Ronald Chan F of CL case list 20181023

Case list
Abo

 Section 25, Charter rights; R v Sparrow – legal recognition of abo rights

 R v Van Der peet – how to recognize a treaty right
 R v Sappier +R v Gray – Precontractual and communal nature of rights
 Guerin v the Queen – juidicial recognition of fiduciary rights
 Wewaykum+Haida Nation – Establish basis of duty to consult (DTC);Mikisew: aim of DTC, Rio tinto – DTC is a
constitutional duty
Abo titile
 Guerin v the Queen - judicial recognition
 Delgamuukw - how to demonstrate proof to abo title
 Tshiqot’ in Nation - The current tst to demonstrate proof
 Brown v Canada – common law duty of care to the class members
 Daniels v Canada – Metis and non-status Indians ARE INDIANS

Fundamental Principles of the Canadian Legal System

 Reference re Secession of Quebec – spell out the underpinnings – (1) ROL (2) Federalism (3) Cons Supremacy (4)
Separation of pwers (5) Parliamentary supremacy (6) Judicial Independence
 Rocarelli - govt’ official may not act arbitrarily – maxims of ROL
 Re Manitoba – The re between the state and ind must be regulated by law
 BC v Imperial Tobacco Canada Ltd – Rule of law is not meant to undermine specific statutory provisios of the Cons –
maybe useful in discussing the CONS supremacy marks the end of ROL
 Doucet – Bodreau – Court’s deference
 S.91 of Constitution Act ( “Peace, order and good government POGG, 1867) power granted to fed govt
Parliament
 O’donahue v Canada – crown had to be shared with UK; Mcatter v Canada (duty to swear oath)
 Ref re senate Reform – govtt must follow the rules for cons amendment and CANNOT act unilaterally
 Ref Electoral boundaries – no absolute voter parity; figueroa: violates s.3 charter, right to vote, smaller pty important
 Optiz – result set aside appn failed
 Osborne v Canada – laws restricting Civil servant from political activity was struck down
 Ocean Port Hotel Ltd v BC – The degree of independence require of any particular govt decision-maker or tribunal is
determined by its enabling statute
 Saskatchewan Fed of Lab v Govt of Saskatchewan –
 Campbell - question of accountability
Court and the Judiciary – Const framework of the judiciary – Cons Act, 1867
 S.92(14): prov leg granted excl power regarding the admin of j in the province
 S.96 – gg shall appoint the judges of superior, district and county courts
 S.100- fed govt responsible for paying superior court judges salaries
Judicial Independence
 Mackin v News Brunswick – measuring JI
 Prov Court Judges’ Assn of Nw Brusnwick – commission reports are consultative unless legis provides they are binding
Constitutional review
 Justification: madbury v Maddisson; Ref Re Remuneration of Judges – JR is not justified when it attmpets to limit the
power legis without recourse to express textual authority
 Operation Dismantle v the queen – the decision to allow cruise missile testing did not violate s.7
 Doucet – Boudreau – remedy provisions should be interpreted purposively
 Re Manitoba – exceptional case – deem legislation invalid
 Vriend v Alberta – omission of sexual orientation in Alberta’s IRPA infringed on s15 charter rights, not saved by s.1
 Baker – 5 prong test of procedural fairness review
 Dunsmuir v Brunswick – 2 standards of substantive review
 Canada AG v Bri-chem Supply
Statutory Inteprettion: R v Mcintosh [plain interpretation rule]; rizzo shoes(Golden rule), Medovarski
Canada(AG) v Mossop (where discrepancy between FR and English wording, meaning to be used is the one that best furthers legis
purpose
Ronald Chan F of CL case list 20181023
Critical theory and feminist role on legal theories

 Main points:
o Recognizes difference
o Contextual
o Challenging the core family
o More “sympathy” toward the minorities
 Feminist Perspectives on Law (Pages 16-25) Introduction
Feminist perspectives on law investigate the extent to which women are disadvantaged by legal rules and institutions
that arise in patriarchal societies, and how such systems subordinate the interests of women and fail to account
for their experiences in the creation of legal rules.
 Justice Bertha Wilson’s concurring judgment in R v Morgentaler, [1988] is an example of such a critique
where she recognized that her male colleagues missed the primary issue of whether the government can
validly compel a pregnant woman to carry a foetus to term since the concept of liberty was historically
defined through a male perspective. After considering a the subjective women’s perspective of the choice to
terminate pregnancy, Justice Wilson held that section 7 gives a woman the right to decide whether to
terminate her pregnancy.

Critical Legal Studies (Pages 25 -35)

 In the 1920s and 1930s, both naturalism and positivism were challenged by legal realists, who understood
the law as indeterminate and always in flux. Realists reject the proposition that rules determine the
outcome of cases. In the 1980s, a broad umbrella movement known as Critical Legal Studies emerged, with
features that are distinct from the realist movement, but equally critical of the idea that there is a universal,
rational foundation of law. Adherents of critical legal theory argue that law can never exist independently
from politics and morality, and that it reproduces society’s oppressive nature.
 Judging with CLS Case Study: R v RDS, [1997]. A black youth was charged with an offence. His and police
officer’s account of events differed quite significantly. The youth court judge acquitted the youth, and during
the decision, commented that police officers have been known to overreact, particularly with non-white
groups.
 Issue: Was the decision flawed due to an apprehension of bias on behalf of judge?
 Decision: No. Note Justice L’Heureux-Dube and McLachlin’s reasoning, which probably most clearly
illustrates a critical legal studies approach: (at text 31) “In our view, the test for reasonable apprehension of
bias established in the jurisprudence is reflective of the reality that while judges can never beneutral, in the
sense of purely objective, they can and must strive for impartiality.” ... (at text 32) “It is apparent, and a
reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their
individual perspectives on the world in which the events in the courtroom took place. Indeed, judges must
rely on their background knowledge in fulfilling their adjudicative function.” ... (at text 33) “As a member of
the community, it was open to her to take into account the wellknown presence of racism in that
community and to evaluate the evidence as to what occurred against that background.”

Bijuralism

Bijuralism refers to the co-existence of two contemporaneous legal systems. Canada is the only country where national legislation is
genuinely based on two separate systems of law. In this era of economic and market globalization, mastering the two most widespread
legal systems in the world is more than ever a substantial asset

Roots of Bijuralism

• Survival of civil law after conquest

• Coutume de Paris was main source of law in New France until British conquest
• King of England, under the Treaty of Paris in 1763 ordered creation of courts to hear causes according to the Laws of England, but
citizens continued to organize their private laws outside of these courts.
• 1774 Quebec Act restored absolute authority of French laws from before conquest, except in criminal and penal cases.
• Constitution Act, 1867 – under s. 92(13) provinces have the power to legislate in respect of property and civil rights.
Ronald Chan F of CL case list 20181023
• 9 provinces and 3 territories use common law; 1 province uses civil law

Bijuralism Facts

• Until the 1970s, all acts were drafted in English and then translated into French by translators who were not recognized as having
any particular skills in law
• The requirements of bilingualism were met, at least formally, but legislative bijuralism was, so to speak, non-existent
• In 1978 co-drafting was introduced
o One francophone, who has usually been trained in civil law, and one Anglophone, who has usually been trained in the common law
• Bill C-50 was the first of a series of harmonization bills and represented the first milestone along the road to harmonization
• The harmonization procedure is concerned with ending any discrepancies in the application of federal laws
• One such technique , the doublet, is an effective tool of cohabitation; it involves including in legislation relating to private law both a
civil law term and a common law term

Rule of law

Substantive Content of the Rule of Law

In the Quebec Secession Reference held that these principles may give rise to substantive legal obligations (para. 54)
that directs and limits state action. In BC v. Imperial Tobacco (2005, SCC), the Court rejected the argument that the
rule of law requires that legislation: 1) be prospective; 2) be general in character; 3) not confer special privileges on the
government, except wherenecessary for effective governance; and 4) ensure a fair civil trial. Later in BC
v. Christie (2007, SCC), the SCC rejected the idea that the rule of law incorporates a right of access to legal counsel in all
judicial proceedings, a right which the plaintiff claimed was violated by a provincial tax on lawyer’s
services.