
Author explains what links these various facets of the Rule of Law, and
why it ought to be a cherished ideal in a democratic society. One reason for
valuing the Rule of Law is that it is our best and quite possibly only chance to
contain the exercise of power and to counteract the arbitrariness inherent in
the exercise of power in the absence of law. It is, to quote the Supreme Court
again, the bulwark against “government . . . bound only by its whim, not its
word.”
Power exercised in accordance with law is predictable and limited. It is
also contestable. It stands, not on an equal footing to be sure with those who
are subject to it, but in a relationship of “reciprocity,” which acknowledges
rights and obligations on both sides. an unjust law is something that can be
denounced and repealed; lawless justice can only ever be a pretense, a
deceptive label for the imposition of one person’s or group’s will over others
Rule of Law is indeed an essential protection. It is a shield against arbitrary
power, an assurance of being able to plan our lives, a promise of being heard
before being interfered with, and, perhaps, a guarantee of fundamental
rights. It is no doubt a constraint on what we can achieve, but, unless we
hope to always be exercising power and never to be subject to the exercise
of power by others—which citizens in a democracy, unlike aspiring absolute
monarchs, cannot and should not hope for—this
constraint is a price well worth paying for the security and freedom the Rule
of Law offers us. The Rule of Law is precious, and we should treasure it.

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

68
• The author seeks to clarify this uncertainty by suggesting a methodological
framework entitled “reasoning from constitutional essentials.
Introduction
• The author argues that the significance of the Judges Reference and the
Secession Reference is best understood in the context of four prior decisions
spanning a period of ten years: (1) Reference re Manitoba Language Rights;
3 (2) OPSEU v. Ontario (Attorney General); 4 (3) New Brunswick Broadcasting
Co. v. Nova Scotia (Speaker of the House of Assembly); 5 and (4) MacMillan
Bloedel Ltd. v. Simpson. In each of these earlier decisions, the Supreme
Court employs unwritten constitutional principles to reach dramatic
conclusions, including halting the operation of constitutional texts and
overruling legislation.
IDENTIFYING A CONSTITUTIONAL METHODOLOGY
OPSEU V. ONTARIO (ATTORNEY GENERAL)
• The Superior Court judge found that the Ontario government violated the
freedom of association rights of five education-sector unions under s.2(d) of
the Charter when it failed to bargain with the unions and instead imposed
collective agreement terms and conditions through passage of the so-called
Putting Students First Act.
• The Court found that this infringement of collective bargaining rights could
not be saved as a reasonable limit under s.1 of the Charter.
• Justice Beetz said, neither a provincial legislature nor Parliament itself can
“abrogate this right of discussion and debate”.
• Speaking more generally, I hold that neither Parliament nor the provincial
legislatures may enact legislation the effect of which would be to
substantially interfere with the operation of this basic constitutional
structure.
• Legal constraint on legislative power also emanates from unwritten
sources, that is, from the “basic structure of our Constitution. the legislative
bodies in this country must conform to these basic structural imperatives
and can in no way override them
REFERENCE RE MANITOBA LANGUAGE RIGHTS
• The issue in the Manitoba Language Reference was profound: the illegality
of virtually all of the enacted laws of the province of Manitoba.
• Section 23 of the Manitoba Act, 1870 provides that “[t]he Acts of the
Legislature shall be printed and published in both [the English and French]
languages.”
• The Manitoba legislature, however, had consistently ignored this manner
and form requirement and enacted statutes only in English.
• Pursuant to the supremacy clause of the Constitution Act, 1982, the
offending legislation had to
be struck down. It placed the province in an effective “state of emergency,”
for there were very few validly enacted laws, and even the central organs of
government in many cases had no legal authority to act
The unanimous Supreme Court dealt with this crisis by looking beyond the
text. The judges said,

69
The founders of this nation must have intended that Canada be a society of
legal order and normative structure: one governed by rule of law.
• While this is not set out in a specific provision, the principle of the rule of
law is clearly a principle of our Constitution.
• The unwritten constitutional principle thus gives rise to an unwritten rule,
and this rule is then used to counter (or at least temporarily suspend) the
express commands of the written texts
NEW BRUNSWICK BROADCASTING CO. V. NOVA SCOTIA (SPEAKER OF
THE HOUSE OF ASSEMBLY)
• New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of
Assembly) is a leading Supreme Court of Canada decision wherein the court
has ruled that parliamentary privilege is a part of the unwritten convention in
the Constitution of Canada.
• Therefore, the Canadian Charter of Rights and Freedoms do not apply to
members of Nova Scotia House of Assembly when they exercise their
inherent privileges of refusing strangers from entering the House.
• Parliamentary privilege emerges as a “pragmatic” necessity out of the very
institutional relationships that define the Canadian Constitution
• One could say that the Charter, if applied, would threaten the very
functioning of the institutions of democratic government.
• Manitoba Language Reference and New Brunswick Broadcasting provide
that unwritten rule can trump constitutional texts in appropriate
circumstances.
• OPSEU provides that unwritten rules can, again in appropriate
circumstances, trump legislative enactments.
MACMILLAN BLOEDEL LTD. V. SIMPSON
• A young offender was charged with contempt of court for disobeying an
injunction issued by a Superior Court. On appeal, the defence argued that
the youth should have been charged in a youth court because the B.C.
Young Offenders' Act granted exclusive jurisdiction over contempt of court
proceedings involving youth’s court
• Does the federal government have the power to grant exclusive jurisdiction
to Youth Courts of an offence (contempt of court) that was traditionally
within the jurisdiction of superior courts?
• There are certain core powers of the Superior Courts that cannot be
transferred without constitutional amendment. Contempt of court is one such
power that cannot be removed entirely from the Superior Court without
violation of the Constitution
• MacMillan Bloedel addresses the scope of Parliament’s power to create an
inferior tribunal (in this case, a “youth court”), and to invest in such a
tribunal with powers traditionally exercised by the superior courts.
• In supreme court, the majority found that this could not occur as it would
violate the “core jurisdiction” of the courts which emanates from, and is
essential to, the unwritten principle of the rule of law. Legislation cannot
interfere with the “core jurisdiction” of the courts.
• The Supreme Court follows, in each case, a methodology of reasoning from

70
constitutional essentials. The author has chosen to refer to the methodology
employed by the Supreme Court as “reasoning from constitutional
essentials” rather than “structural argumentation.
THE JUDGES REFERENCE, THE SECESSION REFERENCE, AND THE
SUPREME COURT’S THEORY OF THE CONSTITUTION
• The Judges Reference and the Secession Reference are the Supreme
Court’s most high-profile unwritten principles decisions. With the Judges
Reference and the Secession Reference, it becomes possible to speak of a
constitutional project involving the recognition and use of unwritten
principles.

REFERENCE RE REMUNERATION OF JUDGES OF THE PROVINCIAL

COURT OF PRINCE EDWARD ISLAND
• In P.E.I., the province, as part of its budget deficit reduction plan, enacted
the Public Sector Pay Reduction Act and reduced the salaries of Provincial
Court judges and others paid from the public purse in the province.
• Following the pay reduction, numerous accused challenged the
constitutionality of their proceedings in the Provincial Court, alleging that as
a result of the salary reductions, the court had lost its status as an
independent and impartial tribunal under s. 11(d) of the Charter.
• The majority opinion found all judges are independent, not just superior
court judges and inferior
court judges concerned with criminal law, as the written constitution
stipulates. Unwritten constitutional principles were relied upon to
demonstrate this

• It was unconstitutional since it was made by the legislature

without recourse to an independent, objective and effective process
for determining judicial remuneration.

• Since the province has made no submissions on the absence of an

independent, effective and objective process to determine judicial salaries,
the violation of s. 11(d) is not justified under s. 1 of the Charter.

• After the Reference, all provinces had salary commissions.

determination of judicial remuneration should respect judicial
independence. Courts must be free from political interference
through economic manipulation and an independent body such as a
judicial compensation commission is required.

• Judges Reference are resolved through unwritten principles and in

particular through the methodology of reasoning from constitutional
essentials. The analysis proceeds through the following propositions. First,
the very basic and abstract requirements of a society under law demand that
a “constitutional role” be performed by the courts. Second, this rule of law

71
requirement mandates institutional separation. Third, this separation
requires “depoliticization.”

REFERENCE RE SECESSION OF QUEBEC

• The Supreme Court begins by isolating four unwritten principles inherent to
the architecture of the Canadian Constitution that are implicated by the issue
of secession
1) federalism; 2) democracy; 3) constitutionalism and the rule of law;
4) protection of minority rights
From these principles, or more accurately from the dynamic interaction of
these principles, 117 the Supreme Court identifies four concrete rules:
1. An expression of the popular will of the citizens of a province to secede is
both politically and legally significant and cannot be ignored by the rest of
the country.
2. A right to unilateral secession does not follow from such an expression of
popular will — there is no “absolute legal entitlement” to secede.
3. An obligation to negotiate, binding on all Canadian governments, does
arise from an expression of the will to secede.
4. Such negotiations must be conducted pursuant to the four underlying
principles
THE SUPREME COURT’S THEORY OF THE CONSTITUTION
• The Supreme Court appears to be uncomfortable with an open
acknowledgment of the process of recognizing unwritten rules based on the
pragmatic essentials of a democratic constitution and instead places
considerable emphasis on the alleged effect of the Preamble.
• Three basic propositions can be drawn from these excerpts: 1. Unwritten
principles are the source of the entire Canadian Constitution. 2. Authoritative
written texts are derived from these principles through a process of formal
enactment. 3. Unwritten rules are also derived from these principles through
the mechanism of the Preamble.
CONCLUSION: THE SUPREME COURT’S UNFINISHED UNWRITTEN
PRINCIPLES PROJECT

• In the Judges Reference and the Secession Reference, the Supreme Court
goes beyond employing unwritten principles in constitutional analysis and
reflects upon the shape of the Constitution in light of the existence of extra-
textual sources of authority.

• With the theoretical inroads made in the Judges Reference and the
Secession Reference, it becomes possible to speak of a conscious unwritten
principles project that informs the evolution of the Canadian Constitution.

• However, one significant deficiency in the Supreme Court’s theory is the

lack of a convincing account of how unwritten rules are actually generated
from unwritten principles. While the Preamble is advanced as a mechanism,
this proposition raises too many difficulties to be satisfactory.

72
• While the Supreme Court’s unwritten principles project remains incomplete
without a clear statement of how unwritten rules are generated from
unwritten sources of authority, there is no need to make radical alterations in
existing doctrine to close the gap (other than some marginalizing of the
Preamble).

• The great achievement of the Supreme Court in all of the decisions

considered above is employing legal reasoning from constitutional essentials
to respond to threats to our system of government.

In 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

CHAPTER FIVE
Parliament and its component

The Monarch and the Governor General

• The Queen- The Queen's place a dual role in the Canadian constitutional
framework. She is part of the parliament and also holds the power of the
executive government. She is also known as Canada’s head of state. The
Queen on the advice of the Prime Minister appoints the Governor General to
represent her in Canada.

O'Donohue v Canada was a legal challenge to the exclusion of

Roman Catholics from the throne of Canada. The applicant sought a
declaratory judgment that certain provisions of the Act of Settlement 1701
violate the equality-rights section of the Canadian Charter of Rights and
Freedoms.

O'Donohue argued that this law was discriminatory, and attempted to

have it repealed. As a sovereign country, Canada, it was argued, should be
free to change any laws regarding who becomes the country's head of state

- It is well settled that the Charter cannot be used to amend or trump

another part of our constitution”

73
- Canada was established as a constitutional monarchy. This fundamental
aspect of our constitutional
structure is both recognized and maintained by the Constitutional Act 1982.
It is found, among
other places, in the preamble to the Constitution”.

McAteer v Canada (AG)

The Applicants were permanent residents of Canada. Under Section 24
of Canada’s Citizenship Act, the Applicants were required to affirm allegiance
to the Queen of Canada.

The Applicants objected to the requirement, claiming that it was in

violation of their freedom of religion, expression, and equality guaranteed
under Canada’s Charter of Rights and Freedoms.
The Superior Court of Justice of Ontario dismissed the Applicants’
challenge. It found that while the oath violated the right to freedom of
expression by compelling the Applicants to affirm allegiance to the Queen, it
was a reasonable limitation permissible under Section 1 of the Charter.
Subsequently, the Applicants appealed the dismissal to the Court of
Appeal for Ontario.
Charter challenge to the citizenship oath to the Queen was dismissed, the
Court of Appeal clarified that such references in the oath (and apparently
generally for legal matters) were not to the Queen of England as an
individual person, but rather to "our form of government
The Court agreed with the Superior Court’s ruling that the oath has the
incidental effect of compelling the prospective citizens to express certain
words in order to obtain citizenship status. However, the Court ruled that
such incidental effect does not warrant the oath as unconstitutional mainly
because affirming allegiance to the Queen of Canada is a symbolic reference
to the form of government, and it furthers the broader public interest.
• Senate: The senate is the Upper House of Canada's Parliament. Its 105
members are appointed and hold their seats until they are 75 years old.
Senators are appointed by the Governor General on the advice of the Prime
Minister.
• House of Commons:
Unlike the senators, members of the House of Commons are elected. The
House of commons comprises the parliament, the sovereign (who is
represented by the Governor General) and the senate. House of common
members are known as Members of parliament (MPs)
Article
Barnes et al., “Reforming the Senate of Canada: Frequently Asked
Questions”, Background Paper,
Library of Parliament (2011):
• The article talks about how Senators fits in our constitution and what are
the constitutional dimensions of Senate reforms. The authors talk about the
fact the role of Parliament and provinces in the Senators reform process.

74
• Section 44 allows Parliament to amend the constitution without provincial
concurrence in limited situations however Parliament can amend the
constitution in relation to Senate on its own with the exception of four
matters listed in sector 42. The four matters are
1, The powers of the Senate
2, The method of selecting Senators.
3, The number of members by which a province is entitled to be represented
in the Senate 4, The residence qualifications of Senators.
Figueroa v. Canada
Prior to the Supreme Court of Canada’s 2003 decision in Figueroa v. Canada
the Canada Elections Act required a registered federal political party to
nominate candidates in at least fifty electoral districts. A party that
nominated fewer than fifty candidates for a federal election would be de-
registered. In losing its registration, it would lose various benefits, including
reimbursement of some of its campaign expenses.
Held: the 50-candidate rule did in fact constitute discrimination against
smaller parties under the Charter.
Justice Iacobucci, writing for the majority, stated that section 3 protects not
just the right to vote but

Facts: Canada Elections Act earlier required a registered party to run

candidates in at least 50 electoral districts – whether that was violation of
S.3 of the Charter.

Parties that nominate less than 50 electoral dist. also do play meaning role in
electoral process

–this provision undermines citizens’’ rights & cannot be saved u/s 1 of the
Charter (govt. has failed to

show justification) –so , provision has been struck down also provides the
right of every citizen to participate in politics. The right ensures that each
citizen can

express an opinion about the formation of the country's public policy and the
country's institutions.
CHAPTER SIX
Functions of Parliament
Prorogation
• A prorogation is the prerogative of the governor general, acting on the
advice of the PM. Prorogation abolishes all pending legislation and quashes
further committee activity. There has been debate over whether the GG can
refuse the PM request to prorogue parliament
• This debate started after the “prorogation crises” of 2008 where the PM
asked to prorogue Parliament clearly to avoid a vote on non-confidence
• The NDP along with the liberals signalled to the GG that they had lost
75
confidence by requesting she deny the request to prorogue
• They said they were prepared to form a coalition govt along with the Bloc
Quebecois if Conservative govt fell
• The GG accepted the PM’s request, and this spurred an academic debate
on whether she had acted properly or not.
Duffy v. Senate of Canada
• Ontario Court Justice Sally Gomery ruled the Senate's decision to suspend
Sen. Mike Duffy is protected by parliamentary privilege — a centuries-old
right designed to protect legislators from having to answer to judges for
doing their jobs — meaning Duffy can't take the Senate to court over its
actions. • His claim against the Senate alleges "an unprecedented abuse of
power" when a majority of senators voted to suspend him without pay in
November 2013, before any criminal charges had been filed.
• The Senate said parliamentary privilege gives it the right to "control its
own proceedings," including "disciplinary authority over its members, free
from outside interference."

Chagnon v. Syndicat de la fonction publique et parapublique du

Québec,
• Three security guards employed by the National Assembly of Québec were
dismissed by the President of the National Assembly for using their
employer’s cameras to observe activities inside nearby hotel rooms.
Their union grieved their dismissals before a labour arbitrator.
The President objected to the grievances on the basis that the decision to
dismiss the guards was immune from review because it was protected by the
parliamentary privilege over the management of employees and the
parliamentary privilege to exclude strangers from the legislative assembly.
• The arbitrator concluded that the dismissals were not protected by either
parliamentary privilege, or therefore that the grievances could proceed.
• The reviewing judge agreed with the arbitrator’s reasoning with regards to
the privilege to exclude strangers but found that the decision to dismiss the
security guards was protected from review by the privilege over the
management of employees.
• A majority of the Court of Appeal held that the arbitrator had correctly
concluded that the dismissals were not protected by parliamentary privilege.
• Although the President is entitled to exercise his management rights and
dismiss security guards for a just and sufficient cause, parliamentary
privilege does not insulate the President’s decision from review under the
labour regime to which the guards are subject.
Singh v. Attorney General of Quebec, 2018
• Mr. Singh and Mr. Kaur are practicing Sikhs who wear kirpans, or
ceremonial daggers central to their faith, at all times. Because they wouldn’t
surrender their kirpans to security guards, they were denied access to the
National Assembly on the basis of a provincial law that prohibits dangerous
objects, including knives, from the premises.

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• This law was authorized through parliamentary privilege, which provides an
exemption from ordinary law so the legislature can properly discharge its
functions.
• WhileVaid notes the scope of parliamentary privilege may change over
time, depending on necessity, it doesn’t provide a basis for the courts to
question that scope. The Court therefore upheld the trial judge’s decision,
and the law prohibiting kirpans in the National Assembly remains intact.
CHAPTER SEVEN
The Executive and its Functions
Sources of Executive Power
Prerogative powers:
● Prerogative powers are those exercisable by the Crown that do not arise
from a statutory grant of power to the Crown
● The Crown is restricted to exercising these powers over executive acts
● Therefore, the Crown cannot exercise legislative nor judicial power
● These powers can be overridden by statute
● There has been legal debate over who in the executive can exercise these
powers, and whether these powers may be subject to judicial oversight
Statutory powers:
The majority of executive powers originate from authority by the legislature
through statute
Parliament cannot delegate to prov legislatures, and vice versa (i.e. inter
delegation)
Although there can be indirect inter-delegation, namely where the inter-
delegation was to an administrative body, as opposed to the legislature itself
(PEI Potato Marketing Board v Willis) Executive Institutions
Executive

1. Crown - federal and provincial government

2. PM and cabinet.
3. Public service : Public service - civil servants are politically neutral and
continue their employment
3 principles-
Ministry responsibility- presiding minister responsible for decisions by civil
Political neutrality-section 33 of public service employment- public servants
can’t express publicly their personal opinions on policy issues-
Osborne v Canada - there may be some restrictions on their political
activities
Osborne was public servant employed by Actuarial branch of department.
They were elected to be delegates at federal liberal party. They seeked
section 33 of ACT v violating the section 2b. Supreme Court ruled in facing of
allowing political rights
Fraser- servant’s must be loyal to their government. Fraser repeatedly
criticized government policies regarding metrification. Court found him
inconsistent with his duties

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4.Independent administrative agencies - bodies that aare independent from
government- bank of Canada. Immigration and refugee board.
Ocean port hotel- OPH got infractions by board of liquor control and licensing
branch. Board members are elected on pleasure. Are board members
sufficiently independent. Court of appeal agreed that they are not
independent. However, Supreme Court reversed the decision of COA.
Because procedural fairness, natural justice, measure of independence for
admin bodies based on judicial independence can clearly be negated by a
statute The statute doesn’t require board members to be impartial. Board
members can be appointed ‘at pleasure’. The court affirmed that admin
bodies aren’t subject to judicial independence. Also one can interpret it as
those affected by the decision of these admin bodies don’t have
constitutional right to get independent decision maker.
It rejects extension of Constitution guarantee of independence Enjoyed by
courts to the BC liquor Appeal board.
Tribunals lack Constitutional distinction from executive.
Question? whether the approach to determining the degree of independence
required of tribunals that is currently taken on judicial review applications
serves to fulfil the goals of providing administrative justice and instilling
public confidence in the administrative justice system.
There are two ways that empirical information about tribunal workings could
be incorporated into our legal thinking on tribunal independence and
impartiality. One is through the development of statutes that reflect the
daily, real world aspects of tribunal functioning that affect, foster and
encourage tribunal independence and impartiality. This would guide the
courts to consider these factors in determining whether a tribunal exhibits a
sufficient amount of independence and impartiality. Another is for advocates
to bring these aspects of tribunal workings before the court so that they can
be considered as factors in evaluating independence and impartiality
5. Crown corporation- where there is strong financial aspect to government
service. Free from political influences that mat internet with commercial
objection.
6.Enforcement bodies (Police, RCMP) - they exercise their power without
direction from political
Rv Campbell-
While the Crown has prerogative powers, and the ministers in particular has
discretionary authority in relation to a range of matters defined by statute,
the police- including the RCMP -are not subject to political direction. As
affirmed in R. v. Campbell, police officers are independent of the executive in
relation to their law enforcement functions and not subject to political orders.
As affirmed in R. v. Campbell, police officers are
independent of the executive in relation to their law enforcement
functions and not subject to political orders. Also unless legislation
provides immunity for illegal action, illegal action by police may result in
abuse of power. Police officer selling narcotics to accused ave charging
them, did they breach law.

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7. Municipalities- Shell Canada - municipalities Authority can Only be
exercised in relation to activities that falls within municipal purposes, this
was extraterritorial
and Spraytech- town Hudson restricted use of pesticides within its
boundaries. The decision reassurance municipalities to protect health and
environment within in bounds of local power
Spraytech Case – Municipalities Power
The Town passed a by-law restricting pesticides.Company argues it is
beyond their authority since they do not have a clear power given to them to
regulate pesticides and the by-law is discriminatory since it only affects their
business.
Issue
● Does the town have the authority to pass the by-law and if they do have
the authority, does it conflict with federal or provincial legislation?
● Decision: Yes, and does not conflict.
● Reasons :A municipality may only act on powers given to it. There are
“general powers” though – it is impossible to foresee all the powers that are
necessary to the statutory equipment of its creatures. The legislation
provides that the municipality may protect the “general welfare” of its
citizens and their heath. This is within the Town limits and is intended to
protect residents from health risks.
East York v Ontario: It conforms Dillon's doctrine that cities are no more than
"creatures of the province”.Powers of Canadian cities can be found in the
1997 decision of the Ontario Superior Court in East York v. Ontario (Attorney
General).49 For advocates of expansive city power, this decision enshrines a
"most vicious" reliance on the argument that municipalities do not enjoy
autonomous status. 50 The case arose from a constitutional challenge to the
City of Toronto Act 1997, which provided for the creation of Toronto's
"megacity" in 1998.51 Although indicating that it "may be that the
government displayed megachutzpah" in its megacity pursuit 5 2 -
particularly since there is no evidence of any reports, commissions, draft
bills, position papers, or public hearings before the first reading of the
legislative bill, and in referenda substantial numbers of people voted against
this change53 -the Superior
Court concluded that this did not exceed the province's constitutional
authority to make laws relating to municipal institutions in the province.54
Drawing on early twentiethcentury cases of the Supreme Court and Privy
Council, the court determined that the power to restructure Toronto is within
provincial authority under section 92(8), and laid out four general
propositions regarding the constitutional status of Canadian cities: (i)
municipal institutions lack constitutional status; (ii) municipal institutions are
creatures of the legislature and exist only if provincial legislation so provides;
(iii) municipal institutions have no independent autonomy and their powers
are subject to abolition or repeal by provincial legislation; (iv) municipal
institutions may exercise only those powers which are conferred upon them
by statute."

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Tesla Motors Canada ULC v. Ontario (Ministry of Transportation)
• On July 11, the Progressive Conservative government in Ontario announced
the end to the province's Electric and Hydrogen Vehicle Incentive Program,
which provided for rebates up to $14,000 on purchases of electric cars.
• The government gave a two-month extension for orders that had already
been placed under two conditions:
• Eligible vehicles that have been delivered to consumers, registered, and
plated on or before July 11 will receive the incentive.
• Inventory that dealers have on lots or orders made by dealerships with
manufacturers on or before July 11, will also be honoured for the incentive
provided that the vehicle is delivered to consumers, registered, and plated
by September 10.
• The statutory discretion under which this transition program (“Transition
Program”) had been created was contained largely in s. 118(2) of the Public
Transportation and Highway Improvement Act.2 That section reads:
● 118 (2) On and after January 1, 1997, the Minister may, out of money
appropriated therefor by the Legislature and upon such conditions as he or
she considers advisable, provide grants, loans and other financial assistance
to any person...for specific projects that the Minister considers to be of
provincial significance.
● The government’s announcement said that letters would be sent to car
dealers to provide further details about the transition program. Tesla,
however, received a different letter. That letter explained that the Transition
Program would only apply to orders for cars made by a “franchised
automobile dealership” and not where vehicles “have been ordered directly
from an original manufacturer by a consumer”.
Because Tesla Motors Canada is not a franchised business, it was excluded
by the terms of this letter. Tesla was the only dealer to receive the letter.3
Approximately 600 customers were affected.
Believing it had been singled out for “vilification”, Tesla applied for judicial
review. Tesla argued that the government “unlawfully targeted it without any
rational basis to be heard or any fair process whatsoever.”
● Justice Myers noted that executive government actions exist along a
spectrum ranging from “high policy” (e.g. declaring war) which is not
justiciable, to more mundane executive decisions which affect “the rights or
legitimate expectations of an individual” (e.g. issuing a passport) which are
justiciable. In the latter cases, the Court will review the action where it has
been taken “for improper reasons or without affording the applicant
procedural fairness”.7
● In this case, no party argued that the subsidies could not be cancelled.
This was “high policy”.8 Rather, Tesla’s concern was it that it had been
directly targeted in the implementation of that cancellation for improper
purposes.
● Justice Myers then focused in on the issue of “improper purpose” and
harkened back to a cornerstone case in Canadian administrative law:
Roncarelli v Duplessis, [1959] SCR 121. In that case, the Premier of Quebec,

80
Maurice Duplessis, had intervened in a liquor license proceeding in order to
deny an applicant a license simply because he was a Jehovah’s Witness.
Justice Myers quoted Justice Rand’s decision:
● courts will ensure that discretion by public authorities is exercised in
accordance with the statutory purposes for which the discretion was created.
Extraneous, irrelevant, and collateral considerations should not be permitted
to influence a decision maker in the exercise of that discretion
● Ms. Vrinda Vaidyanathan, the Acting Manager of Policy and Programs at
the Ministry of Transportation testified on behalf of the government. She
stated that the government had extended the subsidy program to protect
small to mid-sized dealerships from potential losses. The government was
concerned, she claimed, that if dealers had cars on their lots or already on
order on July 11, the cancellation of the subsidy would leave the dealers
exposed to loss at the hands of the vehicle manufacturers.
● He found that the government’s requirement that dealers be franchised
was “not at all related to either protecting small to mid-sized dealers or to
protecting dealers who may suffer losses to manufacturers.” In reality, “all it
seems to do is to include in the transition all dealerships in
Myers said the government singled out Tesla without providing the company
“any opportunity
Ontario...except Tesla.” This exercise of the discretion was unrelated to the
achievement of the supposed policy goal.
● He found that the exercise of the discretion was “not related to any of the
conservationist purposes of the electric car subsidy program.” Nor was it
“related to any purpose under the Public Transportation and Highway
Improvement Act.”14
● Finally, Tesla was denied basic procedural fairness. Despite being singled
out, Tesla was not asked to provide any facts that might have been relevant
to the government’s decision making. Indeed, as noted above, Tesla’s
attempts to contact the Ministry had come to naught.15
Consequently, the Minister’s exclusion of Tesla was set aside.
• Discretionary decisions that impact the rights and reasonable expectations
of people and businesses must be connected to the statutory purpose under
which the decision is being made. If a Minister makes a decision which
affects you personally, that decision cannot be based on irrelevant
considerations.

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

• The Royal Assent of Bill 5, Better Local Government Act, 2018, SO 2018, c.
11 (“Bill 5”) on August 14, 2018 changed the structure of the upcoming
October 22, 2018 municipal elections by replacing the existing 47-ward
structure with a 25-ward structure in Toronto.
• The Superior Court of Justice held that Bill 5 infringed the freedom of
expression rights of both candidates and voters under s 2(b) of the Canadian
Charter of Rights and Freedoms(the “Charter”).

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• With respect to candidates, the application judge found that Bill 5
substantially interfered with their ability to effectively communicate political
messages to voters, and that it undermined the fair and equitable election
process. With respect to voters, the application judge found that Bill 5
infringed s 2(b) by interfering with their right to vote.
• the Court of Appeal expressed doubt that the Superior Court’s
interpretation and application of the Charter was correct, noting that
“unfairness alone does not establish a Charter breach.” As a result of the
stay, the provisions of Bill 5 continued in force and the Toronto election was
conducted on the basis of 25 wards.

Article
Lorne Sossin, “The Puzzle of Independence and Parliamentary
Democracy in the Common Law World” in Susan Rose-Ackerman et al,
Comparative Administrative Law, 2nd ed., (Edward Elgar Publishing, 2017)
• This chapter explores the relationship between partisanship and
independence in administrative law in Canada and the common law world.
• Partisanship is endemic to Parliamentary democracy. A key tension in the
development of administrative law in Canada, and elsewhere in the common
law world, is how to ensure executive decision-making is sufficiently
independent –that is, not unduly influenced or undermined by partisan
considerations.
• Independence can be eroded by partisanship from the executive branch in
at least two distinct (and interrelated) ways –
- first, through the exercise of executive discretion over appointments
- and second, through the attempts directly or indirectly to influence the
actions of executive agencies.
- There are few legal constraints which preclude the executive from acting on
partisan motivations but strong cultural aversions to this in the common law
world. Here the author explores what happens when those cultural aversions
cease to be effective.
- While judicial independence is said to require “depoliticization,” courts have
recognized that there is little they can do to compel governments to abide by
this direction .The Supreme Court of Canada has applied the framework of
judicial independence to the common law requirement of independence
before administrative decision-makers – this framework consists of
(i) security of tenure.
(ii) financial independence and
(iii) administrative autonomy.

Partisanship & Appointments to the Supreme Court of Canada The

Supreme Court Act provides some minimum threshold requirements
intended to guide appointments to that Court
5. Any person may be appointed a judge who is or has been a judge of a
superior court of a province or a barrister or advocate of at least ten years
standing at the bar of a province.

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6. At least three of the judges shall be appointed from among the judges of
the Court of Appeal or of the Superior Court of the Province of Quebec or
from among the advocates of that Province.
• While Justice Marc Nadon grew up in Quebec and practiced for more than
10 years there, at the time of his appointment he was based outside Quebec
as a Federal Court Judge (not one of the Courts listed in s.6), thus giving rise
to a measure of ambiguity as to his eligibility.
• In a remarkable rebuke, the Supreme Court held Justice Nadon was
ineligible for an appointment to the Supreme Court (Justice Michael Moldaver
dissenting)

B. The Case of the Canadian Nuclear Safety Commission

• Unlike public servants, the members of these independent bodies owe no
duty of loyalty to the government, but at the same time they are funded by
taxpayers, and bound by a variety of governmental standards and policies.
Ocean Port
• The Court in Ocean Port was clear that administrative tribunals and
executive agencies do not enjoy the constitutionally protected status of
judicial independence. Unlike judges, who have security of tenure (until the
age of 75), appointees to administrative bodies typically serve fixed terms as
set out in their governing statutes.
• Ocean Port further stands for the proposition that such statutes may even
provide for the appointment of adjudicators “at pleasure.”

Canadian Nuclear Safety Commission

• Natural Resources Minister Gary Lunn removed Linda Keen as the head of
the Canadian Nuclear Safety Commission (CNSC), Lunn justified Keen’s
removal on the basis that she had lost the government’s confidence over the
way she handled the shutdown of the medical isotope-producing nuclear
reactor in Chalk River, Ontario
• The closure of the 50-year-old reactor, which generates two thirds of the
radioisotopes used around the world in medical procedures and tests,
resulted in a worldwide shortage of the crucial medical material.
• The Government resolved the medical crisis by using the legitimate
instrument always available to government to interfere with independent
administrative agencies: Parliament. An emergency measure passed through
the House of Commons that ordered the reactor to be restarted for a 120-
day run as of December 16.
• Linda challenged the Government’s action in court. In April of 2009, the
Federal Court dismissed her claim, based largely on the Ocean Port
argument, that the position of President of the CNSC is an “at pleasure”
appointment.
• The decision to remove Linda Keen in the middle of her second five-year
term as President threatened the independence of the CNSC and the
integrity of independent administrative agencies and quasi-judicial tribunals
generally.

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• The government’s decision to reverse the CNSC’s shutdown order in
relation to Chalk River can be justified on public health grounds – however,
the decision to remove Linda Keen was not necessary to ensure a steady
supply of medical isotopes Following Keen’s removal, an assistant deputy
minister within the Ministry of Industry was named interim president. The
fact that the Government chose a civil servant who emerged from a culture
of loyalty to the government of the day was telling.

• Parliament’s reopening of the facility was not political interference

but rather an exercise in Parliamentary sovereignty. The Minister’s
subsequent attack on Ms. Keen, however, 20 like Prime Minister Harper’s
attack on the credibility of Chief Justice McLachlin, appeared rooted more in
partisanship than public policy. In a final, ironic twist, the Chalk River facility
was once again shut down indefinitely in May of 2009 due to safety concerns
This time, the decision was not the CNSC’s but the operational managers of
the facility. Following this development, the Government indicated that
perhaps it was time for Canada to move out of the field of medical isotopes
altogether.

The Legal and Political Context of Independence in the Common Law

World

• While judicial independence enjoys robust and constitutionally grounded

protection, it applies only to judges post-appointment and does not constrain
the executive in exercising its discretion to appoint judges.

• In Ocean Port, the Court affirmed that administrative bodies are

not subject to the protections of judicial independence as a matter
of constitutional law.

• Or, more accurately, those who are affected by the decisions of these
administrative bodies do not have a constitutional right to an independent
decision-maker, as do litigants who have their disputes adjudicated in courts.

Bell Canada v. Canadian Telephone Employees Assn.

• The Canadian Telephone Employees Association (CTEA), the
Communications, Energy and Paper workers Union of Canada (CEP), and
Femmes Action filed complaints with the Canadian Human Rights
Commission against Bell Canada.

• These organizations alleged that Bell, in contravention of the Canadian

Human Rights Act, was paying female employees less than male employees
who were performing work of equal value.

• The Canadian Human Rights Commission referred the complaints to the

Canadian Human Rights Tribunal for adjudication. Bell alleged that the

84
Tribunal’s independence and impartiality were compromised The Federal
Court of Appeal ruled in 2001 that the Tribunal could proceed with
investigating the original complaints, despite Bell’s continued protestations.
- The standard of independence applicable to it is therefore lower than that
of a court.
- The Tribunal’s function in implementing government policy must be kept in
mind when assessing whether it is impartial.
- The requirement of independence pertains to the structure of tribunals and
the relationship between their members and members of other branches of
government. It does not have to do with independence of thought.
- The power to extend members’ appointments does not undermine the
independence of Tribunal members.

CUPE v. Ontario
• (Minister of Labour Since 1965, Ontario’s hospitals, nursing homes and
their employees have been required to resolve disputes over collective
agreements by compulsory arbitration under the Hospital Labour Disputes
Arbitration Act (“HLDAA”).
In early 1998, the Minister appointed four retired judges to chair several
arbitration boards.

They were not appointed by mutual agreement nor were they on the
“agreed”. The unions were not consulted.

• The President of the Ontario Federation of Labour complained to the

Minister that the
understanding about a return to the status quo had been breached without
consultation.

• The unions objected that retired judges lack expertise, experience, tenure
and independence from government.

• The Supreme Court of Canada quashed a provincial Labour Minister’s

politically charged appointment of retired judges to serve as chairs of
hospital labour arbitration boards, but for significantly different reasons than
the Ontario Court of Appeal.

• Whereas the Ontario Court of Appeal had viewed the case principally as
one about independence (and concluded the retired judges, lacked the
necessary protections of independence).

• The Supreme Court viewed the case principally as one about the scope of
executive discretion. The majority of the Supreme Court held that the
appointment of the retired judges was “patently unreasonable.”

Conclusion

85
• The recent confrontations show that there is little to compel Canadian
governments to constrain their discretion to make appointments based on
partisan motivations or to respect the independence of administrative
agencies.

• While the rule of law and principles of fairness and impartiality may require
independence, only political leadership can sustain it. Political leadership
created independent agencies in order to ensure that important areas of the
public interest (such as regulating nuclear power) are served by people and
institutions that are not caught up in partisan politics.

• As the experience of other common law jurisdictions makes clear, it takes

political leadership and a systemic approach to administrative justice to
safeguard the boundaries of partisanship and ensure that administrative
bodies are free to operate without fear of political repercussions for decisions
that do not accord with the policies of particular governments

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

The Principle of Judicial Independence

● Judicial independence is a constitutional doctrine, closely tied to the

separation of powers.

● Judicial independence ensures that “judges, as arbiters of disputes, are at

a complete liberty to decide individual cases on their merits without
interference”: Ell v Alberta [2003] 1 SCR 857 at [21]

● Judicial independence also preserves the separation of powers b/w the

three branches of our democracy by depoliticizing the relationship between
the judiciary and the other two branches.

● “the legislature and executive cannot, and cannot appear to, exert
political pressure on the judiciary, and conversely ... members of the
judiciary should exercise reserve in speaking out publicly on issues of
general public policy that are or have the potential to come before the
courts, that are the subject of political debate, and which do not relate to the

86
proper administration of justice”: see Re Remuneration of Judges (the
“Provincial Judges Reference”) [1997] 3 SCR 3, at [140].

• There are 3 core characteristics and 2 dimensions (i.e. individual and

institutional)

Valente v The Queen

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

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

If the Council concludes that removal of a judge is warranted, it makes

a report to the minister of justice, who may introduce a motion before
Parliament

The actual authority to recommend removal of a judge is found in

s69(3) of the Judges Act.
Institutional security of tenure means that, before a judge may be
removed for cause, there m/b a judicial inquiry to establish that such cause
exists, at which the judge affected m/b afforded the opportunity to be heard

Financial Security

Not permissible for judiciary to engage in negotiations over

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

According to Provincial Judges Reference per Lamer CJ:

There must be a minimum threshold for lowering remuneration: public
confidence in the independence of the judiciary would be undermined if
judges were paid at such a low rate. This objective would be achieved by
setting that body the specific task of issuing a report on the salaries and
benefits of judges to the executive and the legislature.

Three Requirements Test:

87
a. First and foremost, these commissions must be independent, effective,
objective and governed by special process...

b. Not permissible for judiciary to engage in negotiations over remuneration

with the executive or
representatives of the legislature

c. There must be a minimum threshold for lowering remuneration: public

confidence in the independence of the judiciary would be undermined if
judges were paid at such a low rate. (Reference re Remuneration of Judges of
the Provincial Court of PEI).

3.i.i.1. Administrative Independence

• The admin/exce should have no influence and judiciary should be from

interference from the admin body (Canada vs Tobiass)

• Canada (Minister of Citizenship and Immigration) v. Tobiass 1 arose out of

a nationally- publicized incide nt in which a senior official of the Department
of Justice Canada met with the Chief Justice of the Federal Court of Canada
on 1 March 1996, and expressed concern about the slow movement of three
citizenship-revocation proceedings against alleged war criminals.

• Over 18 months later, the Supreme Court of Canada concluded that the
meeting compromised the appearance of judicial independence.

• In the process, the Court established as a matter of constitutional law the

long-held convention that no government official should discuss a pending
case with a judge without notice to counsel for the other parties.

• The decision constitutes a modest but important precedent in the growing

body of case law on judicial independence in Canada. The unanimous
reasoning of the Court is clear and direct, an d integrates its holding into the
larger context of judicial independence jurisprudence.

• At the same time, the case presents a wonderful opportun ity for analysis
by students of judicial politics.

• It is possible to observe internecine conflicts within the Federal Court of

Canada, and see how judges outside that court view its work.

• More important to the welfare of the Canadian courts, however, is that

Tobiass shows how much the judiciary as a whole suffers when judges with
administrative responsi-bilities do not discharge those responsibilities
effectively. Tobiass represents primarily a failure in administration.

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• When a failure in administration contributes to "a serious affront" to the
appearance of judicial independence, it is time to consider h ow to prev ent
similar problems from arising in the future

Judges in Canada are appointed, not elected.

• In Canada, judicial appointments are made by the federal government or
provincial government.

• Superior and federal court judges are appointed by federal government,

while inferior court judges are appointed by the provincial government.

Federal appointments (not in the Supreme Court of Canada)

• At the federal level, a lawyer who has aspiration to sit as a judge of a

Superior Court in a province or territory or of the Federal Court of Appeal, the
Federal Court or Tax Court of Canada sends an application to the
Commissioner for Federal Judicial Affairs Canada.

• The application is considered by a judicial advisory committee in the

applicant’s province.

• There are 8 members in a committee. Committees considering potential

federal appointments send the list to the Minister of Justice, who makes
recommendations to Cabinet.

• Before making those recommendations, the minister may consult with

members of the judiciary and the bar. Final appointments are officially made
by the Governor General
Criticisms of the Non-Supreme Court Federal Appointment Process

• The appointment process has been criticized

• The fact appointments occur without any input from opposing parties or
Parliament produces some controversy

• This means that the Prime Minister can essentially fill the courts with
politically and ideologically like-minded individuals who will advocate the
government’s current position.

• One must question the true impartiality that these types of judges have

Changes to Supreme Court Judges appointment system

89
• In 2016 (October), the Liberal government overhauled the judicial
appointments system in an effort to recruit a more diverse array of
candidates and make the selection process more Supreme Court
Appointments

• The Supreme Court Act sets out eligibility for the Supreme Court of Canada

• Judges of the court are made up of 8 puisne (ordinary judge or a judge of a

lesser rank of a particular court) and the Chief Justice

• Candidates must have either been a judge of a superior court or a lawyer

for at least 10 years in their province’s bar

• Appointments are made by the Governor General of Canada on the advice

of the Prime Minister

• Appointments to the Supreme Court of Canada are subject to the legal

requirement that three judges must be appointed from Quebec.

• By convention, the other 6 are appointed from Ontario (3), Western Canada
(2), and Atlantic Canada (1).

• These appointments are not subject to the procedures described above for
the appointment of superior court judges and are made on the basis of a
recommendation to cabinet by the Prime Minister.

• Recently, this has been augmented through the establishment of an ad hoc

advisory committee for each vacancy on the Court; this committee reviews a
list of 7 nominees submitted by the federal Minister of Justice, and shortlists
three candidates from which the Prime Minister chooses a name for
appointment.
• In addition, in February 2006 a parliamentary committee was allowed to
interview the Prime Minister's selected candidate prior to his appointment.

Provincial appointments
• Candidates for provincial courts are screened by a judicial advisory
committee established for each province or territory.

• Several provinces have created arm’s length committees that make a short
list of recommendations.

• Committees are often comprised of representatives of the federal and

provincial governments, the legal profession, the judiciary and general
public.

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• In Ontario: Judicial Appointments Advisory Committee (JAAC) is made up of
13 members: 7 lay members, 2 judges, 1 member appointed by the Ontario
Judicial Council, and 3 from the legal community.

DO YOU THINK THERE NEEDS TO BE A REFORMING OF THE JUDICIAL

APPOINTMENT PROCESS?
WHY/WHY NOT?:

A. Strengths? A number of filters exist before judges are selected; flexibility

in appointing allows for ability to tailor bench to needs of society at the time

B. Concerns? Political patronage; abundance of discretion; lack of

transparency/accountability; the appointment process is simply policy, and
cannot be legally enforced, which gives rise to concerns that it may be
manipulated in individual rather than societal favour;

C. What should be done?

D. Note: discuss both times of federal appointments – non Supreme Court

and Supreme Court (and note the unique concerns w/ Supreme Court
appointments)

E. The Court consists of one Chief Justice, and eight associate judges. The
Constitution empowers the Governor General to appoint Supreme Court
judges. In practice, appointments are made on the advice of the Prime
Minister. To support the Prime Minister in this duty, the Minister of Justice
compiles a shortlist of candidates with input from the provincial law
societies.

F. By tradition and convention, only the Cabinet, a standing committee in the

larger council, advises the governor general and this advice is usually
expressed exclusively through a consultation with the prime minister. Thus,
the provinces and parliament have no formal role in such appointments,
sometimes a point of contention.

• In 2006, an interview phase by an ad hoc committee of members of

parliament was added. Justice Marshall Rothstein became the first justice to
undergo the new process.

• The prime minister still has the final say on who becomes the candidate
that is recommended to the governor general for appointment to the court
Smith v. Canada (Attorney General), 2020 FC 629

• In the spring of 2018, Justice Smith was asked by the head of Thunder
Bay’s Lakehead University if he would help its Bora Laskin Faculty of Law
through a difficult time. Its previous dean, Angelique Eagle Woman, had
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resigned, and accused the school of racism. Justice Smith, who has been a
judge since 2001, said in a legal document he feared the law school had
been in danger of collapse.

This led to H. Patrick Smith of the Ontario Superior Court of Justice takes the
position of Interim Dean.

The Chief Justice approved this special leave of absence, pursuant to

subsection 54(1)(a) of the Judges Act, but provided several conditions

• The council’s executive director, Norman Sabourin, filed a complaint

against Justice Smith, citing an online story from earlier in May that said
Indigenous leaders had asked Lakehead to appoint an Indigenous successor
to Ms. Eagle Woman.

• Executive Director of the Canadian Judicial Council referred the matter to

the Canadian Judicial Council, on the basis of a potential breach of s. 55 of
the Judges Act,

• 55. No judge shall, either directly or indirectly, for himself or herself or

others, engage in any occupation or business other than his or her judicial
duties, but every judge shall devote himself or herself exclusively to those
judicial duties.

• Federally appointed judges are guided by two documents: The Judges Act,
which bars them from taking on a “occupation or business” outside their
judicial duties; and voluntary ethical principles in a CJC document urging
them to steer clear of controversy, in their activities away from their bench.
 A review panel of the judicial council found that “occupation” includes
unpaid duties.
 Later in 2018, a review panel of the judicial council found Justice Smith
guilty of breaching his ethical duties for taking a post it said could have
exposed him to public controversy, thus harming the justice system’s
reputation.

• Regardless, Justice Smith sought judicial review before the Federal Court in
Smith v. Canada (Attorney General), where the court concluded he did not
breach his judicial ethics or section 55 of the Judges Act. However, the court
went even further, indicating he was denied procedural fairness and that it
was an abuse of process.

• Justice Zinn applied a standard of reasonableness in reviewing the

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

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• Justice Smith had received permission to take the post from the chief
justice of his court, Heather Smith, and then federal minister of justice, Jody
Wilson-Raybould, Justice Zinn found. ”If his decision was ill-advised, what
does that say of the decisions of his chief justice and the minister of justice?

• This decision is particularly important in clarifying that judges are

not prohibited from all non-judicial activities, especially where they
do not impair the ability to perform judicial duties.

• Ensuring there is a mechanism and an ability to be involved in appropriate

ways helps alleviate ethical and societal concerns, and has the potential to
enrich the experiences of the bench further.
CHAPTER NINE
Statutory Interpretation
Historical Approaches
● Literal/plainRule
Take the literal meaning, word by word
● Golden Rule
Permits courts to depart from ordinary meaning of text to avoid absurd
results. Re Sigaworth ( Estate of mother would be acquired by next to kin but
in this case, son murdered the mother, so it would be absurd. R v Allan-
Bigamy, where a man is not allowed to marry when his spouse is alive or not
divorced. But the act meant that you can’t go in marriage ceremony as the
marriage was illegal
● Mischief Rule
To cover the mistakes and gaps left by common law, mischief rule is
use to cover that gap. What was the law before the statute and cover that
gap. Corkery v Carpenter where a drunk was driving cycle and he was
charged. Act said you can’t use carriage while drunk but he was driving
bicycle. Mischief rule said the gap was not to be drunk while doing any form
of transportation.

● Presumed Intent
o Read the preamble of the statute. the intention that courts will, in the
absence of an indication to the contrary, impute to Parliament

● Mossop - bereavement leave 4 days for immediate family- archive 19.02.

Art 2.01 says common law spouse of opposite sex

● Canadian human rights tribunal J L heureaux relies heavily on charter

values to provide large purposive and liberal interpretation of human rights.
Used broad and purposive approach. Family should be read purposively and
both partners fell into family status

Modern Approach is given by Driedger. This approach is preferred by the

Canadian courts.

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 As per Dridger, the definition of Modern Approach is “today there is
only one principle or approach, namely, the words of an Act are to be read in
their entire context, in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament”

Legislative Intent under the Modern Approach

Legislation that interferes with individual freedoms is considered penal

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

Justice Dube is known to apply contextual and purposive approach to

determine the legislative intent under the modern approach of
interpretation. In Mossop, she employed these principles in the Mossop Case.
The complainant, a federal government employee, took a day off work to
attend the funeral of the father of the man he described as his lover. The
collective agreement between Treasury Board and the complainant's union
governing terms of employment provided for up to four days' leave upon the
death of a member of an employee's "immediate family", a term defined as

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including a common-law
spouse. The definition of "common-law spouse" was restricted to a person of
the opposite
sex. bereavement leave 4 days for immediate family- archive 19.02. Art 2.01
says common law spouse of opposite sex
Canadian human rights tribunal J L heureaux relies heavily on charter values
to provide large purposive and liberal interpretation of human rights. Used
broad and purposive approach. Family should be read purposively and both
partners fell into family status
Shared meaning rule. If there is a discrepancy between the versions of a
bilingual statute, the meaning that is shared by both versions is presumed to
be the intended meaning.

Article
Ruth Sullivan: Some Problems with the Shared Formulated in R v
Daoust and Interpretation
R vs DOUST
• As part of an investigation of second-hand store owners suspected of
selling stolen merchandise, the Quebec City police set up an operation using
an undercover officer.
• The officer went to D’s establishment on four different occasions to sell
goods which he hinted were stolen.
Each transaction ended with the merchandise being accepted for a sum of
money.
 On the final occasion, D told the officer that this would be the last time
they would do business together, to which B, the establishment’s
manager, added “We can’t always be helping you to steal.”

• B and D were charged under s. 462.31 of the Criminal Code At trial, they
were found guilty of laundering proceeds of crime. The Court of Appeal set
aside the convictions on the ground that the actus reus of the offence had
not been made out.

• The English and French versions of the relevant provision of the Criminal
Code present variations of the offence of laundering proceeds of crime. While
the French version simply lists the acts constituting the actus reus of the
offence, that is, “utilise, enlève, envoie, livre à une personne ou à un endroit,
transporte, modifie ou aliène des biens ou leurs produits — ou en transfère la
possession —”, the English version lists these same acts and adds a
prohibition against any other dealings with respect to the property or its
proceeds.

• The addition in the English version of the expression “or otherwise deals
with” leaves the door open to other acts of laundering, thus avoiding the

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need to provide an exhaustive list.

• Even though the legislative history shows that the English version reflects
Parliament’s true intent, it cannot be adopted.

• The Court cannot use the history of a clearly drafted statute as the sole
basis for changing it or completely disregarding its meaning.

• Under the rules of contextual interpretation, moreover, words that could

effectively broaden the scope of a penal statute cannot be read in.

• Finally, under the rules of bilingual statutory interpretation, where, as here,

the meanings of the two versions of a provision are clear, yet irreconcilable,
the common meaning of the two versions of the enactment should be
favoured. Here, the common meaning is the narrower version, which is the
French version.

• It is therefore the French version that must first be examined to determine

whether it accords with Parliament’s intent.

• The two versions are divergent because of an error or an omission on the

part of Parliament, but that does not give this Court the authority to amend a
clearly drafted enactment.

• The actus reus of the offence specified in the indictment has not been
made out here. The activities criminalized by this provision all concern the
same person, that is, the person who originally has the object in his or her
possession and seeks to dispose of it.

• Buying or receiving property or similar acts involving the person who

accepts or acquires the property do not constitute elements of the offence of
laundering proceeds of crime. Since the purchase was not a “transfer of
possession” within the meaning of s. 462.31 , the accused must be
acquitted.

TWO GOALS OF THE AUTHOR

• First is to Set out the comprehension of the shared meaning rule adopted
in Daoust and to explain and elaborate why it is unsatisfactory.

• The Law of Bilingual Interpretation identifies 2 principles of interpretation

rooted in respect for the two official languages acknowledged by Canada’s
Constitution.

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• First rule is equal authenticity rule (provides both versions of bilingual
legislation are equal official and authoritative expressions of the law enacted
by the legislature); the second rule is the presumption in favour of shared
meaning, conventionally referred to as the ‘shared meaning rule’

• Under the rules of bilingual statutory interpretation, where, as here, the

meanings of the two versions of a provision are clear, yet irreconcilable, the
common meaning of the two versions of the enactment should be favoured.
Here, the common meaning is the narrower version, which is the French
version.

• The Interpretation of Legislation in Canada (Pierre-Andre Cote) described

the sequence of steps that courts follow in applying the shared meaning rule.

● First, the interpreter must read both versions of the provision to be

applied" and determine whether there is a discrepancy between the
versions.

● Second, if there is a discrepancy, the interpreter must determine

whether there is nonetheless a shared meaning between the two
language versions.

● Third, the interpreter must consider the other rules of statutory

interpretation, including in particular, other evidence of legislative intent. In
cases where there is a shared meaning, that meaning is presumed to
express the intention of the legislature, and the point of looking at other
rules of interpretation is to determine whether the presumption in favour of
the shared meaning has been rebutted. In cases where there is no shared
meaning, the presumption plays no role, and the correct outcome must be
determined exclusively through reliance on the other rules of statutory
interpretation

● The position adopted in Daoust and the Law of Bilingual Interpretation is

that when a discrepancy occurs between the two versions of bilingual
legislation, there are three possibilities

1) Ambiguity Shared Meaning Rule: There is a shared meaning, as one

version lends itself to two or more plausible meanings while the other clearly
expresses only one of those meanings. French clarifies the ambiguous
English version

2) Breadth shared meaning

There is a shared meaning when the meaning expressed by one version is
narrower than the meaning expressed by the other and the narrow meaning
is contained in the broader meaning. Here, the French version is narrower

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than the English

(3) In the absence of either form of shared meaning, the two versions are
said to be in ‘absolute conflict’ and no presumption arises.
As per Ruth Sulivan, not every instance of shared meaning should give rise
to the presumption that the shared meaning was intended. The presumption
should arise only in cases where one version is ambiguous and the other is
clear (ambiguity shared meaning). In all other cases, the presumption should
not arise and the interpreter should go directly to the other rules of statutory
interpretation to resolve the discrepancy.

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

• Author’s objection to the account of the rule in Daoust is that it effectively

introduces a new strict construction rule to statutory interpretation without
offering satisfactory justification for this innovation.

• Part III then addresses two important questions in bilingual interpretation.

When there is a discrepancy between the two language versions of a
legislative text and it is possible to identify a shared meaning, should the
presumption in favour of shared meaning be triggered in every case?
 Justifying the Shared Meaning Rule
 Norm Based Justification
 The justification for the shared meaning rule is unsatisfactory; it
neglects the main point, which is that both versions of the Act are
equally authentic expressions of legislative intent Textualist
Justification

• Equal authenticity mandates the text of each version to be a reliable

expression of the single rule that the legislature intended to enact If the two
texts express clear but different rules, neither is reliable and some basis
other than textual meaning must be found to assess which version is to be
favoured.

• Author’s justification for the shared meaning rule is very different from the
justification offered in The Law of Bilingual Interpretation, which is grounded
in textualist assumptions. A textualist assumes that the textual meaning of a
properly drafted legislative text, one that is clear, is its "actual" meaning and
is appropriately equated with the rule that the legislature intended to enact.

• By giving effect to clear textual meaning, a court automatically gives effect

to the intentions of the legislature. And since that meaning is also apparent
to, and relied upon by the public, giving effect to it also respects the rule of
law. For these reasons, textualists conclude that further interpretation is

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neither necessary nor appropriate when the meaning of a legislative text is
clear.

• Therefore, linguistic equality is achieved by insisting on equal authenticity

of both language versions and by solving discrepancies in a manner that
doesn’t automatically prefer one language over the other.
Article
Mark Mancini, “The Purpose Error in the Modern Approach to Statutory
Interpretation”
Alberta Law Review, forthcoming
Introduction
This modern approach to statutory interpretation holds that courts must use
text, context, and purpose "harmoniously" to ascertain legislative intent.
Otherwise, the modern approach provides little guidance on how to use
these tools of interpretation. As a result, this paper argues that courts can
commit a "purpose error" under the modern approach, where courts give too
much weight to abstract primary
purposes of a statute at the expense of rules, standards, and delegations
incorporated in text. The result is an interpretation that is far from
"harmonious"--such an interpretation maximizes one tool of interpretation
over others. The paper endorses recent attempts by the Supreme Court to
recognize and avoid this error, and it provides insights into avoiding the
purpose error in an upcoming Supreme Court case, Entertainment Software
Association.

The paper outlines what the purpose error is and how it can come to
pass. It then describes how the Supreme Court in Telus v Wellman and R v
Rafilovich avoided the purpose error by rooting abstract statutory purposes
in the textual scheme under interpretation. Next, it outlines the reasons why
an approach that avoids the purpose error is desirable approach.: (1) It is
consistent with the dominant theory of legislative interpretation that views
courts as "faithful agents"; (2) it is consistent with the theory of
"purposvism" endorsed by the Supreme Court, and the idea of "harmonious
interpretation"; (3) more “structured and deliberate” as it leads to a more
consistent and predictable application of the modern

When courts fail to harmoniously interpret a statute, they can do so by

giving too much weight to primary purposes of a statute—why a statute was
enacted at a high level of abstraction—over secondary purposes represented
in legal rules and standards sourced in text—how a statute aims to
accomplish its goals. This is a purpose error. Both component parts—the
why and the how—must be given effect as a matter of legislative
sovereignty, but courts sometimes fail to do so by prioritizing more abstract
purposes at the expense of the text.
In Part I, the author describe the development of the Supreme Court’s
modern approach to interpretation. Under this approach, the overall

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conceptual work done in statutory interpretation is to establish, as an
objective construct, legislative intent. Doing so, on the Supreme Court’s
terms, requires a harmonious interpretation between purpose and text. This
means that purpose should not be maximized as a tool of interpretation; a
purposive interpretation of a text, on the Supreme Court’s understanding, is
bounded by the text itself
In Part II, I describe how the purpose error arises and point out recent
examples of cases where courts had to deal with it: Telus v Wellman, and
Rafilovich. In auhtors estimation, and while there is no precise formula
discernible from the cases, two factors generally influence whether a court is
likely to fall into a purpose error: (1) a court reasons from a purpose stated
at a high level of rhetorical abstraction and; (2) fails to qualify that purpose
or root it in the text of the statute and the secondary purposes the text
discloses.
In Part III, I move to the normative argument. Author offers three
reasons to prefer an approach that avoids the purpose error. Each of these
reasons are standalone justifications for identifying the purpose error and
addressing it as Telus and Rafilovich suggest.

In Part IV, I conclude by applying these insights to the Supreme Court’s

upcoming Entertainment Software Association case.

I) THE LAW OF STATUTORY INTERPRETATION IN CANADA: SETTING THE

STAGE a) Canada’s “Harmonious” Modern Approach
For generations, courts have held that establishing “legislative
intent” is the typical goal of statutory interpretation. Intent, however, is at
best “a confusing word”, and at worst seriously misleading. This is because
the search for legislative intent does not track to any particular interpretive
methodology.

At some points, English (and Canadian) courts focused on the “great

sun” of an interpretive principle: the plain meaning approach. J.A. Corry
noted, the plain meaning approach “assumes that words have definite and
exact meanings and invites a philosophical discussion about the meaning of
meaning. Eventually courts and scholars attacked the plain meaning rule as
an implausible account of language and judging.

Courts instead sometimes applied different rules to get at legislative

intent: for example, they frequently consulted the “mischief” the law was
designed to solve, even if that mischief went beyond the text and addressed
the “social policy” of the statute.The Supreme Court generally resolved the
issue in favour of the “mischief” rule, insomuch as the reason or “purpose”
that a law is adopted is a key part of the methodology. Eventually, the
Supreme Court generally resolved the issue in favour of the “mischief” rule,
insomuch as the reason or “purpose” that a law is adopted is a key part of

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the methodology.

The Rizzo formula outlines, at least in basic form, the task for
interpreters. There are two parts: (1) the tools of interpretation include (a)
the words (b) their context (c) the scheme of the Act and (d) the object of the
Act (2) these tools must be used “harmoniously” given the legislative
context.
b) Text
The fact that text and purpose are relevant considerations in
interpretation does not answer the real question: how do they work
together? The modern approach has, at least in theory, solved this issue by
asking that various tools of interpretation be used in “harmony.” But what
this means in particular contexts is unclear, and the addition of purpose to
the interpretive equation complicated matters.
The starting point in the modern approach, despite the addition of
purpose, is the continued importance of the text. As part of a harmonious
interpretation, and as the Supreme Court states, what courts “must interpret
is the text through which the legislature seeks [its objective]

Quite evidently, the text will not contain all the answers. But
understanding how text works in context, and as applied to facts, is the core
interpretive task. Words at certain levels of generality will indicate different
legal rules and purposes, and courts should pay close attention to how the
legislature chooses to “...set meaningful boundaries on the purposes it
wishes courts and agencies to pursue.”
c) Purpose
While the text and the scheme it discloses is still important in the
modern approach, it is not conclusive because of the role of purpose.
Historically, as noted above, purpose has referred to the “mischief” the
statute was designed to solve.
Purposes can be “primary,” which “may refer to the primary aim or
object of an enactment—that is, the effect the legislature hopes to produce
through the operation of its rules or scheme. Primary purposes can be found
by interpreters at different levels of abstraction, 60 and from different
physical sources. Purposes can come from the fundamental premises of the
legal system, reasoning down to certain categories of legislation, and finally
reaching particular purposes governing the enactment of the legislation
itself.
There are also “secondary purposes”—“...principles or policies that the
legislature wishes to observe, or considerations it is obliged to take into
account, in pursuing its primary goals.”65 While primary purposes concern
what the legislature wants to accomplish, secondary purposes are how the
legislature wants to accomplish its goals
II) THE PURPOSE ERROR DESCRIBED AND ANALYZED
Author describe the conditions that create the purpose error and
review two cases that present the error: Telus and Rafilovich

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Telus
Mr. Wellman brought a class proceeding on behalf of 1.4 million
consumer customers and 600,000 business customers of TELUS in Ontario in
relation to an issue regarding TELUS’ billing practices. All TELUS customers
were subject to an arbitration provision that applied to the dispute in issue.

Arbitration is when a neutral third party (other than a judge or a court)

decides a legal dispute. arbitration rules are set out in the Arbitration Act.
One of the Act’s main principles is that people who agree to go to arbitration
should have to live up to their agreement.

One exception is for consumers. The Ontario Consumer Protection Act

says consumers can join a class action like Mr. Wellman’s even if they
agreed to arbitration. Because of this, everyone agreed that the consumers
could ask for compensation in court. But business customers weren’t
covered by the Consumer Protection Act. TELUS said this meant they should
be held to their agreement to go to arbitration. It asked the court to “stay”
the claims of the business customers, or stop them from going forward in
court.

The main issue in this case was how to interpret section 7(5) of the
Arbitration Act. While the Ontario Consumer Protection Act provides an
exemption for consumer customers by which arbitration agreements are not
enforceable, business customers have no such stator exemption. TELUS
applied to stay the claims of business customers but the lower courts refused
a stay. Applying long standing Ontario authority, the courts concluded that
section 7(5) of the Ontario Arbitration Act gave the court discretion to refuse
the stay where the consumer and business claims were joined in one
proceeding and it was not reasonable to separate them.

The supreme court was called upon to choose between:

1. Excluding tens of thousands of TELUS’ business customers from any

effective remedy by keeping them out of a class action which would decide
the exact same claims advanced by customers who are consumers; and

2. Stretching the words of s. 7(5) of the Arbitration Act beyond the meaning
that the words literally bear.
The Court reaffirmed the modern approach that sees arbitration as an
autonomous, self-contained, self- sufficient process pursuant to which the
parties agree to have their disputes resolved by an arbitrator, not by the
courts.
The minority of four judges would have adopted the solution of
stretching the meaning of the words using familiar statutory interpretation
principles. The majority chose to adhere to the literal meaning of the words
— and to blame the legislature for the problem.
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 Because of the exception in the Consumer Protection Act, consumers
were protected from a stay. Their claims could still be heard. Business
customers weren’t covered by the exception, so they had to respect their
agreement. Their claims were stayed, and they would have to go to
arbitration instead. This decision didn’t deal with Mr. Wellman’s claim that
TELUS overbilled its customers. It only decided that the business customers
weren’t allowed to go to court to argue that.

R. v Rafilovich
Background:
Part XII.2 of the Criminal Code deals with the proceeds of crime. The
overall intention of this legal regime is to deter criminal offenders by
ensuring that “crime doesn’t pay.” Under Part XII.2 of the Code, the state
may seize property that, on reasonable grounds, is believed to be the
proceeds of crime. Parliament has provided a procedure allowing the
accused to seek access to some or all of this seized property for reasonable
legal expenses if the accused has no other means to pay (s. 462.34(4) of the
Code). If it is determined that funds are to be returned to the accused for
legal expenses, the return of any seized funds is done under a judicial order.
Returned funds are no longer considered seized property. S. 462.37(3) of the
Code deals with the situation in which property, proven to be proceeds of
crime, is not available for forfeiture to the Crown. In this case, the sentencing
judge may order a fine, equal to the amount proven to be proceeds of crime,
instead of forfeiture.
Mr. Rafilovich was arrested for possession of cocaine for the purpose of
trafficking. The police found $41,976 in his car and apartment and seized the
funds as potential proceeds of crime. Before trial, he applied under s.
462.34(4)(c)(ii) of the Criminal Code for the return of these seized funds in
order to pay for reasonable legal expenses. The judge determined that Mr.
Rafilovich had no other means to pay for legal defence and released the
funds for this purpose. At trial, Mr. Rafilovich pled guilty to several offences.
He was sentenced to imprisonment and forfeiture of his 50% interest in an
apartment ruled to be offence-related property. The sentencing judge denied
the Crown’s application under s. 462.37(3) of the Criminal Code for a fine
equal to the amount of the seized funds returned to Mr. Rafilovich. The
Crown appealed this sentencing decision. The Ontario Court of Appeal
changed the sentencing to include a $41,976 fine, removed the forfeiture,
and added an additional 12 months imprisonment if Mr. Rafilovich failed to
pay the fine.
In this case, the money returned to Mr. Rafilovich for his legal defence
was proven at trial to be the proceeds of crime. Allowing him to benefit from
this money, by paying for his legal expenses, seems to contradict the
intention of Part XII.2 of the Code. However, the money was returned to Mr.
Rafilovich under judicial authority as per s.462.34(4) of the Code. It was
concluded that this provision has “two secondary purposes: providing access
to counsel and giving meaningful weight to the presumption of innocence.” If

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the accused was in real need of these funds to mount a legal defence, then
retroactively taking them back as a fine would undermine these secondary
purposes. If the accused cannot otherwise afford legal counsel, or knows that
the money returned to them will only be taken back retroactively, they may
opt to represent themselves thus undermining the fairness of the trial.

a) The Error Defined

the two factors generally drive a court’s commission of the error
(1) an acceptance of a rhetorically abstract purpose; and (2) the
attachment of too much weight to this abstract purpose, without paying
sufficient attention to text, scheme, and its secondary purposes
i) Rhetorically Abstract Purpose
Because purposes can be stated so abstractly, they can fail to
constrain an interpreter’s discretion and can be used to justify any result that
may or may not be consistent with a finely-wrought statutory scheme. This is
the first aspect of the purpose error. Abstraction is the centrepiece of this
aspect of the purpose error
ii) Excess Weight on Abstract Primary Purpose
Properly defining the purpose, however, does not insulate an
interpreter from falling into the purpose error. That is because, as noted
above, it is not open to a court to simply ignore abstract purposes that are
incorporated in legislation. Courts must give effect to all aspects of
legislation, no matter the abstractions required.

b) The Cases: Telus v Wellman and Rafilovich

In Telus v Wellman, , the dissent committed the purpose error. The
problem begins with the definition of “access to justice” that the dissent
adopts. . First, recall that there are two steps for the introduction of the
purpose error. First, using Barak’s categories as heuristics, the judge must
accept a purpose at a high level of abstraction. Second, the judge must take
this purpose at a high level of abstraction, and fail to qualify it in relation to
important secondary purposes (means) reflected in text
In Rafilovich, Martin J outlined primary” and “secondary” purposes. two
other “secondary” purposes that are particular to the legal fees scheme: (1)
ensuring access to counsel and (2) upholding the presumption of
innocence.118For Martin J, these purposes were dispositive, and must be
“given an active role in the statutory interpretation analysis,” 119 leading to
a conclusion that a court cannot levy a fine as a way to clawback monies
spent on legal expenses.
III) NORMATIVE JUSTIFICATION
In this section, I hope to show why the majority’s approach in Telus
and Rafilovich is best. Specifically, rooting interpretation in text is: (1) more
consistent with structural constitutional principles, including legislative
sovereignty, because a legislature both intends ends and means; (2) more
consistent with a “purposive approach” to statutory interpretation, which the

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Supreme Court of Canada apparently endorses; and (3) encourages a more
rigorous methodological approach to interpretation in Canada

a) The Purpose Error Disrespects Legislative Sovereign

The purpose error disrespects legislative sovereignty because it
undermines the role of courts as “faithful agents” of the legislature.
b) The Purpose Error is Inconsistent with Purposivism As Endorsed by the
Supreme Court
Secondly, an approach that avoids the purpose error is more
consistent with the entire idea of purposive interpretation, as endorsed by
the Supreme Court.
c) Identifying and Addressing the Purpose Error Will Lead to a More
Predictable Interpretive Method
Identifying the purpose error—and addressing it as the majorities in
Telus and Rafilovich do—bring us closer to an ideal of more principled
decision-making in statutory interpretation.

IV) APPLICATION TO ENTERTAINMENT SOFTWARE ASSOCATION

The Society of Composers filed with the Copyright Board proposed
tariffs for the communication to the public of works through an online music
service. After SOCAN filed its proposed tariffs, the Copyright Act was
amended to include a definition of “making available to the public.” This
provision defines “communication of a work...to the public” as including
“making it available to the public by telecommunication in a way that allows
a member of the public to have access to it from a place and time
individually chosen by that member of the public.” The main question for our
purposes was the following: does the making available of a work on an online
server for later downloading constitute “an event for which a tariff was
payable”?If it was, obviously, SOCAN could collect tariffs from such events.
Complicating matters was a Supreme Court case on point.
In Rogers, a similar case in supreme court, the Court held that the
“transmission over the Internet of a musical work that results in a download
of that work is not a communication by telecommunication,” meaning
SOCAN could collect the tariffs. Of course, the new provision of the Copyright
Act at issue here (s.2.4(1.1)) arguably affected the status quo ante: a literal
reading of this deeming provision suggests, despite what the Court held in
Rogers, that the new provision makes it so that a musical work that is later
downloaded does constitute a communication by telecommunication.
The Court held that s.2.4(1.1) “does not create a new exclusive
right.”The Court held that the limited, narrow purpose of s.2.4(1.1) was not
designed to implement Canada’s international obligations wholesale, as the
Board read them. Instead, s.2.4(1.1) did not fundamentally change the
situation as the Supreme Court saw it in Rogers, and only provided power to
SOCAN to collect fees for the exercise of the right at issue—the making
available right, which only attaches to transmission, not to preparatory
steps.Section 2.4(1.1) cannot be read so broadly to achieve some larger

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purpose of congruence with all elements of international law, especially
where the section “does not explicitly adopt or incorporate [international
law] wholesale and without modification.”
As the Court points out in ESA, there is a “generality” problem here. At
the Board’s level of generality, the dominant purpose of the statute was to
implement—without reservation—certain of Canada’s international
obligations. Of course, as is common in the purpose error, this purpose at
this level of generality may have some relevance for the interpretive task.
The Supreme Court, in reviewing ESA, may find other purposes
relevant to the interpretive task. It may conclude that the provision under
interpretation is aimed at some different purpose than the one assigned to it
by the Court of Appeal. What is important is whether the Court, in its
analysis, relies on Telus and Rafilovich to do the hard work of ranking or
purpose the legislative purposes that bear on the interpretive problem.

CONCLUSION

Author have argued that the Supreme Court should decisively move
beyond the purpose error, by clarifying that purpose and text must be
interpreted harmoniously. In other words, abstract purposes— both on the
Supreme Court’s own doctrinal terms and normatively—should generally not
be permitted to overwhelm specific purposes, means, and schemes set out in
text.

The paper began by reviewing what the Supreme Court has said about
statutory interpretation and the roles of purpose and text. For the Court, and
while this is not perfectly clear, the goal seems to be the creation of a
plausible legislative construct. While legislative instructions will be recorded
in text, this text cannot be understood separately from why it was enacted—
the particular purposes undergirding it. These purposes must be given effect
in every case.

Telus, and Rafilovich provide examples of the Court struggling, one

way or another, with the purpose error. The two cases demonstrate a
normatively desirable way to solve the purpose error—by focusing on how
statutes aim to accomplish their goals. These cases properly solve the
purpose error because they encourage interpretations that are (1) consistent
with the idea of legislative sovereignty; (2) that are consistent with the
Supreme Court’s understanding of purposivism and (3) that generally rely on
probative sources of legislative intent. Applying these insights to ESA
suggest an approach that avoids the purpose error. While there is no perfect
formula for avoiding the purpose error, and indeed, abstract purposes are
inevitable in interpretation, these cases show how the Court can accomplish
its goal of “harmonious” purposive interpretation

CHAPTER TEN

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 Limitation Of Judicial Review In Democratic Society
Judicial review is a process under which executive or legislative actions are
subject to review by the judiciary. It is one of the checks and balances in the
separation of powers
JUSTICIABILITY
All actions by political branches of government are “justiciable”; in
other words, they are subject to supervision by the courts

Operation Dismantle v R [1985] is a decision by the Supreme Court

of Canada where the court rejected a section 7 Charter challenge against the
government for allowing the US government to test cruise missiles over
Canadian territory.
J Wilson distinguished this from Canadian constitutional law where
separation is not a core principle, but rather is only secondary. Instead, there
is a foundation in overlap between the branches as demonstrated in the
system of responsible government.

CONCLUSION: Although decisions of the federal cabinet are reviewable

by the courts under the Charter, and the government bears a general duty to
act in accordance with the Charter’s dictates, no duty is imposed on the
Canadian government by s7 of the Charter to refrain from permitting the test
of the cruise missile. Courts are reluctant to find government action. It also
tested the limits of the role that the courts play in weighing governmental
measures designed to protect national security against the standards
imposed by the Constitution

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

• ISSUE OF ENFORCEMENT
CASE-DOUCET BOUDREAU V NS
The appellants are Francophone parents living in five school districts in
Nova Scotia. They applied for an order directing the Province to provide, out
of public funds, homogeneous French-language facilities and programs at the
secondary school level. The trial judge noted that the government did not
deny the existence or content of the parents’ rights under s. 23 of the
Canadian Charter of Rights and Freedoms , found a s. 23 violation and
ordered the Province and the Conseil to use their “best efforts” to provide
school facilities and programs by particular dates. He retained jurisdiction
to hear reports on the status of the efforts. The Province appealed the
part of the order in which the trial judge retained his jurisdiction to hear
reports.

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 Courts must be sensitive to their role as judicial arbiters and not
fashion remedies which usurp the role of the other branches of governance
by taking on tasks to which other persons or bodies are better suited.

The order in this case was in no way inconsistent with the judicial
function. Hearing evidence and supervising cross-examinations on progress
reports about the construction of schools are not beyond the normal
capacities of courts

CANADA V KHADR
Canada (PM) v Khadr 2010: held that Canadian officials had violated
Khadr’srights when they questioned and interrogated him at Guantanamo
Bay. Though, the courts held his rights were breached, they left it to the
government to make the decision in regard to how to address the
consequences of the encroachment
The practical reality is that courts usually have to rely on the executive and
legislative branches of government for the implementation and enforcement
of their decisions
•
The issue we face is that when judges give distinct and material
definition or shape to vague and ambiguous notions set out in the Charter for
example, and then nullify or invalidate laws that do not adhere to their
interpretation of these requirements, the rule of law may subtly be converted
into the rule of unelected judges
CASE –Vriend v Alberta

Vriend v Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of

Canada case that determined that a legislative omission can be the subject
of a Charter violation
The majority concluded that the appropriate remedy was to “read in”
sexual orientation as a prohibited ground of discrimination for the purposes
of the Act
Judges are not acting undemocratically by intervening when there are
indications that a legislative or executive decision was not reached in
accordance w/ the democratic principles mandated by the Charter
V appealed the termination and applied for reinstatement, but was
refused. He attempted to file a complaint with the Alberta Human Rights
Commission on the grounds that his employer had discriminated against him
because of his sexual orientation, but the Commission advised V that he
could not make a complaint under the Individual’s Rights Protection Act
(IRPA), because it did not include sexual orientation as a protected ground. V
and the other appellants filed a motion in the Court of Queen’s Bench for
declaratory relief. The trial judge found that the omission of protection
against discrimination on the basis of sexual orientation was an unjustified
violation of s. 15 of the Canadian Charter of Rights and Freedoms . She

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ordered that the words “sexual orientation” be read into ss. 2(1), 3, 4, 7(1),
8(1) and 10 of the IRPA as a prohibited ground of discrimination. The
majority of the Court of Appeal allowed the Alberta government’s appeal.
The courts by giving effect to those words are executing the will of
democratically elected individuals. There is therefore genuine agreement
with the Supreme Court’s statement in Vriend on the legitimacy of judicial
review
As for the effect of reading in with the thrust of the legislation, it was
reasonable to assume that the legislature would have preferred to include
sexual orientation in the Act than to have no human rights legislation at all
Reading in did not interfere with the legislative objective nor with democratic
principles Democracy involves more than majority rule and interference is
warranted where the interest of minorities has not been considered

Vriend: somewhat of a “dialogue” between courts and legislatures

• All branches of government have an equal obligation to carry out the
commands of the Charter
• If accomplished, then there is a sort of “dialogue” between the different
branches
• The legislature analyzes the laws they desire to pass
• Subsequently, courts must question if the legislature has satisfied its
responsibility to obey Charter • If not, the matter must return to the
legislature
The courts do not have the final say; they are simply one step in the
procedure
Cory and Iacobucci JJ agreed that using the tools given by s.52 of the
Charter and reading in sexual orientation as a prohibited grounds for
discrimination into the Act was the best remedy for the Charter violation
·Case law had established that before choosing this remedy, the court
must take into consideration the principles of respect for the role of the
legislatures and the respect for the Charter
SCC finally ruled that provincial governments could not exclude lesbian and
gay individuals from human rights legislation and that the exclusion of
protection against discrimination on the basis of sexual orientation was an
unjust violation of s. 15 of the Canadian Charter of Rights and Freedoms.
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
Administrative decision-makers are creatures of statute, often
empowered to regulate specific industries or issues. The CRTC, for example,
is an administrative tribunal empowered by various federal statutes to
regulate broadcasting and telecommunications in Canada. Similarly, the
Immigration and Refugee Board is Canada’s largest independent
administrative tribunal and regulates our country’s immigration and refugee
processes. The decisions that these and other tribunals, government
officials, agencies, and boards make on a daily basis can have major impacts
on our lives. Naturally, those who feel aggrieved by administrative decisions
often seek to challenge them in court.

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 Courts have struggled with their constitutional role in reviewing the
work of administrative decision- makers. On one hand, the legislature’s
decision to delegate regulatory and adjudicative functions to specialized
administrative bodies must be respected. On the other, courts have a
constitutional duty to uphold the rule of law and to ensure that
administrative bodies do not overreach their lawful powers. Since every
administrative decision-maker is a creature of statute, their powers are
necessarily limited by their enabling legislation. Courts are often called upon
to determine the scope of these powers, while being mindful of the
legislature’s choice to assign certain determinations to an administrative
body.
Courts balance these twin imperatives — legislative supremacy and
the rule of law — by affording more or less deference to an administrative
decision-maker depending on the context. The degree of deference is
commonly referred to as the “standard of review”

With the power of judicial review, judiciary branch keeps a check on

executive as well as legislative branch of the Govt. by declaring any law null
&void or invalidation of any law.
It talks about two types of judicial review
§ JUDICIAL REVIEW ON PROCEDURAL GROUNDS
Under this head, there are various grounds
E.g-
o Limits on the exercise of delegated authority/Improper delegation o Duty to
be fair-refers to procedures adopted by the decision maker
Right to be heard
I.Duty to give reasons Notice
II.Discovery / Disclosure
III.Delay
IV.Oral hearing
V.Open hearing
VI.Right to council
VII.Right to cross examine
VIII.Duty to give reasons
o Provision of reasons
o It talks about reasons behind the judgment.
o Reasonable apprehension of bias
Right to an unbiased decision maker
Apprehension of bias must be a reasonable
Decision maker must be impartial.
A key characteristic of fair proceeding before an administrative body is that
the decision maker and the decision making process not grant undue
preferential treatment or be driven by preconceived notions. The test for
adequate tribunal independence is whether a reasonable, well-informed
person having thought the matter through would conclude that an
administrative decision maker is sufficiently free of factors that could

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interfere with the ability to make impartial judgements (The “ Reasonable
Apprehension of Bias Test”).
Case-Baker v Canada Mavis Baker was a Jamaican woman who lived
without status in Canada for 11 years as a domestic worker. During this time
she gave birth to four children in Canada. When the government discovered
that she was in Canada without status she was ordered deported. She
brought an application for permanent residence under section 114(2) of the
Immigration Act, 1976. The immigration officer rejected her application
without giving reasons. Baker was able to make a request for the
immigration officer's notes, and, based on the notes, she applied for judicial
review of the decision.

1. Baker appealed to the Supreme Court of Canada for review of the

administrative decision denying her application for permanent residence on
humanitarian and compassionate grounds. One of Baker's arguments was
that she was owed a duty of fairness by the administrative decision maker
and that this duty of fairness included the right to an oral hearing. The court
rejected this argument, ruling that the unrestricted ability to forward written
arguments was sufficient to meet the duty of fairness owed to Ms. Baker.
2. Baker also argued that the duty of fairness owed to her by the Minister
included a duty to
provide reasons for any decision made. The court allowed some flexibility in
what constitutes reasons, and in this case allowed the notes given by the
subordinate officer to the decision-maker to be treated as the reasons for the
decision.
3. Baker further argued that the duty of fairness owed her by the Minister
meant that the decision- makers should be free from any "reasonable
apprehension of bias". The court concurred and found on the facts that there
was a "reasonable apprehension of bias" in the case of the immigration
officer who wrote the notes on the file that were subsequently considered by
the court to be the reason for the decision
Pursuant to Baker v. Canada (Minister of Citizenship & Immigration) SCC
further emphasized that procedural fairness is flexible and entirely
dependent on context. In order to determine the degree of procedural
fairness owed in a given case, the Court set out five factors to be considered:
– the nature of the decision being made and the process followed in making
it;
– The nature of the statutory scheme and the terms of the statutes pursuant
to which the body operates;
– the importance of the decision to individual affected;
– the legitimate expectations of the person challenging the relevant decision;
and
– The choices of procedure made by the agency itself.
Nicholson- The author traces the development of the duty of fairness in
Canada beginning with Nicholson v Haldimand-Norfolk (Regional) Nicholson
was employed for a period of 15 months by the regional police of Haldimand

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County when he was terminated without any reason given. The employer
claimed that the Police Act allowed them to dismiss him at will, as he was
still within an 18-month probationary period of employment. Nicholson,
however, argued that he had a common law right to be treated fairly and be
notified of the reasons for his termination.
The issue before the Supreme Court of Canada was whether Nicholson's
employers were entitled to terminate him without a hearing and without any
reasons given. Supreme Court of Canada abandoned the dichotomy between
judicial and administrative decisions, holding that a general duty of fairness
applies whenever a decision is made that affects the rights, interests, or
privileges of an individual.
SUBSTANTIVE REVIEW
In Dunsmuir v. New Brunswick, the “standard of review analysis” has
required the reviewing court to determine whether the administrative
decision needs to be “correct”, in the sense that the court would have
reached the same decision, or whether it suffices for the administrative
decision merely to be “reasonable”.
In the years Vavilov, there was widespread and growing frustration and
confusion among judges, scholars, and lawyers about the evolution of the
Dunsmuir framework for selecting the standard of review.
As per Dunsmeir case. It includes standard of review. It talks about
I.Correctness
II.Reasonableness CORRECTNESS-
Error of law
Error of jurisdiction
Error of constitution
Reasonableness
i. Privative clause-Decision of the decision maker is final and binding. (strong
privative clause=reasonableness)
ii. Discretionary power-No abuse of discretionary power.
iii. Purpose of the statue-e.g protection of public or public safety
iv.Expertise –decision maker is the expert of his or her field
v.Statutory scheme –choice of remedies available to the decision maker and
his discretion to choose.
Vavilov
Facts:
V was born in Toronto in 1994. At the time of his birth, his parents were
posing as Canadians under assumed names. In reality, they were foreign
nationals working on assignment for the Russian foreign intelligence service.
V did not know that his parents were not who they claimed to be. He
believed that he was a Canadian citizen by birth, he lived and identified as a
Canadian, and he held a Canadian passport. In 2010, V’s parents were
arrested in the United States and charged with espionage. They pled guilty
and were returned to Russia. Following their arrest, V’s attempts to renew
his Canadian passport proved unsuccessful. However, in 2013, he was issued
a certificate of Canadian citizenship.

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Then, in 2014, the Canadian Registrar of Citizenship cancelled V’s certificate
on the basis of her interpretation of s. 3(2)(a) of the Citizenship Act. This
provision exempts children of “a diplomatic or consular officer or other
representative or employee in Canada of a foreign government” from the
general rule that individuals born in Canada acquire Canadian citizenship by
birth. The Registrar concluded that because V’s parents were employees or
representatives of Russia at the time of V’s birth, the exception to the rule of
citizenship by birth in s. 3(2)(a), as she interpreted it, applied to V, who
therefore was not, and had never been, entitled to citizenship.
Vavilov sought judicial review of the Registrar’s decision. At first instance,
the Federal Court reviewed the decision on a standard of correctness,
holding that the decision was correct. On appeal to the Federal Court of
Appeal, a majority of the Court reviewed the Registrar’s decision on the more
deferential standard of reasonableness, yet overturned the decision.
The first aspect is the analysis for determining the standard of review. It has
become clear that Dunsmuir’s promise of simplicity and predictability in this
respect has not been fully realized. In Dunsmuir, a majority of the Court
merged the standards of “patent unreasonableness” and
“reasonableness simpliciter” into a single “reasonableness”
standard, thus reducing the number of standards of review from
three to two: paras.
Vavilov attempts to shed light on the true meaning of
"reasonableness", sets out what is required from the decision-
maker, and how the reviewing Courts should be applying the
standard of review.
GOALS OF VAVILOV
The majority in Vavilov makes a number of holdings that will govern
administrative law moving forward.. The goals of the majority in Vavilov are
clear: to clarify the standard of review analysis and avoid costly academic
debate in the courts, and to provide courts with practical guidance on how to
apply the reasonableness standard.
I. Determining the Applicable Standard of Review
The majority held that all administrative decisions should presumptively be
reviewed on the reasonableness standard, unless either legislative intent
or the rule of law requires otherwise. Specifically, according to the majority,
the court should accord deference to the administrative decision unless:
(a) the legislature has indicated that it intends a different standard of review
to apply, either:
(i) by explicitly prescribing the applicable standard of review; or
(ii) by providing that the administrative decision may be appealed to a court;
or
(b) the rule of law requires that the correctness standard be applied,
because the administrative decision raises
(i) a constitutional question;
(ii) a general question of law of central importance to the legal system as a
whole; or

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(iii) a question related to the jurisdictional boundaries between two or more
administrative bodies.
The general rule of reasonableness review, when coupled with these limited
exceptions, offers a comprehensive approach to determining the applicable
standard of review. Notably, the majority Vavilov eliminated two
circumstances in which courts could previously rebut the presumption of
deference: “true question of jurisdiction”, and where a “contextual inquiry”
indicated that the legislature intended the correctness standard to be
applied.
It is important to note that where a legislature has created an administrative
decision maker for the precise purpose of dispensing a statutory scheme,
Where a legislature has not explicitly prescribed that a court is to have a role
in reviewing the decisions of that decision maker, it can safely be assumed
that the legislature intended the administrative decision maker to function
with a minimum of judicial interference”
2. Guidance on execution of the reasonableness standard
Reasonableness review is an approach meant to ensure that courts intervene
in administrative matters only where it is truly necessary to do so in order to
safeguard the legality, rationality and fairness of the administrative process.
It finds its starting point in the principle of judicial restraint and demonstrates
a respect for the distinct role of administrative decision makers.
Reasonableness concentrates on the decision actually made and the
justification for it. The Correctness involves considering what decision would
have been made had the court been in the shoes of the decision maker.
When is the decision be considered “unreasonable” in the eyes of a
court.
When it fails to reveal a rational chain of analysis or if they reveal that the
decision was based on an irrational chain of analysis. A decision will also be
unreasonable where the conclusion reached cannot follow from the analysis
undertaken or if the reasons read in conjunction with the record do not make
it possible to understand the decision maker’s reasoning on a critical point.
If a decision maker has failed to consider evidence before him or her, then
the reasonableness of their decision will be jeopardized.
HELD
In Vavilov, the Court concluded that the Registrar’s decision should be
reviewed on the reasonableness standard, and that it was unreasonable.
Neither legislative intent nor the rule of law rebutted the presumption of
deference. On the basis of several factors listed above, the majority
concluded that the Registrar’s interpretation of the Citizenship Act was
unreasonable. Alexander Vavilov is a Canadian.
Summary
1) Vavilov starts with a presumption that reasonableness is the applicable
standard whenever a court reviews administrative decision.
2) The presumption of reasonableness review can be rebutted in two
types of situations.

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I. The first is where the legislature has indicated that it intends a different
standard or set of standards to apply. This will be the case where the
legislature explicitly prescribes the applicable standard of review.
II. The second situation in which the presumption of reasonableness review
will be rebutted is where the rule of law requires that the standard of
correctness be applied.
If neither I. and II. Don’t apply, conclude that the standard to be applied is
reasonableness.

Glover Berger, Kate. "The Missing Constitutionalism of Canada v Vavilov."

Journal of Law and Social Policy 34. (2021): 68-93.
Summary
This article argues that the Supreme Court of Canada’s recent opinion in
Canada (Minister of Citizenship and Immigration) v Vavilov—the biggest
administrative law case in a decade—pays insufficient attention to the
constitutional dimensions of the case Vavilov represents, therefore, a missed
opportunity to engage deeply with issues of structural and administrative
constitutionalism issues that arise in countless public law cases, including in
Toronto (City) v Ontario (Attorney General). This article argues that when
Vavilov’s constitutional dimensions are brought to the surface, they reveal
neglected possibilities in the Toronto (City) appeal and map some of the
legal terrain on which the case could be received and should be analyzed.
This article presents this argument in three parts. First, it provides an
overview of Vavilov, pointing to some of its key legal developments and
implications for administrative law. This part considers whether the majority
reasons in Vavilov promote a thin approach to constitutionalist reasoning in
administrative cases. Second, it considers two additional matters of
constitutional structure that are at stake (but insufficiently addressed) in
Vavilov (a) the consequences of an inconsistency between legislation and
unwritten constitutional principles; and (b) the significance of institutional
design to understanding the role, relationships, and reform of public actors.
Each of these matters is also at stake in Toronto (City) and this part shows
why it is important to look to Vavilov when resolving them. This article
concludes with a discussion of a third matter of constitutional structure and
administrative constitutionalism that is implicated (but neglected)
Vavilov, and is of relevance to Toronto (City): the place and status of the
administrative state within the Canadian constitutional order. Vavilov was a
perfect opportunity to engage with decades of administrative law
developments in order to address some of that neglect, but unfortunately,
the opportunity was missed.

This article continues this argument but with a more specific focus. It argues
that when the Court took on the task of rethinking its approach to judicial
review in Vavilov, it should have drawn more heavily on insights from
architectural features of the constitution (structural constitutionalism)

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and from the relationship between administrative decision-making and
constitutional interpretation (administrative constitutionalism).
Doing so would have promoted coherence and comprehensiveness in the
majority’s revised approach to judicial review in Vavilov and future cases of
judicial review, and would have also promoted the development of a
consistent vision of the grand constitutional order across constitutional and
administrative law, showing how cases of administrative law can be
precedents for constitutional cases and vice versa
The structural features of the Constitution reflect the “structure of
government that [the constitution] seeks to implement” and include the
institutional design of individual public actors, the institutional arrangements
found within the constitutional order as a whole, the foundational
assumptions underlying the constitutional text, the implications of those
assumptions, and the relationships and interactions between constitutional
elements.
In addition, this article presents three issues of structural constitutionalism,
each raised in Vavilov and none adequately addressed, and each of
relevance to the administrative law context and beyond:
the impact of unwritten principles on the constitutionality of legislation,
the relevance of institutional design to public law decision-making,
and the constitutional status of the administrative state
The last two issues of structural constitutionalism, along with the Vavilov
majority’s new approach to judicial review, are also of interest to
administrative constitutionalism. Administrative constitutionalism, is often
used to refer to the interpretation and implementation of constitutional
rights by administrative actors
I. VAVILOV AND A NEW APPROACH TO JUDICIAL REVIEW
A. THE NEW STANDARD OF REVIEW ANALYSIS
the majority sets out a new standard of review analysis, one that is intended
to catch all cases without the need for contextual analysis
The starting point is a presumptive standard of reasonableness applied
across all applications of judicial review. The Vavilov presumption of
reasonableness is, though, only a presumption. It is rebuttable on two
grounds. First, legislative intent. Reasonableness will be displaced when the
legislature “has indicated that it intends a different standard or set of
standards to apply.” This will be the case in two kinds of situations: (a) where
the legislature expressly prescribes the applicable standard of review; or (b)
where the legislature provides that the decisions of a certain administrative
actor can be appealed to a court
B. THE APPLICATION OF REASONABLENESS
The second new feature of the Vavilov approach to judicial review is its
revised understanding of reasonableness.The majority’s discussion of
reasonableness in Vavilov is more specific and prescriptive than the
conceptual and case-by-case approach to reasonableness seen in the
Dunsmuir era.
Moreover, by identifying a set of contextual elements that are relevant to

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assessing the reasonableness of a decision, the Vavilov approach advises
reviewing judges to move through them, one-by-one. While this “checklist”
may not demand a “line-by-line” review of the administrative decision, it
entails a fairly searching review of the reasons provided
Further, the majority indicates that a reviewing court must ensure that
administrative reasoning sets out a chain of analysis that supports the
conclusion; meaningfully accounts for the issues and concerns raised by the
parties; is justified in light of the evidence; is consistent with the general
principles of statutory interpretation; avoids any circular reasoning;
addresses binding precedents and statutory provisions; is consistent with
applicable international norms; and so on.
Simply put, Vavilov reasonableness is more demanding than Dunsmuir
reasonableness. The indicators of unreasonableness just listed are new and
go beyond any list of well-established examples from past cases.
C. THE BIGGER CONSTITUTIONAL PICTURE
Similar questions should be asked at the level of legislative drafting. Will
Vavilov have an effect on legislative design of administrative actors? While
legislatures have always had the power to expressly prescribe standards of
review and legislate the parameters of judicial review, the traditional judicial
approach to privative clauses has perhaps undermined legislative motivation
to prescribe standards of review. Vavilov’s affirmation that the courts will
implement legislated standards of review, subject to constitutional concerns,
may renew legislative energy to follow British Columbia’s footsteps in
expressly identifying generally applicable standards of review. Indeed,
Vavilov reminds legislatures of their power in this regard.
Of particular interest here is what Vavilov offers to the understandings of
Canada’s constitutional structure and of the relationship between
administrative action and constitutional meaning. Vavilov is, of course, more
than just a case of exercising powers of judicial review. It is the flagship case
in the Supreme Court’s project of renovating the Canadian approach to
judicial review.

The majority opinion in Vavilov does not expressly offer such a vision of the
administrative state and looking deeper at the reasoning, we are left
wondering what that vision might be. On the majority approach,
administrative decision-makers are owed deference but that deference
comes in the form of strict judicial oversight and in a hierarchical rule of law
culture in which judges know best.

More attention to structural reasoning, and to the constitutional questions at

stake, in administrative law and judicial review could have reminded the
majority to contemplate these issues more deeply in developing its approach
to judicial review in Vavilov and offered guidance for realizing its aspirations
for judicial review going forward. Moreover, it could have avoided rendering
Vavilov another example of insufficiently structural and constitutional
thinking in administrative law. And it could have seized the opportunity to

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model, in approach and substance, the kind of public law thinking that is
needed in cases, cases like Toronto V Ontario.
Biggest shift on this issue flows from the majority’s justification for the
presumption of deference. In the Dunsmuir era of judicial review, deference
to administrative decision-makers was justified at least in part because of
features of the administrative actor involved or of the administrative state as
a whole, features such as field of expertise, specialized contextual
knowledge within a particular legislative sphere, and on the ground
experience with the polycentric issues to be dealt with by the administrative
agency. But after Vavilov, the presumption of deference is justified not
because of any feature or set of features of an administrative actor but
rather because of executive and legislative policy decisions to delegate some
authority to a statutory body. Thus, the nature of the administrative decision-
maker, and the special circumstances in which decision-makers operate, is
irrelevant. This shift not only affects the administrative state’s relative power
but also raises questions about other administrative doctrines and powers—
such as the power of an administrative decision-maker to hear and decide
constitutional questions—that have been justified in terms of administrative
strength, expertise, specialization, and access to justice. Does Vavilov
undermine the authority of those precedents?
The claim here is that by failing to engage on the level of principle, in
particular principles of importance in administrative and structural
constitutionalism, Vavilov is too self-regarding; it is too narrow in its outlook.
It fails to acknowledge that the structural and constitutional questions at
stake in every instance of judicial review are heightened in the exercise of
articulating a new judicial approach to judicial review, and as a result, does
not deeply engage with these questions. It positions itself as a
transformative but pragmatic administrative law case. In this framing, the
majority ignores the much more expansive public law terrain on which the
case sits.
One of Vavilov’s shortcomings is its lack of engagement with principle. For
example, Paul Daly has argued that the majority’s reasoning ultimately
prioritizes pragmatism over principle, and has provided examples from the
reasoning where this can be seen. The claim here is that by failing to engage
on the level of principle, in particular principles of importance in
administrative and structural constitutionalism, Vavilov is too self-regarding;
it is too narrow in its outlook. It fails to acknowledge that the structural and
constitutional questions at stake in every instance of judicial review are
heightened in the exercise of articulating a new judicial approach to judicial
review, and as a result, does not deeply engage with these questions. It
positions itself as a transformative but pragmatic administrative law case. In
this framing, the majority ignores the much more expansive public law
terrain on which the case sits.
II. MORE MISSED OPPORTUNITIES IN VAVILOV (AND THEIR BROADER IMPACT)
A. UNWRITTEN PRINCIPLES AND THE CONSTITUTIONALITY OF LEGISLATION

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The first structural issue that is implicated but not discussed in Vavilov is the
constitutionality of legislation that is inconsistent with an unwritten principle
of the Constitution. The issue is particularly interesting and fraught when the
legislation in question deals with the powers and mandate of a public
decision-maker, who is, of course, itself bound by the Constitution and its
principles.
This issue is addressed directly in Toronto (City). In his majority reasons,
Miller JA rejects the City’s argument that provisions of the BLGA should be
declared of no force and effect because they are inconsistent with unwritten
principles of the Constitution, namely, democracy and the rule of law. While
the courts have declined to declare legislative provisions of no force and
effect when there is no inconsistency with an unwritten principle,the
Supreme Court has indicated its willingness to make such declarations when
such an inconsistency arises.
Vavilov was an opportunity for the Court to offer insight into the role of
unwritten principles in assessing the constitutionality of legislation. In fact,
the majority’s new approach to judicial review directly raised the issue, but
the majority does not acknowledge or engage with it. Implicitly, though, the
majority reasoning in Vavilov signals support for an argument that Miller JA
erred in his definitive conclusion on unwritten principles. While the majority
fails to complete its analysis on this point, the effect of Vavilov is that in at
least some circumstances, legislation will not be given effect if it is
inconsistent with the rule of law.
The legislative intent behind a privative clause was “given effect” insofar as
it was folded into a broader contextual assessment of what standard of
review should apply in a particular case. But the majority in Vavilov has
abandoned any contextual analysis in the standard of review
analysis. In the Vavilov universe, the only basis to refuse to give effect to
legislative intent is the Constitution. And with this example, the
constitutional basis is the unwritten principle of the rule of law. Without
merging the constitutional and administrative perspectives in this context,
the majority reasoning in Vavilov signals that administrative law—and the
administrative state—has its own constitutional law rather than participates
in the development and elucidation of “regular” constitutional law. The
majority had the chance to explain and justify this reasoning, limiting it if
desired (and if possible). Instead, the reasons do not engage with the issue.
The issue of the impact of unwritten principles on the constitutionality of
legislation that affects administrative action is thus left to be resolved in
Toronto (City), where the issue is raised head on.
B. THESIGNIFICANCEOFINSTITUTIONALDESIGN
The second structural issue that is implicated but remains under-analyzed in
Vavilov is the legal significance of institutional design and reform.
First, the majority does not explain why the only design choices that are
relevant to the new standard of review analysis are delegation, prescribed
standards of review, and statutory appeal mechanisms. On the acontextual
analysis that Vavilov demands, other design choices, and the interaction of

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the institutional features that flow from those choices, are irrelevant. What if,
as Daly asks, an administrative actor’s enabling statute includes both a
privative clause and a statutory appeal?
Second, when it comes to applying the standard of reasonableness, the
majority notes two fundamental flaws that reveal a decision’s
unreasonableness. One is a form of contextual analysis—a reasonable
decision must be justified in light of the relevant factual and legal constraints
that operate on the decision maker. Those constraints include a set of legal
and factual considerations that may be accounted for in any particular
decision-making context. However, when the majority lists the constraints
and applies them to the facts in Vavilov, there is no consideration of the
nature of the decision-maker or its unique and particular set of institutional
features.
Third and finally, the majority suggests that it is alive to the radical diversity
that characterizes the administrative state in Canada. The majority’s
acknowledgment that the administrative state comprises a diverse and
sprawling set of decision-makers that differ across many metrics is an
important affirmation of administrative law’s challenge—to be relevant and
meaningful across this diversity. But how the majority’s approach actually
accounts for this diversity is unclear. The acontextual nature of the Vavilov
standard of review analysis now applies correctness to legal determinations
by sophisticated tribunals subject to appeal, but does not account for the
repeated pleas from marginalized and vulnerable communities in the
corrections and immigration sectors for greater oversight of the reviewable
(rather than appealable) decisions to which they are subject day-today.
Toronto (City) case and Vavilov
Toronto (City) is a case in which we see the need for better understandings
of the significance of institutional design and reform, and such modeling of
structural thinking in public law cases. So far, the impugned state action in
Toronto (City) has been framed in terms of the legislature’s redrawing of the
electoral ward map and its corresponding reduction of the membership of
Toronto’s City Council. The reduction in membership is framed in terms of
interference with rights to effective representation and free political
expression. In light of the electoral rights and free speech claims asserted by
the City and affected candidates and electors, this framing, shaped by
constitutional concerns, makes sense.But when the BLGA is considered from
an administrative law perspective, a question about institutional design
arises.
The administrative law perspective asks whether the BLGA’s reform of
Council, which not only reduced Council’s size and membership but also
meaningfully altered (that is, shrunk) Council’s statutory powers,
qualitatively changed the institution to which representatives were being
elected.
And if this is the case, administrative law asks, what are the constitutional
implications of this qualitative change? At what point does statutory reform
of a representative institution, midelection or otherwise, unlawfully interfere

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with the principle of democracy or electoral rights? Answering this question
requires a nuanced appreciation of the design of governance institutions and
the impact of reform. This has been missing from the Toronto (City) case so
far and, unfortunately, the opportunity in Vavilov to offer some insight into
how to sensitively and rigorously account for design and reform choices was
missed.

III. CONCLUSION: VISIONS OF THE ADMINISTRATIVE STATE AND THE

BOUNDARIES OF PUBLIC LAW
In Toronto (City), Miller JA began his majority opinion with the observation
that the Toronto City Council is “a creature of provincial legislation.
Provincial legislation governs everything from its composition to the scope of
its jurisdiction.” With this observation, Justice Miller was making the point
that Toronto City Council (the “Council”) lacks independent constitutional
status. Its mandate and authority, indeed the Council’s very existence,
depends entirely on exercises of provincial legislative power. Justice Miller’s
observation foreshadowed the constitutional analysis that followed and the
majority’s rejection of the City’s claims for constitutional protection of
municipal power against provincial intrusion.
Enabling statutes are just one feature of municipal councils, albeit significant
ones. But the nature of municipal power is unique. Councils are
administrative institutions made up of elected officials who are directly
accountable to their constituencies. They exercise legislative and executive
functions that replicate those of the provincial and
While municipal councils do not have carte blanche when acting within their
jurisdiction and while they remain subject to their enabling legislation, the
Supreme Court has held that a municipal bylaw will be quashed on judicial
review only if it is “one no reasonable body informed by [the wide variety of
factors that could be relevant to municipal councils] could have taken.

Vavilov raises questions about claims for constitutional status by

downplaying the unique features of administrative bodies in its account of
the roles and relationships at play in judicial review. This seems to flip the
switch on the Dunsmuir era of context-dependent analysis and
administrative strength without an account of why or how to proceed, and
without acknowledging the resulting constitutional shift. In this way, Vavilov
participates in the chronic problem in administrative law that this article
aims to expose, a problem that is witnessed in other public law cases, cases
like Toronto (City), that lie at the intersection of constitutional and
administrative law. The problem is insufficient attention to the constitutional
questions, and more specifically, the questions of structural and
administrative constitutionalism at stake. Whereas Vavilov represents a
missed opportunity to respond to this problem, perhaps hope lies with
Toronto (City)

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Article Lorne Sossin, The Impact of Vavilov: Reasonableness and
Vulnerability" Supreme Court Law Review, 2nd Series, Volume 100 (2021)
pp. 265-277
The author discusses how the Court rejected the long-standing view that
decision-makers were entitled to the same deference whether their decisions
were subject to statutory appeals or judicial review was provided. In Vavilov,
the majority of the Supreme Court held that all statutory appeals (unless a
specific standard of review was legislated) would henceforth be reviewed on
the appellate standard of correctness for questions of law, and palpable and
overriding error for questions of fact, rather than the more deferential
standard of reasonableness.
Another new aspect of the judicial review framework, however, has received
relatively scant attention. For the first time, in Vavilov, the Supreme Court
expressly acknowledged that the determination of reasonableness may
depend on the impact of a decision on an affected party
The author examine the ways in which the impact of decisions already has
been integrated into the judicial review framework for procedural fairness.
author then turn to this shift in Vavilov and its implications for the judicial
review framework for substantive decision-making.
1. Fairness and Impact
In Vavilov, the Court considered the scope of courts to review what
administrative decision-makers have decided and how much deference
should be afforded the decision-makers.
While the expertise of the decision-maker made a difference, as well as the
statutory backdrop of the decision, the identity, capacity or vulnerability of
the person affected by a decision appeared to play no role whatsoever in the
substantive review of administrative decisions. In short, deference has never
before turned on the impact a particular decision might have on an affected
party. The erasure of affected parties from the substantive review analysis
under administrative law was in stark contrast to the express inclusion of
affected parties in the procedural fairness judicial review analysis. While
cases applying Baker sometimes refer to the vulnerability of a person or
group of people affected by a decision, there is rarely any examination of the
scope or dynamics of vulnerability. Vulnerability, of course, also can be a
diffuse concept. Feminist legal theorist Martha Fineman, for example, has
posited vulnerability as “the primal human condition”, since all people are
susceptible to change and are or may be depending on others, and therefore
at risk of harm Courts have yet to grapple with the scope of vulnerability in
substantive judicial review settings as until Vavilov, there was very little
reason to do so. In this sense, the most significant effect of Vavilov may well
be to spotlight vulnerability, and the lived experience of those affected by
administrative decisions more generally, in the reasonableness analysis. Or,
put differently, the Court raises a new and far- reaching question in Vavilov
as to whether decision-makers can be reasonable if they have not turned
their mind to the impact of their decisions, and in turn, to the vulnerabilities
of those affected by their decisions.

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2. Impact and Vavilov
The logic of including the impact on the party and the context of the
decision-maker in the analytic framework for procedural fairness is that the
accountability of executive action under administrative law in a
constitutional democracy is best understood as holistic. This exercise cannot
be completed just by considering statutes and classifying types of decisions.
The people involved, and how a decision may affect their lives, introduces a
vital variable into the judicial review framework.
Without the ability to talk about how impact and vulnerability might
legitimately affect the rationale for deference, Canadian courts engaged in
judicial review prior to Vavilov sometimes appeared to bend the
determination of reasonableness to fit the necessities and equities of
particular cases.
Applied to the facts and circumstances of Vavilov, the majority highlighted
that the impact of the citizenship determination for Mr. Vavilov was
significant. The majority described the effect of a revocation of citizenship as
“a kind of political death”
Since Vavilov, several lower court cases have examined many aspects of the
new framework. The contextual factor on the impact of the decision on
affected parties, however, has yet to be examined or applied in depth.
decisionmaker applying the same statutory provision in two different cases
— one involving an applicant with no existing vulnerabilities, where the
outcome will be of minor consequence, and a second one involving a
vulnerable applicant, where the outcome will be severe harm — will have a
heightened responsibility to demonstrate that the vulnerability of the second
applicant, and the severe consequences for that applicant, have been
expressly considered by the decision-maker. On this view of Vavilov, the
same set of reasons could be found to meet the reasonableness threshold in
the context of the sophisticated party and to be unreasonable in the context
of second applicant’s vulnerabilities.
Beyond the context of vulnerability, the majority in Vavilov also opens the
door to the relevance of impact in the analysis of reasonableness more
broadly. As set out above, the majority referred to a “principle of responsive
justification” that arises where there has been “particularly harsh
consequences for affected individuals”. The Court stated that this include
“decisions with consequences that threaten an individual’s life, liberty,
dignity or livelihood.
Conclusion
In author’s view, Vavilov may well come to be remembered most for
something entirely different; that is, the inclusion, for the first time, of the
impact on those affected by administrative decisions as an express element
of the reasonableness analysis. The focus on impact, in turn, may well lead
to a more considered and coherent approach to vulnerability in Canadian
administrative law. In this way, the focus of substantive review will no longer
be solely on the legislation and executive decision-makers alone, but finally
on the lived experience of those people affected by decisions too.

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Paul Daly, “Vavilov and the Culture of Justification in Contemporary
Administrative Law”
Author suggest in Part I that the four strands of reasonableness review
woven together by the majority in Vavilov – reasoned decision-making,
responsiveness, demonstrated expertise and contextualism – provide an
account of the culture of justification. In Part II, author expand on the
discussion of Vavilov, a case concerned with substantive review – the
assessment of the reasonableness of administrative decisions – and describe
how the culture of justification has permeated other areas of administrative
law, such as procedural fairness, justiciability and standing. author then
venture, in Part III, to explain why the culture of justification has risen to such
prominence in contemporary administrative law. Focusing on endogenous
rather than exogenous factors author identify the development of general
principles of administrative law and the expanded record of administrative
decision-making as likely contributors, hypothesizing that expansive reason-
giving and record generation have caused more exacting standards of
reasonableness and fairness. Finally, in Part IV, author assess the future
prospects of the culture of justification.
I. Vavilovian Reasonableness Review
First, reasoned decision-making. The underlying principle is “that the
exercise of public power must be justified, intelligible and transparent, not in
the abstract, but to the individuals subject to it”. Accordingly, any decision
must be “justified in relation to the constellation of law and facts that are
relevant to the decision”, not merely one that ‘falls’ within a ‘range’ of
possible, acceptable outcomes
Second, responsiveness. A decision-maker’s reasons must respond to
“the central issues and concerns raised by the parties”. This amounts to an
obligation not merely to hear the parties but to demonstrate that they have
been listened to: “reasons are the primary mechanism by which decision
makers demonstrate that they have actually listened to the parties”
Third, demonstrated expertise. In general, reasons “are the primary
mechanism by which administrative decision makers show that their
decisions are reasonable”. Only the “demonstrated experience and
expertise” of an administrative decision-maker will help to support the
conclusion that a given decision was reasonable.
Fourth, contextualism. Reasonableness is heavily dependent on
“contextual constraints”: “what is reasonable in a given situation will always
depend on the constraints imposed by the legal and factual context of the
particular decision under review”. Courts are not to attempt to pigeonhole
decisions in particular categories with a view to assessing lawfulness but
rather to appreciate decisions in their whole context.
Taken together, reasoned decision-making, responsiveness, demonstrated
expertise and contextualism provide a relatively detailed picture of the
culture of justification. As author will demonstrate in the next Part, the

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picture painted in the majority reasons in Vavilov coheres with the broader
tapestry of contemporary administrative law.
II. Justification in Administrative Law
Across all of these areas, a culture of justification can be observed in
operation. All exercises of public power must be justified by reference to
reasoned decisions, with the boundaries of justiciability pushed back
dramatically and the scope of judicial review remedies extended widely. It is,
moreover, implicit if not explicit that demonstrated expertise must be
brought to bear by administrative decision-makers who seek to justify their
decisions. Nowadays, “it is not open to the government to say, ‘Trust us, we
got it right.’” In addition, administrative decision-makers must be responsive,
giving individuals an opportunity to participate fully in the decision-making
process and changing their approach in-hearing if necessary, a requirement
which is most visible in the duty to consult Indigenous peoples but which can
be perceived in all areas of public administration. And there are few if any
rules, as such; in contemporary Canadian administrative law, contextual
analysis has ousted categorical analysis. In summary, top-down assertions of
authority are insufficient in contemporary administrative law: individuals
must be treated with concern and respect and all areas of governmental
activity will be scrutinized in a context-sensitive manner for compliance with
the law of judicial review of administrative action. This is the essence of
administrative law’s culture of justification.
III. Explaining the Rise of Justification
What might explain the increased emphasis in contemporary administrative
law on reasoned decision- making, demonstrated expertise, responsiveness
and contextualism?
Author’s hypothesis for the rise of the culture of justification rests on two
inter-related factors which are largely internal to administrative law: the
development of context-sensitive general principles of judicial review of
administrative action; and the expansion of reasons for administrative
decisions and the accompanying records for judicial review
IV. The Future of Justification
As per the author, implication is that the culture of justification in
administrative law is here to stay.
Given the centrality of reasoned decision-making, responsiveness,
demonstrated expertise and contextualism, it comes as no surprise that
Canadian courts post-Vavilov have not been sympathetic to decision-makers
who might have relied prior to Vavilov on their authority rather than their
ability to justify their decisions.
Conclusion
As author explained in Part I, the importance accorded to reasoned decision-
making, responsiveness, demonstrated expertise and contextualism helps to
enhance understanding of the culture of justification. In Part II, author
expanded on the discussion of Vavilov, a case concerned with substantive
review – the assessment of the reasonableness of administrative decisions –
and describe how the culture of justification has permeated other areas of

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administrative law, such as procedural fairness, justiciability and standing.
Author then ventured, in Part III, to explain why the culture of justification
has risen to such prominence in contemporary administrative law; focusing
on endogenous rather than exogenous factors author identified the
development of general principles of administrative law and the rise in
reasoned decision-making as likely contributors. Finally, in Part IV, Author
assessed the future prospects of the culture of justification. Noting that a
culture of authority had crept into substantive review in Canadian
administrative law in the years leading up to Vavilov, author suggested that
the majority’s approach represents a repudiation of the culture of authority.
Those claiming authority based on political legitimacy and expediency have
been given short shrift by Canadian courts in the wake of Vavilov. Author
cautioned that the commitment of Vavilovian reasonableness review to the
culture of justification is most likely to be tested in cases involving
technocratic claims of authority, as in the area of labour law, but noted that
the omens for the post-Vavilov health of the culture of justification look good.
Bell Canada and National Football League
For more than 40 years, the Super Bowl had been broadcast in Canada with
“simultaneous ad substitution”, known as “SimSub”. Under the SimSub
regime, the Super Bowl broadcaster in Canada would substitute its Canadian
ads into the American broadcasting channel, to ensure that the Canadian ads
were shown on both channels. In 2016, however, the CRTC banned SimSub
for only the Super Bowl.
Bell and the NFL sought judicial review of the CRTC’s decision. he Federal
Court of Appeal upheld it. First, applying the reasonableness standard,
the Court held that it was reasonable for the CRTC to conclude that
it had jurisdiction to make orders targeting one specific program.
Second, applying the correctness standard, the Court held that the CRTC’s
decision did not conflict with
the Copyright Act or international law. Following this dismissal, Bell and the
NFL brought their appeal before the Supreme Court of Canada (“SCC”) on
the same grounds.
The SCC majority referred to the new standard of review framework from
Vavilov. Vavilov established that for appeals brought pursuant to a statutory
right of appeal, the appropriate standard of review is correctness. Majority of
the Court in Bell Canada and National Football League held that the presence
of a statutory appeal mechanism in the Broadcasting Act was a crucial signal
of legislative intent that rebutted the presumption of deference. The
statutory appeal mechanism rebutted the presumption of reasonableness
review, and the appellate standard of correctness then applied to the
question of law or jurisdiction appealed under section 31 (2). They explained
that the main question was whether the CRTC had been correct to conclude
that it had the authority to issue the order “prohibiting
simultaneous substitution for the Super Bowl. The SCC majority first noted
that it did not need to decide the particular question Bell and the NFL raised
—whether the CRTC could impose conditions on the broadcasting of a

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particular program, rather than the station’s entire programming—because
they determined that the CRTC did not have the authority to issue the order
at all
The majority in Bell Canada and National Football League concluded that the
CRTC’s decision was incorrect.
Brown v. Canada
Alvin Brown was born in Jamaica and moved to Canada when he was
eight years old in 1983, becoming a permanent resident in 1984. Later in
life, Brown struggled with drug addictions, and between 1999 and 2010 he
had eighteen convictions to his name, including some for violent offences.
Due to serious criminality, Brown’s permanent residency was terminated and
the Canadian government issued a removal order.
After serving his last criminal sentence in 2011, Brown was detained by
Canadian Border Services Agency (“CBSA ”) in order to execute the removal
order. Although briefly released on terms and conditions, Brown was again
detained in a maximum-security prison for breaching bail conditions and
because he was found to be a danger to the public. Over the next five years,
Brown’s detention was renewed every thirty days, and his removal was
delayed because the Jamaican consulate lost his passport and birth
certificate. In January 2016, the Jamaican consulate again delayed the
removal application over concerns for mental health issues related to
Brown’s alleged schizophrenia. After several months, Jamaican authorities
confirmed that they could accommodate Brown’s mental condition, and in
September 2016, he was removed to Jamaica.
He challenged the statutory scheme as a violation of s. 7 (life, liberty
and security of the person), s. 9 (arbitrary detention), s. 12 (cruel and
unusual punishment) and s. 15 (equality) of the Charter of Rights and
Freedoms.
Application->Judge found that (1) there had been no violation of due process
under section 7, and so his deprivation of liberty was “in accordance with the
principles of fundamental justice”; (2) that Brown’s detention was valid and
did not violate his section 9 right “not to be arbitrarily detained or
imprisoned”; and finally (3) that Brown received adequate care during
detention and was not “subjected to any cruel and unusual treatment or
punishment,” in accordance with section 12.
In court of appeal, Judge found that Alvin Brown’s rights not to be
arbitrarily imprisoned or subjected to cruel and unusual punishment were not
breached—despite the fact that he had been detained for five years awaiting
immigration removal, and the existence of international guidelines against
such protracted detention. In its decision, the ONCA also clarified that
superior courts should not combine the hearing of habeas corpus and
Charter applications.
The court found that the application judge did not err in his analysis of
sections 7 and 9 because the CBSA’s fact-driven determination that Brown
was a flight risk and danger to public safety deserves deference, and Brown

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was treated fairly procedurally as the CBSA conducted a quasi-judicial review
every thirty days pursuant to the Immigration and Refugee Protection Act.

Shuttleworth v. Ontario
Mary Shuttleworth was injured in a collision. She and her insurer, Peel
Mutual, could not agree on whether she met the threshold for catastrophic
impairment under the Statutory Accident Benefits Schedule, O. Reg. 34/10
(“SABS”), so an application was submitted to the Licence Appeal Tribunal
(“LAT”), which was part of a cluster of tribunals known as the Safety,
Licensing Appeals and Standards Tribunals Ontario (“SLASTO”) at the time..
This was the first catastrophic impairment decision that the LAT was to
release. The LAT determined that Ms. Shuttleworth did not meet the
catastrophic impairment threshold.
Ms. Shuttleworth’s counsel received an anonymous letter claiming that
before the decision was released, it was reviewed and changed by the
executive chair of SLASTO.
Ms. Shuttleworth’s injuries qualified as catastrophic impairment, but upon
review, the executive chair altered the decision of the initial the adjudicator
and determined that Ms. Shuttleworth did not meet the threshold. It also
indicated that the adjudicator was reluctant to sign the decision.
She brought an application for judicial review. The Divisional Court
granted the application and set aside the LAT’s decision.
Peel, the LAT and SLATSO appealed the order, asserting that the
Divisional Court erred in law
The Court of Appeal addressed each of the appellant’s arguments and
found that there was no basis for appellate interference with the Divisional
Court’s analysis
While unfortunate that the Divisional Court used the term “cautious
observer” in its reasons, on a review of the court’s reasons as a whole, it is
plain that it correctly articulated the test for a reasonable apprehension of a
lack of independence.
The Divisional Court did not err in its conclusion that there was
reasonable apprehension of bias in this case. First, it correctly found that the
executive chair’s imposition of the review on the adjudicator breached the
rules set out in the trilogy. Second, the breach was significant because of the
significant power over re-appointment of individual adjudicators of the
SLATSO executive chair. Third, the Divisional Court correctly concluded that
the review process lacked the appropriate procedural safeguards.
Additionally, the executive chair became involved without the adjudicator’s
consent.
Members of administrative tribunals are expected to render decisions
in an impartial and independent manner. This case highlights the importance
of adjudicative independence, as well as the appearance of independence

Highwood Congregation of Jehovah’s Witnesses (Judicial Committee)

v. Wall, 2018 SCC 26

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 The Highwood Congregation of Jehovah’s Witnesses is a voluntary,
religious association. A member must live according to accepted standards
of conduct and morality. A member who deviates and does not repent may
be asked to appear before a Judicial Committee of elders and may be
disfellowshipped. In 2014, W was disfellowshipped after he engaged in sinful
behaviour and was considered to be insufficiently repentant.
Mr. Wall sought to have the elders' decision quashed for procedural
unfairness and violation of natural justice. He argued that the committee of
elders had made an unfair decision. Among other things, this harmed his
business as a real estate agent as members of the congregation would no
longer deal with him.
The lower court and the majority of the Alberta Court of Appeal
held that the church was a body of a public nature and was
therefore subject to judicial review by the courts.
In a unanimous decision, the Supreme Court of Canada allowed
the church's appeal and ruled that religious matters such as church
membership are not subject to judicial review by the courts.
Review of the decisions of voluntary associations, including religious
groups, on the basis of procedural fairness is limited for three reasons.
First, judicial review is limited to public decision makers. Judicial review
is a public law concept that allows courts to ensure that lower tribunals
respect the rule of law. Private parties cannot seek judicial review to solve
disputes between them and public law remedies. The present case raises no
issues about the rule of law. The Congregation in no way is exercising state
authority.
Second, there is no free-standing right to procedural fairness absent an
underlying legal right. Courts may only interfere to address procedural
fairness concerns related to the decisions of religious groups or other
voluntary associations if legal rights are at stake and the claim is founded on
a valid cause of action, for example, contract, tort or restitution. No
contractual right exists. The Congregation does not have a written
constitution, by-laws or rules to be enforced.
Third, even where review is available, the courts will consider only
those issues that are justiciable. The courts have neither legitimacy nor
institutional capacity to deal with contentious matters of religious doctrine.

What were the issues with selecting the standard of review in the
past, and what were the issues in the past with regards to apply
reasonableness standard?

Issues to be canvassed in relation to selecting the standard of review

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

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

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